          Supreme Court of Florida
                                  ____________

                                  No. SC13-650
                                  ____________

                     DEMETRICE ARMICLE MCNEAL,
                              Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                   [June 5, 2014]

QUINCE, J.

      We have for review McNeal v. State, 109 So. 3d 268, 271 (Fla. 1st DCA

2013), in which the First District Court of Appeal found that satisfying the

foundational requirements under the past recollection recorded exception to

hearsay need not come from the declarant’s testimony. 1 At the time that the First


      1. The past recollection recorded exception provides as follows:

      A memorandum or record concerning a matter about which a witness
      once had knowledge, but now has insufficient recollection to enable
      the witness to testify fully and accurately, shown to have been made
      by the witness when the matter was fresh in the witness’s memory and
      to reflect that knowledge correctly. A party may read into evidence a
      memorandum or record when it is admitted, but no such memorandum
      or record is admissible as an exhibit unless offered by an adverse
District issued its decision below, Polite v. State, 41 So. 3d 935 (Fla. 5th DCA

2010), quashed, 116 So. 3d 270 (Fla. 2013), was pending review in this Court. We

have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      We stayed proceedings in this case pending disposition of Polite, in which

we held that the past recollection recorded exception requires the witness to

indicate that the events were fresh in his or her mind when the statement was

made, as well as attest to the accuracy of the memorandum or record. Polite v.

State, 116 So. 3d 270, 278 (Fla. 2013). We then issued an order in the instant case

directing Respondent to show cause why this Court should not accept jurisdiction,

summarily quash the First District’s decision in McNeal, and remand for

reconsideration in light of our decision in Polite. Respondent filed a response

acknowledging that the victims in both the instant case and in Polite did not vouch

at trial for the accuracy or correctness of their written statements. Respondent

contends, however, that this Court should decline to accept jurisdiction because the

district court below found that even if the publishing of the statement was error, it

was harmless. Petitioner filed a reply, asserting that the decision below should be

quashed and that we should remand because the district court applied an incorrect

standard in finding that the error was harmless.


      party.

§ 90.803(5), Fla. Stat. (2013).

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      Upon consideration of the Respondent’s response, and Petitioner’s reply

thereto, we grant the petition for review, quash the district court’s decision in

McNeal, and remand this case to the First District for reconsideration in light of

this Court’s decision in Polite, and a proper harmless error analysis under State v.

DiGuilio, 491 So. 2d 1129 (Fla. 1986), if applicable.

      It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
CANADY, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District – Case No. 1D11-6875

      (Escambia County)

Diana L. Johnson of Johnson and Lufrano, P.A., Jacksonville, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal
Appeals, and Donna Antoinette Gerace, Assistant Attorney General, Tallahassee,
Florida,

      for Respondent




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