author: ORFINGER, J.

text:
    Michael WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3908.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.

      James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Michael Williams appeals his conviction of robbery with a firearm while wearing a mask. Williams contends that the circumstantial evidence presented by the State was insufficient to sustain his conviction in light of his reasonable hypothesis of innocence. We disagree and affirm.

According to the robbery victims, three black males entered an all-night Walgreens store at 2:00 a.m. Two of the robbers were armed with firearms, while the third carried a knife. All three had their faces covered with articles of clothing. One of the robbers had on dark clothing, another was wearing tan-colored clothing and blue shoes, while the third wore dark clothes, blue jeans and red shoes. The man with dark clothes, blue jeans and red shoes held the pharmacist, Ted Khoury, at gunpoint. However, Khoury was able to activate the silent alarm when he saw the robbers approach another employee. When the robbers realized the police had been notified, they fled the store. A woolen garment, found in Walgreens, was later identified by store employees as the same item used by the robber wearing the red shoes to cover his face.

Deputy Sheriff Timothy Horne, of the Orange County Sheriffs Office, quickly responded to the Walgreens, and observed a black male, approximately 5' 8" tall, weighing about 150 pounds, wearing dark clothing, red shoes, and dreadlocks in his hair, leaving the store’s front door. Horne called out to the man, who concealed his face and fled toward another shopping plaza. At the same time, Horne heard a car engine start. Horne radioed dispatch a description of the fleeing man and his direction of travel, together with a description of the car and its direction of travel. Horne saw no one else leave the Wal-greens store.

Based on Horne’s radio dispatch, Deputy Sheriffs Timothy Warren and Vernon Brown and their police dogs, tracked the man with dreadlocks, later identified as Appellant, Williams, to a nearby pond. Williams was found wet and wearing only boxer shorts. Deputy Brown also located a pair of red shoes and dark-colored pants at the edge of the pond where Williams was found.

Detective David Phelan interviewed Williams after advising him of his Miranda rights. Williams first claimed he was in the area because he had been at a club next to Walgreens. Williams then changed his story, stating that he had been with a girl in a nearby housing area, but he did not know the girl’s name. Nor could he recall the last name of his cousin, who had allegedly dropped him off at the girl’s house. Finally, Williams explained that he ran from police because he believed he had an outstanding warrant (there was no such warrant), and he was wearing only his boxer shorts because his clothes came off in the water. Williams, who wore dreadlocks at the time, told the detective that he was 5' 10" tall and weighed 150 pounds.

Williams contends that he presented a reasonable hypothesis of innocence. Specifically, Williams claims that his trial testimony established that he was in a secluded area near the Walgreens store for the purpose of engaging in sexual activity with a woman. He fled upon observing the police because he believed he had an outstanding warrant. The State responds by arguing that Williams’s hypothesis of innocence was not reasonable and was in conflict with the State’s evidence. We agree.

On appeal, we review a motion for judgment of acquittal de novo. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Tibbs v. State, 397 So.2d 1120 (Fla.1981). An appellate court will generally not reverse a conviction that is supported by substantial, competent evidence. See Donaldson v. State, 722 So.2d 177 (Fla.1998); Terry v. State, 668 So.2d 954, 964 (Fla.1996). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, then there is sufficient evidence to sustain a conviction. See Banks v. State, 732 So.2d 1065 (Fla.1999).

When the State’s case is wholly circumstantial, however, there must not only be sufficient evidence establishing each element of the offense, but the evidence must also be inconsistent with the defendant’s reasonable hypothesis or hypotheses of innocence. See Pagan; Orme v. State, 677 So.2d 258 (Fla.1996). The function of the trial court when addressing a motion for judgment of acquittal in a case comprised solely of circumstantial evidence is “to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories.” Orme, 677 So.2d at 262. The finding of the trial court in this regard is reversible on appeal only when unsupported by competent substantial evidence. Id. If there is an inconsistency, then it is for the finder of fact to resolve whether the evidence proves the defendant’s guilt. Thus, the appellate standard of review is not whether the evidence failed to exclude every reasonable hypothesis of innocence, but whether there was substantial competent evidence for a jury to so decide. Moore v. State, 790 So.2d 489, 490 (Fla. 5th DCA 2001).

Although the evidence offered by the State and the defense theory were arguably inconsistent, Williams’s conviction is supported by competent, substantial evidence. As such, the inconsistency was for the finder of fact to resolve. Finding no error, we affirm.

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: TORPY, J.

license: Public Domain

text:
    FLORIDA DEPARTMENT OF REVENUE, Appellant, v. WINN-DIXIE STORES, INC., et al., Appellees.
    No. 5D03-3457.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.
    Charles J. Crist, Jr., Attorney General, Jarrell L. Murchison and R. Lynn Love-joy, Assistant Attorneys General, Tallahassee, for Appellant.
    Katherine E. Giddings and James E. Joanos of Akerman Senterfitt, Tallahassee, for Appellees.
   TORPY, J.

In this documentary tax dispute, the Florida Department of Revenue (“DOR”) asserts that the trial court erred in granting summary judgment wherein it concluded that a lease for computer equipment was not subject to documentary stamp taxes pursuant to section 201.08, Florida Statutes (2004). The DOR asserts that, pursuant to the statute and DOR’s administrative rules interpreting the statute, taxes were appropriately assessed on the lease because it constitutes an “unconditional obligation to pay money.” We disagree and affirm.

Several years prior to the commencement of this action, Appellees, Computer Leasing Company of Michigan (“Lessor”) and Winn-Dixie Stores, Inc. (“Lessee”) entered into a “Master Lease” for computer equipment. The Master Lease did not describe the specific equipment or the rental amounts. Instead, it contemplated that equipment would be leased from time to time and described in schedules which would become part of the lease. Paragraph 1 of the lease provides in pertinent part:

Lessor, by its acceptance hereof at its home office, agrees to lease to Lessee, and Lessee agrees to lease from Lessor, in accordance with the terms and conditions herein, the equipment and features, together with all replacements, parts, repairs, additions, attachments and accessories incorporated therein (collectively called the “Equipment” and individually called a “Leased Item”) described in each executed Equipment Schedule.

In paragraph 3 of the Master Lease, Lessee agreed, upon acceptance of a particular leased item, to execute a Certificate of Acceptance in which Lessee “unconditionally” accepted each item. In capital letters in this paragraph, the Master Lease provides:

LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH, ARISING IN STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING OUT OF THIS AGREEMENT. LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING THOSE OF MERCHANTABILITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE EQUIPMENT AND EXPRESSLY DISCLAIMS THE SAME.

The document further states that the “Master Lease is a net lease” and that the rights of Lessor or its assignee in the rent “are absolute and unconditional and are not subject to any abatement, reduction, setoff, defense, counterclaim or recoupment due or alleged to be due to, or by reason of, any past, present or future claims which Lessee may have against Lessor, Assignee ... or ... any person for any reason whatsoever.”

Other clauses in the lease impose on the Lessee the risk of loss of the equipment, the obligation to maintain and repair the equipment, and require the Lessee to return the equipment in good working condition at the conclusion of the rental period. As to the Lessor, the lease imposes only two express obligations: (1) to furnish the equipment, and (2) to not “interfere with lessee’s right of quiet enjoyment and use of the equipment.”

Over the course of several years, various items of computer related equipment were leased through the procedure described in the Master Lease. The instant dispute arose when Appellees filed an action in the year 2000 challenging documentary tax assessments made by the DOR on equipment leased during the tax years 1992 through 1996.

We begin our analysis by discussion of the applicable statute. Section 201.08 provides that a documentary stamp tax shall be imposed on “promissory notes, nonnegotiable notes, written obligations to pay money, or assignments of salaries, wages, or other compensation .... ” (emphasis added). Interpreted'literally,'this statute would apply to any executory contract wherein one party promises to pay money as consideration. However, decisional interpretation and the DOR’s own rules have recognized that the phrase “written obligations to pay money” only applies to those types of written obligations that are similar to notes, wherein the obligation to pay money .is “unconditional.” See Wometco Enter., Inc. v. Frank, 382 So.2d 832 (Fla. 4th DCA 1980); State, Dep’t of Revenue v. Peterson Outdoor Adver. Co., 296 So.2d 120 (Fla. 1st DCA 1974).

Here, although the lease shifts all responsibility for the condition, suitability and performance of the equipment to the Lessee, two significant conditions precedent to payment are manifest. First, the Lessor has the obligation to furnish the equipment at the outset. Second, and no less significant, even after acceptance of the equipment, the Lessor must permit the continued, quiet enjoyment of Lessor’s equipment . throughout the lease term. The nonperformance of either condition would relieve the Lessee of its obligation to pay. Thus, the agreement is unlike a note wherein the consideration for payment has been fully provided and payment is truly unconditional. See DeVore v. Lee, 158 Fla. 608, 30 So.2d 924 (1947) (rent is not an unconditional obligation until it accrues through enjoyment of the property; lease not subject to documentary tax).

AFFIRMED.

SHARP, W. and PALMER, JJ., concur.

      . The DOR concedes that this lease is not a disguised financing/sale arrangement wherein the lessee has the option to purchase the equipment at the conclusion of the lease for nominal consideration.


author: GRIFFIN, J.

text:
    REGIONAL MRI OF ORLANDO, INC., etc., Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. 5D03-3442.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.

      Mark A. Cornelius, of Bogin, Munns & Munns, Orlando, for Appellant.
    Katherine E. McKinley and Andrea Caro, of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellee.
   GRIFFIN, J.

We have a question certified by the Orange County Court as an issue of great public importance, which we have agreed to accept: “Can a medical provider render a medical service under Section 627.736(5)(a), when the medical service was provided through the use of an independent contractor.” We answer the question in the affirmative and reverse the appealed judgment.

On January 18, 2002, Wesley Odell [“Odell”] sustained injuries in an automobile accident. Odell was insured by defendant below, Nationwide Mutual Fire Insurance Co. [“Nationwide”], under a policy that provided personal injury protection benefits in compliance with the Florida Motor Vehicle No-Fault Law. On April 8, 2002, plaintiff below, Regional MRI of Orlando, Inc. [“Regional MRI”], performed an MRI scan on Odell’s spine. Regional MRI then sent the MRI scan to a radiologist-Dr. Henry B. Floyd-to interpret. The scan is referred to as the “technical component” of the MRI; the reading of the scan is called the “professional component” of the MRI. After the services were completed, Regional MRI billed Nationwide $1,250 under a “global” code which included both the technical and professional components of the MRI. Nationwide refused payment, stating in an “Explanation of Benefits” letter:

You have presented a HCFA [Health Care Finance Administration] claim form and have billed the global service for this CPT [Physician’s Current Procedural Terminology] code. Under the PIP statutes, you must provide a medical service to be considered for payment. The radiologist reading this film or the provider reading the nerve testing should be billing this service himself with a 26 modifier (professional reading) as he is actually providing the medical service and is usually reading the tests at multiple facilities or for multiple providers. Billing globally and paying the provider part of the proceeds or per scan or test would be considered a fee split. (1099 subcontractor, which is not a W2 employee). Since you are only performing the technical service (TC), please rebill under the correct CPT code and modifier (TC) if you wish reimbursement.... If the person reading this service for you is a true employee, please provide a copy of the W4 form they filled out for the [IRS] and provide a copy of an employment contract or a letter from the provider confirming he will file a W2 form with the IRS.

When Nationwide refused payment, Regional MRI, as assignee of Odell, filed a complaint for damages against Nationwide.

The parties entered into a joint stipulation of factual issues as follows:

1. Dr. Henry B. Floyd [“Dr. Floyd”] was the radiologist who interpreted the MRI films taken of Wesley Odell at Regional MRI and thus provided the professional component of the services at issue.
2. Checks from Regional MRI are payable to Dr. Floyd personally. Dr. Floyd conducts his business of reading MRIs at 51 West Haley, Orlando, Florida and at his home in Heathrow.
3. Regional MRI pays Dr. Floyd’s compensation of $75.00 per read to Dr. Floyd personally.
4. Dr. Floyd is provided a 1099 at the end of each year.
5. Dr. Floyd is paid on a monthly basis, regardless of whether Regional MRI is paid for the reads Dr. Floyd performed.
6. Dr. Floyd is permitted to and does work for approximately 2 other diagnostic clinics, including competitors of Regional MRI.
7. Regional MRI requires that all reads provided to Dr. Floyd by 9:00 A.M. weekdays be completed and given to Regional MRI by noon that day, but he has flexibility as to how to accomplish the reads within those constraints.
8. Regional MRI does not exert authority and control over the manner in which Dr. Floyd performs his services, except as stated above.
9. Regional MRI does not provide Dr. Floyd with fringe benefits, such as health insurance or vacation pay.
10. Regional MRI provides Dr. Floyd only with the films and patient history. Dr. Floyd provides all other materials necessary to perform the reads.

Regional MRI filed a motion for partial summary judgment on the issue of fee splitting. Regional MRI asserted that since Dr. Floyd was paid a flat fee per read regardless of whether Regional MRI was paid by anyone for the MRI, there was no illegal fee split.

Nationwide also filed a motion for summary judgment. Nationwide contended that it was entitled to judgment as a matter of law because Regional MRI could not bill for services provided by Dr. Floyd since he was not their employee. As a secondary argument, Nationwide asserted that Regional’s billing practice resulted in an illegal fee split or brokering arrangement in violation of sections 456.054 and 817.505(1), Florida Statutes.

A hearing on the competing motions for summary judgment was held before the presiding county judge. Both parties agreed that there was no dispute of fact and that the only issue was which party was entitled to judgment as a matter of law. After hearing argument, the court decided that Regional MRI improperly billed for services that it did not render.

The court entered summary final judgment in favor of Nationwide. The court made the following conclusions of law:

18.Florida Statute § 627.736(5)(a) requires a provider to “lawfully render” a medical service in order to be entitled to remuneration for that service. This Court finds as a matter of law that the use of the word “render” in Florida Statutes § 627.736 is clear and unambiguous. The plain meaning of the word “render” as used in Florida Statutes § 627.736(5)(a) means to “perform” the medical services for which recovery is sought. “Render” does not mean to hire another corporation or independent contractor to perform the medical services on Plaintiffs behalf. To conclude otherwise would be inconsistent with the use of the word “render” and would be contrary to the intent of the Florida Motor Vehicle Act.
19. Based on this Court’s findings of facts as outlined above, this Court finds that Regional MRI did render the technical component of the MRI at issue in this matter and would have been entitled to compensation for the technical component of the service, had Regional MRI properly designated its bill to only seek compensation for the technical component the MRI at issue.
20. Regional MRI did not, however, render the professional component of the MRI service according to Section 627.736(5)(a). Therefore, Regional MRI has sought recovery for a medical service which it did not render. This Court finds that it would be in violation of Section 627.736(5)(a) to allow Plaintiff to recover insurance proceeds from Nationwide for medical services which it did not render to Nationwide’s insured.
21. This Court finds that the determination of which fee schedule or consumer price index is properly applicable to these charges is beyond the scope of these motions and, therefore, this Court makes no determination as to what fee schedule and/or consumer price index may apply to the service at issue.
22. Aside from this Court’s finding that Regional MRI is not entitled to bill for the professional component of the service at issue, this Court does not find that the business relationship between Regional MRI and [Dr. Floyd] constitutes an unlawful fee split.

The court then entered summary final judgment in favor of Nationwide.

Regional MRI first contends that the trial court erred in interpreting section 627.736(5)(a), Florida Statutes. Regional MRI argues that the term “render” not only means “perform,” but “to provide or furnish.” It further argues that it was not the intent of the legislature to prevent medical entities from billing for services provided by independent contractors.

Section 627.736, Florida Statutes (2001), provides in part:

(5) CHARGES FOR TREATMENT OF INJURED PERSONS.—
(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person, or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the invoice, bill, or claim form approved by the Department of Insurance upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian.
(b)l. An insurer or insured is not required to pay a claim made by a broker or by a person making a claim on behalf of a broker.
* * *
(e) All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a Health Care Finance Administration [HCFA] 1500 form, UB 92 forms, or any other standard form approved by the department for purposes of this paragraph. All billings for such services shall, to the extent applicable, follow the Physician’s Current Procedural Terminology (CPT) in the year in which services are rendered. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services.

At issue is the meaning of the term “render” as used in this statute. The issue appears to be one of first impression at the District Court of Appeal level, although the issue has been dealt with many times in county courts across the state with contradictory results. We have been aided immeasurably by the excellent opinions in all these cases.

Several of these decisions provide support for Nationwide’s position. In Motion X-Ray, Inc. d/b/a Nu-Best Diagnostics Labs, Inc. v. State Farm Mutual Automobile Insurance Co., 10 Fla. L. Weekly Supp. 846 (Fla. Orange County Ct.2002), State Farm’s insured was referred by a chiropractor to Motion X-Ray for a video-fluoroscopy test, but Motion X-Ray never performed any services on the patient. Instead, Motion X-Ray contracted with an independent corporation — Baldsacre—to perform the tests. Id. at 347. Baldsacre performed the technical component of the videofluoroscopy, but it did not perform the professional component because it was not licensed to do so. Dr. Gatlin performed the professional component of the test. Id. at 348. The trial judge (the same judge as in this case) concluded as a matter of law that the use of the word “rendered” in Florida Statutes section 627.736 means to “perform’ ” the medical services for which recovery is sought. “Rendered” does not include hiring another corporation or independent contractor to perform the medical services on Plaintiffs behalf. As noted by the trial judge in this case during the hearing on summary judgment, however, the facts of Motion X-Ray are distinguishable from this case because Motion X-Ray had performed no service, while in the case before us, Regional MRI did perform the MRI.

Another case supporting Nationwide’s position is Radiology B & Services, Inc., a/a/o Raza v. Progressive Express Insurance Co., 11 Fla. L. Weekly Supp. 251 (Fla. Broward County Ct.2003), a case whose facts were essentially the same as this case. Radiology B took MRI images of the patient/insured. Radiology B then provided those images to Dr. Rivera, an independent contractor, to read and interpret. Dr. Rivera was paid $50.00 per read. The court concluded that for medical services to be “rendered,” they must have been actually performed by the provider. Id. at 253. “Rendered” did not mean hiring an independent contractor to perform services on another’s behalf. Id. The county judge who authored the Radiology B decision noted he had read the various conflicting cases regarding this issue, and found that those concluding to the contrary — namely Professional Consulting Services, Inc. v. Hartford Life and Accident Insurance Co., 849 So.2d 446 (Fla. 2d DCA 2003) and Radiology B & Services, Inc., a/a/o Mulligan, v. Progressive Express Insurance Co., 10 Fla. L. Weekly Supp. 935 (Fla. Broward County Ct.2003) were “poorly reasoned.” Id.

There are also several cases which support the argument made by Regional MRI. In Radiology B & Services, Inc., a/a/o Mulligan, supra, Progressive’s insured, Mulligan, was referred to Radiology B, which performed the technical component of the MRI. Dr. Rivera performed the professional interpretation of the MRI as a 1099 employee of Radiology B. Radiology B requested payment for both components of the MRI from Progressive, and Progressive refused to pay the bill. Radiology B filed suit to recover the bill and Progressive sought summary final judgment. Id. The court analyzed section 627.736(5)(a) and found:

The phrase “rendering treatment” is not defined within the statute. It must therefore be interpreted according to its usual and customary meaning. Webster’s defines “render” as “1. to cause to be or become; make; 2. to do; perform; 8. to furnish; provide.” There is nothing in the definition of the word “render” [that] supports Progressive’s assertation (sic) that Plaintiff did not “render” the MRI services within the meaning of [the statute] because Dr. Rivera was paid on a 1099 basis. When construing a statute inference and implication cannot be substituted for clear expression.” Courts are not permitted [to] read requirements into a statute which have not been expressly imposed by the legislature. Where the legislature intends to prohibit certain conduct under the PIP statute, it does so clearly and expressly. It is the long-standing policy of Florida courts to construe the PIP statute liberally and in favor of the insured. The PIP statute should be construed in order to give effect to the legislative purpose of providing a broader and more liberal standard of coverage. This Court therefore concludes that Plaintiff rendered MRI services at issue within the plain meaning of [the statute].

Id. at 936-937 (citations omitted). The court denied Progressive’s motion for summary judgment and entered partial summary judgment in favor of Radiology B. Id. at 937.

In Oakland Park Open MRI, Inc. v. Progressive Express Insurance Co., 11 Fla. L. Weekly Supp. 259 (Fla. Broward County Ct.2003), another decision by the judge in the Mulligan case, Oakland Park submitted a request for payment to Progressive for an MRI, which was denied by Progressive on the grounds that Oakland Park only performed the technical service. Id. at 259. The arrangement was as follows. Oakland Park created and forwarded MRIs to a radiologist who was paid by Oakland Park to interpret each MRI for $55.00 per read. Oakland Park was the owner of the MRI equipment. Id. The court stated:

[Progressive] contends that [Oakland Park] did not “render” the professional component of the testing, relying on several cases involving companies that did not provide the technical component of the testing. Those cases are clearly factually inapt as it is undisputed that [Oakland Park] did provide that component. The term “rendering” as used in F.S. § 627.735(5) became part of Florida law in 1971 before the invention of MRI technology. Hence, it cannot be said that the use of that term contemplated a prohibition on the contractual arrangement presented in this case.
Clearly [Oakland Park] financed the production of the professional component on a non-contingent fee basis, transmitted the subject images to the radiologist, received and transmitted the interpretation to the ordering physical and to the insurer together with a bill submitted on the appropriate form. It cannot be reasonably asserted that [Oakland Park] was not involved in “rendering” the complete professional service that included ordering, gathering and forwarding the written interpretation, presentation of the claim to the insurer (all involving administrative expense) and the business risk that the entire claim might be subject to some other applicable insurance defense. “Rendering” does not have the simple, limited plain meaning that [Progressive] ascribes.

This issue has also been addressed in several opinions by county judges in Duval County. In Axcess MRI v. Nationwide Mutual Fire Insurance Co., 11 Fla. L. Weekly Supp. 439 (Fla. Duval County Ct.2004), the insured had been referred to Axcess MRI by his neurologist. Id. at 439. Axcess performed the technical component of the MRI and an independent contractor physician performed the professional component. Id. Axcess then sought payment for both services from Nationwide, and Nationwide refused to pay the entire bill because Axcess did not perform or “render” the professional component. Id. Axcess filed suit against Nationwide, and Nationwide filed a motion for summary judgment. Id. Because our case is factually on point with Axcess and because the analysis is thorough, we reproduce much of it here:

The Defendant in the instant case argues that the MRI provider did not “render” the professional component, but only the technical component of the service. “Rendering treatment” is not defined within the statute. In the aforementioned case the court admits same, but then goes on to discuss Webster’s definition of “renders” and states:
Webster defines “render” as “1. To cause to be or become; make; 2. to do, perform; 3. to furnish; provide.” There is nothing in the definition of the word “render” that supports Progressive’s assertation (sic) that Plaintiff did not “render” MRI services within the meaning of F.S. 627.736(5)(a) because Dr. Rivera, (the interpreting doctor) was paid on a 1099 basis.
It seems this issue turns on whether or not the professional component is rendered by an employee of the MRI provider versus an independent contractor. This court finds that the two are indistinguishable. The independent contractor is given a 1099 for tax purposes. The total amount billed is the same, regardless of the status of the person who provides the professional component and it seems to the court that global billing in this instance is more economical [sic] swift and makes more sense, rather than requiring the filing of two forms, one filed by the entity providing the technical component and one filed by the person or entity providing the professional component.
Further, F.S. § 817.505 does not make it unlawful for Axcess MRI to pay an independent contractor to provide a professional component.
A review of the Florida Statutes does not provide the court any indication that the legislature intended to forbid MRI companies from contracting with independent radiologist [sic] to provide the professional component. In fact, recently passed PIP legislation which took effect on October 1, 2003, provides ample evidence that the hiring of an independent contractor as the interpreting radiologist is approved. The court takes judicial notice of the PIP legislation which was raised during the 2003 session and became law during 2003. The recent changes were meant to further insure that fraud would not be a part of the PIP benefits enjoyed by Floridians.
Florida Statute § 400.901 was created to provide clear regulation and guidance for the registration of clinics which handled PIP patients. The bill is called the “Health Care Clinic Act”. The new act requires that the [sic]
“... a publication shall contain information that includes, but need not be limited to, information pertaining to the name, residence and business address, phone number, social security number, and the license number of the medical or clinic director, of the licenses medical providers employed or under contract with the clinic. ”
The plain meaning of the new language clearly manifests that the legislature presumed to know and allow that some medical providers would be “employees” and some would be “under contract”, as is the case with Axcess MRI. The new statute makes no delineation between employees or contract employees.
The legislature went further and required that:
Each clinic engaged in [MRI] services must be accredited by the Joint Commission on Accreditation of Healthcare Organizations, the American College of Radiology, or the Accreditation Association for Ambulatory Health Care, within 1 year after licensure. However a clinic may request a single 6 month extension if it provides evidence the agency establishing [sic] or good cause shown, such clinic can not be accredited within 1 year after licensure, and that such accreditation will be completed within the 6 month extension. After obtaining accreditation as required by this subsection, each such clinic must maintain accreditation as a condition of renewal of its license.
Had the legislature intended to prohibit MRI facilities from employing independent contractors to perform the professional component, that statement could have easily been added to the addition which was inserted in May, 2003.
The legislature had another opportunity to prohibit the use of independent contractors to perform the radiology interpretation which it amended Section 7 of Florida Statute 627.7321 and added paragraph 14 which states
(14) “Upcoding” means an action that submits a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed. The term does not include an otherwise lawful bill by [an MRI] facility, which globally combines both technical and professional components, if the amount of the global bill is not more than the components if billed separately; however, payment of such a bill constitutes payment in full for all components of such service.
Once again, the legislature was aware of the common practice in the MRI industry to global bill for both components. In the instant case, the amount billed globally is a combination of the technical and professional component and does not exceed more than the components added together.
The Court therefore concludes that it is not unlawful for an MRI facility to hire independent contractors to perform the professional component and to globally bill for both technical and professional components to a PIP carrier.

Id. at 439-440 (emphasis in original). In two other cases, two additional Duval county judges have arrived at the same conclusion. Axcess MRI v. Nationwide Mutual Fire Ins. Co., 11 Fla. L. Weekly Supp. 727 (Fla. Duval Cty. Ct.2004); Axcess MRI v. Nationwide Mutual Fire Ins. Co., 11 Fla. L. Weekly Supp. 563 (Fla. Duval Cty. Ct.2004). We think they are correct.

When the Florida Motor Vehicle No-Fault Law, of which section 627.736(5) is a part, was amended in 2001, the legislature included legislative findings stating the purpose of the law and voicing its growing concern regarding fraud in PIP benefits cases. The findings are:

The Legislature finds that the Florida Motor Vehicle No-Fault Law is intended to deliver medically necessary and appropriate medical care quickly and without regard to fault, and without undue litigation or other associated costs. The Legislature further finds that this intent has been frustrated at significant cost and harm to consumers by, among other things, fraud, medically inappropriate over-utilization of treatments and diagnostic services, inflated charges, and other practices on the part of a small number of health care providers and unregulated health care clinics, entrepreneurs, and attorneys. Many of these practices are described in the second interim report of the Fifteenth Statewide Grand Jury entitled “Report on Insurance Fraud Related to Personal Injury Protection.” The Legislature hereby adopts and incorporates in this section by reference as findings the entirety of this Grand Jury report. The Legislature further finds insurance fraud related to personal injury protection takes many forms, including, but not limited to, illegal solicitation of accident victims; brokering patients among doctors, lawyers and diagnostic facilities; unnecessary medical treatment of accident victims billed to insurers by climes; billing of insurers by clinics for services not rendered; the intentional overuse or misuse of legitimate diagnostic tests; inflated charges for diagnostic tests or procedures arranged through brokers; and filing fraudulent no-fault law tort lawsuits. As a result, the Legislature declares it necessary, among other things, to increase the punishment for certain offenses related to solicitation of accident victims and use of police reports[;] register certain clinics; subject certain diagnostic tests to maximum reimbursement allowances; prohibit the brokering of [MRI] services; ...

Ch.2001-271, § 1, at 1749-1750 Fla. Sess. Law. Serv. -

The grand jury report referenced in the legislative findings above specifically addressed the concern of MRI brokering, which appears to be a main concern in this case. An example of MRI brokering is found in Medical Management Group, Inc. v. State Farm Mutual Automobile Insurance Co., 811 So.2d 705 (Fla. 5th DCA 2002) [“MMGO”]. There, plaintiff, MMGO, scheduled an MRI for State Farm’s insured with Premier Advanced Imaging, an MRI facility. Premier performed the MRI and had a radiologist — who was apparently an independent contractor — -interpret the scan. Premier billed MMGO $350 for the MRI. MMGQ sought recovery from State Farm in the amount of $1,400 for the MRI, but the court found that Premier actually performed and rendered the test on the insured- and that MMGO did not provide any treatment or service. This court decided that MMGO could not recover under the statute because MMGO had engaged in illegal patient brokering and fee-splitting. MMGO, 811 So.2d 705.

The arrangement in this case is different. Mr. Odell was sent by his doctor to Regional MRI for an MRI. Regional MRI took the scan and paid a licensed radiologist to read it and render a report which Regional provided to Mr. Odell and his physician. We do not see why Dr. Floyd’s status as an employee versus independent contractor determines whether Regional “rendered” the MRI service. . Regional MRI was responsible to Odell for the complete service, performed the scan, assumed the liability for the read, paid Dr. Floyd unconditionally for his work, undertook the billing and assumed the risk of loss if the MRI bill were not paid. Regional MRI is entitled to be paid.

REVERSED and REMANDED.

PETERSON and TORPY, JJ., concur.

      . §§ 627.730-.7405, Fla. Stat. (2002).

      . On the same day, Odell assigned his PIP benefits and cause of action to Regional MRI.

      . The parties also entered into a joint stipulation on November 18, 2002, that Dr. Floyd is an independent contractor and not an employee of Regional MRI.

      . Section 456.054 prohibits kickbacks and states:
      (1) As used in this section, the term ''kickback” means a remuneration or payment back pursuant to an investment interest, compensation arrangement, or otherwise, by a provider of health care services or items, of a portion of the charges for services rendered to a referring health care provider as an incentive or inducement to refer patients for future services or items, when the payment is not tax deductible as an ordinary and necessary expense.
      (2) It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.
      (3) Violations of this section shall be considered patient brokering and shall be punishable as provided in s. 817.505.
      Section 817.505 prohibits patient brokering and states:
      (1) It is unlawful for any person, including any health care provider or health care facility, to:
      (a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage from a health care provider or health care facility;
      (b) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring patients or patronage to a health care provider or health care facility; or
      (c)Aid, abet, advise, or otherwise participate in the conduct prohibited under paragraph (a) or paragraph (b).

      . Section 627.736(5)(a) provides:
      Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person, or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the invoice, bill, or claim form approved by the Department of Insurance upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian.

      . A "broker” is defined under the Florida Motor Vehicle No-Fault Law as "any person not possessing a license under chapter 395 [Hospital Licensing and Regulation], chapter 400 [Nursing Homes and Related Health Care Facilities], chapter 458 [Medical Practice], chapter 459 [Osteopathic Medicine], chapter 460 [Chiropractic Medicine], chapter 461 [Po-diatric Medicine], or chapter 641 [Health Care Service Programs] who charges or receives compensation for any use of medical equipment and is not the 100-percent owner or the 100-percent lessee of such equipment.” § 627.732(1), Fla. Stat. (2002).

      . It should also be noted that the court concluded Motion X-Ray engaged in prohibited patient brokering and fee splitting by way of its arrangement.

      . This section was not in effect at the time of the events in the present case. Laws 2003, c.2003-411, § 7 eff. October 1, 2003.

      . This report can be found in Appendix 1 of Russel Lazega, Florida Motor Vehicle No-Fault Law/Personal Injury Protection (PIP) (2002).


author:
LEVENS, WILLIAM P., Associate Judge.
      ALTENBERND, Chief Judge,

text:
    In re COMMITMENT OF Gary BURTON. Gary Burton, Appellant, v. State of Florida, Appellee.
    No. 2D01-223.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2004.

      James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
   LEVENS, WILLIAM P., Associate Judge.

Gary Burton seeks review of his civil commitment as a sexually violent predator under the Jimmy Ryce Act, section 394.910-.931, Florida Statutes (1999) (“the Act”). Burton takes issue with several pretrial rulings of the trial court, several evidentiary rulings that took place during the course of trial, the State’s closing argument, and the jury instructions. Our review of the record revealed no reversible error, and we affirm the commitment order in all respects. We write to address the issues that are likely to recur in other commitment proceedings under the Act.

FRYE ISSUES

Prior to trial, Burton filed a motion in limine requesting the exclusion of expert testimony regarding certain tests used to determine whether a defendant is a sexually violent predator. The court conducted a Frye hearing and denied the motion. At the Frye hearing, the parties presented evidence about seven instruments that experts used to determine whether a defendant qualifies as a sexually violent predator (VRAG, SORAG, MnSOST, MnSOST-R, RRASOR, PCL-R and SVR-20). The expert testimony in this case only relied upon the RRASOR, PCL-R, and SVR-20.

Under Frye, expert opinion testimony that relies on novel scientific principles will only be admitted if it is generally accepted by the members of its particular field. Id. at 1014. We have previously determined that the RRASOR and PCL-R satisfy the requirements articulated in Frye. See Rodgers v. State (In re Commitment of Rodgers), 875 So.2d 737, 739 (Fla. 2d DCA 2004); Lee v. State, 854 So.2d 709, 712 (Fla. 2d DCA 2003). We conclude that the SVR-20 is not subject to the requirements of Frye.

The SVR-20 consists of twenty risk factors to be assessed by a clinician during a clinical interview as part of a sexual offender evaluation. The SVR-20 does not produce a numerical score or predict a degree of recidivism risk. Instead, it is a guidepost that assists the professional by focusing the clinical interview on risk factors which research has determined to be relevant to recidivism.

Given the very nature of the SVR-20, it is clearly not the type of objective scientific principle or test with which Frye is concerned. Any testimony regarding the use and application of the SVR-20 is tantamount to pure opinion testimony. An expert’s “pure opinion testimony,” based “solely on the expert’s training and experience,” is admissible without having to satisfy the requirements of Frye. Hadden v. State, 690 So.2d 573, 579-80 (Fla.1997); Flanagan v. State, 625 So.2d 827, 828 (Fla.1993). But see Collier v. State, 857 So.2d 943, 945-46 (Fla. 4th DCA 2003) (holding that the SVR-20 does not satisfy Frye).

VIOLATION OF PLEA BARGAIN

Prior to trial, Burton filed a motion to enforce his plea agreement and to dismiss the civil commitment petition. Burton argued that the State violated the plea agreement (a twelve-year prison sentence followed by fifteen years of probation) by seeking civil commitment pursuant to the Act. The Florida Supreme Court has addressed this issue and determined that the State does not violate a plea agreement to a term of incarceration followed by probation by seeking civil commitment under the Act after the term of incarceration is served. See State v. Harris, 881 So.2d 1079, 1083 (Fla.2004); Murray v. Regier, 872 So.2d 217, 224 (Fla.2002); see also Rodgers, 875 So.2d at 741; State v. Heath, 865 So.2d 633, 634 (Fla. 2d DCA 2004); Cartwright v. State (In re Commitment of Cartwright), 870 So.2d 152, 155 (Fla. 2d DCA 2004).

HEARSAY

Burton argues that the admission of hearsay under the Act is unconstitutional because it violated his right to confrontation under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution and the parallel provision in article I, section 16(a) of the Florida Constitution. This court has recently rejected this argument. See Cartwright, 870 So.2d at 156.

“SEXUALLY VIOLENT PREDATOR”

Burton argues that the trial court erred in allowing Burton to be referred to as a “sexually violent predator” at trial. The supreme court has expressly allowed the State and court to use the term “sexually violent predator” to explain to the jury that their job is to determine whether the defendant meets this status. Standard Jury Instructions-Criminal Cases (99-2), 777 So.2d 366, 367 (Fla.2000). The only caveat to the use of the term is that it must not become a “feature of the trial.” Id. The use of the term was proper in this case.

JURY INSTRUCTIONS

Burton argues that the jury was not properly instructed on an essential element of volitional control. Burton claims that the jury should have been required to find that he had a serious difficulty in controlling his dangerous behavior. This issue was not preserved and does not rise to the level of fundamental error. See Westerheide v. State, 831 So.2d 93, 109 (Fla.2002); Rodgers, 875 So.2d at 741; Lee, 854 So.2d at 716. As we have previously done, we certify the following question as one of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

SILBERMAN, J., Concurs.

ALTENBERND, C.J., Concurs with opinion.

ALTENBERND, Chief Judge,

Concurring.

Gary Burton has a very troubled past. At least to a layperson, his current psychological profile suggests that he is the type of sexual offender who would be likely to strike again if released from custody. Our society may very well be safer with Mr. Burton indefinitely confined by involuntary civil commitment. That said, I concur in this opinion with considerable hesitation because the expert testimony that was relied upon to accomplish this result troubles me immensely.

This court is required to perform a de novo review of the admissibility of the actuarial tests, upon which the experts in this case relied to express their opinions, to determine whether those tests are now generally accepted within a relevant scientific community. See Brim v. State, 695 So.2d 268, 274 (Fla.1997); Brim v. State, 779 So.2d 427, 428 (Fla. 2d DCA 2000) (citing Hadden v. State, 690 So.2d 573, 578 (Fla.1997)). We have previously made it clear that this court will 'not rely upon information outside the record to perform this review. Brim, 779 So.2d at 430. Our record in this case contains no new information since the Frye hearing that occurred four years ago. Thus, for purposes of this review, we must rely on the evidence presented to the trial court and assume that no one has published any article critical of these tests during the last four years. As a result, I must vote to affirm the trial court’s order as it affects this case,

I am inclined to believe, however, that the lawyers and trial judges involved in these cases have not yet identified the issues that need to be examined to determine whether these actuarial tests pass the Frye test and whether evidence regarding the tests is more probative than prejudicial. It is not entirely clear to me that the diagnostic method utilized by these experts is generally accepted within the psychiatric and psychological professions, or that the courts should permit opinion testimony based on these methodologies. The record in this case does not provide this court with a basis to reverse the judgment on appeal. Nevertheless, the judiciary needs to make certain that in future cases we carefully and methodically consider the types of evidence that should be utilized in Jimmy Ryce cases.

This country has a worthy tradition of trial by jury. Juries have long been employed to make decisions that result in the deprivation of individual liberty. We have, however, always expected the jury to make those decisions based on a unanimous determination of past factual events. We have expected the State to present evidence to those juries that fulfills the highest burden of proof. In Jimmy Ryce proceedings, we are now asking juries to make decisions that will indefinitely deprive citizens of liberty based on predictions of future conduct supported by “clear and convincing” evidence. I remain concerned that the law is expecting these juries to make decisions that humans may currently lack the knowledge and capacity to make. At a minimum, if we are going to use juries for this purpose, we should be extremely careful that the evidence and the burden of proof in these cases are designed to minimize the risk that a jury will imprison a citizen based solely upon a “false positive” result from one relatively new actuarial test.

I. ELEMENTS OF A CLAIM FOR CIVIL COMMITMENT

Under the Jimmy Ryce Act, a person may be involuntarily committed for an indefinite period upon a determination, by clear and convincing evidence, that the person (1) has been convicted of “a sexually violent offense”; (2) “suffers from a mental abnormality or personality disorder”; and (3) the disorder “makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” See § 394.912(10), Fla. Stat. (1999). Pursuant to the United States Supreme Court’s opinion in Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the State must also show that the defendant has “ ‘serious difficulty’ in controlling his [dangerous] behavior.” See Westerheide, 831 So.2d at 107.

The first two elements of this civil commitment proceeding are not overly controversial. Normally, a prior sexually violent offense can be proven with an accurate copy of an earlier judgment. Likewise, I would not dispute that psychiatrists and psychologists can provide useful expert testimony that a person is currently suffering from a condition that is generally accepted by the psychiatric or psychological professions to be a “mental abnormality or personality disorder.”

The stumbling block is the third element necessary to establish this involuntary commitment. The crux of the problem, for both the psychological or psychiatric community and for the legal community, is whether humans have the ability to accurately select those people who, by clear and convincing evidence, are likely to engage in future acts of sexual violence if not confined. Psychologists and psychiatrists must decide whether the members of their profession have a professional capacity to perform this function, and the legal community must decide whether ordinary citizens serving as jurors have this capacity.

Increasingly, psychiatrists and psychologists are responding to outside pressures to develop a scientific method to uniformly identify dangerous sexual offenders. This has resulted in the creation of certain testing instruments intended to establish whether a defendant is likely to engage in future acts of sexual violence. These efforts are worthy. The more difficult question is whether the experts have yet succeeded to a point where jurors should be called upon to rely upon these tests when deciding issues of liberty.

When presented to a jury, these tests, coupled with the testimony of the experts who rely on them, may “impl[y] an infallibility not found in pure opinion testimony.” See Flanagan v. State, 625 So.2d 827, 828 (Fla.1993). To ensure that a jury will not be misled by experimental scientific methods which may ultimately prove to be unsound, Florida courts apply the Frye test, which provides that expert testimony deduced from a scientific principle is not admissible unless the principle is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id. (citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). I remain concerned that these actuarial tests may not actually pass the Frye test. Even if they do, the current margin of error in these tests suggests that they may be more unduly prejudicial than probative.

II. THE FRYE HEARING IN THIS CASE AND THE QUESTIONABLE SELECTION OF A RELEVANT SCIENTIFIC COMMUNITY

Prior to the trial in this case, a consolidated Frye hearing was held involving this and twelve other civil commitment cases that were pending in the Tenth Judicial Circuit. The hearing occurred in 2000, and Judge Cecelia M. Moore presided. The State presented testimony from Dr. Dennis Doren, a licensed psychologist in Wisconsin who primarily handles sex offender commitments, and Dr. Ted Shaw, a licensed psychologist in Florida who specializes in forensic testimony in sex offender cases. Both of these men are experienced in the clinical assessment of sexual predators. However, both men would seem to have a professional interest in the admissibility of these new tests. The State did not provide testimony from a psychiatrist. It also did not provide testimony of academic psychologists or psychiatrists who would be expected to peer review new or novel tests and procedures like the ones espoused in this case. Little was done to, establish that these tests pass the traditional scientific benchmarks of reliability and validity.

Dr. Stephen Hart and Dr. Randy Otto testified for the various respondents. Dr. Hart is a professor of psychology and a clinical forensic psychologist in Canada. His testimony generally criticized the tests at issue in this case and provided evidence that might be helpful in rejecting the tests under the Daubert standard. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He testified that actuarial assessment is accepted within the profession of psychology but that these specific tests have not been accepted. Dr. Otto is a licensed Florida psychologist and an associate professor at the Department of Mental Health Law and Policy at the Florida Mental Health Institute at the University of South Florida. His testimony was similar to that of Dr. Hart.

The respondents also filed the deposition of Dr. Fred Berlin. Dr. Berlin was the only psychiatrist who provided evidence at the Frye hearing. He was very critical of these procedures and relied on publications questioning their accuracy.

After hearing this evidence, Judge Moore ruled in favor of the State. Her order is very short and does not contain a thorough discussion of the various tests. She seems to have been impressed by the fact that the State’s experts had extensive experience with sex offenders, and to have discounted the testimony of the respondents’ experts because they had not done assessments subsequent to the creation of these tests. Dr. Berlin, whose credentials seem very impressive, was discounted because he “does not use actuaríais.” If professionally he does not trust these tests, one would hope he does not rely upon them.

Perhaps most troubling, the order finds that these tests are “accepted by a clear majority of the professional community in assessing the risks of recidivism for sexually violent offenders.” For purposes of a Frye determination, a trial court must decide whether a test or procedure is generally accepted within “the particular field within which it belongs.” Frye, 293 F. at 1014. This has been described as the “relevant scientific community.” See Castillo v. E.I. Du Pont de Nemours & Co., 854 So.2d 1264, 1271 (Fla.2003); Ramirez v. State, 810 So.2d 836, 843 (Fla.2001); Brim, 695 So.2d at 272. No party objected to Judge Moore’s description of the relevant scientific community. Certainly, none of the State’s experts could testify about acceptance within the psychiatric community.

The concept that humans can accurately predict the criminal or aberrant behavior of other humans in the long-term future is new and probably novel. I would think that the relevant scientific community that must generally accept these tests and the interpretation of their results should include a broader group of clinical and experimental psychologists and psychiatrists, and not merely the group of licensed professionals who are making a living by relying upon these tests. See. e.g., Ramirez v. State, 810 So.2d 836, 844 n. 13 (Fla.2001) (“In applying the Frye criteria, general scientific recognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation.”); Sybers v. State, 841 So.2d 532, 542 (Fla. 1st DCA 2003). But see Roeling v. State, 880 So.2d 1234 (Fla. 1st DCA 2004) (defining the relevant scientific community that generally accepts these actuarial tests as licensed clinical psychologists specializing in forensic psychology and the evaluation of sexually violent predators). I find it very hard to believe that the membership of the American Psychiatric Association and the membership of the American Psychological Association have reached a consensus that their professions can achieve these predictions with a level of accuracy sufficient to permit the indefinite confinement of an individual.

Before we admit testimony based on these actuarial tests and before we allow psychologists to quantify their predictions about the future behavior of specific people, it seems to me that we need to have better answers to better questions regarding the specific relevant scientific community and what that community “generally accepts” in this area. I do not profess to have the expertise to even phrase all of the questions, but the judiciary needs to obtain the help of those who can ask and answer the necessary questions.

III. THE USE OF ACTUARIAL INSTRUMENTS IN PREDICTING FUTURE HUMAN BEHAVIOR, THEIR ERROR RATE, AND THEIR INHERENT RISK OF FALSE POSITIVES

It is important to note that the tests relied upon by the experts in this case are not traditional diagnostic tests of the individual. Rather, they are actuarial tests, designed to establish or define a small group or sub-population of people in which the risk that a member of the group will commit a violent sexual offense is higher than in the population as a whole. I do not question whether psychologists could find these tests useful and generally acceptable within their profession to determine a mode of treatment for a voluntary patient. Even if they do, and even if these professionals would also use the tests for some predictive purpose, the judicial system still needs to address whether it should permit the use of these tests in involuntary civil commitment proceedings. See Ramirez, 810 So.2d at 842 (explaining that all evidence must meet test of legal reliability; scientific reliability is a predicate to legal reliability). Unless I fail to understand actuarial tests, which is certainly a distinct possibility, these tests appear to have an inherent error rate that is unacceptable for purposes of involuntary commitment.

Actuarial devices are designed to identify a small pool of people in which the likelihood of a particular condition is higher than in the population as a whole. But the pool always contains some people who do not have the particular condition. The people falsely identified by the actuarial device determine its error rate. For many purposes, an error rate of 30% or more is quite acceptable. Life insurance companies, for example, usually charge higher premiums or refuse to insure the pool of obese, cigarette smokers because the probability of a premature death is higher among the members of this pool, even though many members of the pool live to an average age. It is one thing to price insurance based on actuarial device with an error rate of 20% or higher; it is quite another to deprive citizens of their constitutional liberty based on actuarial devices with such high error rates. There is no question that the judiciary would not allow expert opinions based on fingerprints or DNA in criminal cases if the methodology and statistical analysis in those fields produced an error rate of even 10%.

In this case, the jury heard testimony from a forensic psychologist that Mr. Burton scored a 4 on the RRASOR test and a score of 4 “related to an approximate 32.7% risk for sexual recidivism within five years, and a 48.6% rate of recidivism within ten years.” The RRASOR is the Rapid Risk Assessment for Sexual Offender Recidivism, an actuarial test that was created in 1997 by R. Karl Hanson, Ph.D. This is not a lengthy test like some of the other well-established psychological tests seen in other types of litigation. The RRASOR considers only four categories. It scores 1 to 3 points based on the person’s prior record of sex offenses, including charges that did not result in conviction. It gives 1 point if the person is under the age of 25. It gives 1 point if any victim was male, and 1 more point if the victim was unrelated to the person being tested. Thus, an 18-year-old man with one conviction for lewd behavior involving an unrelated boy scores-4 on the RRASOR.

Intuitively, I find it hard to believe that the .knowledge that an 18-year-old man has one conviction for lewd behavior involving an unrelated boy is sufficient information to conclude that there is a 48.6% probability that the man will commit a violent sexual crime during the next decade. It also troubles me that Mr. Burton can successfully complete a full course of rehabilitation and the RRASOR will not have changed its assessment of him. With or without successful treatment, he has a 48.6% chance of doing a bad act in the future according to this test.

Treatment does not vary his score because the RRASOR is not a test of the individual, but an actuarial device that merely creates a pool of people with a higher risk of being sexual predators. By analogy, I would be willing to bet that there is a 48.6% chance that any member of a pool of 24-year-old married women in households of average income who already have one child will give birth to another child within the next ten years. This is an actuarial device that mail order catalogues might successfully use for marketing products for infants, but the fact that more than half of these women will not give birth to a child should limit the use of such an actuarial device for individualized legal decisions affecting the women’s liberty.

It may well be that 48 out of every 100 individuals in the sub-group of people who score 4 on the RRASOR will commit a violent sexual offenses in the next decade. This means, of course, that 52 out of every 100 members of this group will not commit such an offense in the next ten years. Mr. Burton, or any other person who scores a 4 on this test, could be in either group. I question whether this is the type of quality scientific evidence that jurors should consider for these serious purposes.

When a scientist incorrectly places a person into a group or category based on a scientific test, the scientist regards the error as a “false positive.” In the context of Jimmy Ryce proceedings, a “false positive” places a person who will not commit a future act of sexual violence into a civil commitment facility for an indefinite period of long-term confinement. That facility looks very similar to a prison. Once confined, it is very difficult for a person to prove how he or she would have behaved, or may in the future behave in the outside world. As a parent of young children, I understand the temptation to involuntarily commit the 52 “false positives” under the RRASOR in order to protect society from the other 48. As a judge sworn to uphold the constitutional rights of all citizens, I am not so convinced we should accept such a high error rate. Just as we would not allow fingerprint experts or DNA experts to testify if their identifications were wrong 52% of the time, I question the role of these tests and opinions in Jimmy Ryce proceedings.

We have embarked on the first steps into a new world, arguably a science fiction world, in which judges and juries are asked to prevent crimes years before they occur. There are many violent crimes that are associated with mental abnormalities, and sexual crimes may only be the start of this process. Actuarial devices could certainly be established for drunk drivers, burglars, robbers, and car thieves. I, for one, do not yet have faith that it is wise for the judiciary or for society as a whole to rush down this new path before we are confident that both the science of jurisprudence and the sciences of psychology and psychiatry are up to this awesome task. We need to protect our society, especially our children, from sexual predators, but we also need to honor and trust the heritage of freedom and liberty that has made this country strong.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

      . Section 394.9155(5), Florida Statutes (1999), allows for the use of hearsay in civil commitment proceedings under the Act as long as it is reliable and not the sole basis for the commitment.

      . I doubt that this court’s opinion in Lee, 854 So.2d 709, is dispositive of this case. In Lee, this court concluded that based upon the conflicting evidence presented to the trial court in that case, "the trial court did not err by allowing the test results to be presented to the jury as part of the expert's testimony." Id. at 712. However, we specifically held that "even if there were any error regarding the Frye analysis and the admissibility of actuarial evidence," the error was harmless. Id. at 712-13. Thus, any statement that the tests involved in Lee satisfied the requirements articulated in Frye was at most an alternative holding, and more likely dicta. But see Rodgers v. State, 875 So.2d 737, 739 (Fla. 2d DCA 2004) (stating that Lee "rejected a Frye challenge" to the use of actuarial tests and. therefore "compelled” court to conclude that trial court’s permitting testimony regarding the same tests was not error). I recognize that the First District has recently recognized a variety of these tests as sufficiently reliable to pass the Frye test. See Roeling v. State, 880 So.2d 1234 (Fla. 1st DCA 2004). See also Jackson v. State, 833 So.2d 243, 246 (Fla. 4th DCA 2002); but see Collier v. State, 857 So.2d 943, 945-46 (Fla. 4th DCA 2003) (holding SVR-20 test and testimony based upon it inadmissible based upon psychologist’s admission that test was "somewhat experimental” and questioned by some in psychological science community).

      . The statute does not specify when in the future it must be "likely” that these possible crimes might occur. Compare § 394.467(l)(a)(2)(b), Fla. Stat. (2003) (permitting involuntary commitment under the Baker Act when there is a "substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm”). Typically, experts in Jimmy Ryce cases provide statistical probabilities for five- and ten-year periods.

      . It is useful to compare a Jimmy Ryce proceeding to a Baker Act proceeding. Under the Baker Act, involuntary admission to a treatment facility must be based on the opinion of a psychiatrist, supported by a second opinion of a psychologist or psychiatrist. See § 394.467(2), Fla. Stat. (2003). The common diagnostic issue is whether the patient "in the near future" "will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm." See § 394.467(l)(a)(2)(b). Thus, the legislature in the Baker Act has demanded proof of recent conduct that demonstrates unacceptable risks in the near term. It anticipates that both psychiatrists and psychologists will be involved in this assessment. This structure does not appear to strain the limits of science in the way that Jimmy Ryce proceedings do.

      . Dr. Hanson is a psychologist employed with the Canadian government’s Portfolio of Public Safety and Emergency Preparedness Canada (PSEPC) in the area of Corrections Research.

      . Note that this test does not purport to say what the chances are that Mr. Burton individually will engage in future sexually violent behavior. Rather, it predicts that 48% of people like him in a few ways will commit these acts. A jury unskilled in statistical analysis might misinterpret the results to apply to the individual.


author: CASANUEVA, Judge.

text:
    Cornell CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5282.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2004.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Cornell Cunningham appeals from an order placing him on drug offender probation following the denial of his dispositive motion to suppress, contending that the court erred in applying the case of Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), as rationale for the denial. We hold, as a matter of law, that Wardlow does not justify the stop of the defendant’s car and reverse.

At 4:45 a.m. on the date of Mr. Cunningham’s arrest, a sheriffs deputy patrolling a residential area of Safety Harbor noticed a small group of people standing outside a parked car with illuminated brake lights. Cars were often parked along the roadway in this well populated area, but seldom were people out on the street at that hour. Although the neighborhood was not known to have a high crime rate, a number of burglaries had recently occurred there. Because he wanted to see what was happening, the deputy turned down the street and, from a distance of seventy-five to a hundred yards, saw a person jump into the car and accelerate quickly. The car rocked to the left as it made what the deputy described as an aggressive turn. Significantly, the deputy did not know whether the driver or passenger had seen him approach in his marked car. Nevertheless, all of the circumstances aroused the deputy’s suspicions, so he activated his blue lights and stopped the car. After the stop, Mr. Cunningham, the passenger, was searched and arrested for possession of cocaine.

Mr. Cunningham filed a motion to suppress, arguing that the deputy did not have a well-founded suspicion of criminal activity that would justify the investigatory stop of the car in which he was riding. After a hearing, the circuit court entered a detailed order denying the motion, finding that the stop was legal because the car in which Mr. Cunningham was a passenger engaged in headlong flight when the deputy approached. The circuit court recognized that prior to the United States Supreme Court’s ruling in Wardlow, 528 U.S. at 119, 120 S.Ct. 673, Florida case law would have dictated that the defendant’s motion be granted. We hold that the facts of this case do not support application of Wardlow.

In Wardlow, a four-car caravan of police officers converged on an area known for narcotics trafficking with the expectation that they would find a crowd of people, including dealer lookouts. An officer in the last car observed Wardlow standing on the street, holding an opaque bag. When Wardlow noticed the officers he immediately fled. They pursued him through a gangway and alley and finally stopped him on the street. During a patdown, an officer felt what turned out to be a loaded .38 handgun in Wardlow’s bag and arrested him. He was ultimately convicted of unlawful use of a weapon by a felon. 528 U.S. at 121-22, 120 S.Ct. 673.

The hallmarks of the Wardlow decision are the high-crime locale and the suspect’s subsequent “unprovoked flight upon noticing the police.” Id. at 124, 120 S.Ct. 673. Thus, those two factors, if present, add to the totality of circumstances that might arouse an officer’s suspicion that a crime had been or was about to be committed. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Kibbee, 513 So.2d 256 (Fla. 2d DCA 1987). As to the first factor, we agree with the circuit court and the State that the location in which the deputy first observed Mr. Cunningham was technically not a high-crime area in the usual sense of being riddled with narcotics dealings and drug-related shootings, but the recent unlawful activity occurring there arguably was a pertinent factor justifying the deputy’s increased suspicion.

As to the second factor, the Wardlow Court explained that “[hjeadlong flight— wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” 528 U.S. at 124, 120 S.Ct. 673. In this case, however, the facts surrounding Mr. Cunningham’s departure from the scene do not rise to the level of “headlong flight.” There was no evidence that Mr. Cunningham or the driver actually observed the police before the car left the area, which in our view is a critical factor. For example, in United States v. Gordon, 231 F.3d 750, 756 (11th Cir.2000), the Eleventh Circuit emphasized the district court’s finding that the defendant made eye contact with the police and applied Wardlow as follows:

The district court specifically found that Gordon’s eyes “lit up” and he moved quickly toward the Defendants’ car when the first marked police vehicle approached. There may be perfectly innocent reasons in certain circumstances for someone to walk or even run away from a location upon the approach of a law enforcement officer. But Gordon’s conduct in this case — making eye contact with the officer, thereafter moving quickly toward an adjacent car, entering that car, and then driving away in the opposite direction from the officers— coupled with the officers’ knowledge of frequent unlawful activity in the neighborhood where Gordon had been standing, provided adequate grounds for this Terry stop.

Similarly, in another Eleventh Circuit case, the court also found significant the fact that the suspect saw the officers as they approached:

Franklin’s flight was particularly suspicious because of its nature and its duration. He ran away at full speed as' soon as he saw the officers. He did not turn and start to walk away. He did not act like he was going about his business. Instead he took off in “headlong” flight. While any kind of flight, even walking away, might support a finding of reasonable suspicion, “[hjeadlong flight — wherever it occurs — is the consummate act of evasion.”

United States v. Franklin, 323 F.3d 1298, 1302 (11th Cir.2003) (citations omitted).

In this case, the deputy specifically denied knowing whether Mr. Cunningham or the driver saw the patrol car approach. The deputy testified that he was some distance away when he saw their car. Although he was in a marked vehicle, it is not clear whether the suspects could have identified it as such at 4:45 a.m., particularly as there was no evidence concerning the lighting in the area. The deputy did not turn on his blue flashing light until after the car began moving. The brake lights of the ear were already illuminated when the deputy first spotted it, suggesting that the driver might have been preparing to leave even before the deputy drove toward the car. And, although the car made an “aggressive” turn, the driver did not commit any traffic infractions that would justify a stop. Thus, there is no factual basis for the legal conclusion that the defendant intentionally evaded law enforcement.

Our court recently reviewed a case somewhat similar to this, in which the defendant was the driver of a car stopped next to another car in the shadowy parking area of a gas station. As a deputy sheriff pulled into the station, both cars quickly left. Because the parking lot was known for drug deals, and because the cars were parked in a manner suggesting that an illegal transaction could be taking place, the deputy immediately stopped the defendant’s car. On appeal from the denial of the defendant’s motion to suppress, this court held that Wardlow did not justify the investigatory stop. In Paff v. State, 884 So.2d 271, 273 (Fla. 2d DCA 2004) (footnote omitted), we reasoned as follows:

Flight on foot is distinctly different than flight in a car. When “headlong flight” occurs on foot, the defendant’s intent to elude an officer may be clear, even though no law is broken. When “flight” occurs in a vehicle, the vehicle often conceals the emotions of its occupants and it is more difficult to determine that such a defendant is demonstrating “nervous, evasive behavior,” or is intending to engage in “headlong” flight. Wardlow, 528 U.S. at 124, 120 S.Ct. at 673. A car that obeys all traffic regulations when leaving a location when a police car arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on foot. Such a person does not invoke the rule of Wardlow. See, e.g., Lee v. State, 868 So.2d 577 (Fla. 4th DCA 2004) (refusing to apply Wardlow to justify stop when defendant was part of crowd that merely “dispersed” upon approach of law enforcement and defendant was simply walking quickly).

As the circuit court recognized in this case, prior to the Wardlow decision, controlling case law in this district would mandate a conclusion that this stop was illegal. For example, in Jordan v. State, 707 So.2d 338 (Fla. 2d DCA 1998), the defendant was parked, near midnight, in a dark area near a closed business that had been burglarized in the past. He pulled his truck away as the deputy approached. Similarly, in Hewlett v. State, 599 So.2d 757 (Fla. 2d DCA 1992), three men, who were parked next to the property of a known drug dealer but who were themselves unknown to the police, jumped in their truck and drove away at a fast but lawful rate of speed as an officer approached on routine patrol. In both cases, this court held that the totality of the circumstances did not give rise to a founded suspicion justifying a Terry stop. Now, the exigencies described in Wardlow — a suspect’s precipitous flight after noticing the presence of law enforcement personnel in a high-crime area — can be considered among the totality of circumstances that might give rise to an officer’s founded suspicion of criminal activity. But when the alleged flight consists merely of the “defendant’s driving away in a vehicle in a manner that does not violate the traffic laws, ... Jordan applies and has not been overruled by Wardlow.” Paff, 884 So.2d at 273, n. 2.

Because the circuit court erred in applying Wardlow to the facts of this case, we reverse the denial of the motion to suppress and remand for discharge of the defendant.

Reversed and remanded.

STRINGER and VÍLLANTI, JJ., concur.