        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT
                                 July Term 2014

                                R.M.O., a Child,
                                  Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D13-3944

                              [November 26, 2014]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert A. Hawley, Judge; L.T. Case No.
312013CJ000285A.

  Carey Haughwout, Public Defender, and Peggy Natale, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G.
Mosier, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   We affirm the trial court’s order finding R.M.O. guilty as charged in
the delinquency petition and withholding adjudication. Our review of the
record reveals that any evidentiary errors committed by the lower court
during the bench trial of R.M.O. were harmless.

    Nonetheless, we write to remind all concerned of the special attention
required of trial courts when making evidentiary rulings during non-jury
trials.

   We quote extensively from the Florida Supreme Court’s instructive
decision in Petion v. State, 48 So. 3d 726 (Fla. 2010):

                Ordinarily, where a trial judge, sitting, as here, as
             the fact-finder, erroneously admits evidence, he is
             presumed to have disregarded the improperly admitted
             evidence, and the error of its admission is deemed
   harmless. Wythers v. State, 348 So. 2d 390 (Fla. 3d
   DCA 1977); Capitoli v. State, 175 So. 2d 210 (Fla. 2d
   DCA 1965). Where, however, the record discloses that
   the trial judge relied upon the erroneous evidence, this
   presumption is overcome.

[State v.] Arroyo, 422 So. 2d 50, 51 [(Fla. 3d DCA 1982)]
(emphasis supplied) (federal citations omitted).          After
articulating this standard of review, the Third District
determined that the presumption was rebutted because it
was “abundantly clear” that the inadmissible evidence
“played a significant part in the trial judge’s ruling” on the
motion to suppress.        Id. Considering the trial court’s
comments during the suppression hearing and the express
statements in the written order granting the motion to
suppress, the district court concluded that these comments
indicated that while the results of the inadmissible
experiment may not have been the “sine qua non of his
decision,” the trial court’s “reliance on the experiment to
impeach the officers’ testimony [was] inseparable from his
various conclusions” in support of granting the motion to
suppress. Id. at 52 [.] . . .

   ....

    However, we note that Arroyo frames the presumption in
overly broad terms. The appellate court should not presume
that the trial court disregarded all improperly admitted
evidence where the record reflects that the evidence was
admitted over objection. Hence, another method of rebutting
the presumption is through a trial court’s express admission
of the evidence over objection. In making the determination
that the evidence is admissible, we would expect a trial court
judge to believe that the evidence was properly before the
trier of fact for consideration. It would be nonsensical to
hold otherwise and insulting to the training and experience
of the trial judge to presume that the evidence was
disregarded when the court made a conscientious ruling that
the evidence was admissible. In that circumstance, the trial
court must make an express statement on the record that
the erroneously admitted evidence did not contribute to the
final determination. Otherwise, the appellate court cannot
presume that the trial court disregarded evidence which was
specifically admitted as proper.

                              2
Id. at 734-35 (emphasis in original).

   Quoting Parks v. Zitnik, 453 So. 2d 434, 437 (Fla. 2d DCA 1984), the
Supreme Court held, however, that appellate courts still must conduct a
harmless error analysis when reviewing a matter such as this:

      Where the proof of guilt is so convincing that a person would
      clearly have been found guilty even without collateral
      evidence introduced in violation of the evidence code, the
      violation of the code may be considered harmless.

Petion, 48 So. 3d at 735.       As we have noted, this is the case in the
instant matter.

   Affirmed.

DAMOORGIAN, C.J., and FORST, J., concur.

                            *           *      *

   Not final until disposition of timely filed motion for rehearing.




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