## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 17

- 3977

_____________________________

R ONALD L EE C OLEMAN ,
Appellant,

v.

S TATE OF F LORIDA ,
Appellee.

_____________________________

On appeal from the Circuit Court f or Duval County

. Linda F. McCallum , Judge

.
September 14, 2020

W INOKUR , J

.
Ronald Coleman was found guilty and convicted of two
counts o f sexual battery on a p erson between the age s of 12 and 18. A mong the State ’ s ev idence at trial was the testimony of th e victim a s well as t wo witnesses who the victim discussed the se incidents with. Coleman argues that the trial court erred by failing to make spec ific factual findings in conclu ding that the victim ’ s hear say statements were trustworthy and reliable. Howe ve r, Coleman did n ot make this argument in the trial court, so we affirm

. 1

1 We affirm without fu r t her co mment as to Coleman ’ s other arguments.2 The State filed t wo notices of i ts intent to admit child

hea rsay evid ence p ursuant to section 90.803(23), Flo rida Statutes. At a pretrial hearing, two witnesses

— a wom an who the vict im described as he r godmother and a ca se coordinator with a child protective team

— testified that the victim dis closed Coleman ’ s sexual batteries against her to them , and discussed the circumstances surround ing these conversations. After t he witn esses ’ test im ony a t the p retr ial hearing

, Coleman r eferenced his written motion to exclude thi s hearsay testimony and added that the victim was untrustworthy, the cir cumstances surrounding the statements d id not demonstrate reliability, and that the victim ha d a moti ve to fabric ate all egations against him. The trial court referenced th e circumstances s urrounding the first conversation , with the victim ’ s godmother, found the m to sufficiently indicate reliability under State v. Townsend

, 2 and

r uled that it would allow t he se stateme nts to be admitted. The trial court stated that it would review the recorded interview with the child protective co ordinator be fore ruling on that notice. The tr ial court then entered an order admitting the record ed

interview statements, which re ferenced t he fact ors mentioned in Townsend and section 90.80 3(23)(a)1., and briefly summariz ed why the statements were sufficiently reliable to be admitted at trial.

At the trial approximately five months later, the victim and both hearsay witnesses tes ti fied, as w ell as the victim ’ s mother, a

nurse practitioner

, investigator, and Will iams 3 Rul e witness who
test ified that Coleman similarly raped her years ago when she

was a c hild. The jury f ound Coleman guilty as charged.

On appeal, Coleman argues tha t th e trial co urt fai led to make sufficiently de tailed and specific factual f indings to suppor t the admission of child

- hearsay stateme nts. 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) ( dis cu ssing factors th at a trial c ou rt must and may consider in determining wheth er a hearsa y statement is reliable )

.

3 Williams v. State , 110 So. 2d 6 5 4 (Fla. 1959)

.3 r ecord, as to the basis for it s ruling und er this sub section. ” ). 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 th at the victim ’ s statements were unreliable during the pr et rial hea ring an d , p rior to appeal, “ never raised any objection concerning the sufficiency of the trial court ’ s finding s under section 90.803(23)

. ” B ecause the “ trial court was never placed on notice of any error with respect to its findings and thus wa s never give n an op port unity 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 t ha t the writ ten ord er lacks sufficiently detailed findi ngs, the appellant did not make that argument in the tri al 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 w it hout raisi ng 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 n ot been pres erved f or appeal.

4 See also

, e.g. , Townsend , 635 So. 2d at 958 ( “[T] he trial judge merely listed each of t he st atements to be c onsidered an d summarily concl u ded, withou t explanation or factual findings, that the time, content, and circumstances of the sta te m e nts to be admitted at trial were sufficient to reflect that the statements were reliable. This finding is cl early ins ufficie nt [.] ” ) ; Hop ki ns v. State , 63 2 So. 2d 137 2, 1377 (Fla. 1994) ( “ Mere recitation of the boilerplate language of the statute, as th e t r ial co urt did here, is not sufficient

. ”); G.H. v. State , 896 So. 2d 833, 835 (Fla. 1st DCA 2005) ( hold i ng th at “ courts must make specifi c findings of fac t , on the re cord, regarding the reliability of the statement ” under section 90.80 3(23)

, ” and “th e t ri a l court ’ s statement: ‘ I find specifically that the statements are reliable and trustworthy, the testimo n y I ’ v e heard in this trial thus f ar , ’ was concluso r y and inade quate ” )

.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 w ere unreliable

, and later ren ewed this argument and made g eneral o bj ections t o h earsay . But Coleman never asserted that the trial court ’ s findings were legally insufficient, wh ich would permi t the cou rt to r eview and correct its findings if necessary. Therefore, his argument is unpreserved, and we affirm the jud gment an d s entence.

A F FIRMED

.
M.K. T HOMAS , J

., concur s with opinion ; M AKAR , J., dissents with opi nion

.

_____________________________ 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 res ult. McCloud relies on Elwell

, and Elwell explicitly distinguishes Hopkins

, so we make no claim that Elwell “ t rum ps ” Hopkins

. We al so reject th e suggestion that the preserv ation fi nding w as di cta in McCloud . While it is true that the opinion mentioned in passing that the order contain ed suf f

icient findings to support admission

, it obviously affirm ed primarily bec a use t he issue was not preserved f or review , which is the sub je ct of the entire op inion

. We note also that Cowan applied McCloud on the

s ame rule of law. Finally, we reject the conte ntion that t his issue is cont rolled by In Interest of R.L.R. , 647 So. 2d 2 5 1 ( Fl a. 1st DCA 1994)

. To the ext en t that R. L. R. m ay conflict with McCloud or Cow an , we are obligated to f ollow the more recent decisions. See R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590 , 604 (Fla. 2017) ( holding “where intradistrict conflict exi s ts, t he decision late r in time ov er rules the forme r as the dec ision al law of the district” (citing Little v. State , 206 So. 2d 9, 10 (Fla. 1968) ) )

.5 M.K. T H OMAS , 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 precedent s of Hopkins v. State , 632 So. 2d 1372 (Fl a. 1994)

, a n d State v. Townsend

, 6 35 So. 2d 94 9 (Fla. 1994)

, and the subsequent Legislative enactment of section 924.0 51 (3), Florida Statu t es (1996)

, when determining preservation for purposes of appeal of claims that an order or ruling admitting child hearsay testimony is ins ufficient

. A c cordingly, Appellant’s judgment and sentence must be affirmed

. Respectfully, I do not regard Hopkins and Townsend as establish ing preservation for purposes of appeal of sufficiency challenges under section 90.803 (23) (c) , Florida Statutes

. Inst ead, Hopkins and Townsend require a n 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

s ufficiency c h allenge under section 90.803 (23) (c). Under this approach, e ach case turns on its unique factual and procedural backdrop

.

I n Hopkins

, a fter a lengthy hearing on the matter, t he trial
court orally denied Hopkins’ motion to suppress

, and the tr ial immediat e ly 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 recogn ize

a contin u ing objection. Id. The trial court denied the request. Id. In reaching its decision, t he supreme court focused on whether sufficient notice was provided to the trial court under the circumstances. Id. Despite it opining that “it would have bee n preferable for defense counsel to object each time the hearsay testimony was introduced,” t he supreme court determined that

, under the facts

, “[t]he trial court was put on notice of the potential error by the pretrial hear ing and by defense counsel's

req uest for a c o ntinuing objection during trial.” Id

.

Just t wo 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

, the6 trial court fail ed to provide an e x planation 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 ne cessary for T ownsend 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 statem ents.” Id. at 959. Re iterating th a t “ 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 c ourt noted t h at it reached its conclusion by considering the “errors as a whole,” and explained as follows :

Consequently, were we not reviewing thes e errors as a whole, we might find that some of the errors to which no objection was made were procedurally barred. Whe n , however, we consider the errors in this case as a whole, we must conclude that Townsend was denied the fundamental right to due proces s and the right to a fair trial.

Id. at 959

- 60 (citations omitted).

In Townsend , the supreme court cited Jo n es v. State, 610 So. 2d 105, 105

– 06 (Fla. 3d DCA 1992) , which held that a challenge
to th e factual findings under section 90.803 (23) “should have been made in more detail” and was “not preserved for appellate review, because no co ntemporaneous objec tion was mad e to the sufficiency of the trial court ’ s findings.” Id . at 959. The supreme
court a pplied 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 in terpretation 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 Cou r t 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 f indi n gs 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 9 0.803(23)

p reser v ed f o r 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) incorpora ted t h e “w h ole 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 preser ved or, if n ot pr o perl y preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only wh en an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the tria l cou r t or , if not properly preserved, would constitute fundamental error.

§ 924.051(3), Fla. Stat. (emphasis add ed). T he supreme court later acknowledged that “ it is clear from the language of section 924.051(3) that the L egislature i ntend e d 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 en actment of s ectio n 924

. 051, t his C ourt continue s to properly apply its mandates

. See Knight v . State , 254 So. 3d 642, 644 (Fla. 1s t DCA 2018) (holding appellant did not preserve any argument on the sufficiency of the trial court order) ; Rodriguez v. State

, 120 So. 3d 656
, 6 57 ( F la. 1st DCA 2013) (“Absent a definitive pre

- trial ruling, a p pellant 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 di d not preser ve th e iss u e for appeal as he did not contest the sufficiency of the fi ndings 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 cou r t as a continuing objection, preserved the issue for appea l.”)

.

In Elwell v. State , 954 So

. 2d 104 (Fla. 2d DCA 2007), t hen

Judge Canady authored an insightful opinion addressing inter

district conflict rega rding preservation of sufficiency challenges. A r tful l y, he distin guished 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

, i d. at 107

– 08
, a critical distinction w h en a p plying the “ whole record review” analysis. Then

- Judge Canady f urther 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 beg an

. Id. In Elwell , the Second District declined to a dopt a reading of Hopkins as impos ing an automatic preservation rule for sufficiency challenges upon the raising of a reliability objection and further distinguished H o

pkins as prece d ing t he adoption of section 9 24.051, with its “exacting re q uirements regarding the preservation of error.” Id

.

Our dissenting colleague expresses discomfort with the majority opinion and this Co urt’s opinion in In re R

. L

. R

. , 647 So

. 2d 251 (Fla. 1st DCA 1995 )

. I regard t he 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 a ppellant had sexually abused his child. Id. at 25 2

. Du r ing the hear ing

, a pedia trician who examined the child was asked a question potentially eliciting child hearsa y. Id. The a ppellant object ed and question ed the reliability of the child hearsay under section 90.803(23) (a)

. Id. The trial court allowed t h e te s timony to pr oceed, 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 c o urt i ssued a writ ten order on dependency. Id. On appeal , this C ourt allowed the appellant to assert a sufficiency challenge under 90.803(23)(c)

, finding the9 objections in th e context of the record were enough for appellate preservation and that introducti o n of the testimon y was likely not harmless error

. Id. at 254. Citing Hopkins , this C ourt 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 cit e s t o Townsend

— the opi nion 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 re q uir e m ents for preserv ation.

N o 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 op portunity to c o rrect any error at that time .” Spen cer 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 suffici ency of t h e r u l ing. The trial c ourt conduct ed a lengthy pre

- trial hearing and orally pronounced a partial denial of his motion and reserved ruling on the remainder. Coleman raised n o objections upon the partial oral pronouncement. S u b sequently , the trial court issu e d a m ulti

- page order denying the remainder of Coleman’s motion to suppress and providing the reasoning

. Coleman did not file a motion for rehearing n or any other pleading challeng ing the sufficiency of the order pursuant to 90.803(23)(c)

. F ive months late r wh e n the trial began , Coleman re newed 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 ra ised were identical to those from the motion t o

s u p press hearing. I n fact, at a hearing on Coleman’s motion for new trial, he “renew[ed] all the ground s 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 w i th

r e spect to its fin dings and

, t hus

, was never given an opportunity
to correct any deficiency

.

∗ Williams v. State

, 110 So. 2d 654 (Fla. 1959).10 Sep a rate 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, o n t h e record, as to t he 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 admissib i lit y of child hearsay testimony i s 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 n o t y e t entered ? Automa tic preserva tion in this context i s 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.

O bjections are r equired to “ plac e[] the tria l 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 7 01, 703 (Fla. 19 78))

. Colema n 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.

M A K AR , J ., dissentin g.

Ronald Lee C oleman argued pretrial that statement s by the victim to two hearsay witnesses were unreliable and untrustworthy; he later renewed this argument and made general objections. In doing so, C oleman’s counsel properly preserved the c laim that the tr ial court er red in its findings as to trustworthiness and reliability that were necessary to allow the child hearsay testimony in this case under section 90.80 3 (23), Florida Statutes (2020)

.
The State initially conceded that Coleman p res er ved his claim bu t changed it s 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 poi n t o ut that a defendan t’s objectio ns 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. Sta t e , 63 2 So. 2d 1372, 1 375 (Fla. 19 94)

. 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 de ta iled pre

- trial h earing was h eld 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

c o urt ’s factual finding s was preser ved 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 t o wh ic h he was objecti ng. ” Id. Bec ause Hopkins is directly on point, it controls the preservation issue in this appeal , en ding the inquiry.

But there is more. On almost identical facts involving a section 90.803(23) challenge , this Court deemed Hopkins to be

co ntrolling on the preservatio n issue in this case and also rejected the argument that specific objections to evidentiary sufficien cy must be made :

Appellant argues that the trial court made insufficient findings to satisfy the prerequisites to admiss i bil it y of R.R. ’ s stat ements set f orth 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 o b jec t to the sufficien cy of the tr ial cour t ’ 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 o utcome of this a ppeal is con trolled 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 f

ind in gs under section 90.803(23) to admit the out

- of

court 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 evi de nce [in the form of a hearsa y object ion] 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 insuffici e nt to satisfy the req uirement tha t the tr ial 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 omitte d ). Ba sed on this lang uage, Hopkin s 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 t rustworthiness i s necessaril y 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.

R a the r t han rely on the supreme cou rt’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 specifica l ly di s agreed with thi s Court’s de cision in R.L.R. , noting that R.L.R. and two other First District cases 1 w ere among “ decisions of other

1 Womack v. State , 855 So. 2d 1236, 1237 (Fla. 1st DCA 200 3 ) ( ho lding that a “ge neral object io n,” 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 r ul i ngs are suffici ent to prese rve for appeal the issue of the sufficiency of the trial court ’ s findings.”

Rejecting this Court’s app roach, the two

- judge majority 2 in Elwell held that Hopkins did not apply because it included, in part, a confrontation cla us e issue under se ction 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 o f closed

- circuit television.” § 92.54(1), Fla. Stat. (2020). The E l well majority a pparently be lieved 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 deci s ion i n 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 ad m it the out

- of

- c ourt stateme nts 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 1 376 ( c itations omitte d) (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 a t 109

– 10 (“ Howev er, contrary t o 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., spe c ial ly concurring)

.14 the premise that objections under section 90.803(23) include evidentiary sufficiency. T he co u rt in Elwell ap pears to hav e 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 disc u ssi on of preservation is pure dic ta . 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 dic t a w he t her it is one s entence
, 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 “ appella nt subsequently argued that the child ’ s s ta t ements 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 94 0

- 41. Plus, McCl oud 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 de c isi on in McCloud make s 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 a s i f i t is binding in our distric t 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 s u ch a c onflict actuall y exists on the specific facts and legal analysis of the allegedly conflicting cases. I f anything, McCloud is an outlier in this District, if not an outlaw, because it doesn’t ev en mention Hopkins or R.L.R. and the other First Distric t ca se s ( Womack and Ma this ) that e ven 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

preser v ati on ” rule

, a phrase never befor e 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 cod if i cation in 1996 of the then

prevailing 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) ( “ co ns t ruing [ newly

- en acted sectio n 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. 9 6

- 24 8, § 4, Laws of Fl a. (creating section 924.051) . To go beyond the statute’s purpose, which was simply codification of the status quo, could be deemed a restrict ion on “ the subject matter jurisdiction of the appellate courts in a manner n ot authorized b y th e c onstitution ”

an d 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 tha t t he cart will be empty becau se insufficient evidence exists as to reliability and trustworthiness. So says Hopkins

. See Hopkins , 632 So. 2d at 137 6 ( sufficiency of the trial court’s factual findings was preserved because “ defense counsel’s objection t o t he 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 decis i s a nd 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 90.80 3 (23 ), Florida Statute s. The Secon d 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 t h e t op i c , claiming tha t dicta in a n opaquely written outlier controls ; if conflict exists as is claimed

, the en banc rule stands16 ready to bring about uniformity. Short of en banc review, Hopkins and R.L.R. collectively control the preservation issue under s ect io n 90.803(23) in this appeal

.

_____________________________

Andy Thomas, Public Defender, Jo an n a A. Ma uer , Assistant Public Defender, and Kathleen Pafford, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody , Attorney General, Rob e rt Qu entin Humphrey

, Assistant A t to rney General, a n d Damaris E

. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.