State v. Malarney

DIMITROULEAS, WILLIAM P., Associate Judge,

concurring and dissenting.

I concur in the reversal of appellant’s conviction for sexual battery upon a child under the age of twelve. However, I would also hold that the trial court’s reduction of the charge to a life felony was improper, and I would remand this cause for a new trial on the original capital sexual battery charge.

I agree that the exclusion of the Texas defense witness testimony was error. See § 90.803(10), Fla.Stat. (1989); Terranova v. State, 474 So.2d 1206 (Fla. 2d DCA 1985); Williams v. State, 406 So.2d 86 (Fla. 1st DCA 1981); Jones…