State v. Horvatch

• Decision Date: 05 May 1982
• Docket Number: No. 82-251,82-251
• Citation: 413 So.2d 469
• Parties: STATE of Florida, Petitioner, v. Tony D. HORVATCH, Respondent.
• Court: Florida District Court of Appeals

Page 469

413 So.2d 469

STATE of Florida, Petitioner, v.Tony D. HORVATCH, Respondent.

No. 82-251.

District Court of Appeal of Florida Fourth District.

May 5, 1982.

Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for petitioner.

Gerald Lefebvre of Conlon & Tooker, Okeechobee, for respondent.

ANSTEAD, Judge.

The state seeks review of a pretrial order holding that the respondent, Tony D. Horvatch, will be entitled to introduce the results of a lie-detector examination in evidence at his upcoming trial on charges of aggravated battery.We grant the writ and quash the order of the trial court.

In State v. Steinbrecher, 409 So.2d 510(Fla. 3d DCA1982), the Third District held that the state may obtain certiorari review of pretrial rulings excluding or admitting evidence where such rulings are legally erroneous and no remedy will be available to the state upon appeal from a final disposition of the case.We agree with this proposition.If the court permitted the evidence to be admitted and respondent was subsequently adjudicated not guilty, the state would have no remedy by appeal, since the state cannot seek review of such an adjudication.SeeFla.R.App.P. 9.140(c)(1).We also believe that the ruling below is legally erroneous, for as stated in Pendleton v. State, 348 So.2d 1206, 1209(Fla. 4th DCA1977), "polygraph tests and information gleaned therefrom are not admissible evidence in any criminal proceeding" in the absence of a "stipulation between the state and defense counsel."Accord, State Dept. of Highway Safety & Motor Vehicles v. Zimmer, 398 So.2d 463(Fla. 4th DCA1981).The results of polygraph examinations have not been accepted as competent scientific proof in Florida.Kaminski v. State, 63 So.2d 339(Fla.1953).

Even under McMorris v. Israel, 643 F.2d 458(7th Cir.1981), cert. denied455 U.S. 967, 102 S.Ct. 1479, 72 L.Ed.2d ---(1982)[30 Crim.L.Rptr. 4217], cited by respondent for the proposition that the state's refusal to stipulate to the admission of a defendant's polygraph test may amount to a denial of due process of law when not based upon legitimate reasons, we believe the results of respondent's test would be excludable.Aggravated battery is a specific intent crime.SeeRussell v. State, 373 So.2d 97(Fla. 2d DCA1979).In our view the state was not required to stipulate to the admission of the polygraph test taken by respondent in which respondent's answer of "no" to the question of whether he intended to commit an aggravated battery was purportedly truthful.Any...