Calloway v. State, No. BR-104

CourtCourt of Appeal of Florida (US)
Writing for the CourtNIMMONS; SMITH, C.J., and ERVIN
Citation13 Fla. L. Weekly 528,520 So.2d 665
Parties13 Fla. L. Weekly 528 Jimmy Birl CALLOWAY, Appellant, v. STATE of Florida, Appellee.
Decision Date24 February 1988
Docket NumberNo. BR-104

Page 665

520 So.2d 665
13 Fla. L. Weekly 528
Jimmy Birl CALLOWAY, Appellant,
v.
STATE of Florida, Appellee.
No. BR-104.
District Court of Appeal of Florida,
First District.
Feb. 24, 1988.

Page 666

Michael E. Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Bradford Thomas, Asst. Atty. Gen., Tallahassee, for appellee.

NIMMONS, Judge.

The defendant was convicted of two counts of sexual battery perpetrated on his stepdaughter while he was in a position of familial, custodial, or official authority. The defendant raises seven issues on appeal, three of which merit discussion. We affirm.

In the first issue, defendant contends that the trial court erred in failing to require the state to narrow the period of time within which the defendant was charged with sexually battering his stepdaughter. The first count covered the period between October 1, 1984 and May 31, 1985. The second count covered the period between September 30, 1982 and September 30, 1984.

Three months prior to trial, a hearing was held on the defendant's motion for statement of particulars in which the defense sought more definite dates as to the offenses charged. The state explained to the court that the defendant had sexually abused his stepchild over a period of years and that the state had been unable to obtain any more specific time periods from the child victim. Defense counsel said that he had been unable to obtain specific dates from the victim via her deposition. The prosecutor said that he would "go back and try to talk to the victim some more."

At the hearing, the trial court required the state to make reasonable efforts to narrow the time periods. The judge stated:

All right. I'll tell you what I'm going to ask you to do. The Child Protection Team of which you spoke, I'm going to ask that you ask the people on the Child Protection Team to see if they can't at least in connection with some known dates, for instance birthdays, to do the best they can. I agree with you. It is not the easiest thing in the world when you have got a small child like that. But see if they can't pin some times down just a little bit better because I see we have got here something going back to approximately 1982.

* * *

* * *

But I do want to at least try to get something a little bit pinned down in terms of specific dates that can be used as points of reference for her. You know, school is out in June. Was it while vacation time? Was it while school was still going on? Things like that. Anything to help pin it down a little bit.

All right. That's all I'm going to require at this time. Do the best you can. I'll be available, Mr. Minerva [defense counsel]. Do what you can, Edgar [prosecutor].

The only further activity which appears in the record regarding the above issue is a statement of particulars filed a month later by the state. As to count one, the statement of particulars stated the same inclusive dates as the information while the time range of count two was narrowed by 2 1/2 months. No objection was raised by the defense directed to the statement of particulars.

It would be inappropriate for us to assume that it would have been futile for the defendant to have attacked the adequacy of the statement of particulars. It is obvious from the judge's above comments that he was sympathetic with the defendant's efforts seeking a narrowing of the time frames. Indeed, the gist of his final remark was an invitation to defense counsel to seek relief from the court should he be dissatisfied with the state's response to the court's directives. After the filing of the statement of particulars, several unrelated motions were heard three weeks prior to the...

To continue reading

Request your trial
22 practice notes
  • Thomas v. State, No. 89-449
    • United States
    • Court of Appeal of Florida (US)
    • April 28, 1992
    ...issue 3 and, in my view, the evidence in question was admissible under Heuring v. State, 513 So.2d 122 (Fla.1987) and Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), rev. den., 529 So.2d 693 (Fla.1988) to corroborate the testimony of the child victim, whose credibility most assuredly was p......
  • King v. Commonwealth, 2013–SC–000556–MR
    • United States
    • Kentucky Supreme Court
    • October 29, 2015
    ...Ct.App. 2007) ; State v. Favoccia, 306 Conn. 770, 51 A.3d 1002 (2012) ; Wittrock v. State, 630 A.2d 1103 (Del.1993) ; Calloway v. State, 520 So.2d 665 (Fla.Dist.Ct.App.1988) ; Hammock v. State, 201 Ga.App. 614, 411 S.E.2d 743 (1991) ; People v. Pollard, 225 Ill.App.3d 970, 168 Ill.Dec. 61, ......
  • Gezzi v. State, No. 88-266
    • United States
    • United States State Supreme Court of Wyoming
    • September 27, 1989
    ...(1976) (common scheme or design); Snowden v. State, 537 So.2d 1383 (Fla.App.1989) (identity, credibility of witness); Calloway v. State, 520 So.2d 665 (Fla.App.1988) (when crime occurs in the familial setting and the victim is the only witness to the crime, the victim's credibility becomes ......
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1997
    ...'s relevancy standard with approval in finding expert testimony concerning child-abuse syndrome admissible. See also Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), review denied, 529 So.2d 693 (Fla.1988). The United States Supreme Court similarly found that the Federal Evidence Code, whic......
  • Request a trial to view additional results
22 cases
  • Thomas v. State, No. 89-449
    • United States
    • Court of Appeal of Florida (US)
    • April 28, 1992
    ...issue 3 and, in my view, the evidence in question was admissible under Heuring v. State, 513 So.2d 122 (Fla.1987) and Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), rev. den., 529 So.2d 693 (Fla.1988) to corroborate the testimony of the child victim, whose credibility most assuredly was p......
  • King v. Commonwealth, 2013–SC–000556–MR
    • United States
    • Kentucky Supreme Court
    • October 29, 2015
    ...Ct.App. 2007) ; State v. Favoccia, 306 Conn. 770, 51 A.3d 1002 (2012) ; Wittrock v. State, 630 A.2d 1103 (Del.1993) ; Calloway v. State, 520 So.2d 665 (Fla.Dist.Ct.App.1988) ; Hammock v. State, 201 Ga.App. 614, 411 S.E.2d 743 (1991) ; People v. Pollard, 225 Ill.App.3d 970, 168 Ill.Dec. 61, ......
  • Gezzi v. State, No. 88-266
    • United States
    • United States State Supreme Court of Wyoming
    • September 27, 1989
    ...(1976) (common scheme or design); Snowden v. State, 537 So.2d 1383 (Fla.App.1989) (identity, credibility of witness); Calloway v. State, 520 So.2d 665 (Fla.App.1988) (when crime occurs in the familial setting and the victim is the only witness to the crime, the victim's credibility becomes ......
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1997
    ...'s relevancy standard with approval in finding expert testimony concerning child-abuse syndrome admissible. See also Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), review denied, 529 So.2d 693 (Fla.1988). The United States Supreme Court similarly found that the Federal Evidence Code, whic......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT