5D07-1199 State v. David Hobbs

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-1199

Case Date: 01/14/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008 STATE OF FLORIDA, Appellant, v. DAVID ERIC HOBBS, Appellee. ________________________________/ Opinion filed January 18, 2008 Appeal from the Circuit Court for Orange County, Jeffrey Fleming, Judge. Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. Frederick S. Jaeger, Jr., of Bonaccorsy, Fuller, Jaeger & Teifke, P.A., and Steven J. Guardiano, Daytona Beach, for Appellee. Case No. 5D07-1199

TORPY, J. David Eric Hobbs, Appellee, stands accused of sexual activity with a child by a person in a familial relationship and lewd or lascivious battery. The sole issue on

appeal concerns the admissibility of Appellee's confession pursuant to section 92.565, Florida Statutes (2007), which eliminates the corpus delicti precondition for introduction of admissions and confessions in sexual abuse cases when the state is otherwise unable to prove the crime. Based on the First District's decision in Kelly v. State , 946 So. 2d 591 (Fla. 1st DCA 2006), the trial court ruled that Appellee's confession was

inadmissible because the State's inability to prove the crime was due to the victim's lack of cooperation rather than her incapacity. The State acknowledges that the trial court correctly applied Kelly, but contends here, as it did below, that Kelly's narrow construction of the statute is erroneous. Based on the unambiguous text of the statute, we agree and certify conflict with Kelly. Accordingly, we reverse and remand this cause for further proceedings. Several days after the victim accused Appellee of improper sexual activity and gave a sworn statement to police, she recanted, claiming that she had fabricated the charges. Prior to the recantation, however, police had interviewed Appellee, and he provided a recorded confession. As a result of the recantation, the State filed a pretrial motion seeking to admit Appellee's confession without first proving each element of the charged offenses. The State's motion was based on section 92.565(2), Florida Statutes, which provides in pertinent part: (2) In any criminal action in which the defendant is charged with a crime . . . involving sexual abuse . . . the defendant's memorialized confession or admission is admissible during trial without the state having to prove a corpus delicti of the crime if the court finds in a hearing conducted outside the presence of the jury that the state is unable to show the existence of each element of the crime, and having so found, further finds that the defendant's confession or admission is trustworthy. Factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime include, but are not limited to, the fact that, at the time the crime was committed, the victim was: (a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011; Physically incapacitated due to age, infirmity, or any other cause; or Less than 12 years of age.

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