Fitzgibbons v. State

District Court of Appeal of Florida

Fitzgibbons v. State

745 So. 2d 452, 1999 Fla. App. LEXIS 14824, 1999 WL 1015550

CourtDistrict Court of Appeal of Florida

DecidedNovember 10, 1999

DocketNo. 97-3637

StatusPublished

This text of 745 So. 2d 452 (Fitzgibbons 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.

Bluebook

Fitzgibbons v. State, 745 So. 2d 452, 1999 Fla. App. LEXIS 14824, 1999 WL 1015550 (Fla. Ct. App. 1999).

Pincite

Opinion

PER CURIAM.

The appellant, John Fitzgibbons, was charged with and convicted of two counts of sexual battery after a jury trial. His theory at trial was that his sexual encounter with the victim was consensual and that the victim claimed sexual battery only when she later learned that Fitzgibbons was married and thus unavailable to marry her to assist her with her immigration status.

On this appeal, Fitzgibbons asserts, and we agree, that the trial court abused its discretion when, contrary to its earlier ruling, it refused to allow the defense to recall the victim as part of its case in chief. Relying upon the trial court’s initial ruling that the prosecutor make the victim available to testify in the defense’s case, the defense refrained from inquiring about certain matters which were critical to Fitz-gibbons’ defense during cross-examination of the victim during the state’s case in chief. Defense counsel explained to the court that a cross-examination of the victim about the defense theory of the case during the state’s case would have inappropriately exceeded the scope of the state’s direct examination. Under these circumstances, we think the trial court should have adhered to its earlier ruling and allowed the victim to be recalled by the defense, particularly where there was a proffer made by the defense which indicated that the exclusion of the victim’s testimony was prejudicial. We therefore find the court’s exclusion of such testimony to be an abuse of discretion. See Hahn v. State, 58 So.2d 188 (Fla.1952); Perkins v. State, 704 So.2d 619 (Fla. 4th DCA 1997). We therefore reverse for a new trial.

Reversed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

The appellant, John Fitzgibbons, was charged with and convicted of two counts of sexual battery after a jury trial. His theory at trial was that his sexual encounter with the victim was consensual and that the victim claimed sexual battery only when she later learned that Fitzgibbons was married and thus unavailable to marry her to assist her with her immigration status.

On this appeal, Fitzgibbons asserts, and we agree, that the trial court abused its discretion when, contrary to its earlier ruling, it refused to allow the defense to recall the victim as part of its case in chief. Relying upon the trial court’s initial ruling that the prosecutor make the victim available to testify in the defense’s case, the defense refrained from inquiring about certain matters which were critical to Fitz-gibbons’ defense during cross-examination of the victim during the state’s case in chief. Defense counsel explained to the court that a cross-examination of the victim about the defense theory of the case during the state’s case would have inappropriately exceeded the scope of the state’s direct examination. Under these circumstances, we think the trial court should have adhered to its earlier ruling and allowed the victim to be recalled by the defense, particularly where there was a proffer made by the defense which indicated that the exclusion of the victim’s testimony was prejudicial. We therefore find the court’s exclusion of such testimony to be an abuse of discretion. See Hahn v. State, 58 So.2d 188 (Fla.1952); Perkins v. State, 704 So.2d 619 (Fla. 4th DCA 1997). We therefore reverse for a new trial.

Reversed.

Cite This Page — Counsel Stack

Bluebook (online)

745 So. 2d 452, 1999 Fla. App. LEXIS 14824, 1999 WL 1015550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgibbons-v-state-fladistctapp-1999.

Opinion

Related

Cite This Page — Counsel Stack