Opinion
Case No. 5D16-3318.
09-07-2017
STATE of Florida, Appellant, v. Nathan Patrick RYAN, Appellee.
Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant. Michael Ufferman, of Michael Ufferman Law Firm, PA, Tallahassee, for Appellee.
Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.
Michael Ufferman, of Michael Ufferman Law Firm, PA, Tallahassee, for Appellee.
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. 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. That issue is one for the trier of fact. See Jackson v. State , 107 So.3d 328, 339–40 (Fla. 2012).
Appellee, having served his prison term, was on probation when the appealed order was entered.
We 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.
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AFFIRMED.
ORFINGER, EVANDER, and EDWARDS, JJ., concur.