FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3977

_____________________________

RONALD LEE COLEMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County.

Linda F. McCallum, Judge.

September 14, 2020

WINOKUR, J.

Ronald Coleman was found guilty and convicted of two 

counts of sexual battery on a person between the ages of 12 and 

18. Among the State’s evidence at trial was the testimony of the 

victim as well as two witnesses who the victim discussed these

incidents with. Coleman argues that the trial court erred by 

failing to make specific factual findings in concluding that the 

victim’s hearsay statements were trustworthy and reliable. 

However, Coleman did not make this argument in the trial court, 

so we affirm.1

1 We affirm without further comment as to Coleman’s other 

arguments. 
2

The State filed two notices of its intent to admit childhearsay evidence pursuant to section 90.803(23), Florida 

Statutes. At a pretrial hearing, two witnesses—a woman who the 

victim described as her godmother and a case coordinator with a 

child protective team—testified that the victim disclosed

Coleman’s sexual batteries against her to them, and discussed 

the circumstances surrounding these conversations. After the 

witnesses’ testimony at the pretrial hearing, Coleman referenced

his written motion to exclude this hearsay testimony and added 

that the victim was untrustworthy, the circumstances 

surrounding the statements did not demonstrate reliability, and 

that the victim had a motive to fabricate allegations against him. 

The trial court referenced the circumstances surrounding the

first conversation, with the victim’s godmother, found them to 

sufficiently indicate reliability under State v. Townsend,2 and 

ruled that it would allow these statements to be admitted. The 

trial court stated that it would review the recorded interview 

with the child protective coordinator before ruling on that notice. 

The trial court then entered an order admitting the recordedinterview statements, which referenced the factors mentioned in 

Townsend and section 90.803(23)(a)1., and briefly summarized 

why the statements were sufficiently reliable to be admitted at 

trial. 

At the trial approximately five months later, the victim and 

both hearsay witnesses testified, as well as the victim’s mother, a 

nurse practitioner, investigator, and Williams3 Rule witness who 

testified that Coleman similarly raped her years ago when she 

was a child. The jury found Coleman guilty as charged. 

On appeal, Coleman argues that the trial court failed to 

make sufficiently detailed and specific factual findings to support 

the admission of child-hearsay statements. See § 90.803(23)(c), 

Fla. Stat. (“The court shall make specific findings of fact, on the 

2 State v. Townsend, 635 So. 2d 949, 957–58 (Fla. 1994)

(discussing factors that a trial court must and may consider in

determining whether a hearsay statement is reliable). 

3 Williams v. State, 110 So. 2d 654 (Fla. 1959).
3

record, as to the basis for its ruling under this subsection.”).4 This

argument was never placed before the trial court however, and is 

unpreserved. In Elwell v. State, 954 So. 2d 104, 109 (Fla. 2d DCA 

2007), the defendant argued that the victim’s statements were 

unreliable during the pretrial hearing and, prior to appeal, “never 

raised any objection concerning the sufficiency of the trial court’s 

findings under section 90.803(23).” Because the “trial court was 

never placed on notice of any error with respect to its findings 

and thus was never given an opportunity to correct the deficiency 

in the findings,” the “issue of the sufficiency of the findings was 

clearly unpreserved.” Id. We ruled similarly in McCloud v. State, 

91 So. 3d 940 (Fla. 1st DCA 2012): 

Although the appellant claims that the written order 

lacks sufficiently detailed findings, the appellant did not 

make that argument in the trial court and did not 

otherwise raise any issue then as to the adequacy of the 

written findings. Instead, the appellant let the case go to 

trial without raising the issue, and after being convicted 

he now attempts to interject this issue on appeal. But

because the appellant did not raise the issue in the trial 

court, where a claimed deficiency in the written order 

could be corrected, the issue has not been preserved for 

appeal.

4 See also, e.g., Townsend, 635 So. 2d at 958 (“[T]he trial 

judge merely listed each of the statements to be considered and 

summarily concluded, without explanation or factual findings, 

that the time, content, and circumstances of the statements to be 

admitted at trial were sufficient to reflect that the statements 

were reliable. This finding is clearly insufficient[.]”); Hopkins v. 

State, 632 So. 2d 1372, 1377 (Fla. 1994) (“Mere recitation of the 

boilerplate language of the statute, as the trial court did here, is 

not sufficient.”); G.H. v. State, 896 So. 2d 833, 835 (Fla. 1st DCA 

2005) (holding that “courts must make specific findings of fact, on 

the record, regarding the reliability of the statement” under 

section 90.803(23),” and “the trial court’s statement: ‘I find 

specifically that the statements are reliable and trustworthy, the 

testimony I’ve heard in this trial thus far,’ was conclusory and 

inadequate”). 
4

Id. at 940–41; see also Cowan v. State, 165 So. 3d 58 (Fla. 1st 

DCA 2015).5

Coleman argued pretrial that the victim’s statements to the 

two hearsay witnesses were unreliable, and later renewed this 

argument and made general objections to hearsay. But Coleman 

never asserted that the trial court’s findings were legally 

insufficient, which would permit the court to review and correct 

its findings if necessary. Therefore, his argument is unpreserved, 

and we affirm the judgment and sentence.

AFFIRMED.

M.K. THOMAS, J., concurs with opinion; MAKAR, J., dissents with 

opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

5 We reject the dissent’s contention that Hopkins requires a 

different result. McCloud relies on Elwell, and Elwell explicitly 

distinguishes Hopkins, so we make no claim that Elwell “trumps”

Hopkins. We also reject the suggestion that the preservation 

finding was dicta in McCloud. While it is true that the opinion 

mentioned in passing that the order contained sufficient findings

to support admission, it obviously affirmed primarily because the 

issue was not preserved for review, which is the subject of the 

entire opinion. We note also that Cowan applied McCloud on the 

same rule of law. Finally, we reject the contention that this issue 

is controlled by In Interest of R.L.R., 647 So. 2d 251 (Fla. 1st DCA

1994). To the extent that R.L.R. may conflict with McCloud or 

Cowan, we are obligated to follow the more recent decisions. See 

R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 604 (Fla. 

2017) (holding “where intradistrict conflict exists, the decision 

later in time overrules the former as the decisional law of the 

district” (citing Little v. State, 206 So. 2d 9, 10 (Fla. 1968))).
5

M.K. THOMAS, J., concurs with opinion.

I agree with the majority opinion. However, I write to 

address precedent on the issue of preservation in this context. 

This court has consistently applied the precedents of Hopkins v. 

State, 632 So. 2d 1372 (Fla. 1994), and State v. Townsend, 635 So. 

2d 949 (Fla. 1994), and the subsequent Legislative enactment of 

section 924.051(3), Florida Statutes (1996), when determining 

preservation for purposes of appeal of claims that an order or 

ruling admitting child hearsay testimony is insufficient.

Accordingly, Appellant’s judgment and sentence must be 

affirmed. Respectfully, I do not regard Hopkins and Townsend as 

establishing preservation for purposes of appeal of sufficiency

challenges under section 90.803(23)(c), Florida Statutes. Instead,

Hopkins and Townsend require an appellate court’s “whole record 

review” to determine whether, following a ruling on a defendant’s 

objection to the reliability of child hearsay testimony, the 

defendant adequately placed the trial court on notice of a 

sufficiency challenge under section 90.803(23)(c). Under this 

approach, each case turns on its unique factual and procedural 

backdrop.

In Hopkins, after a lengthy hearing on the matter, the trial 

court orally denied Hopkins’ motion to suppress, and the trial

immediately began. 632 So. 2d at 1376. Thus, no written order 

was entered. When the witnesses were called to testify at trial, 

Hopkins continued to raise objections to “the admission of the 

hearsay statements” and requested that the trial court recognize 

a continuing objection. Id. The trial court denied the request. Id.

In reaching its decision, the supreme court focused on whether 

sufficient notice was provided to the trial court under the 

circumstances. Id. Despite it opining that “it would have been 

preferable for defense counsel to object each time the hearsay 

testimony was introduced,” the supreme court determined that,

under the facts, “[t]he trial court was put on notice of the 

potential error by the pretrial hearing and by defense counsel's 

request for a continuing objection during trial.” Id. 

Just two months after Hopkins, the supreme court again 

addressed preservation of sufficiency challenges under section 

90.803(23)(c). See Townsend, 635 So. 2d 949. In Townsend, the 
6

trial court failed to provide an explanation or factual findings to 

support its conclusion that the child-hearsay statements were 

reliable. Id. at 958. However, the supreme court unanimously 

declared that an objection to the lack of sufficient findings by the 

trial court was necessary for Townsend to raise the issue on 

appeal, stating, “It is questionable . . . whether Townsend 

properly preserved . . . issues, such as the failure of the trial 

judge to make specific factual findings regarding the reliability of 

the child's statements.” Id. at 959. Reiterating that “the failure of 

a trial judge to make sufficient findings under the statute, in and 

of itself, does not constitute fundamental error,” the court turned 

to whether Townsend had preserved the sufficiency challenge for 

appeal. Id. at 959. The court noted that it reached its conclusion 

by considering the “errors as a whole,” and explained as follows:

Consequently, were we not reviewing these errors as a 

whole, we might find that some of the errors to which no 

objection was made were procedurally barred. When, 

however, we consider the errors in this case as a whole, 

we must conclude that Townsend was denied the 

fundamental right to due process and the right to a fair 

trial.

Id. at 959-60 (citations omitted).

In Townsend, the supreme court cited Jones v. State, 610 So.

2d 105, 105–06 (Fla. 3d DCA 1992), which held that a challenge 

to the factual findings under section 90.803(23) “should have 

been made in more detail” and was “not preserved for appellate 

review, because no contemporaneous objection was made to the 

sufficiency of the trial court’s findings.” Id. at 959. The supreme 

court applied a whole record review, not a quest for specific magic 

words, to determine whether the trial court was placed on notice.

Townsend clearly dispelled any interpretation of Hopkins that 

the supreme court adopted an automatic preservation rule for 

sufficiency challenges once a defendant objects to the reliability of 

the child hearsay statements.

In the wake of Townsend, a “whole record review” has been 

applied by this Court to determine preservation of subsection 

(23)(c) sufficiency challenges. See Mathis v. State, 682 So. 2d 175, 
7

178 (Fla. 1st DCA 1996) (concluding that the trial court 

understood the defendant’s objection was based on the legal 

sufficiency of the court’s findings and ruling that the court had 

been put on notice of the potential error under Hopkins); In the 

Interest of R.L.R., 647 So. 2d 251 (Fla. 1st DCA 1994) (holding the 

issue of sufficiency of findings pursuant to section 90.803(23)

preserved for review because, read in context, objection clearly 

put parties and court on notice of its basis).

Two years after Townsend, the Legislature enacted section 

924.051(3) as part of the Criminal Appeal Reform Act of 1996. 

Subsection (3) incorporated the “whole record review” analysis 

and fortified preservation requirements. The statute provides as 

follows:

An appeal may not be taken from a judgment or order of 

a trial court unless a prejudicial error is alleged and is 

properly preserved or, if not properly preserved, would 

constitute fundamental error. A judgment or sentence 

may be reversed on appeal only when an appellate court 

determines after a review of the complete record that 

prejudicial error occurred and was properly preserved in 

the trial court or, if not properly preserved, would 

constitute fundamental error. 

§ 924.051(3), Fla. Stat. (emphasis added). The supreme court 

later acknowledged that “it is clear from the language of section 

924.051(3) that the Legislature intended to condition reversal of a 

conviction on the existence of either an error that was preserved 

and prejudicial or an unpreserved error that constitutes 

fundamental error.” State v. Jefferson, 758 So. 2d 661, 664 (Fla. 

2000).

Following enactment of section 924.051, this Court continues

to properly apply its mandates. See Knight v. State, 254 So. 3d 

642, 644 (Fla. 1st DCA 2018) (holding appellant did not preserve 

any argument on the sufficiency of the trial court order);

Rodriguez v. State, 120 So. 3d 656, 657 (Fla. 1st DCA 2013)

(“Absent a definitive pre-trial ruling, appellant was required to 

object to the admission of the child hearsay testimony at trial.”); 

McCloud v. State, 91 So. 3d 940, 940–41 (Fla. 1st DCA 2012)
8

(holding appellant did not preserve the issue for appeal as he did 

not contest the sufficiency of the findings while in the trial court);

Womack v. State, 855 So. 2d 1236, 1237 (Fla. 1st DCA 2003)

(“[A]ppellant’s general objection, recognized by the trial court as a 

continuing objection, preserved the issue for appeal.”).

In Elwell v. State, 954 So. 2d 104 (Fla. 2d DCA 2007), thenJudge Canady authored an insightful opinion addressing interdistrict conflict regarding preservation of sufficiency challenges. 

Artfully, he distinguished the cases in which reliability objections

to child hearsay testimony were raised before the trial court’s 

ruling on admissibility from those objections raised after the trial 

court’s ruling, id. at 107–08, a critical distinction when applying 

the “whole record review” analysis. Then-Judge Canady further

emphasized the context in which the objections were raised—a 

request for continuing objection or objections raised immediately 

following an oral pronouncement by the trial court but just before 

trial began. Id. In Elwell, the Second District declined to adopt a 

reading of Hopkins as imposing an automatic preservation rule

for sufficiency challenges upon the raising of a reliability 

objection and further distinguished Hopkins as preceding the 

adoption of section 924.051, with its “exacting requirements 

regarding the preservation of error.” Id. 

Our dissenting colleague expresses discomfort with the 

majority opinion and this Court’s opinion in In re R.L.R., 647 So.

2d 251 (Fla. 1st DCA 1995). I regard the case as a distinguishable 

outlier which does not pose contrary precedent. The setting of 

R.L.R. was an adjudicatory hearing on an amended petition for 

dependency which alleged that the appellant had sexually abused 

his child. Id. at 252. During the hearing, a pediatrician who 

examined the child was asked a question potentially eliciting 

child hearsay. Id. The appellant objected and questioned the

reliability of the child hearsay under section 90.803(23)(a). Id.

The trial court allowed the testimony to proceed, with a caveat 

regarding establishment of a proper predicate for admissibility or 

the testimony would not be considered. Id. Following all 

testimony, the trial court ruled the testimony admissible. Id. 

After the hearing, the trial court issued a written order on

dependency. Id. On appeal, this Court allowed the appellant to 

assert a sufficiency challenge under 90.803(23)(c), finding the
9

objections in the context of the record were enough for appellate 

preservation and that introduction of the testimony was likely

not harmless error. Id. at 254. Citing Hopkins, this Court did not 

apply an automatic preservation rule but, based on the record,

determined the sufficiency challenge was preserved. Id. at 253–

54. Notably, R.L.R. also cites to Townsend—the opinion issued by 

the supreme court two months after Hopkins and which clarified 

it was not adopting an automatic preservation rule. Id. at 253.

Lastly, the decision in R.L.R. preceded the adoption of section 

924.051, which sets forth requirements for preservation. 

No party “should be able to argue for reversal on appeal on 

grounds that the trial court failed to make a critical factual 

finding on the record without first objecting on that basis—and 

giving the trial court an opportunity to correct any error at that 

time.” Spencer v. State, 238 So. 3d 708, 723 (Fla. 2018) (Lawson, 

J., concurring) (citing Elwell, 954 So. 2d 104, with approval).

Here, Coleman failed to place the trial court on notice of any 

issue he took with the sufficiency of the ruling. The trial court 

conducted a lengthy pre-trial hearing and orally pronounced a 

partial denial of his motion and reserved ruling on the 

remainder. Coleman raised no objections upon the partial oral 

pronouncement. Subsequently, the trial court issued a multi-page 

order denying the remainder of Coleman’s motion to suppress

and providing the reasoning. Coleman did not file a motion for 

rehearing nor any other pleading challenging the sufficiency of 

the order pursuant to 90.803(23)(c). Five months later when the 

trial began, Coleman renewed his prior motion as to Williams∗

rule evidence and a statement of particulars but raised no 

objections to the adequacy of the trial court’s ruling. All other 

objections raised were identical to those from the motion to 

suppress hearing. In fact, at a hearing on Coleman’s motion for 

new trial, he “renew[ed] all the grounds that are stated in the 

motion,” referring to the original motion to suppress. Accordingly, 

the trial court was never placed on notice of any error with 

respect to its findings and, thus, was never given an opportunity 

to correct any deficiency.

∗ Williams v. State, 110 So. 2d 654 (Fla. 1959).
10

Separate and apart from reliability factors enumerated in 

section 90.803(23)(a), subpart (c) requires that “[t]he court shall

make specific findings of fact, on the record, as to the basis for its 

ruling under this subsection.” A sufficiency challenge relates not 

to the merits of the section 90.803(23)(a) analysis but to the 

contents or breadth of the challenged order. Thus, if the initial 

objection to admissibility of child hearsay testimony is that of 

reliability and such an objection is a necessary precursor to a 

trial court’s ruling—how can a pre-order objection to reliability, 

without more, be deemed preservation of a challenge to the 

contents of an order not yet entered? Automatic preservation in 

this context is a hysteron proteron. That is, a logical fallacy that 

an objection to reliability of child hearsay statements necessarily 

deems any forthcoming order of denial as substantively deficient.

Objections are required to “place[] the trial judge on notice 

that error may have been committed, and provide[] him an 

opportunity to correct it at an early stage of the proceedings.”

Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (quoting Castor v. 

State, 365 So. 2d 701, 703 (Fla. 1978)). Coleman did not afford the 

trial court the opportunity to correct any alleged errors regarding 

the sufficiency of its ruling. Accordingly, a sufficiency challenge 

under section 90.803(23)(c), was not preserved for appeal.

MAKAR, J., dissenting.

Ronald Lee Coleman argued pretrial that statements by the 

victim to two hearsay witnesses were unreliable and 

untrustworthy; he later renewed this argument and made 

general objections. In doing so, Coleman’s counsel properly 

preserved the claim that the trial court erred in its findings as to 

trustworthiness and reliability that were necessary to allow the 

child hearsay testimony in this case under section 90.803(23), 

Florida Statutes (2020).

The State initially conceded that Coleman preserved his 

claim but changed its position after the parties “were directed to 

file supplement briefs addressing whether [the section 90.802(23) 

issue] was properly preserved” for our consideration.
11

As to preservation, Coleman continues to correctly point out

that a defendant’s objections to the reliability and 

trustworthiness of child hearsay evidence necessarily encompass 

the sufficiency of findings of reliability and trustworthiness. That 

is precisely the holding of our supreme court in Hopkins v. State, 

632 So. 2d 1372, 1375 (Fla. 1994). In Hopkins, the defendant 

“argue[d] that the trial court failed to make sufficient findings 

under section 90.803(23) to admit the out-of-court statements of 

the child victim.” Id. at 1376 (footnote omitted). As here, a

detailed pre-trial hearing was held at which the defendant 

“objected to the admissibility of the hearsay statements, arguing 

that there was no showing of reliability.” Id. On appeal, the 

supreme court held that the issue of the sufficiency of the trial 

court’s factual findings was preserved because “defense counsel’s 

objection to the reliability of the evidence necessarily 

encompassed the sufficiency of the judge’s findings as to that 

reliability. Counsel was not required to specify each finding of 

fact to which he was objecting.” Id. Because Hopkins is directly 

on point, it controls the preservation issue in this appeal, ending 

the inquiry.

But there is more. On almost identical facts involving a 

section 90.803(23) challenge, this Court deemed Hopkins to be 

controlling on the preservation issue in this case and also rejected 

the argument that specific objections to evidentiary sufficiency

must be made:

Appellant argues that the trial court made 

insufficient findings to satisfy the prerequisites to 

admissibility of R.R.’s statements set forth in section 

90.803(23)(a) 1. and 2.b. and that, therefore, allowing 

the testimony regarding those statements constituted 

reversible error. Appellees . . . respond that we should 

affirm because (1) appellant failed to object to the 

sufficiency of the trial court’s findings and, therefore, 

the issue has not been preserved for review; and (2) 

assuming the issue has been preserved, the trial court’s 

findings are sufficient to satisfy the requirements of

section 90.803(23).
12

The outcome of this appeal is controlled by the 

recent decision in Hopkins v. State, 632 So. 2d 1372 (Fla.

1994), which . . . requires that we reverse.

In Hopkins, the appellant argued, among other 

things, “that the trial court failed to make sufficient 

findings under section 90.803(23) to admit the out-ofcourt statements of the child victim.” The court agreed. 

In doing so, it expressly rejected the first argument 

made by appellees here, holding that “defense counsel’s 

objection to the reliability of the evidence [in the form of 

a hearsay objection] necessarily encompassed the 

sufficiency of the judge’s findings as to that reliability. 

Counsel was not required to specify each finding of fact 

to which he was objecting.” It also held to be legally 

insufficient to satisfy the requirement that the trial 

court “make specific findings of fact” comments 

substantively indistinguishable from those made by the 

trial court in this case.

In Interest of R.L.R., 647 So. 2d 251, 253 (Fla. 1st DCA 1994)

(citations omitted). Based on this language, Hopkins and R.L.R. 

require that Coleman be heard on his challenge under section 

90.803(23). Findings of reliability and trustworthiness are 

necessarily based on evidence of those factors, such that an 

objection as to reliability and trustworthiness is necessarily one 

that encompasses evidentiary sufficiency. As such, Coleman’s 

objection necessarily encompassed the sufficiency of the trial 

judge’s findings as to both. See Hopkins, 632 So. 2d at 1375; 

R.L.R., 647 So. 2d at 253.

Rather than rely on the supreme court’s decision in Hopkins

and this Court’s decision in R.L.R. (which says Hopkins controls), 

the majority bases its holding on a Second District case, Elwell v.

State, 954 So. 2d 104, 107 (Fla. 2d DCA 2007), which specifically 

disagreed with this Court’s decision in R.L.R., noting that R.L.R. 

and two other First District cases1 were among “decisions of other 

1 Womack v. State, 855 So. 2d 1236, 1237 (Fla. 1st DCA 2003) 

(holding that a “general objection,” which was deemed a 

continuing one, “preserved the issue for appeal.”); Mathis v. State, 
13

districts” that “have held that objections or challenges to the 

child-hearsay statements made prior to the trial court’s rulings 

are sufficient to preserve for appeal the issue of the sufficiency of 

the trial court’s findings.”

Rejecting this Court’s approach, the two-judge majority2 in 

Elwell held that Hopkins did not apply because it included, in 

part, a confrontation clause issue under section 92.54, Florida 

Statutes, which provides that a trial court “may order that the 

testimony of the victim or witness be taken outside of the 

courtroom and shown by means of closed-circuit television.” 

§ 92.54(1), Fla. Stat. (2020). The Elwell majority apparently 

believed that Hopkins’s holding as to preservation hinged solely 

on the protection of a constitutional right of confrontation where 

closed-circuit television is used under section 92.54. It 

overlooked, however, that the decision in Hopkins had a second

issue, one involving the same statute in this case, section 

90.803(23):

[W]e address a second evidentiary issue raised by 

Hopkins. Hopkins argues that the trial court failed to 

make sufficient findings under section 90.803(23) to 

admit the out-of-court statements of the child victim. 

The district court found that “defense counsel’s general 

hearsay objections to the testimony were not sufficiently 

specific to preserve the issue for appellate review.” We 

disagree.

632 So. 2d at 1376 (citations omitted) (footnote omitted)

(emphasis added). As emphasized (and discussed earlier), the 

supreme court expressly based its second preservation holding on 

682 So. 2d 175, 178 (Fla. 1st DCA 1996), disapproved of on other

grounds, Dudley v. State, 139 So. 3d 273 (Fla. 2014).

2 954 So. 3d at 109–10 (“However, contrary to the majority 

view, it is my view that under the reasoning in Hopkins v. State,

632 So. 2d 1372 (Fla. 1994), Elwell’s challenge to the admission of 

child-hearsay statements was preserved for review.”) (Fulmer, 

C.J., specially concurring).
14

the premise that objections under section 90.803(23) include 

evidentiary sufficiency. The court in Elwell appears to have 

missed this point.

The majority also relies on McCloud v. State, 91 So. 3d 940 

(Fla. 1st DCA 2012), saying it is similar to Elwell, which is cited 

in that opinion. But McCloud has no precedential weight because 

its discussion of preservation is pure dicta. That’s because the 

panel specifically held that the challenged “order does contain 

sufficient findings” thereby making its additional discussion of 

the preservation issue needless. Id. at 940. And its discussion is 

dicta whether it is one sentence, two paragraphs, or most of what 

was written. Moreover, the opinion in McCloud is opaque as to 

when the objection was made. It says only that a pre-trial 

hearing was held, that the “appellant subsequently argued that 

the child’s statements were not shown to be reliable enough to 

satisfy the requirements of section 90.803(23),” and that 

“appellant let the case go to trial without raising the issue, and 

after being convicted he now attempts to interject this issue on 

appeal.” Id. at 940-41. Plus, McCloud differs factually, and 

thereby is inapplicable here, because Coleman properly objected 

and didn’t just idly “let the case go to trial without raising the 

issue” only to “interject this issue on appeal.” Id. at 941. Finally, 

the decision in McCloud makes no mention of Hopkins or the 

other relevant cases from this Court, such as R.L.R., that are 

pertinent on the matter. 

Despite all this, and in face of contrary precedent, the 

majority clings to the Second District’s case in Elwell as if it is 

binding in our district and makes the remarkable contention that 

McCloud somehow controls because it is claimed to be the most 

recent case in a line of conflicting intra-district decisions. But the 

majority makes no effort to demonstrate that such a conflict

actually exists on the specific facts and legal analysis of the 

allegedly conflicting cases. If anything, McCloud is an outlier in 

this District, if not an outlaw, because it doesn’t even mention 

Hopkins or R.L.R. and the other First District cases (Womack and 

Mathis) that even Elwell said were contrary to its holding; the 

same is true for the terse, one-paragraph per curiam opinion in 

Cowan v. State, 165 So. 3d 58 (Fla. 1st DCA 2015).
15

And this case is not about a so-called “automatic 

preservation” rule, a phrase never before used in Florida’s 

jurisprudence. Fundamental errors can be said to be 

automatically preserved, Cromartie v. State, 70 So. 3d 559, 563 

(Fla. 2011), but this case has nothing to do with such errors. 

Moreover, the statutory codification in 1996 of the thenprevailing standards for preservation of error in criminal cases 

changed nothing other than to legislatively adopt what was 

already prevailing in the judicial world. See State v. Jefferson, 

758 So. 2d 661, 666 (Fla. 2000) (“construing [newly-enacted 

section 924.051(3)] as merely codifying the existing procedural 

bars to appellate review both upholds the statute’s 

constitutionality and is consistent with the actual legislative 

intent in passing the Act”); see generally Ch. 96-248, § 4, Laws of 

Fla. (creating section 924.051). To go beyond the statute’s 

purpose, which was simply codification of the status quo, could be 

deemed a restriction on “the subject matter jurisdiction of the 

appellate courts in a manner not authorized by the constitution” 

and be thereby “unconstitutional,” which is not a good thing. Id.

at 665. And making a timely and proper objection as to the 

reliability and trustworthiness of child hearsay evidence doesn’t 

put the cart before the horse; it anticipates that the cart will be

empty because insufficient evidence exists as to reliability and 

trustworthiness. So says Hopkins. See Hopkins, 632 So. 2d at 

1376 (sufficiency of the trial court’s factual findings was 

preserved because “defense counsel’s objection to the reliability of 

the evidence necessarily encompassed the sufficiency of the 

judge’s findings as to that reliability. Counsel was not required to 

specify each finding of fact to which he was objecting.”).

In a judicial system founded upon stare decisis and its 

principles of stability, predictability and judicial restraint, our 

supreme court’s decision in Hopkins is an authoritative 

precedent, one that directly supports the conclusion that 

Coleman adequately preserved his objections under section 

90.803(23), Florida Statutes. The Second District’s decision in

Elwell does not trump the supreme court’s decision in Hopkins,

nor is it binding on this Court. And the panel majority in this 

case cannot overrule R.L.R. and the other decisions of this Court 

on the topic, claiming that dicta in an opaquely written outlier 

controls; if conflict exists as is claimed, the en banc rule stands 
16

ready to bring about uniformity. Short of en banc review, 

Hopkins and R.L.R. collectively control the preservation issue 

under section 90.803(23) in this appeal.

_____________________________

Andy Thomas, Public Defender, Joanna A. Mauer, Assistant 

Public Defender, and Kathleen Pafford, Assistant Public 

Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Robert Quentin Humphrey,

Assistant Attorney General, and Damaris E. Reynolds, Assistant 

Attorney General, Tallahassee, for Appellee.