Florida/Georgia Personal Injury & Workers Compensation

...nation concerning that statement; and the statement is offered to `rebut an express or implied charge ... of improper influence, motive, or recent fabrication.'" Id. at 197-98 (quoting Rodriguez v. State, 609 *810 So.2d 493, 499 (Fla.1992)) (quoting section 90.801(2)(b), Florida Statutes (1989))....

...d them he killed the officer. The trial court treated this testimony as prior inconsistent statements of Schofield and considered it as impeachment evidence, rather than substantive evidence of Schofield's culpability. See §§ 90.608(1), 90.614(1), 90.801(1)(c), 90.802, Fla....

...[10] Additionally, as previously discussed, Schofield testified only at the most recent hearing and not at any prior proceedings. Thus, there was no prior testimony from Schofield that could be considered "[i]nconsistent with the declarant's testimony" and admissible as non-hearsay substantive evidence under section 90.801(2)(a), Florida Statutes (1997)....

...ere given a life sentence. (3) The trial court did not err in admitting Thompson's prior testimony during Surace's trial, in which Thompson testified he was responsible for the murder. This statement was prior inconsistent testimony admissible under section 90.801(2)(a), Florida Statutes (1987).(4) Although the trial court erred in admitting autopsy photos, the error was harmless in light of the testimony of the eyewitness, the medical examiner, Thompson himself, and the other photographs....

...The initial question is whether the proposed testimony constitutes hearsay at all. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....

...hysical abuse, never reported Breedlove's statements regarding the beating and later coercion on the 21st, and never investigated Breedlove's claims. [7] We note that ch. 81-93, Laws of Fla., slightly modified the definition of hearsay as set out in § 90.801(1)(c), Fla....

...Estes made one of her prior statements under oath to a prosecutor and a *314 deputy sheriff in the presence of a court reporter. The state introduced that evidence not only to impeach but also as substantive evidence given during an "other proceeding" within the meaning of section 90.801(2)(a) of the Florida Statutes (1985)....

...he jury to consider the statement as substantive evidence to prove the truth of the matter asserted. The state cites Diamond v. State, 436 So.2d 364 (Fla. 3d DCA 1983), arguing that the trial court properly applied the statute to admit the evidence. Section 90.801(2)(a) allows a prior inconsistent statement to be admitted as substantive evidence to prove the truth of the matter asserted when it meets the narrow criteria of the statute, provided that the declarant testifies at trial. Moore v. State, 452 So.2d 559 (Fla. 1984). In Delgado-Santos, we established a bright-line rule that a law enforcement investigative interrogation conducted by the police, even if under oath, is not an "other proceeding" pursuant to section 90.801(2)(a). Accord Dudley v. State, 545 So.2d 857, 859 (Fla. 1989); Kirkland v. State, 509 So.2d 1105 (Fla. 1987). This Court adopted as its own the three-part rationale of the district court's opinion in Delgado-Santos, concluding that section 90.801(2)(a) was intended to be a very narrow provision....

...bility of the process in question." Id. Based on this rationale, and supported by the "overwhelming weight of authority," id. at 78, the Court concluded that a police investigative interrogation cannot qualify as a "proceeding" within the meaning of section 90.801(2)(a). [I]t seems obvious to us on the face of it that no process of police questioning — much less one of the kind involved here — can qualify as a 90.801(2)(a) "proceeding." Investigative interrogation is neither regulated nor regularized; it contains none of the safeguards involved in an appearance before a grand jury and does not otherwise even remotely resemble that process; and it has no qu...

...he accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement."); Maugeri v. State, 460 So.2d 975 (Fla. 3d DCA 1984) [, dismissed, 469 So.2d 749 (Fla. 1985)]. In the absence of such a provision in [section] 90.801(2)(a), the Robinson-Smith rationale, rendering a "reliable" statement admissible although there would otherwise be no "proceeding," would amount to the enactment of a catch-all or umbrella exception for the admission of trustworthy hearsay which does not fall within any of the specific exceptions....

...OVERTON, Justice, concurring in part and dissenting in part. I concur with all parts of the opinion except that part holding that testimony given *319 to an assistant state attorney under oath before a court reporter was not admissible as substantive evidence under section 90.801(2), Florida Statutes (1985), because it was not an "other proceeding" under the provisions of that section....

...Although the facts in Dudley seem to be remarkably similar to those in this case, Dudley does not directly control this issue here because it is unclear from the opinion in Dudley exactly why the Court held that the statement failed to satisfy the requirements of section 90.801(2)(a) of the Florida Statutes (1985)....

...As the State argues, however, defense counsel's question, on its face, attempts to improperly elicit the hearsay statement of a third party. This would be true if the statements of the detective or another police officer were offered to prove the truth of the matter asserted. § 90.801(1)(c) Fla....

...We quote Trent's out-of-court statement not for the "truth of the matter" that he asserts, but to point out that Trent was not in the main room when Freund stabbed Walker, and that Trent expressed no knowledge to Daniell that Freund was killing him. Fla. Stat. § 90.801 (1)(c) (1998) 10 They called the vice squad officer who had arrested Mills on cocaine trafficking charges....

...ent testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to "rebut an express or implied charge ... of improper influence, motive, or recent fabrication." Rodriguez, 609 So.2d at 500 (quoting section 90.801(2)(b), Florida Statutes (1989))....

...g the suggestion that Mays' 1994 Hard Copy appearance motivated her trial testimony, since Mays testified and was subject to cross-examination, and the statement pre-dated the existence of her motive to fabricate, i.e., the Hard Copy appearance. See § 90.801(2)(b), Fla....

...Appellant does not deny that the jury was left with an impression of Sweet's improper motive to fabricate, Van Gallon v. State, 50 So.2d 882 (Fla. 1951), but argues that Sweet's statements as reported by Namia were not sufficiently consistent with Sweet's testimony at trial to be properly admissible under section 90.801(2)(b), Florida Statutes (1983)....

...[7] The evidentiary ruling was the refusal of the court to allow the defendant to testify concerning statements made to him by his son about the plaintiff's performance. The testimony was excluded on the ground of hearsay. To be hearsay, evidence must be "offered in evidence to prove the truth of the matter asserted." § 90.801, Fla....

...stent statement testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to `rebut an express or implied charge ... of improper influence, motive, or recent fabrication.'" Id. at 197-98; see also § 90.801(2)(b), Fla....

...n jail. The State's purpose in introducing Thibault's conversation with his mother, which *1101 was recorded four days after the murders and presumably before any motive to lie arose, was to rehabilitate Thibault through prior consistent statements. Section 90.801, Florida Statutes (2003), which excludes some prior consistent statements from the definition of hearsay, provides in pertinent part: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: .......

...onsistent with his trial testimony. Nor does he contest the fact that one of the defense strategies was to argue that Thibault was fabricating Chamberlain's role in the murders. Chamberlain's sole argument against the admissibility of the tape under section 90.801(2)(b) is that Thibault's motive to lie arose before the conversation with his mother....

...Puryear's arrest, testified that Puryear was wearing a burgundy T-shirt, faded black jeans, and white sneakers at the time of his arrest. The jury found Puryear guilty of robbery, as a lesser included offense of robbery with a weapon. [3] Based upon section 90.801(2)(c), Florida Statutes (1999), the Fourth District affirmed *903 en banc the trial court's rulings allowing Cratsenberg and Detective Wardlaw to testify to the description Deese gave of her assailant. See id. at 852. The court also affirmed Puryear's robbery conviction. See id. at 853. In an attempt to discern the proper interpretation of section 90.801(2)(c), the Fourth District reviewed Swafford v. State, 533 So.2d 270, 275-76 (Fla.1988), and Power v. State, 605 So.2d 856, 862 (Fla.1992), and concluded that these two opinions irreconcilably conflicted regarding the proper interpretation of section 90.801(2)(c)....

...nsively cross-examined, the trial court did not err in admitting the victim's out-of-court statements to the detective and her boyfriend." Id. at 852. Concurring specially, Judge Taylor maintained that the court was bound by this Court's most recent section 90.801(2)(c) pronouncement in Power, but she argued that Swafford was the correct interpretation of section 90.801(2)(c). See id. at 853 (Taylor, J., concurring specially). Judge Farmer dissented and argued that the section 90.801(2)(c) statement in Power was dicta and, therefore, Swafford was binding precedent. See id. at 854 (Farmer, J., dissenting). We align ourselves with Judge Farmer's conclusion and hold that Swafford remains controlling precedent on the correct interpretation of section 90.801(2)(c). Puryear argues that this Court decided the issue in Swafford and that the discussion in Power regarding section 90.801(2)(c) was dicta....

...The certified question requires us to examine whether the trial court erred by allowing Cratsenberg and Detective Wardlaw to testify regarding Deese's descriptions of her assailant. The conclusion turns on the discrete issue of whether, pursuant to the nonhearsay exception of section 90.801(2)(c), Florida Statutes (1999), a third party may testify to a declarant's out-of-court description of an assailant where the declarant testifies at trial and is subject to cross-examination....

...At issue in Swafford was a defense claim that the trial court improperly excluded a police officer's testimony about description statements made to the officer by a witness of a possible suspect. 533 So.2d at 275-76. On appeal, Swafford argued that the description testimony was not hearsay under section 90.801(2)(c), Florida Statutes (1985)....

...at 276. [5] In rejecting this *904 argument, we focused on the distinction between "description" and "identification." See id. This Court explained: [A] description is not an identification. An "identification of a person after perceiving him," subsection 90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the person previously perceived. The witness in this case never made an identification of the person he had seen; he only gave a description. This testimony does not meet the definition of "identification" as used in subsection 90.801(2)(c). Id. (citation omitted). Subsequent to our 1988 decision in Swafford, in 1992, we decided Power which also contained a discussion of section 90.801(2)(c)....

...(Deputy Welty testified that Miller "appeared to be a person that had just witnessed an unusual or serious crime, and very shaken."). This Court, however, further stated: "Additionally, the statement regarding the reddish hair was admissible nonhearsay as one of identification of a person made after perceiving him. See § 90.801(2)(c). Frank Miller testified at trial and was clearly subject to cross-examination." Power, 605 So.2d at 862. Without question, this Court's discussion in Swafford concerning section 90.801(2)(c) was essential to its holding. We drew a clear distinction between a description and a statement of identification in Swafford and held that description "testimony does not meet the definition of `identification' as used in subsection 90.801(2)(c)." 533 So.2d at 276. This Court's discussion in Power concerning section 90.801(2)(c), however, was not essential to the holding in Power....

...Admittedly, this Court was not clear in Power that it rested its holding on the excited utterance hearsay exception. A close examination of Power, however, reveals that the excited utterance hearsay exception applied to admit both statements at issue, whereas the section 90.801(2)(c) nonhearsay rule could only be applied to admit the reddish-color hair comment. Despite the equivocal language used by this Court in Power, i.e., "probably admissible" as an excited utterance, the only theory that explains the admission of both statements is the excited utterance theory. Thus, the section 90.801(2)(c) discussion was not necessary and constituted dicta....

...Where this Court's decisions create this type of *906 disharmony within the case law, the district courts may utilize their authority to certify a question of great public importance to grant this Court jurisdiction to settle the law. Contrary to the Fourth District's conclusion, we conclude that section 90.801(2)(c) did not authorize the admission of the testimony of Detective Wardlaw and Cratsenberg regarding Deese's out-of-court descriptive statements....

...Detective Wardlaw also testified without objection that Deese unequivocally identified Puryear as her assailant at the time Puryear was arrested. [3] The record indicates that based upon the State's motion, Puryear displayed his mouth for the jury. [4] Section 90.801(2), Florida Statutes (1999), provides: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: . . . . (c) One of identification of a person made after perceiving the person. [5] The 1999 version of section 90.801(2)(c) is the same as the 1985 version of this statute, except that the 1999 version contains sex-neutral language....

...lar exception. See State v. Hester, 746 So.2d 95, 108 (La.Ct.App.1999); People v. Sykes, 229 Mich.App. 254, 582 N.W.2d 197, 205 (1998); State v. Jenkins, 168 Wis.2d 175, 483 N.W.2d 262, 267-68 (1992). It does not necessarily follow that this Court's section 90.801(2)(c) discussion in Swafford contained an error in legal analysis on account of the fact that this Court aligned itself with the minority rule....

...et Woods at the library on the night of the homicide. We disagree. Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See § 90.801(1)(c), Fla....

...morse (given minimal weight). The trial court accepted the jury's recommendation and sentenced Ibar to death. Ibar raises eight issues in this appeal: (1) whether certain out-of-court statements were "statements of identification" as contemplated by section 90.801(2)(c), Florida Statutes (1995); (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony; (3) whether the trial court erred in admitting the transcript of testimony given by a deceased w...

...as substantive evidence. In addition, Ibar contends that these witnesses as well as Quinones were called as witnesses simply for the purpose of impeachment. The State contends the prior identifications by these witnesses were properly admitted under section 90.801(2)(c), Florida Statutes (1999)....

...lice investigators to testify that these six witnesses had actually confirmed the identity of the person in the photo as Ibar. The investigators' testimonies were not admitted as impeachment, however; they were admitted as substantive evidence under section 90.801(2)(c), Florida Statutes (1999). We agree with the defendant that the prior identifications testified to by the officers should not have been admitted as substantive evidence under section 90.801(2)(c). Section 90.801(2)(c) provides as follows: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: ....

...erceiving" and is in keeping with the interpretation given to the statute by a number of our district courts of appeal. The Fourth District Court of Appeal in Stanford v. State, 576 So. 2d 737 (Fla. 4th DCA 1991), addressed the meaning and intent of section 90.801(2)(c)....

...In Stanford, the trial court allowed the victim's daughter and another person to testify concerning out-of-court statements the victim made to them which included the victim naming the defendant as her assailant. The trial court allowed these statements as substantive evidence under section 90.801(2)(c), that is, statements of identification made after perceiving a person....

...ed vehicle. On appeal and after determining that the tape recordings did not satisfy the requirements of recorded recollection, the Second District addressed the State's argument that the tape recordings were admissible as substantive evidence under section 90.801(2)(c). In holding that only portions of the statements were admissible as substantive evidence of identification, the Second District quoted with approval a line of cases including Stanford that discussed the admissibility of evidence under section 90.801(2)(c)....

...At trial, the victim was unable to identify the defendant as his assailant. Over objection, the police officer was allowed to testify concerning the prior identification. On appeal the Fourth District affirmed and found the identification admissible under section 90.801(2)(c) as a statement of identification made after perceiving the defendant....

...The court went on to opine that one of the principles applicable to the admission of this type of identification as substantive evidence is the inherent reliability of identifications made shortly after the crime. See also A.E.B. v. State, 818 So. 2d 534 (Fla. 2d DCA 2002) (finding admissible under section 90.801(2)(c) an out-of-court identification made by a witness who saw the juvenile approach the victim's house and go into the backyard); Ferreira v....

...State, 413 So. 2d 414 (Fla. 5th DCA 1982) (finding admissible the victim's out-of-court statement of identification despite the fact that the victim testified at trial that he was mistaken in his prior identification). Without discussing the perimeters of section 90.801(2)(c), this Court in Evans v....

...l offense. As the Stanford court also opined, expansion of the rule could lead to an endless repetition of out-of-court identifications. Although Ian Milman's prior testimony concerning identification was not admissible as substantive evidence under section 90.801(2)(c), it was admissible as substantive evidence under section 90.801(2)(a). Section 90.801(2)(a) provides that an out-of-court statement is not hearsay if the declarant, in this case Milman, testifies at the trial and is subject to cross-examination about the statement....

...2003) (holding that a trial judge's ruling on the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion). We also find that Melissa Munroe's prior identification statement was also admissible as substantive evidence under section 90.801(2)(a)....

...She explained that she just continued to go along with what the police initially wrote in their report. As with Milman, the trial judge deemed Munroe a "turncoat witness." With this finding, the judge allowed Munroe's prior testimony to be admitted for its truth under section 90.801(2)(a)....

...e persons in the photos looked like Ibar and Penalver. Munroe's trial testimony is inconsistent with her prior grand jury testimony. The grand jury testimony is therefore admissible for its substantive value as an exception to the hearsay rule under section 90.801(2)(a)....

...NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. WELLS, J., concurring in part and dissenting in part. I concur in the majority's decision to affirm the convictions and the sentences. However, I write to expressly disagree with the majority's holding that the hearsay exclusion provided in section 90.801(2)(c), Florida Statutes (1999), is limited to statements of identification made by eyewitnesses, including victims, to a crime or event....

...als confirming that Ibar was the man depicted in a photograph made from a surveillance video taken of the crime. These six individuals were acquaintances of Ibar, but they were not eyewitnesses to the crime. The majority restricts the application of section 90.801(2)(c) to eyewitness identifications because doing so "is in keeping with the interpretation given to the statute by a number of our district courts of appeal." Majority op....

...I disagree that the decisions cited by the majority support a limitation on this statutory hearsay exclusion. More importantly, I believe that the plain language of the statute is clearly written to encompass a wide range of identifications, including the identifications at issue in this case. Section 90.801(2)(c) provides that an out-of-court identification by a declarant is excluded from the definition of hearsay if the statement of identification is one "of a person made after perceiving the person." The only requirement of this statuto...

...veillance photograph. [8] The district court cases cited by the majority do not support the majority's decision to limit the scope of this broadly worded statutory exclusion. Although the majority correctly notes that findings of admissibility under section 90.801(2)(c) in Florida case law have all involved eyewitness identifications, it does not logically follow that the statute must be limited only to those kinds of identifications....

...Notably, the majority fails to point to a single decision where an identification by a non-eyewitness was found to fall outside the scope of the exclusion. In fact, it appears to be a question of first impression in Florida whether out-of-court identifications by non-eyewitnesses are admissible under section 90.801(2)(c)....

...le by the Fourth District in Stanford v. State, 576 So. 2d 737 (Fla. 4th DCA 1991). In that decision, the Fourth District Court of Appeal held that the victim's statement naming the individual she believed to be her attacker was not admissible under section 90.801(2)(c)....

...The victim did not view a lineup, photo-array, or surveillance photograph before she gave the defendant's name. She simply named the defendant based on her memory of the attack. Id. at 738-40. This Court has similarly found that an eyewitness statement describing an assailant is not an identification for purposes of section 90.801(2)(c) because a description does not involve "perceiving" the person identified....

...State, 810 So. 2d 901, 903-06 (Fla. 2002); Swafford, 533 So. 2d at 276 ("The witness in this case never made an identification of the person he had seen; he only gave a description. This testimony does not meet the definition of `identification' as used in subsection 90.801(2)(c).")....

...stify that the defendant was the individual in the photo. The Tenth Circuit Court of Appeals held that the statements were admissible as substantive evidence of the assailant's identity under rule 801(d)(1)(C). See id. at 261 & n*. I would interpret section 90.801(2)(c) as the Tenth Circuit interpreted the federal rule in Ingram....

...The majority incorrectly concludes that Ingram conflicts with the views espoused by our district courts. Majority op. at 13. As noted above, our district courts have never addressed whether an out-of-court identification by a non-witness falls within the scope of section 90.801(2)(c)....

...ng individuals is not at issue in this case. The issue is whether the dangers of hearsay are concerning enough in this situation to prevent the admission of identifications which were made out of court. The majority, however, overlooks the fact that section 90.801(2)(c) eliminates the major danger of hearsay by requiring the identifying declarant to testify at trial and be subject to cross-examination concerning the identification statement....

...pport in the statutory language or case law. For these reasons, I disagree with the majority and would find that a statement by a non-eyewitness identifying an assailant in a surveillance photograph is an admissible statement of identification under section 90.801(2)(c)....

...[2] Casmir Sucharski was also known as Butch Casey. [3] This Court in both Puryear v. State, 810 So. 2d 901 (Fla. 2002), and Swafford v. State, 533 So. 2d 270 (Fla. 1998), has clearly said that descriptions are not identifications as contemplated under section 90.801(2)(c)....

...h instruction. [8] This Court has previously held that identifications based on a photograph are within the scope of the hearsay exclusion. Swafford v. State, 533 So. 2d 270, 276 (Fla. 1988) ("An `identification of a person after perceiving him,' subsection 90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the person previously perceived.") (emphasis added)....

...han other equivocal statements made by Rhodes and available to the defense. Under Florida rules of evidence, the defense could have entered this report both to impeach the witness and to establish the truth of the matter asserted. See Fla.Stat. Ann. § 90.801(2) (West 1979)....

...Jones, 625 So.2d 821 (Fla. 1993), T.F.'s statement to the Child Protection Team was not admissible under the medical diagnosis or treatment exception to the hearsay rule. However, the court below pointed out that the testimony was properly admitted under section 90.801(2)(b), Florida Statutes (1987).

...At first blush the statement appears to have constituted hearsay as defined in the Evidence Code, which declares that "hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. § 90.801(1)(c), Fla....

...Feagle's earlier statement was hearsay and *997 therefore inadmissible in the absence of any other exception to or exclusion from the hearsay rule. Alternatively, the State argues that Feagle's prior statement was excluded from the category of hearsay by operation of paragraph (a) of subsection 90.801(2), Florida Statutes (1989)....

...is: (a) Inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition... . Id. For purposes of the statute, the "declarant" is the person who makes a statement, § 90.801(1)(b), Fla. Stat. (1989); and a "statement" for present purposes is an oral or written assertion. § 90.801(1)(a)1., Fla....

...Day, 789 F.2d 1217 (6th Cir.1986), or sworn statements made to obtain a warrant. Kirkland v. State, 509 So.2d 1105 (Fla. 1987). In Delgado-Santos and again in State v. Smith, 573 So.2d 306 (Fla. 1990), this Court conducted an extensive analysis of the history and purpose of paragraph (a) of subsection 90.801(2), Florida Statutes....

...Moreover, an information-gathering process is not an "other proceeding" within the meaning of the rule unless it has a degree of formality, convention, structure, regularity, and replicability of the process in question. Id. at 314-15 (quoting Delgado-Santos, 471 So.2d at 77). Thus, in Smith we found error under subsection 90.801(2), paragraph (a), where the court admitted into evidence the sworn statement of a witness made to a prosecutor and deputy sheriff in the presence of a court reporter....

...[3] Impeachment's object is to attack the credibility of the witness. Where this genuinely is the predominant purpose of the questioning, then the evidence so introduced is not being admitted "to prove the truth of the matter asserted" but rather to show why the witness is not trustworthy. See § 90.801(1)(c), Fla....

...]: Did she display anything that appeared to you as fear of the Defendant? [VALENTINE]: Yes, in language. Susan Correll's statements, as related by Valentine, were hearsay. In the absence of an applicable exception, hearsay evidence is inadmissible. § 90.801, Fla....

...g that statement; and the statement is offered to `rebut an express or implied charge ... of improper influence, motive, or recent fabrication.'" See Chandler, 702 So.2d at 197-98 (quoting Rodriguez v. State, 609 So.2d 493, 500 (Fla.1992)); see also § 90.801(2)(b), Fla....

...I concur in the result of the majority in affirming the conviction and sentence. I do not join the opinion. *33 I find that the majority's opinion is in error as to its discussion of the hearsay statements. The majority fails to recognize that the statements under review were not hearsay. Section 90.801(1)(c), Florida Statutes, defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." In Breedlove v....

...hing was said to this witness." We conclude that the trial court abused its discretion. The only relevance of this out-of-court statement was to prove the truth of the matters asserted by the declarant, Ashe. Therefore, the evidence was hearsay. See § 90.801(1)(c), Fla....

...e statement violates the defendant's Sixth Amendment right to confront the witnesses against him. A Section 90.802 of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. Hearsay is defined in section 90.801(1)(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The parties agree that the statement Officer Gaston attributed to Hector Ruiz was hearsay....

...In that case, a child who had been the victim of sexual abuse recanted the testimony she gave in a discovery deposition. She testified at trial that another man committed the offense. *701 Because the victim testified at trial, her deposition was presented as substantive evidence under section 90.801(2)(a) of the Florida Evidence Code....

...hile the remainder of the interview was inadmissible hearsay. Florida law defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....

...of the crime were in fact being offered by Reynolds for their truth and nothing to the contrary was argued by the defense at trial. Therefore, the trial court properly found these statements to be hearsay subject to the rule of inadmissibility, see § 90.801(1)(c), Fla....

...at he did pursuant to information concerning the defendant, but under no circumstances may he relate the information itself because such is hearsay. However, Collins was decided in 1953, long before Florida's Evidence Code was adopted in 1976. Under section 90.801(1)(c), Florida Statutes (1987), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted....

...matter asserted, would not be considered hearsay [2] and, if relevant to a material fact in issue, would generally be admissible unless its probative value was found to be substantially outweighed by its prejudicial effect. See §§ 90.402, 90.403, 90.801(1)(c), Fla....

...f the challenged testimony was offered for a purpose other than to prove the truth of the matter asserted, it was by definition not hearsay. Breedlove v. State, 413 So.2d 1, 6 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); § 90.801(1)(c), Fla....

...e 801(d)(1)(A). However, Congress amended rule 801(d)(1)(A) to provide that only prior inconsistent statements given under oath at a hearing, deposition, or formal proceeding could be considered for the truth of their contents. Though not identical, section 90.801(2), Florida Statutes (1993), is substantially similar to rule 801(d)(1)(A)....

...g impending death." § 90.804(2)(b), Florida Statutes (2006). The State does not challenge this ruling or assert dying declaration as an alternative basis for admission. [3] We assume without deciding that Hagin's statement constituted hearsay under section 90.801(1)(c), Florida Statutes (2006), because the State has not argued to the contrary....

...Moreover, because prior consistent statements are usually hearsay, they are inadmissible as substantive evidence unless they qualify under an exception to the rule excluding hearsay. Ehrhardt, Florida Evidence § 801.8. The prior statements of Fernandez and Valdez were properly admitted under section 90.801(2)(b), Florida Statutes (1989), which excludes from the definition of hearsay the prior consistent statement of a witness who testifies at trial and is subject to cross-examination concerning that statement when the statement is offered to "rebut an express or implied charge ......

...Therefore, although I disagree with the reasoning employed by the majority, I agree that the deposition testimony was properly excluded in this case. NOTES [1] When a party seeks to offer a deposition as substantive evidence, it is generally considered inadmissible hearsay. See section 90.801(1)(c), Florida Statutes (1989) ("Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.")....

...he fact that no homicide or police reports had been written at the time Bays made his statement. Shellito objected, contending that this testimony constituted cumulative, improper bolstering of Bays' testimony. The trial court allowed the testimony. Section 90.801(2)(b), Florida Statutes (1995), allows a prior consistent statement to be used "to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication." Shellito contends that this exception is...

...When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. See § 90.801(1)(c), Fla....

...On the other hand, the court began its analysis by citing a rule of law, quoted above, that was more akin to Thayer's theory. The court mostly seemed concerned with circumstances indicating reliability. See id. [14] These components are embodied in section 90.801(1)-(3), Florida Statutes (2007)....

...is subject to cross-examination concerning the statement and the statement is ... [i]nconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." § 90.801(2)(a), Fla....

...However, in State v. Delgado-Santos, 497 So.2d 1199 (Fla.1986), this Court held that a statement given under oath during a police investigation is not a statement given at an "other proceeding" and consequently is not admissible as substantive evidence under section 90.801(2)(a). See also Ellis v. State, 622 So.2d 991, 997-98 (Fla.1993) (concluding that pretrial statement by witness during interview with prosecutor could not be admitted as substantive evidence under section 90.801(2)(a) because the interview was not an "other proceeding" within the meaning of the rule). Thus, the videotaped statement that Brittingham gave to the investigating detective did not meet the last requirement of section 90.801(2)(a) and could not be admitted as substantive evidence here....

...e hearsay rule. Id. § 90.803(18)(a). Furthermore, the earlier *731 exculpatory statements were offered not to prove the truth of the matters stated, but rather to show the context of appellant's confession, so they were not even hearsay at all. Id. § 90.801(1)(c)....

...iss was granted. On appeal, respondent moved to dismiss the appeal as frivolous because the state had acknowledged "that it in fact had no evidence and the law compelled dismissal." The district court denied the motion to dismiss and later held that section 90.801(2)(a), Florida Statutes (1981), permitted the introduction of prior inconsistent statements made before a grand jury as substantive evidence provided the declarant testifies at trial....

...present the prior inconsistent statements for consideration by the jury. State v. Moore, 424 So.2d 920 (Fla. 4th DCA 1982) ( Moore I ). We subsequently granted review because of direct and express conflict with decisions antedating the enactment of section 90.801(2)(a) which held that such statements could not be introduced as substantive evidence....

...This taped statement was introduced by the state to rebut the inference that Livingston had a motive to fabricate his story in light of his agreement to testify against Jackson. To the extent the taped statement was consistent with Livingston's trial testimony, it was properly admitted under section 90.801(2)(b), Florida Statutes (1989)....

...The children died of smoke and soot inhalation, and it was Jackson who set fire to the car. *111 The judgments of death should be affirmed. HARDING, J., concurs. NOTES [1] We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. [2] Section 90.801(2)(b), Florida Statutes (1989), excludes from the definition of hearsay the prior consistent statement of a witness who testifies at trial and is subject to cross-examination concerning that statement when the statement is offered to "rebut an express or implied charge ......

...ject to cross-examination concerning the statement and the statement is ... [c]onsistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication." § 90.801(2)(b), Fla....

...Further, even if Trevena's testimony is hearsay, the details with regard to Gail's romantic involvement with Larry Royston and her role in planning the murder would likely have been admitted for impeachment purposes, not to prove the truth of the matter asserted. See § 90.801(1)(c), Fla....

...this case that an impartial jury could not be impaneled, and an impartial jury appears to have been actually seated. Hearsay In issue two, Foster contends that the trial court erred in admitting hearsay testimony of several witnesses. As defined in section 90.801(1)(c), Florida Statutes (1997), "`[h]earsay' is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A statement may, however, be offered to prove a *915 variety of things besides its truth....

...A prior consistent statement of a witness who testifies at trial and is subject to cross-examination concerning that statement is excluded from the definition of hearsay when the statement is offered to "rebut an express or implied charge ... of improper influence, motive, or recent fabrication." § 90.801(2)(b), Fla....

...o need existed for further cross-examination, especially upon such a flimsy foundation. Appellant next argues that the trial court erred in allowing witness Detective Hansen to read into evidence portions of a statement made by Taylor in 1982, under section 90.801(2)(b), Florida Statutes (1983), as prior consistent testimony tending to rebut implications of improper motive or recent fabrication....

...ating circumstance that Thompson had helped his equally guilty codefendant avoid the death penalty and, ultimately, a mandatory minimum sentence. We reject this contention and find that Thompson's prior inconsistent testimony met the requirements of section 90.801(2)(a), Florida Statutes (1987), and was admissible....

...veled to Crestview with Carlson on the night of the murders. We agree. Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....

...testimony that he could not find anyone who had sold appellant tires. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....

...nzella accepted Klimeczko's statement. The trial court overruled the defense's objection and allowed the testimony. We conclude that the trial court did not err in admitting this testimony because the testimony was not hearsay. Hearsay is defined in section 90.801(1)(c), Florida Statutes (2005), as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Emphasis added.) See also Hernandez v....

...ape of the crime. [8] The State counters that this issue is not preserved for appellate review because no objection was made at the time the testimony was presented, and that the statement was admissible as a prior inconsistent statement pursuant to section 90.801(2)(a), Florida Statutes (1999)....

...ny could be taken. Moreover, the discovery deposition was not admissible as nonhearsay because *1137 Kinnaman did not testify at trial and the testimony in the discovery deposition was not a statement of identification after perceiving a person. See § 90.801(2)....

...I concur in result only because I do not agree with the majority's opinion in regard to witness Milman's testimony being hearsay. Milman's testimony that Hernandez told him that Hernandez "intended to go to North Carolina" did not meet the definition of hearsay in section 90.801(1)(c)....

...Miller flagged him down, "[h]e appeared to be a person that had just witnessed an unusual or serious crime, and very shaken." Additionally, the statement regarding the reddish hair was admissible nonhearsay as one of identification of a person made after perceiving him. See § 90.801(2)(c)....

...Having concluded that this issue was properly preserved, we turn to the merits of the issue. Clearly, Julie Stoll's handwritten statement is hearsay because it "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....

...Finally, the State argues that even if the trial court erred in admitting the videotaped statement at trial, the error was harmless. Section 90.802, Florida Statutes (2007), of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. Hearsay is defined in section 90.801(1)(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....

...ial because defendant was not present during the examination); cf. State v. Green, 667 So.2d 756, 759 (Fla.1995) (ruling that an inconsistent discovery deposition given by a victim who recants at trial is not admissible as substantive evidence under section 90.801(2)(a) which provides that an inconsistent statement given under oath in a deposition is not hearsay)....

...of premeditation. Next, Peterka asserts that the trial court erred in admitting testimony that he was an escaped fugitive from Nebraska and was considered "armed and dangerous" as this testimony was hearsay, irrelevant, and highly prejudicial. Under section 90.801(1)(c), Florida Statutes (1989), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted....

...Baird, 572 So.2d 904, 907 (Fla. 1990). An out-of-court statement, however, may be admitted for a purpose other than proving the truth of the matter asserted, if the statement is relevant to prove a material fact and is not outweighed by any prejudice. See §§ 90.402, 90.403, 90.801(1)(c), Fla....

..., they cannot qualify as excited utterances and should not have been admitted under that hearsay exception. Although the statements do not qualify under the excited utterance exception to the hearsay rule, their admission was not error because under section 90.801, Florida Statutes (1999), a statement is not hearsay "if the declarant testifies at the trial ... and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person." § 90.801(2)(c), Fla....

...ley told him on August 20 that "Mr. Anderson [said] they should return to where Grantham's body had been left and take it to Orlando because it would be easier to hide over there." Anderson argues that the statements were inadmissible under sections 90.801-.802, Florida Statutes (1985), because they were out-of-court statements offered to prove the truth of the matter asserted. The state argues that Agent Velboom's out-of-court statements were not hearsay, and were admissible under section 90.801(2)(b), Florida Statutes (1985)....

...ting a favorable plea. Thus, if Beasley's statements to Velboom were made before her alleged motive to falsify arose, the state was entitled to present Beasley's prior consistent statements to rebut the implication of recent fabrication, pursuant to section 90.801(2)(b)....

...1st DCA 1995), in which the district court reversed Green's conviction and certified the following question as one of great public importance: WHEN AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE RECANTS AT TRIAL, DOES HER PRIOR INCONSISTENT STATEMENT, ADMISSIBLE PURSUANT TO SECTION 90.801(2)(a), FLORIDA STATUTES, CONSTITUTE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION WHEN THE ONLY OTHER EVIDENCE OF THE DEFENDANT'S GUILT IS OTHER PRIOR INCONSISTENT STATEMENTS MADE BY THE VICTIM, WHICH HAVE BEEN FOUND TO BE RELIABLE AND ARE ADMISSIBLE PURSUANT TO SECTION 90.803(23)(a), FLORIDA STATUTES? Id. at 791. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We reword the question as follows: WHEN AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE RECANTS AT TRIAL, IS THE VICTIM'S PRIOR INCONSISTENT STATEMENT ADMISSIBLE UNDER SECTION 90.801(2)(a), WHEN THE STATEMENT WAS TAKEN AS PART OF A DISCOVERY DEPOSITION PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.220? IS THE PRIOR INCONSISTENT STATEMENT OF AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE, EVEN IF SAID ON MULTIPLE OCCASI...

...ed instead that he had not committed those offenses against her and that she had never told anyone that he had. [At trial, she identified another man as the person who forced her to have sex.] Thereupon, over defense counsel's objection, pursuant to section 90.801(2)(a), the trial court allowed the state to read to the jury the victim's deposition testimony....

...d that, before accusing Green, she had accused another man of "messing with" her. A divided First District Court of Appeal reversed the conviction. The district court first found that the deposition was admissible as substantive evidence pursuant to section 90.801(2)(a) (statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, and the statement is inconsistent with the testimony and was given under oath subject to the penalty of perjury in a deposition or other official proceeding)....

...nt to sustain the conviction. ADMISSIBILITY OF DISCOVERY DEPOSITION AS SUBSTANTIVE EVIDENCE We first address the admissibility of discovery depositions as substantive evidence. As indicated above, the victim's deposition testimony was admitted under section 90.801(2)(a), Florida Statutes (1989), which reads in part as follows: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: (a) In...

...idence, the district court relied on this Court's decision in Moore v. State, 452 So.2d 559 (Fla. 1984) ( Moore I ). In Moore I, this Court concluded that prior inconsistent statements given in grand jury proceedings could be properly admitted under section 90.801(2)(a) as substantive evidence. Additionally, we specifically ruled that the words "other proceeding" within the meaning of section 90.801(2)(a) included a grand jury proceeding. We did not, however, address the issue before us here; that is, whether the term "deposition" as used in section 90.801(2)(a) includes depositions taken for purposes of discovery under rule 3.220....

...evidence. State v. Delgado-Santos, 497 So.2d 1199 (Fla. 1986). Consequently, the 1978 adoption of the evidence code allowed, for the first time, *759 the use of prior inconsistent statements as substantive evidence under the conditions set forth in section 90.801(2)(a). Delgado-Santos v. State, 471 So.2d 74 (Fla. 3d DCA 1985), approved, 497 So.2d 1199 (Fla.1986). As we indicated in Moore I, "section 90.801(2)(a) was inspired in part by Federal Rule of Evidence 801(d)(1), which requires the statement to have been given under oath, subject to the penalty of perjury, at a trial, hearing, or deposition." 452 So.2d at 561-62. See also Webb v. State, 426 So.2d 1033 (Fla. 5th DCA), review denied, 440 So.2d 354 (Fla. 1983). Because section 90.801(2)(a) was patterned after the federal provision and because the federal provision had been interpreted to include grand jury proceedings, we concluded that prior inconsistent statements made to a grand jury came within the confines of section 90.801(2)(a)....

...1st DCA 1981) (for a deposition to be used as substantive evidence, it must be taken in compliance with rule 3.190, not rule 3.220). Given our holding in James and the distinctions between depositions taken pursuant to rules 3.190 and 3.220, we must conclude that the term "deposition" in section 90.801(2)(a) does not include depositions taken pursuant to rule 3.220....

....804(2)(a)). We recognize that two lower courts have issued decisions that could be construed to the contrary. See Dennis v. State, 649 So.2d 263 (Fla. 5th DCA 1994) (videotaped deposition of child was properly admitted as substantive evidence under section 90.801(2)(a) after child appeared at trial and recanted prior statements), dismissed, 666 So.2d 142 (Fla.1995); Holmon v. State, 603 So.2d 111 (Fla. 4th DCA 1992) (prior deposition testimony was admissible both as impeachment and as substantive evidence under section 90.801(2)(a))....

...under rule 3.220 or to perpetuate testimony under rule 3.190. Nevertheless, to ensure that no confusion exists as to the issue before us today, we answer the first question in the negative and specifically hold that the term "deposition" as used in section 90.801(2)(a) does not include discovery depositions taken pursuant to rule 3.220. We additionally disapprove both Dennis and Holmon to the extent they could be construed to hold that depositions taken pursuant to rule 3.220 are admissible as substantive evidence under section 90.801(2)(a)....

...ent standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt. We reiterate that conclusion today, finding that our holding in Moore II applies regardless of whether the prior inconsistent statement is admitted under section 90.801(2)(a) or section 90.803(23)....

...ed question in the negative. Accordingly, we answer both of the reworded questions in the negative; we disapprove that part of the district court's opinion finding that the rule 3.220 deposition testimony was admissible as substantive evidence under section 90.801(2)(a); and we approve that part of the district court's opinion holding that the prior inconsistent statements of the victim were insufficient to sustain the conviction in this case....

...be corroborated by his own prior consistent statement. Van Gallon v. State, 50 So.2d 882 (Fla. 1951); McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980). The appellant recognizes that the Florida Evidence Code contains certain exceptions to this rule. Section 90.801(2)(b), Florida Statutes (1981), provides such an exception and reads, in part: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: ......

...ates that the same motive to falsify, namely, to keep Bush out of the electric chair, existed when both statements were made. We find that the admission of the challenged testimony was error because the testimony did not fall within the exception of section 90.801(2)(b)....

...The State now contends the testimony was admissible as either an excited utterance or a spontaneous statement. Hearsay is an out-of-court statement testified to by a person other than the declarant which is offered for the truth of the matter asserted therein. See § 90.801(1)(c), Fla....

...o this case. However, the testimony was properly admitted because it was not hearsay in the first place. Hearsay is a statement, other than one made by a declarant while testifying, offered to prove the truth of the matter asserted in the statement. § 90.801(1)(c), Fla....

...State, 303 So.2d 656 (Fla.2d DCA 1974). [3] The new Florida Evidence Code, which takes effect July 1, 1979, provides that this testimony is admissible as non-hearsay if the declarant testifies at trial and is subject to cross-examination concerning the identification. § 90.801(2)(c), Fla....

...obtained and no sentences were pending. Marsicano's testimony was properly offered to combat Stewart's charge of recent fabrication. See DuFour v. State, 495 So.2d 154 (Fla. 1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987); § 90.801(2)(b), Fla....

...t statement testifies at trial and is subject to cross-examination concerning that *862 statement; and the statement is offered to `rebut an express or implied charge... of improper influence, motive, or recent fabrication.'" Id. at 197-98; see also § 90.801(2)(b), Fla....

...Defense counsel argued that Appellant should be allowed to call the police officer to testify to this matter. We find that because the evidence was to be used to impeach the mother's testimony, rather than to prove the content of the statement, it was not hearsay. § 90.801(1)(c), Fla....

...this purpose and should be redacted. We agree. The Florida Evidence Code defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....

...SC05-1767, ___ So.2d ___, 2008 WL 657867 (Fla. Mar. 13, 2008); State v. Lopez, 974 So.2d 340 (Fla.2008). ANALYSIS Section 90.802 of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. § 90.802, Fla. Stat. (2006). Hearsay is defined in section 90.801(1)(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Id. § 90.801(1)(c)....

...ted when examined by the doctor. For any one of three reasons, we find appellant's *1093 argument on this point to be without merit. First, under the facts of the case, we are not persuaded that T.F.'s statement to Dr. Penrod was hearsay at all. [5] Section 90.801(2)(b) provides that a statement is not hearsay 1) if the declarant testifies at trial; 2) is subject to cross-examination concerning the statement; and 3) the statement is consistent with his testimony and is offered to rebut an expres...

...made by the victim to Dr. Penrod identifying her father as the perpetrator of the abuse on the ground that such statements are not hearsay because they were consistent with the witness's testimony and offered to rebut a charge of recent fabrication, Section 90.801(2)(b), Florida Statutes (1985)....

...Dr. Goslin. I. The trial court's admission of statements made by the child victim identifying her father as the person who abused her. As to Judge Miner's conclusion that Dr. Penrod's testimony was otherwise admissible pursuant to the provisions of section 90.801(2)(b), the rule is clear that evidence inadmissible for one purpose under the hearsay rule may be admissible for another purpose....

...in points in Judge Miner's opinion. Judge Miner's opinion correctly concludes that the testimony of Dr. Penrod concerning the victim's response to his question that identified the appellant as her sexual abuser was not hearsay in this instance under section 90.801(2)(b) of the Florida Evidence Code, and thus it was admissible on that basis....

...ring the victim's credibility. Nevertheless, because the victim below had made a pretrial statement that was inconsistent with her earlier statement implicating the defendant, I am of the view that the statement given to Dr. Penrod must, pursuant to section 90.801(2)(b), be considered nonhearsay....

...im, once he or she has come under attack due to a charge of inconsistent conduct, appears to be an extension of the Evidence Code's approval of the admission of prior consistent statements once a witness has been charged with recent fabrication. See section 90.801(2)(b) and discussion supra....

...ndbook, [5] it does not appear that any Florida appellate court has expressly confronted the issue of the admissibility of the handbook. Appellant's counsel argues that the handbook is hearsay and does not fit within any of the hearsay exceptions. §§ 90.801, .802, .803, Fla....

...We disagree with SCL's contentions. We conclude the handbook represents a classic example of hearsay. "`Hearsay' is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. " § 90.801(1)(c), Fla....

...ds that it would constitute a hearsay statement. We hold that the State's questioning of Detective Brumley on direct examination neither constituted hearsay nor "opened the door" to allow the defense to ask about specific leads on cross-examination. Section 90.801(1)(c), Florida Statutes (2001), defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." In this case, Detective B...

...offered in evidence to prove the truth of the matter asserted." Rather, Detective Brumley provided testimony concerning the police department's conduct after the investigation. Even under the definition of a "statement" that provides "nonverbal conduct of a person if it is intended by the person as an assertion," section 90.801(1)(a)2., Detective Brumley's statements do not qualify as hearsay....

...enal interest to be introduced in evidence. See § 90.804(2)(c), Fla. Stat. (1981). Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. § 90.801(1)(c), Fla....

...was hearsay. The state argued the evidence was admissible because "a specific exception to the hearsay rule, identification of a witness is not hearsay, [or] is excepted" under the Florida Evidence Code. The trial court overruled Hayes's objection. Section 90.801(2)(c) of the Florida Statutes (1987) addresses the admissibility of an out-of-court identification....

...It provides: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: ... . (c) One of identification of a person made after perceiving him. (Emphasis supplied.) Section 90.801(2)(c) excludes from the definition of hearsay out-of-court statements of identification only when the declarant also testifies at trial....

...State v. Freber, 366 So.2d 426 (Fla. 1978). Since Sedrick did not testify, the identification was hearsay under the rule, and was inadmissible. The state now acknowledges that while the statement may not have satisfied the standard of nonhearsay under section 90.801(2)(c), it was nonetheless nonhearsay because it was not offered to prove the truth of the matter asserted, i.e., the fact that Watson was at the scene....

...ble hearsay that could not be considered during the penalty phase. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla....

...stent statements. § 90.614(2), Fla. Stat. (1985). The statements were not admissible as an exception to the hearsay rule for purposes of substantive evidence because they were not given "at a trial, hearing, or other proceeding or in a deposition." § 90.801(2)(a), Fla....

...On the other hand, the statute contains no "consistency" requirement. In contrast, and to demonstrate that the legislature knew how to impose a "consistency" requirement if desired, the legislature specifically addressed the issue of consistency between out-of-court statements and in-court testimony in section 90.801, Florida *1161 Statutes (1995), in defining non-hearsay....

...If the basis is that, because the out-of-court statement which is admissible under a recognized hearsay exception, is inadmissible simply because it is inconsistent with the in-court testimony of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section 90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section 90.803 hearsay exception. These exceptions are surrounded by circumstantial guarantees of reliability which are not necessarily present when a statement is offered under section 90.801(2)....

...Freber, 366 So.2d 426, 428 (Fla.1978). Realizing that physical appearances can change and memories dim, we concluded that the use of prior identifications as substantive evidence of identity was imperative or "conviction would in some instances be impossible." Id. Under section 90.801(2)(c), the codification of the Freber holding, this out-of-court statement of identification is considered nonhearsay and, thus, "is admissible in court to prove the truth of the matter asserted, e.g., to prove that the person identified was the person who committed the act." Charles W....

...Ehrhardt, Florida Evidence § 803.23, at 697-98 (1996 ed.) (footnotes omitted). [9] This does not mean, for example, that a trial court may not be asked to reconsider any previous finding of reliability based upon subsequent inconsistent statements, including those made at trial, of the child victim. [10] Section 90.801 provides in pertinent part: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: (a) Inconsistent with the defendant's test...

...imony is specifically addressed in paragraphs (2)(a) and (b) of the statute. There is no similar language in section 90.803(23). [11] In Green we also held that a discovery deposition could not be used as substantive evidence under the provisions of section 90.801(2)(a)....

...Ray did not testify during the guilt phase of his trial. The only evidence of coercion offered by the defense was Whitney's testimony. [3] That testimony was inadmissible as it violated the rules of evidence. The bulk of Whitney's evidence consisted of inadmissible hearsay. See § 90.801, Fla....

...rmitted. Under the Florida Evidence Code, there are limited circumstances under which a prior inconsistent statement may be admissible as substantive evidence, i.e. for purposes of establishing the truth of the content of such prior statement. Under Section 90.801(2)(a), Florida Statutes (1983), a prior inconsistent statement may be received as substantive evidence if the person who gave the statement testifies and is subject to cross-examination concerning the statement and such statement had b...

...1st DCA 1983) (testimony of witness exculpating defendant was prejudicial to state and witness was therefore adverse — thus, prior unsworn statement was properly admitted for impeachment purposes under Section 90.608 but inadmissible as substantive evidence under Section 90.801(2)(a)); and Mazzara v. State, 437 So.2d 716 (Fla. 1st DCA 1983) (prior statement not admissible under Section 90.801(2)(a) but admissible under Section 90.608(2))....

...Nevertheless, it was harmless because the prosecutor also referred to Anna's statement at the bond hearing in which she testified that she had invited the victims into the home. This statement was not hearsay because it was given under oath at the bond hearing. See § 90.801(2)(a), Fla....

...As this Court has recognized, hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Penalver v. State, 926 So.2d 1118, 1131 (Fla.2006) (quoting § 90.801(1)(c), Fla....

...endant's trial because defendant was not present during the examination). Cf. State v. Green, 667 So.2d at 759 (ruling that an inconsistent discovery deposition given by a victim who recanted at trial was not admissible as substantive evidence under section 90.801(2)(a), Florida Statutes (1989), which provided that an inconsistent statement given under oath in a deposition was not hearsay)....

...See also 3A Wigmore, Evidence § 907 (Chadbourne Rev. 1970). [8] § 90.09, Fla. Stat. (1974) (amended 1978). [9] This was formerly considered improper because the prior statement was considered hearsay but some prior statements are now not within the statutory definition of hearsay. See § 90.801(2)(a), Fla. Stat. (1981). [10] See, e.g., Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967). [11] In that circumstance the calling party is not bound by that party-witness' testimony and may introduce statements of the witness as described in section 90.801(2) or admissions under section 90.803(18), and such statements and admissions are incidentally considered as impeachment under section 90.608(1)(a), and may also introduce proof by other witnesses as to facts material to the issues in...

...There is no indication in the record as to when within the two-week period the incidents occurred, nor is there any indication as to how long she had been home before she made the statement. Finally, the state argues that the mother's testimony is admissible under section 90.801(2)(b) of the Florida Statutes, which provides: 90.801 Hearsay; definitions; exceptions....

...clusion. This rule we hold applies to relevant similar fact evidence ... even though it points to the commission of another crime." [2] Examples of relevant but inadmissible evidence are: Privileged relationships, § 90.502-506, Fla. Stat.; hearsay, § 90.801, Fla....

recent fabrication and improper influence. Section 90.801(2)(b), Fla. Stat. (1985).[13] On cross-examination

claims that are procedurally barred. [11] See § 90.801(2)(b), Fla. Stat. (2009) (providing that a statement

(Transcript of Proceedings at 24). [2] Under section 90.801(2), Florida Statutes (1983), this prior inconsistent

to prove the truth of the matter asserted. See § 90.801(1)(c), Fla. Stat. (1997). Hearsay is generally

Const. The issue requires interpretation of section 90.801(2)(a), Florida Statutes (1981), to determine

statements was in violation of the hearsay rule, see § 90.801(1)(c), Fla. Stat. (2007), and his right to confront

exception pertinent to this issue is provided in Section 90.801(2)(b), Florida Statutes, stating: (2) A statement

she reported her father to the authorities. Section 90.801(2)(b), Florida Statutes (1985), sets forth

Piacenti's testimony would not constitute hearsay. Section 90.801(2)(c) provides that a statement is not hearsay

clothe such hearsay under a nonhearsay label. See § 90.801(1)(c), Fla. Stat. (1999); Wright v. State, 586

to prove the truth of the matter asserted. See § 90.801(1)(c), Fla. Stat. (1991); see also Selver v. State

prior to July 1, 1979, the "new" Evidence Code § 90.801(2)(a) would not be applicable to the trial of

and is therefore, by definition, hearsay. See § 90.801(1)(a), Fla. Stat. (1981). However, because the

provisions. The Law Revision Council's note to section 90.801(2)(a) explained as follows: Paragraph (a)

police interrogation is a "proceeding" under section 90.801(2)(a), Florida Statutes (1981), so as to permit

to bolster her credibility, in violation of section 90.801(2)(b), Florida Statutes. The state responds

This was, of course, hearsay as is defined by section 90.801(1)(c), Florida Statutes (1995). The officer

evidence to prove the truth of the matter asserted. § 90.801(1)(c), Fla. Stat. (2005). "The hearsay rule does

offered to prove the fact, it was hearsay. Section 90.801, Florida Statutes (1983), Florida Evidence

testimony. The statements were clearly hearsay. Section 90.801(1)(c), Florida Statutes (1979), provides: "Hearsay"

asserted. The statements were hearsay by definition, § 90.801, Fla. Stat., but the trial court felt them to

offered to prove the truth of the matter asserted. § 90.801(1)(c), Fla. Stat. (1987). However, for purposes

was admissible under section 90.801(2)(b), Florida Statutes (2008). Section 90.801(2)(b), Florida Statutes

statements to the officer were admissible under section 90.801(2)(b) to rebut a charge of recent fabrication

that Stanford was the assailant. According to section 90.801(2), Florida Statutes, [a] statement is not

prior inconsistent statement is admitted under section 90.801(2)(a) or section 90.803(23). Id. at 760. The

consistent statement by one of the officers. See § 90.801(2)(b), Fla. Stat. Finally, with respect to Snell's

told him was inadmissible hearsay); see generally § 90.801(l)(c), Fla. Stat. (2009) (defining hearsay as

995 P.2d 1217, 1220 (2000)). Moreover, under Section 90.801(2)(c), Florida Statutes, a statement of identification

evidence to prove the truth of the matter asserted.” § 90.801 (l)(c), Fla. Stat. (2012). Hearsay is inadmissible

the truth of the matter asserted," is hearsay. § 90.801(1)(c), Fla. Stat. (1979). As such, unless it falls

constituted hearsay, Florida Evidence Code, section 90.801(1)(c), as amended by Chapter 81-93, section

would have been rejected as inadmissible hearsay. § 90.801, Fla. Stat. (1995). Moreover, the facts advanced

to be justified as within the provisions of section 90.801(2)(b), Florida Statutes (1987). We agree with

v. Lee, 147 So.2d 359, 363 (Fla. 2d DCA 1962); § 90.801(1)(c), Fla. Stat. (1979). 5. No other reversible

"statements of identification" pursuant to section 90.801(2)(c). Then the following exchange occurred

testimony was clearly hearsay. § 90.801(1)(c), Fla. Stat. (1983). While section 90.801(2)(b), Florida Statutes

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2016). Where testimony is not

introduced as substantive evidence at trial under section 90.801(2)(a).[6] Moore was convicted of second-degree

the absence of a record is not hearsay under Section 90.801. The record is not being offered to prove the

admitted as a prior consistent statement under section 90.801(2)(b), Florida Statutes (2002) (stating prior

prior consistent statement admissible under section 90.801(2)(b). However, halfway through the statement

to none of the exceptions contained within section 90.801(2)(b), Florida Statutes (1995). REVERSED AND

asserted, is the most basic form of hearsay. See § 90.801(l)(c), Fla. Stat. (2009). It is well settled that

the statements were properly admitted under section 90.801(2)(b), Florida Statutes *1260 (1987), which

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (1995). The remarks quoted in

testimony is inadmissible hearsay pursuant to section 90.801(2)(c), Florida Statutes (1981). Everett v.

exceptions to the admission of hearsay evidence. § 90.801 (l)(c), Fla. Stat. (2013) (defining "hearsay”

sentence for burglary and remand for a new trial. Section 90.801, Florida Statutes, defines hearsay as "a statement

car theft. As such, it is classic hearsay. Section 90.801(1)(c) of the Florida Evidence Code defines

inconsistent testimony was admissible under section 90.801(2)(a) of the Florida Statutes, and affirmed

of a person made after perceiving the person." § 90.801(2)(c), Fla. Stat. (2001). During Ms. Glenn's original

prior consistent statements of the victim. Section 90.801(2)(b), Florida Statutes (1989) provides that

the letter constituted a “statement” under section 90.801(1)(a)(1), Florida Statutes (2004). See id.

evidence to prove the truth of the matter asserted," § 90.801(1)(c), Fla. Stat. (1989) — is inadmissible in

improper influence, motive, or recent fabrication." § 90.801(2)(b). To be admissible, however, the statement

evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. ■ Stat. (2009). “If an out-of-court

motive, or recent fabrication" against the witness, § 90.801(2)(b), Fla. Stat. (1989), does not apply here

have been excluded as inadmissible hearsay. See § 90.801(1)(c), Fla. Stat. (1983). Nevertheless, the admission

to recall making the prior identification. Section 90.801(2), Florida Statutes (1981) states that the

and is excludable because of its unreliability. § 90.801(1)(c), Fla. Stat. (1995). We find the satellite

"improper influence, motive, or recent fabrication." § 90.801(2)(b), Fla. Stat. (1991). Bertram's defense was

were admissible as non-hearsay evidence under section 90.801(2)(c), Florida Statutes. The shooter was observed

evidence to prove the truth of the matter asserted.” § 90.801, Fla. Stat. (2012). Hearsay is inadmissible unless

and Torres and, as such, was hearsay testimony. § 90.801(1)(c), Fla. Stat. (1981). In the absence of an

to prove the truth of the matter asserted. See § 90.801(l)(c), Fla. Stat. (2005). “Except as provided

whether Parker initiated contact are hearsay. See § 90.801(l)(c), Fla. Stat. (2010) (“‘Hearsay’ is a statement

to prove the truth of the matter asserted. See § 90.801(1)(c), Fla. Stat. (2014) (emphasis added), “A

improper influence, motive, or recent fabrication. Section 90.801(2)(b), Fla. Stat. (1987). We find on the record

S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); § 90.801(1)(c), Fla. Stat. (1981).

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2006). [2] The Florida legislature

3d DCA 1983), argued to the trial judge that section 90.801(2)(a), Florida Statutes (1985), allows a prior

testimony about identification as hearsay. Section 90.801(2), Florida Statutes (1993), provides: (2)

declarant while testifying at the trial or hearing." § 90.801(1)(c), Fla. Stat. (2006).[2] The "declarant" of

her daughter's property without authorization. § 90.801(1)(c), Fla. Stat. (defining "hearsay"). The remaining

evidence pursuant to the Florida Evidence Code, section 90.801(2)(a), Florida Statutes (1979). This is a new

exceptions to the general rule are listed in section 90.801(2)(b), Florida Statutes (1999). This statute

statements made the night of the incident, citing section 90.801(2), Florida Statutes. The court overruled the

truth of the matter contained in the statement. Section 90.801, Fla. Stat. (1991). Here, Taylor did not dispute

inadmissible as substantive evidence under section 90.801(2)(a), Florida Statutes (1981), because Mrs

letter fell within the definition of hearsay, section 90.801(1)(c), Florida Statutes (1979), it would have

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (1981). The statement in the

rebutted this implication of recent fabrication. See § 90.801(2)(b), Fla. Stat. (1995). In Jenkins v. State

wrecked and from which the rims were salvaged. Section 90.801(1)(c), Florida Statutes (1989); State v. Baird

statements to the state attorney's office. See § 90.801(2)(a), Fla. Stat. (1987); Diamond v. State, 436

Unquestionably, this testimony was hearsay. Section 90.801, Fla. Stat. (1991). Allstate argues, however

provided by statute. Hearsay is defined in section 90.801(l)(c), Florida Statutes as “a statement, other

perjury at trial or some other *672 proceeding. § 90.801(2)(a), Fla. Stat. (1989); State v. Delgado-Santos

improper influence, motive, or recent fabrication. § 90.801(2)(b), Fla. Stat. (1985). However, in order to

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2001). The evidence code defines

testimony was clearly inadmissible hearsay. See § 90.801(1)(c), Fla. Stat. (2006); D'Agostino v. State

hearsay. State v. Baird, 572 So.2d 904 (Fla. 1990); § 90.801, Fla.Stat. (1993). The hearsay rule does not prevent

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (1999). This testimony was not

fabrication. See Chandler, 702 So.2d at 197-98; see also § 90.801(2)(b), Fla. Stat. (2001). Both conditions must

"declarant" within the definition of the hearsay rule. § 90.801(1)(b), Fla.Stat. (2000). The main justification

13(6)(a), 893.03(2)(a)4., Fla. Stat. (1993). [3] See § 90.801(1)(c), Fla. Stat. (1993). [4] The trial judge

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2002). In this case, the State

identification of a person made after perceiving him. Section 90.801(2)(c), Florida Statutes (1979). The second

prior inconsistent statement of Jose Suarez. See § 90.801(2)(a), Fla. Stat. (2006) ("A statement is not

S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); § 90.801(1)(c), Fla. Stat. (1983). Any reasonable interpretation

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (1987). [3] Section 90.803(8)

to prove the truth of the matter asserted." See § 90.801(1)(c), Fla. Stat. In Szuba v. State, 749 So.2d

as related by the witnesses, were hearsay. Section 90.801, Florida Statutes (1981). In the absence of

inconsistent statement to impeach Williams under section 90.801(2)(a), Florida Statutes (1995). And while defense

evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2005). As defense counsel did

except as permitted under the Evidence Code. See § 90.801, Fla. Stat. (1989). Arias' objections should have

the document was hearsay. § 90.801(1), Fla. Stat. (2005). Section 90.801(2)(a) provides an exception

excluding the testimony of appellant's expert. See § 90.801(1)(c), Fla. Stat. (1991); Auletta v. Fried, 388