Dwayne Lee Lewis v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: July 2, 2026
• Docket: 6D2023-2093
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-2093 Lower Tribunal No. CF21-004927-XX _____________________________

DWAYNE LEE LEWIS,

Appellant, v.

STATE OF FLORIDA,

Appellee. _____________________________

Appeal from the Circuit Court for Polk County. Wayne M. Durden, Judge.

July 2, 2026

TRAVER, C.J.

Dwayne Lee Lewis appeals his judgment and sentence for attempted sexual

battery without consent. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A).

Lewis raises four issues for our consideration, only one of which merits discussion.

The trial court may have erred when it allowed into evidence the recording of a

custodial interview where law enforcement repeatedly opined Lewis was guilty of

the charged offense. See Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000) (“[A]

witness’s opinion as to the guilt or innocence of the accused is not admissible.”). Lewis unsuccessfully moved in limine to exclude these statements, but he did not

object to their admission at trial. We are therefore bound to affirm by Carr v. State,

156 So. 3d 1052 (Fla. 2015), because Lewis did not preserve this appellate argument.

We have previously noted the tension between Carr’s holding and section

90.104(1), Florida Statutes. See Xolo v. State, 396 So. 3d 416, 418–19 (Fla. 6th DCA

2024). By its plain language, the statute did not require Lewis to renew his objection

to an unsuccessful motion in limine resulting in the admission of the custodial

interview at trial. See § 90.104(1) (“If the court has made a definitive ruling on the

record admitting or excluding evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve a claim of error for appeal.”). But

Carr required Lewis to renew his objection at trial to preserve the argument for

appeal. See 156 So. 3d at 1062 (explaining that to raise error on appeal,

contemporaneous objection must be made at trial level when alleged error occurred,

and counsel’s “no objection” statement at trial acted to abandon pretrial objections

to admissibility). We have also observed that Carr imposes a higher obligation on

trial counsel than the statute requires. See Xolo, 396 So. 3d at 419. But because

Carr binds us, we cannot and do not reach the merits of Lewis’ challenges to his

custodial interview or the State’s assertion that any error was harmless.

2 We affirm without prejudice for Lewis to pursue postconviction relief, if he

can do so in good faith. We also certify the following question of great public

importance to the Florida Supreme Court:

MUST A DEFENDANT RENEW HIS OR HER OBJECTION AT TRIAL TO THE ADMISSION OF EVIDENCE WHEN A TRIAL COURT HAS MADE A DEFINITIVE PRE-TRIAL RULING ON THE RECORD EXCLUDING IT TO PRESERVE THE ISSUE FOR DIRECT APPEAL?

AFFIRMED; QUESTION CERTIFIED.

MIZE, J., concurs. SMITH, J., concurs in result only.

Luke Lirot, of Luke Charles Lirot, P.A., Clearwater, for Appellant.

James William Uthmeier, Attorney General, Tallahassee, and Jonathan P. Hurley, Senior Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED