The Third District Court of Appeal held on October 21, 2026, that any Confrontation Clause error in letting a supervisor summarize an absent nurse practitioner’s report was not fundamental error. The defendant did not object at trial, so he could raise the issue on appeal only as fundamental error, and the court found the testimony played too small a role in the State’s case to meet that standard. The court distinguished the U.S. Supreme Court’s decision in Smith v. Arizona on the ground that the supervisor gave no opinion of his own and the nurse’s report reached no forensic conclusions. It did not decide whether the supervisor’s actual testimony was hearsay or was testimonial. In the same opinion the court rejected eleven procedural challenges without discussion. The case is Figueroa Hernandez v. State, Nos. 3D24-1040 and 3D24-1368.
Procedural note. This is a substituted opinion. The court denied a July 25, 2026 motion for rehearing, withdrew its earlier opinion, and issued this one in its place. Evin A. Figueroa Hernandez was convicted by a Miami-Dade jury, after a six-day trial, on six counts involving a minor. He appealed the convictions and, separately, the denial of a Florida Rule of Criminal Procedure 3.850 motion on double jeopardy grounds. The court consolidated the appeals and affirmed both.
The witness problem. A nurse practitioner with the Child Protection Team examined the complainant, took swabs, and wrote a report that reached “no forensic conclusions.” She left her job and the city before trial. The team’s chief medical officer, Dr. Walter Lambert, testified instead. He had not met or examined the complainant. He described the team’s protocols and “summarized Saxton’s report for the jury.” Figueroa Hernandez did not object on Confrontation Clause grounds at trial. On appeal he argued fundamental error, citing Smith v. Arizona, 602 U.S. 779 (2024), which was released after his trial but before his sentencing.
What Smith decided, as the court describes it. Crawford v. Washington, Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico had established that testimonial forensic reports are covered by the Confrontation Clause, including when a substitute witness testifies about an absent analyst’s report. Smith answered the remaining question: “Whether a substitute witness may introduce the forensic report prepared by an absent forensic analyst as support for the substitute witness’s own independent opinion?” The Supreme Court held that the substitute analyst there offered the absent analyst’s statements for their truth, because his own opinion depended on them.
Why the Third District distinguished it. The court gave two differences: 1. “First, Dr. Lambert, unlike Longoni in Smith, offered no opinions.” He testified only to the procedures the nurse used and the team’s protocol. The court noted that Smith acknowledges a witness may give general testimony about the “standards, practices, and procedures” used to develop the evidence. 2. “Second, Saxton, unlike Rast in Smith, did not make findings or conclusions.” In a footnote the court added that the report did contain one opinion at the end, which Dr. Lambert did not convey to the jury, and that the record indicated the report was never introduced into evidence but was used only to aid his recollection.
Worth noticing (the author’s, not the court’s). The opinion’s own background section says Dr. Lambert also testified that the complainant’s medical exam was normal and that the sexual contact described did not and would not necessarily cause physical injury. The court nonetheless characterized his testimony as limited to procedure and protocol and “no opinions.” A reader should know that tension exists in the text.
Fundamental error. Figueroa Hernandez did not object at trial, so the claim was unpreserved. Fundamental error is the exception that lets an appellate court reach an unpreserved error, so no objection was needed to raise it. The question was whether the error was serious enough to qualify. The standard the court quoted is that the error “must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” It reasoned that the report’s main facts came in through other witnesses who were cross-examined: a colleague who interviewed the complainant testified and her recorded interview was played, and the DNA analyst tied each swab to its location. The conclusion: the testimony “played too small a role in the State’s case,” and the conviction “would have been obtained without the assistance of the alleged error.” In footnote 7 the court said it “need not, and therefore do[es] not, adjudicate” either of the two questions that would decide a Confrontation Clause violation: whether Dr. Lambert’s testimony was hearsay admitted for its truth, or whether it was testimonial. The holding is that even if there was an error, it was not fundamental.
Other rulings in the opinion.
- Eleven procedural rulings. In No. 3D24-1040 the defendant challenged eleven procedural rulings by the trial court, the first concerning a continuance request after the State added count 6 four days before trial. After reviewing the record, including the Daubert hearing and trial transcripts, the court concluded “without further elaboration” that the trial court did not abuse its discretion in making them.
- DNA evidence. The defense expert argued that the Miami-Dade crime lab’s methods were outdated and should have used newer genotyping software. The court held these arguments “go to the weight rather than to the admissibility” of the analyst’s testimony, citing Forbes v. State, 410 So. 3d 574, 581 (Fla. 4th DCA 2025). It found no abuse of discretion in the Daubert ruling, noting that the newer software issue “was ripe for cross-examination.”
- Double jeopardy. The court held that each separate touching was a distinct offense, quoting Graham v. State, 207 So. 3d 135, 141 (Fla. 2016): “a new act began each time one touch ended and another was initiated, no matter how closely each one followed the other.” It also said an argument about count 5 was not pursued in the appellate briefs.
Reading it (the author’s, not the court’s). Two practical points follow from the way the court framed the case. The Confrontation Clause objection was raised for the first time on appeal, which is why the court asked only whether there was fundamental error. And the court’s reasoning about Smith turned on what the substitute witness actually said and what the absent examiner’s report actually concluded; the opinion expressly left open whether similar testimony would be hearsay or testimonial.
Panel: Chief Judge Scales (author), Judges Fernandez and Logue. The opinion is not final until disposition of a timely motion for rehearing.
Read the opinion (PDF): Download the opinion (PDF)
Source: Figueroa Hernandez v. State, Nos. 3D24-1040 and 3D24-1368 (Fla. 3d DCA Oct. 21, 2026). This article is general information, not legal advice.