Larioszambrana v. State
The Third DCA granted habeas relief where a defendant was held on a lewd and lascivious molestation charge based solely on inadmissible child-victim hearsay at an adversary preliminary hearing under Rule 3.133(b). The child victim did not testify and the State never established, nor did the trial court find, that the child was 'unavailable' as required by section 90.803(23), so the statements did not qualify as admissible hearsay and could not alone support probable cause. The court also rejected the State's tipsy-coachman argument that the statement was independently admissible as an excited utterance, since that theory was never raised or litigated below.
Key facts
- Defendant was charged with lewd and lascivious molestation based solely on an out-of-court statement from a child victim presented at an adversary preliminary hearing under Rule 3.133(b).
- The child victim did not testify, and the State did not establish or prove that the child was unavailable as required by section 90.803(23).
- +2 more key facts with a free trial
Why it matters
This opinion gives criminal practitioners a clear, citable clarification of the distinction between inadmissible and exception-qualifying hearsay at adversary preliminary hearings, directly addressing confusion… — full analysis with a trial
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