Opinion
CASE NO. 1D13-0856
04-02-2014
CAMERON TYLER CHERRY, Appellant, v. STATE OF FLORIDA, Appellee.
Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.
Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM.
Appellant raises several issues on appeal from his conviction for murder and sentence of life imprisonment. We find one issue to be dispositive and requires us to reverse and remand for a new trial. The trial court abused its discretion in admitting a statement as a past recollection recorded without the proper predicate being presented. In making its ruling, the trial court relied on the reasoning of the Fifth District Court of Appeal in Polite v. State, 41 So. 3d 935 (Fla. 5th DCA 2010), and that reasoning was also adopted by this court in McNeal v. State, 109 So. 3d 268 (Fla. 1st DCA 2013). After the trial court ruled on the admission of the evidence in question, the Florida Supreme Court rejected the reasoning of the Fifth District in Polite and clarified the proper predicate which must be presented to admit a statement as a past recollection recorded. See Polite v. State, 116 So. 3d 270 (Fla. 2013).
Based upon the supreme court decision, we REVERSE and REMAND for a new trial. WOLF, VAN NORTWICK, and MARSTILLER, JJ., CONCUR.