State v. Nathan P. Ryan

225 So. 3d 993, 2017 WL 3896924

• Court: District Court of Appeal of Florida
• Decided: September 7, 2017
• Docket: Case 5D16-3318
• Status: Published

Opinion

PER CURIAM

We affirm the trial court’s order granting Appellee’s motion for post-conviction relief, which found that Appellee is entitled to a new trial because he was prejudiced by ineffective assistance of trial counsel. 1 However, if a new trial is conducted;.and if Detective Voyles is called upon to testify, we agree with the State that he should not be asked nor permitted to state his opinion of whether the circumstances, as he knew them, amounted to consensual sex or some form of attempted sexual battery. 2 That issue is one for the trier of fact. See Jackson v. State, 107 So.3d 328, 339-40 (Fla. 2012).

AFFIRMED.

ORFINGER, EVANDER, and EDWARDS, JJ., concur.

1 . Appellee, having served his prison term, was on probation when the appealed order was entered,

2 . Wé note that Detective Voyles, the primary investigating detective, was never contacted by or called as a trial witness by defense counsel, Voyles did testify at the evidentiary hearing on Appellee's post-conviction motion. Voyles testified that, based upon his.observations together with what he had been told, he held the opinion that the sexual encounter involving Appellee and the victim was a "consensual hook-up” rather than any form of rape. However, he confirmed that.he had no intention of offering that opinion testimony at trial.