Background
Dwayne Lee Lewis was convicted of attempted sexual battery without consent in Polk County Circuit Court. Before trial, Lewis filed a motion in limine to exclude portions of a custodial interview in which law enforcement officers repeatedly expressed opinions about Lewis’s guilt—statements that would violate the rule against witness opinions on the defendant’s guilt or innocence. The trial court granted the motion in limine. However, the problematic portions of the custodial interview were later admitted into evidence at trial. Lewis did not renew his objection when the evidence was admitted, and he was convicted and sentenced.
Lewis appealed, arguing that the trial court erred by admitting the custodial interview containing law enforcement’s guilt opinions. The central issue was not whether the trial court erred in admitting the evidence, but rather whether Lewis preserved that error for appeal by failing to renew his pre-trial objection at trial.
The Court’s Holding
The Sixth District affirmed Lewis’s conviction, holding that he failed to preserve the issue for appellate review. Under Carr v. State, 156 So. 3d 1052 (Fla. 2015), a party must make a contemporaneous objection at trial when an error occurs to preserve it for appeal. Because Lewis successfully obtained a pre-trial ruling excluding the evidence but failed to renew his objection when the evidence was actually admitted at trial, he abandoned his pretrial objection and forfeited the appellate argument.
The court acknowledged a significant tension between this requirement and Florida Statute § 90.104(1), which states that a party need not renew an objection to an unsuccessful motion in limine to preserve error for appeal—implying that the statute does not require renewal even after a definitive pre-trial ruling. The court recognized that Carr imposes a higher obligation on trial counsel than the statute requires. However, bound by Carr, the court could not reach the merits of whether admitting the custodial interview was error or whether any error was harmless.
Notably, the court affirmed “without prejudice” for Lewis to pursue postconviction relief if he can do so in good faith. The court also certified a question of great public importance to the Florida Supreme Court: whether a defendant must renew an objection at trial to preserve error when the trial court has made a definitive pre-trial ruling excluding the evidence.
Key Takeaways
- Failure to renew a pre-trial objection at the moment evidence is actually admitted at trial results in procedural default, even if the pre-trial motion was granted and the objection was preserved on the record before trial.
- Carr v. State requires contemporaneous objection at the moment of trial error, creating a higher preservation standard than the plain language of Florida’s evidence statute appears to require.
- A certified question to the Florida Supreme Court signals the appellate court’s recognition that current law may be at odds with statutory intent and may result in future clarification or change.
- Postconviction relief mechanisms may still be available to a defendant who loses on direct appeal due to procedural default.
Why It Matters
This decision underscores a critical procedural trap for criminal defense counsel. Trial attorneys must not only move in limine to exclude problematic evidence but must renew objections when that evidence is presented at trial, even after winning the pre-trial motion. The gap between the statutory preservation rule and the case law requirement means that vigilant trial practice requires repeated objections and offers of proof to ensure appellate rights are preserved. The practical consequence is that meritorious claims about evidence admissibility can be lost entirely due to a procedural misstep.
The certification to the Florida Supreme Court suggests the Sixth District views the current tension between Carr and § 90.104(1) as a matter warranting statewide clarification. A reversal or modification of the Carr requirement by Florida’s highest court could significantly alter evidence preservation practice in the state and potentially provide a pathway for appellate review in cases now deemed procedurally defaulted.