Kovaleski v. State, No. 4D98-4288.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
Citation854 So.2d 282
PartiesAnthony KOVALESKI, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 4D98-4288.
Decision Date17 September 2003

854 So.2d 282

Anthony KOVALESKI, Appellant,
v.
STATE of Florida, Appellee

No. 4D98-4288.

District Court of Appeal of Florida, Fourth District.

September 17, 2003.


854 So.2d 283
Anthony Kovaleski, Wewahitchka, pro se

Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.

APPELLANT'S MOTION FOR REHEARING, REHEARING EN BANC, OR CLARIFICATION AND APPELLEE'S MOTION FOR REHEARING OR CERTIFICATION

PER CURIAM.

We deny appellant's Motion as to Rehearing and Rehearing En Banc. We deny appellee's Motion for Rehearing or Certification. We grant appellant's Motion for Clarification, and as a result, withdraw our previous opinion and substitute the following opinion in its place.

Anthony Kovaleski (Kovaleski) was convicted of one count of committing a lewd, lascivious, or indecent act upon a child under sixteen years of age and one count of committing a lewd, lascivious, or indecent act in the presence of a child under sixteen years of age. § 800.04, Fla. Stat. (1997). Kovaleski raised twelve points on appeal of these convictions. We need only address one of these points in this opinion, as the other eleven points raised were deemed without merit. Concerning that one point, we agree with Kovaleski's assertion that his constitutional right to a public trial was violated. We reject the State's argument that he failed to timely object to the continued closure of the courtroom.

Originally, the courtroom was partially closed under Florida Statutes section 918.16, which allows for closure to all but specified necessary individuals during the period when a victim of a sex offense under sixteen years of age is set to testify. When the victim took the stand, it became clear that the victim had turned sixteen, so that he was no longer under sixteen as the statute required. The trial judge immediately called a bench conference upon recognizing this discrepancy.

Appellate review is difficult in this case due to the very poor quality of the transcription of the pertinent parts of the record. During the bench conference after the prosecutor agreed that the statute did not apply, Kovaleski's counsel queried: "Should the bailiff make an announcement in the hall—." A reasonable interpretation of this sentence is that Kovaleski's counsel wanted the courtroom reopened as the grounds for closure were no longer applicable.

854 So.2d 284
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3 practice notes
  • Kovaleski v. State, No. SC09–536.
    • United States
    • United States State Supreme Court of Florida
    • 25 October 2012
    ...of closing the trial as required by Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). See Kovaleski v. State, 854 So.2d 282, 284 (Fla. 4th DCA 2003). Thus, the Fourth District reversed and remanded for a new trial. Id. at 284. At Kovaleski's second trial in 2006, the......
  • Kovaleski v. State, No. 4D06-1168.
    • United States
    • Court of Appeal of Florida (US)
    • 5 January 2009
    ...of the minor. He received two concurrent sentences of approximately twelve years. Both convictions were reversed in Kovaleski v. State, 854 So.2d 282 (Fla. 4th DCA 2003), and remanded for a new trial because the trial court had improperly closed the courtroom during the testimony of the min......
  • Palm Beach County Sheriff v. State, No. 4D01-2659.
    • United States
    • Court of Appeal of Florida (US)
    • 17 September 2003
    ...torts, i.e., those causing property damage, personal injury or wrongful death. That this is true is apparent from ... Section 768.28(1), 854 So.2d 282 which provides that the state shall be liable only if a private person would be liable under the same circumstances in accordance with the g......
3 cases
  • Kovaleski v. State, No. SC09–536.
    • United States
    • United States State Supreme Court of Florida
    • 25 October 2012
    ...of closing the trial as required by Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). See Kovaleski v. State, 854 So.2d 282, 284 (Fla. 4th DCA 2003). Thus, the Fourth District reversed and remanded for a new trial. Id. at 284. At Kovaleski's second trial in 2006, the......
  • Kovaleski v. State, No. 4D06-1168.
    • United States
    • Court of Appeal of Florida (US)
    • 5 January 2009
    ...of the minor. He received two concurrent sentences of approximately twelve years. Both convictions were reversed in Kovaleski v. State, 854 So.2d 282 (Fla. 4th DCA 2003), and remanded for a new trial because the trial court had improperly closed the courtroom during the testimony of the min......
  • Palm Beach County Sheriff v. State, No. 4D01-2659.
    • United States
    • Court of Appeal of Florida (US)
    • 17 September 2003
    ...torts, i.e., those causing property damage, personal injury or wrongful death. That this is true is apparent from ... Section 768.28(1), 854 So.2d 282 which provides that the state shall be liable only if a private person would be liable under the same circumstances in accordance with the g......

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