County Case No. MM99-05407A-XX
Appeal No. BB-56

EDWARD KRONJACK,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

/

This is an appeal from the county court of Polk County, Judge Michael Raiden presiding. Appellant Edward Kronjack appeals the judgement and sentence of the trial court. This court has jurisdiction. Fla. R. App. P. 9.030. Affirmed.

Kronjack went to trial on a charge of domestic violence battery on August 18, 1999. The state listed his seven-year-old daughter as a witness. The trial judge conduced a competency hearing, and concluded that the child was competent to testify. (T at 28-33) The jury returned a guilty verdict and the trial judge sentenced Kronjack to 364 days in county jail. By and through appellate counsel, Kronjack filed this timely appeal.

It is the proper exercise of judicial discretion to determine a witness’ competency to testify. Rutledge v. State, 374 So. 2d 975 (Fla. 1979). As with other discretionary rulings, a ruling on competency is presumptively valid and this court may not overturn it absent an abuse of discretion. Padovano, Philip J., Florida Appellate Procedure § 9.5 (2d Ed. 1997).

The competency of a child witness is measured by the child’s intelligence and ability to understand the obligation to tell the truth. Lloyd v. State, 524 So. 2d 396 (Fla. 1988). The district court restated this standard in Kertell v. State, 649 So. 2d 892 (Fla. 2d DCA 1995). Under Kertell, trial judges must make findings on the record to support their conclusion.

The judge conducted a competency hearing of the seven-year-old prosecution witness, and concluded that the child was competent to testify. (T. at 33) The judge noted that the child was in the correct grade for her age and making good progress in school, and that she had demonstrated her understanding of her obligation to testify when called. Kronjack argues that the inquiry was inadequate because the court failed to inquire regarding the child’s ability to distinguish between right and wrong. Further, the defense informed the court of its belief that the mother had coached the child.

The State correctly notes that the trial judge explained to the witness the difference between what she actually saw and heard, and what someone else may have told her. The witness indicated that she understood the difference and would testify about her observations. (T at 32) A review of the record shows that the trial judge made findings which support his conclusion.

Accordingly, it is ORDERED that the judgement and sentence of the county court are AFFIRMED.

ORDERED 7 February 2001.

Charles B. Curry

Chief Judge