Sadler v. State , 509 So. 2d 1139 ( 1987 )

509 So. 2d 1139 (1987)

Robert Henry SADLER, Appellant,
v.
STATE of Florida, Appellee.

No. 86-1968.

District Court of Appeal of Florida, Fifth District.

June 11, 1987. Rehearing Denied July 16, 1987.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

This case is directly controlled by our prior opinion in Deel v. State, 481 So. 2d 15 (Fla. 5th DCA 1985), review denied, 488 So. 2d 831 (Fla. 1986). See also, Baeza v. State, 489 So. 2d 36 (Fla. 4th DCA), review denied, 496 So. 2d 142 (Fla. 1986). Here, as in Deel, the prosecution introduced expert medical testimony indicating that the hymen of the minor victim had been ruptured by sexual activity. The prosecution then successfully objected to proffered defense evidence which indicated that the injury (rupture) could have been caused by earlier sexual activity with a person other than the defendant. The exclusion of such rebuttal evidence contravenes both section 794.022(2), Florida Statutes (1985) and substantive due process of law, i.e., fair play.

REVERSED AND REMANDED FOR NEW TRIAL.

UPCHURCH, C.J., and SHARP, J., concur.