A Florida appeals court has ordered a new evidentiary hearing in the case of a Palm Beach County man convicted in 2018 of exposing himself to two children, after the same young witnesses signed affidavits saying the incident was accidental. Abner Zambrano's conviction for lewd or lascivious exhibition relied primarily on testimony that he intentionally exposed himself to the children while he was dating their mother, and he was sentenced to 18 months in prison followed by three years of sex offender probation. In affidavits signed in 2023, the two children now say Zambrano's baggy pants simply fell down while he was dancing in front of them because he wasn't wearing a belt or underwear.
The Fourth District Court of Appeal's decision, issued Wednesday and first detailed by Tampa Free Press, reverses a Palm Beach County circuit court's summary denial of Zambrano's postconviction-relief motion and sends the case back for a full evidentiary hearing on the new evidence. The appellate panel found the affidavit allegations were not inherently incredible, the legal threshold that determines whether a judge must hold a hearing on newly discovered evidence.
New Affidavits Recast the 2018 Incident
In the 2023 affidavits, the two witnesses said Zambrano did not intentionally expose himself and that the incident was not sexual or lewd. They said his loose-fitting pants fell down while he was dancing in front of them, attributing the mishap to the fact that he wasn't wearing a belt or underwear that day. Both witnesses said they were willing to assist Zambrano in his effort to challenge the conviction.
Palm Beach County prosecutors and the trial court had already rejected the new affidavits once, when Zambrano first raised them in a 2024 postconviction motion. The trial court ruled the children's statements amounted to inadmissible opinion testimony about Zambrano's intent, and also found the affidavits failed to negate statements Zambrano made during a recorded controlled phone call that had been admitted at trial, in which he did not repeatedly deny intentionally exposing himself. Circuit Judge Daliah H. Weiss of the Fifteenth Judicial Circuit Court, which sits in Palm Beach County, denied Zambrano's motion without holding a hearing, according to Justia Law, in a case numbered 50-2017-CF-001610-AXXX-MB.
Appellate Judges Say Observations Are Fact, Not Opinion
The Fourth DCA disagreed with that framing. Judges May, Forst and Shaw, who concurred in a per curiam opinion, found that the children's direct observations — noticing that Zambrano's pants fell and that he wasn't wearing a belt — were admissible factual perceptions rather than prohibited opinion testimony about his state of mind. The panel also determined that the controlled phone call did not conclusively refute the new claims, even though Zambrano has consistently maintained that his pants had fallen by accident.
Under Florida Supreme Court precedent, trial courts weighing postconviction motions built on witness recantations or newly discovered affidavits must grant a hearing unless the claims are inherently incredible or obviously immaterial, according to FindLaw. That standard requires judges to accept affidavit allegations as true at this stage rather than weigh their credibility on paper. Florida's postconviction rules typically require such motions within two years of a final judgment, but an exception allows newly discovered evidence that could not have been found earlier through due diligence, per Zelman Law — the provision that let Zambrano's 2024 motion over a 2018 conviction proceed even though the children didn't sign their statements until 2023. Florida circuit courts summarily deny the vast majority of these motions without ever reaching a hearing, the same firm notes, underscoring how uncommon Wednesday's remand is.
Case History and What's at Stake for Zambrano
Zambrano's path through Florida's courts has been long. The Fourth DCA per curiam affirmed his original conviction on direct appeal back on May 30, 2019, according to Justia Law, years before the new affidavits surfaced. The same appellate court had already ruled on an earlier Rule 3.850 appeal in the case on January 16, 2025, before issuing Wednesday's decision ordering the hearing. Fort Lauderdale appellate attorney Jason Todd Forman, who represented Zambrano in filing the postconviction motion and the appeals that followed, is identified as counsel of record on Experience.com.
The original charge, lewd or lascivious exhibition under Florida Statute 800.04(7), is a second-degree felony carrying up to 15 years in prison and a $10,000 fine when committed by an adult in the presence of a child under 16, according to The Law Offices of Roger P. Foley. A conviction on that charge also triggers mandatory, lifelong sexual offender registration under Florida Statute 943.0435, which requires ongoing address reporting to local law enforcement, per a Florida House of Representatives staff analysis. Zambrano remains listed on the Florida Department of Law Enforcement's sexual offender database, a status that stays in place unless the underlying conviction itself is eventually undone.
Next Step Is a Hearing, Not an Automatic Reversal
The remand does not mean Zambrano's conviction has been overturned. A judge in the Fifteenth Judicial Circuit must now hold a hearing where the witnesses can testify live, weighing their credibility before deciding whether the new evidence would probably produce an acquittal if the case were retried. Until that hearing takes place, Zambrano's conviction and his sexual offender status remain in effect.
