Cherry v. State
This text of 135 So. 3d 1131 (Cherry v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Appellant raises several issues on appeal from his conviction for murder and sentence of life imprisonment. We find one issue to be dispositive and requires us to reverse and remand for a new trial. The trial court abused its discretion in admitting a statement as a past recollection recorded without the proper predicate being presented. In making its ruling, the trial court relied on the reasoning of the Fifth District Court of Appeal in Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010), and that reasoning was also adopted by this court in McNeal v. State, 109 So.3d 268 (Fla. 1st DCA 2013). After the trial court ruled on the admission of the evidence in question, the Florida Supreme Court rejected the reasoning of the Fifth District in Polite and clarified the proper predicate which must be presented to admit a statement as a past recollection recorded. See Polite v. State, 116 So.3d 270 (Fla.2013).
Based upon the supreme court decision, we REVERSE and REMAND for a new trial.
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Cite This Page — Counsel Stack
135 So. 3d 1131, 2014 WL 1323210, 2014 Fla. App. LEXIS 4811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-state-fladistctapp-2014.