author: J. LEONARD FLEET, Associate Judge.

text:
    POND APPLE PLACE III CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. Joy RUSSO and Vito Santangelo, individuals, Appellees.
    No. 4D02-1502.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Rehearing Denied April 21, 2003.

      Mark M. Heinish and David A. Kupper-man of Katzman & Korr, P.A., Lauderhill, for appellant.
    Guy M. Shir and John R. Sheppard, Jr. of Becker & Poliakoff, P.A., West Palm Beach, for appellees.
   J. LEONARD FLEET, Associate Judge.

Appellant Pond Apple Place III Condominium Association (“the Association”) brought suit to enforce a restrictive covenant which prohibits keeping dogs in its condominium units. Appellees Joy Russo and Vito Santangelo (collectively “the Owners”) purchased their condominium unit in 1994, at which time they were furnished a copy of the Declaration of Condominium outlining their rights and obligations. At the time of closing, the Owners signed a document acknowledging their awareness of the portion of the Declaration which states, in relevant part, “[w]e understand there are no pets allowed in this community.”

As early as 1994, a member of the condominium Board of Directors observed Russo walking her dog on condominium property and reminded her of the proscription against pets. Apparently because Russo attributed ownership to her mother and the presence of the dog as being only temporary, no enforcement action was taken.

In 1996, the Association delivered a letter to the Owners instructing them to remove the animal from the condominium premises within seven days. A second such notice was delivered to the Owners on July 1, 1998 demanding the removal of the dog no later than July 10, 1998 or the unit owners would face imposition of fines or legal action or both. A series of written communications ensued thereafter, during the course of which the identity of the actual owner of the dog and the date it would be permanently removed from the premises varied. After non-binding arbitration through the auspices of the Department of Business and Professional regulation ended in an impasse, the Association filed suit seeking an injunction requiring Owners to remove the dog forthwith.

After preliminary pleading skirmishes were resolved, the Owners responded with several defenses, including the statute of limitations. The Owners argued and the court below held the complaint filed by the Association was one for specific performance and was, therefore, time-barred by section 95.11(5)(a), Florida Statutes. We disagree with the learned trial judge and reverse.

Where the contractual provision sought to be enforced is negative in nature, injunctive relief is the proper vehicle for judicial enforcement. Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 1304, 128 So. 821 (1930). The applicable statute of limitations for injunction proceedings of the type here under consideration is five years. § 95.11(2)(b), Fla. Stat. (2002). The Association delivered its first official notice of violation by letter dated May 16, 1996. The Association’s Complaint for Injunctive Relief was filed on March 8, 2000, well within the time allowed by section 95.11(2)(b).

Given the resolution of this matter here set forth, further comment upon other points raised by the Association is unnecessary.

This matter is returned to the trial court with directions to reinstate the Association’s Complaint for Injunctive Relief.

REVERSED and REMANDED.

SHAHOOD and TAYLOR, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Angel PARETS, Appellant, v. FLORIDA UNEMPLOYMENT COMM., etc., et al., Appellees.
    No. 3D02-1595.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Rehearing Denied April 4, 2003.
    Angel Parets, in proper person.
    John D. Maher (Tallahassee), for Appel-lee, Unemployment Appeals Commission.
    Before GREEN, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Unemployment Appeals Comm’n v. Comer, 504 So.2d 760 (Fla.1987).


author: KLEIN, J.

text:
    JPG ENTERPRISES, INC., Appellant, v. Robert J. VITERITO and Karen R. Viterito, Appellees.
    Nos. 4D01-2248, 4D02-465.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Rehearing Denied April 23, 2003.

      Bradford J. Beilly of Bradford J. Beilly, P.A., Ft. Lauderdale, for appellant.
    Walter C. Jones, IV of Walter C. Jones, IV, P.A., Palm Beach Gardens, and Jennifer S. Carroll and Diane F. Medley of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellees.
   KLEIN, J.

Appellant contractor, which built a home for the appellees, appeals awards of prevailing party attorney’s fees and a fine imposed for contempt. We have consolidated the appeals and reverse.

The Viteritos brought this suit against JPG for negligent construction, alleging numerous defects; however, the contract required these claims to be determined in arbitration. The trial court ordered the parties to arbitrate, which they did, and the Viteritos prevailed. The trial court awarded the Viteritos prevailing party attorney’s fees, and JPG appeals.

JPG argues that the trial court erred in including fees incurred by the Viteritos in asserting that there should be additional arbitration in its award of attorney’s fees. A substantial amount of litigation in the trial court concerned that issue, and in addition, the Viteritos took two appeals, which were affirmed. The trial court, however, appears to have assumed that, because there was only one claim, it had to award all fees incurred by the Viteritos. JPG argues that the portion of the litigation involving whether the Viteritos were entitled to further arbitration was the equivalent of a separate claim and, because JPG prevailed, it should have been awarded attorney’s fees.

JPG relies on Folta, v. Bolton, 493 So.2d 440 (Fla.1986) for the proposition that where there are separate and distinct claims trial courts should award prevailing party fees to the party prevailing on each claim. Folia, however, involved a multi-count complaint. In the present case the Viteritos’ complaint against JPG involved only one count.

JPG cites no authority to the effect that the Viteritos’ unsuccessful efforts to obtain further arbitration should be considered a separate claim. The trial court was accordingly not required as a matter of law to award prevailing party fees to JPG for its successful efforts to have the dispute resolved in arbitration. Sabina v. Dahlia Corp., 678 So.2d 822 (Fla. 2d DCA 1996)(“Because this is basically a contract action, there can be only one prevailing party”); Green Cos. v. Kendall Racquetball Inv. Ltd., 658 So.2d 1119 (Fla. 3d DCA 1995) and cases cited.

The trial court could, however, have determined that the Viteritos’ unsuccessful efforts to avoid arbitration, by taking two appeals which were affirmed, were unnecessary. A prevailing party is entitled to recover only fees which are “reasonably expended.” Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985).

The trial court may have justifiably believed, because of prior fee orders entered by this court, that it could not deny fees to the Viteritos for those appeals. Under Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2000), however, a trial court, when awarding prevailing party attorney’s fees at the conclusion of the case, can determine that attorney’s fees incurred on interim appeals were unnecessary. On remand, accordingly, the trial court should determine whether the two appeals taken by the Viteritos were reasonably necessary. If the trial court concludes that they were not, then the order awarding attorney’s fees to the Viteritos should be modified to exclude those fees.

We now turn to the contempt issue. A few months after the judgment confirming the arbitrator’s award was entered, the Viteritos asked the trial court to hold JPG in contempt for failure to comply with that order. This ultimately resulted in JPG being held in contempt and being ordered to pay a $25,000 “compensatory fine” within sixty days, with no purge provision. The fine was imposed because JPG did not comply with the final judgment and did not appear at several hearings.

JPG argues that the fine was criminal contempt, not civil, and that it must be reversed because the trial court did not follow criminal contempt procedure as provided in Florida Rules of Criminal Procedure 3.840 and 3.125(b). The Viteritos acknowledge that the fine cannot be sustained as criminal contempt, arguing only that it can be affirmed as civil contempt.

The primary purpose of civil contempt is to compel future compliance with court orders. It is coercive in nature and avoidable through obedience. Gregory v. Rice, 727 So.2d 251 (Fla.1999). Because there was no purge provision, the order cannot be upheld as a coercive civil contempt sanction. Id. at 253.

Nor can the $25,000 fine be upheld because a civil contempt fine must be supported by evidence of an injured party’s actual loss. Levey v. D’Angelo, 819 So.2d 864 (Fla. 4th DCA 2002). This fine is not supported by any evidence, but was imposed in addition to a compensatory damage award.

We therefore reverse for the trial court to reconsider the appellate attorney’s fees awarded the Viteritos and the contempt order, without prejudice to the Viteritos bringing further contempt proceedings.

Reversed.

STEVENSON and TAYLOR, JJ., concur.


text:
    In re Commitment James WILLIAMS. James Williams, Appellant, v. State of Florida, Appellee.
    No. 2D00-5373.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.
    Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Jennifer R. Haymes, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

James Williams appeals the order of commitment entered under the Jimmy Ryce Act (the Act). Of the six issues raised, we affirm three of these with discussion and affirm the other three without comment.

The first issue we address is Williams’ claim that the Act violates the substantive due process requirements of the Florida and federal constitutions. The supreme court has rejected this argument in Westerheide v. State, 831 So.2d 93 (Fla.2002).

Williams also argues that the results of the risk assessment instruments used by the expert witnesses were improperly introduced into evidence as they did not properly meet the Frye test for admissibility as scientific evidence. As this court determined in Green v. State, 826 So.2d 351 (Fla. 2d DCA 2002), such an error, if it occurred, is subject to a harmless error analysis. After reviewing the record of the testimony and evidence presented to the trial court, we are satisfied that even if the admission of these assessment results was error, it was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Accordingly, we need not address the applicability of Frye or whether the instruments met the requirements of that test.

Finally, Williams suggests that the use of hearsay statements that certain expert witnesses took from police reports to support their opinions was error. In explaining how they reached their opinions, certain experts called by the State referred to facts cited in police reports regarding the details of prior sexual offenses for which Williams previously had been convicted. Williams argues that Jenkins v. State, 803 So.2d 783 (Fla. 5th DCA 2002), prohibits such use of those statements because, as was the case in Jenkins, Williams was denied the opportunity to cross-examine the author of those statements.

However, the Jenkins decision is distinguishable from the facts in this case. In Jenkins, the reports included not only hearsay, but double hearsay. Furthermore, the reports from which the testimony in Jenkins came involved conduct for which no criminal charges were brought nor a conviction obtained. Finally, the Fifth District concluded that Jenkins’ commitment was based almost solely on hearsay evidence. By contrast, the evidence relied upon by the experts and testified to in court here came from reports on offenses for which Williams was previously convicted so that the essence of those statements had been either admitted by Williams or subjected to the scrutiny of a trial. Furthermore, Williams’ commitment was based on more than just this hearsay evidence. Accordingly, we find Jenkins distinguishable and affirm the trial court’s finding as to this issue as well.

Affirmed.

SALCINES and DAVIS, JJ., and GREEN, OLIVER L., SENIOR JUDGE, Concur.

      . Section 394.917(2), Florida Statutes (2000).

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


author: WEBSTER, J.

text:
    William SYBERS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D01-1609, 1D02-129.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2003.

      Nathan Z. Dershowitz and Amy Adelson of Dershowitz, Eiger & Adelson, P.C., New York, NY; Alan M. Dershowitz, Cambridge, MA; Lorence Jon Bielby of Green-berg Traurig, P.A., Tallahassee; and Elliot H. Scherker of Greenberg Traurig, P.A., Miami, for Appellant.
    Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Tallahassee; and Harry L. Shorstein, Special Assistant Attorney General, Jacksonville, for Appellee.
   WEBSTER, J.

In these consolidated appeals, appellant seeks review of his conviction, following a jury trial, for first-degree murder and the denial of his motion for postconviction relief. On direct appeal, appellant contends that the trial court committed reversible error when it admitted, following a Frye hearing, expert testimony based on tests purportedly establishing the presence of succinylmonocholine in the victim’s embalmed tissue nine years after the victim’s death; and when it allowed the state to establish a motive for murder through the use of inadmissible testimony. We agree. Accordingly, we reverse, and remand for a new trial. This disposition moots appellant’s postconviction claims.

I.

A.

At all relevant times, appellant was the medical examiner for the Fourteenth Judicial Circuit of Florida. On the morning of May 30, 1991, appellant’s wife was found dead in their home. Appellant had asked one of his employees to check on his wife because, according to appellant, his wife had been complaining of chest and shoulder pains that morning, and nobody was answering the telephone at home. Appellant’s wife was found in her bed, with the covers over her and a heating pad on her leg. She had no pulse. There were no signs of a struggle, but there was a gauze bandage on her arm. When appellant was told of his wife’s death, he said that no autopsy should be performed because his wife “wouldn’t want that.” The next morning, appellant’s medical partner persuaded him that an autopsy would be appropriate. However, by that time, the body had already been embalmed by the funeral home. Appellant had not sought to expedite the embalming.

An associate medical examiner from the First Judicial Circuit performed the autopsy on June 1, 1991. He noted two injection marks on the right arm. (Appellant had told at least two people that he had tried unsuccessfully to draw blood from his wife early on the morning of her death, because she had not been feeling well.) The only drug discovered by a toxicology screen was a sleeping pill. The medical examiner was unable to find any signs of disease or injury that might explain the death. On October 16, 1991, he issued a death certificate listing “sudden unexpected death due to undetermined natural causes.” Two weeks later, he issued another death certificate, this time listing “sudden unexpected death due to undetermined causes.” On April 20, 2000, he issued a final death certificate listing the death as a homicide due to succinylcholine poisoning. The final death certificate was based on reports received from National Medical Services and the Federal Bureau of Investigation.

Appellant was indicted for first-degree murder on February 18, 1997. The indictment charged that appellant had murdered his wife “by injecting her with an unknown substance.” On April 9, 1997, in response to a story in the local newspaper quoting the prosecutor, appellant filed a motion in limine seeking to exclude “any evidence concerning or reference to potassium or alleged potassium poisoning, and any novel scientific evidence.” In that motion, appellant maintained that, in Florida, “[t]he proponent of scientific evidence must satisfy the test announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), ... [as] further refined by the Florida Supreme Court ... in Brim v. State, 663 So.2d 629 (Fla.1995)[sie]”; that “[t]he burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used”; and that he was “entitled to a pretrial hearing to determine the admissibility of any proposed novel scientific evidence.” On November 19, 1998, following a Frye hearing, the trial court held that opinion testimony offered by the state from Dr. Frederic Rieders, of National Medical Services (NMS), a private laboratory in Pennsylvania, was inadmissible because it was “based upon methods- and processes that [we]re not generally accepted ... in the scientific community and therefore d[id] not meet the Frye test.” The state sought certiorari review in this court. On October 20, 1999, we issued a short opinion, in which we agreed “that the state failed to establish the necessary scientific acceptance as to some of the principles and methods on which [Dr. Rieders] relied” and, accordingly, denied the petition for a writ of certiorari. State v. Sybers, 743 So.2d 619 (Fla. 1st DCA 1999).

B.

On January 11, 2001, appellant filed another motion in limine, this time seeking to exclude “any evidence concerning or reference to succinyl choline poisoning or succi-nyl monoeholine poisoning, and any novel scientific evidence.” A pre-trial Frye hearing was held on February 14 and 15, 2001. At that hearing, Dr. Kevin Ballard testified for the state. He said that he was the director of research and development at NMS. Although he had never practiced medicine, he had a medical degree as well as a Ph.D. in pharmacology. He had been declared in other courts to be an expert in tandem mass spectrometry (MS/MS). He had no formal training in testing embalmed tissue, but had been involved in the testing of embalmed tissue specimens since 1998. He initially became involved in appellant’s case in December 1999, at the request of Dr. Rieders.

According to Dr. Ballard, he had developed a “bench procedure” for quaternary ammonium compounds in biological specimens which he used to test embalmed tissue from appellant’s deceased wife for the presence of succinylcholine, a neuro-muscular blocking agent commonly used during surgery, which is lethal in sufficient doses. The testing procedure was a multi-step process. The first step was to homogenize the tissue sample in water to render it in a form that could be worked with. The second step was to begin the extraction of the analyte of interest from the homogenized sample through use of the Bligh-Dyer method, a liquid-liquid extraction procedure dating back to the 1930’s, which removed lipids and left only water-soluble components. The final step was a solid phase extraction procedure which used an ion pairing reagent, heptafluoro-butyric acid, to isolate peptides from biological samples, yielding a final liquid matrix suitable for liquid chromatography.

Dr. Ballard testified that his bench procedure was unique insofar as it combined the Bligh-Dyer method and the ion-pairing solid phase approach during the extraction process. Once the final liquid matrix was extracted, the matrix was injected into a liquid chromatograph-tandem mass spectrometer (LC-MS/MS). The chromato-graph separated the compound, and the mass spectrometer identified it. On February 17, 2000, Dr. Ballard reported that succinylmonochohne (a metabolite formed by the decay of succinylcholine) was detected in the victim’s kidney, brain, and lung samples using LC-MS/MS on a tandem quadrupole mass spectrometer. On March 22, 2000, he prepared another report which detected succinylmonochohne in the victim’s spleen, kidney, brain, lung, and fat samples again using LC-MS/MS on a tandem quadrupole mass spectrometer. On November 7, 2000, he issued a supplemental report reflecting an additional analysis of the tissue samples using LC-MS/MS on a tandem quadrupole-time-of-flight instrument. This procedure showed the presence of succinylmonochohne in the kidney and brain specimens. In June 2000, he made a “poster” presentation to the American Society for Mass Spectrometry entitled “Analysis of Quaternary Ammonium Neuromuscular Blocking Agents in Forensic Tissue and Fluid Specimens by LC-MS/MS.” It involved taking questions from any peers who came by to examine the presentation. The presentation did not detail the bench procedure used, but did identify the concepts for extracting and identifying the compounds.

Dr. Ballard testified, further, that he did not perform method vahdation on the victim’s specimen samples, as that term was traditionally used, because it was impossible to do a true vahdation study on unique specimens. Method vahdation was intended for routine testing. Instead, he validated his methodology by using the “standard addition” method, which was generally accepted in the scientific community. This involved taking a portion of a specimen and “spiking” it with the ana-lyte of interest to show the capability of puhing that analyte out of the matrix. This was called the positive control. The standard addition method also involved the use of a negative control, i.e., a “blank” sample known not to have the analyte in it, to ensure against false positives. One cause of false positives was “carryover,” in which traces of analytes injected into or extracted from high level samples would remain in the equipment and contaminate subsequent samples. The solution to this problem was to run a number of “blank” samples between runs to make sure that the system had been properly purged. They never experienced any carryover with succinylcholine or suc-cinylmonocholine. Another source of contamination was “interference,” in which some unknown compound could potentially mimic or mask the analyte being targeted. This was controlled by use of the standard addition method. Interference would not cause a false positive unless there was another precursor, other than succinyleho-line, that could break down and give rise to succinylmonocholine. Theoretically, there was some possibility that embalming fluid could cause a false positive, but this was so small as to be essentially ignorable.

The state also presented the testimony of Marc LeBeau, unit chief supervisory chemist in the toxicology department of the Federal Bureau of Investigation (FBI) laboratory. Mr. LeBeau testified that he had experience using tandem mass spectrometry with embalmed tissues, and in identifying suecinylcholine. In December 1999, he received specimens related to this case from NMS. He also received a copy of NMS’s bench procedure which was conditioned on the FBI signing a nondisclosure agreement. He performed five tests on the specimens: LC-MS full scan; LC-MS/MS using selective reaction monitoring (SRM); LC-MS/MS full scan; LC-MS/ MS/MS using SRM; and LC-MS/MS/MS full scan. The LC-MS technique had been around for a few decades, but its application to forensic science was fairly new. That technique involved taking a liquid and immediately putting it into a gaseous state. The MS/MS and MS/MS/MS techniques provided unique structural information about the analytes being looked for, and were much more selective and sensitive for most applications than the MS technique. Moreover, the LC-MS/MS/MS method was a more effective test for succi-nylcholine or succinylmonocholine than the older gas chromatography-mass spectrometry method traditionally used.

LeBeau testified that he performed two separate procedures using the specimens he received. The first was an extraction procedure involving a combination of filtration, liquid extraction with an ion pairing reagent, and solid phase extraction. He then analyzed the extract using an instrumental procedure which involved a combination of LC-MS/MS and LC-MS/MS/MS. His testing indicated a positive finding for succinylmonocholine in the victim’s kidney, which finding was reproduced by two other toxicologists working under his supervision. This was a qualitative rather than a quantitative analysis, i.e., it answered the question of whether a substance was present, rather than how much was present. To validate the testing protocol, he used the standard addition method, which was the FBI laboratory’s standard approach when dealing with unique specimens such as embalmed tissue. He tested a number of embalmed tissue samples that he knew did not contain succinylmonocholine to make sure that there were no outside contaminants and that succinylmonocholine was not a naturally occurring product in embalmed tissue. He never produced a positive result from a specimen known not to contain the drug. He tested a number of embalmed tissue samples that were spiked with succinylmonocholine to establish that the analyte could be extracted from the tissue. He performed it on different embalmed tissue samples from the victim because a kidney would not necessarily react the same as a liver. Every single specimen was different from the next, and some might not test positive because the matrix was unique and embalmed tissues were difficult to work with. In addition, succinylmonocholine was a difficult chemical to work with because it was unstable and disappeared if the temperature was too hot or the pH level was too extreme. Because of this instability, it could be found in one sample and not in another. To establish that the extraction procedure did not introduce anything that would be misidentified as succinylmono-choline, he performed an interference study by taking plain water and carrying it through the procedure to make sure it was working properly. He looked at common putrefaction products and discerned that none would interfere with the results. He looked at other chemicals with similar weights to succinylmonocholine and determined that they would not give the same reading on the mass spectrometer. He also performed a carryover study to ensure that the instrument was appropriately flushed out after each use.

According to Mr. LeBeau, there might be a number of reasons why Dr. Ballard identified succinylmonocholine in more samples. His detection limit might have been higher than Ballard’s. The drug might have been present, but not detected because of the higher detection limit. Different detection limits resulted from the use of different instruments. Another reason for the different findings might have been the instability of succinylmonocho-line. The homogenization process, i.e., putting the tissue into a blender, created heat which might have caused the succinyl-monocholine to break down. He knew that he did not produce a false-positive finding because of the validation procedure. Given the complexity of mass spectrometry, it was essentially impossible to detect anything other than succinylmono-choline.

LeBeau testified, further, that the uniqueness of the NMS bench procedure was not in the extraction. Liquid extraction and solid phase extraction were not unique. He used those techniques on a daily basis. Ion pairing was in all of the literature dealing with quaternary ammonium compounds, and was a routine technique to isolate the compounds out of an aqueous matrix. The NMS extraction procedure was an older procedure called the Bligh-Dyer procedure. NMS considered unique the combination of the extraction and instrumental procedures. It was one of the only laboratories capable of doing both. Its instrumental procedure using LC-MS/MS was also unique.

LeBeau said that he performed the same extraction process as NMS, and validated it. However, he did a completely different instrumental analysis, which had been peer reviewed by the Society of Forensic Toxicology and within the FBI lab by other FBI scientists. All of the samples were prepared in essentially the same manner. He did not “tweak” the specimens. He “tweaked” the instrumentation by making minor modifications so that it had a better chance of determining whether something was there. Although there were some “deviations,” “none of the deviations had any scientifically valid detriment.” The only specimen he can remember “tweaking” was the liver specimen, by adding more solvent, because it was badly decomposed.

Appellant presented the testimony of Janine Arvizu, a chemist and a laboratory quality consultant; Dr. Ashraf Mozayani, the chief toxicologist and lab director of the Houston, Texas, medical examiner’s office; and Dr. Graham Jones, the director of the medical examiner’s toxicology laboratory in Edmonton, Alberta. Drs. Mo-zayani and Jones testified that LC-MS/MS was the best available method for detecting the presence of succinylmonocholine in embalmed tissue and that the individual steps in Dr. Ballard’s bench procedure-— tissue homogenization, liquid-liquid extraction, solid phase extraction with ion pairing, and LC-MS/MS- — were generally accepted within the scientific community. However, they claimed that Ballard’s novel application of these procedures had not been validated, and that method validation was a prerequisite to acceptance in the scientific community. During method validation, the analyst could not change any procedural steps, as was done by NMS, because any change interfered with the validation process. Dr. Mozayani testified that Dr. Ballard’s reason for bypassing validation — that the specimens were unique — was not sound, because Dr. Ballard could have used other embalmed tissue specimens to validate his methodology. She and Dr. Jones also criticized the use of the standard addition method because it lacked adequate controls. Both witnesses also expressed concerns about the failure of Dr. Ballard and Mr. LeBeau to publish their work, or subject it to peer review. They claimed that the “poster” presentation by Dr. Ballard at the American Society for Mass Spectrometry did not constitute peer review because it did not present Ballard’s bench procedure, did not allow for reproduction of his methodology, and was not subjected to critical analysis. Another concern involved Dr. Ballard’s failure to have his methodology “reproduced” by an independent laboratory. Drs. Mo-zayani and Jones testified that Dr. Ballard’s methodology could not be “reproduced” by the FBI because the FBI used a different methodology and was not able to reproduce Dr. Ballard’s results, detecting succinylmonocholine in only one specimen.

Appellant’s experts testified regarding other alleged deficiencies which precluded a finding of general acceptance in the scientific community. According to them, NMS made no attempt to determine a known error rate, and the FBI made only an ineffective attempt. Moreover, neither NMS nor the FBI documented “limits of detection” (the lowest concentration that can be detected in a single measurement of a single sample), which was critical because the FBI detected only a trace amount of succinylmonocholine in only one specimen, and there was no literature on whether succinylmonocholine was naturally found in trace amounts in the body. Dr. Jones testified that he did not consider the FBI’s findings to be particularly compelling since the level of succinylmonocholine was so close to the limit of detection.

In addition, Drs. Mozayani and Jones testified that there was no scientific literature or study demonstrating either that succinylmonocholine was not present in embalmed tissue or that succinic acid and choline, both of which were endogenous to the human body, could not recombine to form succinylmonocholine. They maintained that this was significant in this case because the state-of-the-art instruments used by NMS and the FBI were extremely sensitive, and capable of picking up compounds in very minute concentrations. Thus, if there were traces of endogenous succinylmonocholine in embalmed tissue, it would be detected by their sensitive instruments.

The witnesses also testified that there must be protection against contamination at each stage of the process. According to Ms. Arvizu, NMS had no quality assurance program in place to ensure sample integrity or to prevent contamination. One key aspect of quality assurance involved including negative control samples to ensure against false positives. Ms. Arvizu observed that Dr. Ballard did not always include negative controls in his testing. In at least one instance, she noted that there was a positive reading for suecinylmono-choline when the lab ran a blank sample. She also noted that because of poor record keeping, there was no way to identify the samples that were tested during particular analytical runs. The lab had no system in place to restrict access to the forensic sample preparation area. Dr. Rieders reported that when he removed a sample from the freezer storage area, he did not record it on the custody control documentation. The lack of quality controls was significant because NMS was involved in testing tissue samples in another criminal case that were known to contain succinylcholine.

Ms. Arvizu also testified that the FBI had a general quality assurance protocol, but did not follow it in this case. Dr. Jones was particularly concerned that the FBI testing reflected unusual carryover. He noted that even after the instrument was purged and blank samples were repeatedly tested, carryover was still detected, a problem not adequately addressed by the FBI.

Following the hearing, the trial court denied the motion in limine. It concluded that Dr. Ballard’s methodology satisfied the Frye standard because the individual steps in the NMS and FBI procedures were generally accepted in the scientific community and other courts had allowed prosecutors to introduce expert evidence concerning the detection of succinylcholine in embalmed tissue. As to the lack of method validation and quality assurance controls and the possibility of contamination and carryover, the trial court concluded that, pursuant to Frye, such matters went to the weight of the evidence, rather than to its admissibility.

C.

During the trial, appellant again moved to exclude the state’s expert opinion testimony regarding the presence of succinyl-monocholine in the victim’s embalmed tissues. Ms. Arvizu and Mr. Chip Walls, a forensic toxicologist, both testified that, based upon their observation of NMS procedures, NMS’s forensic processing area did not have in place even minimal elements of a quality assurance program. As a result, there was a significant possibility of contamination of the tissue samples. Arvizu also expressed grave concerns regarding NMS’s chain of custody documentation for the samples, which she said raised substantial questions as to the identity of the samples. The trial court again denied the motion, stating that any problems regarding contamination or chain of custody went to the weight, rather than the admissibility, of the evidence.

Dr. Ballard testified that he used his bench procedure and LC-MS/MS to conduct three tests on embalmed tissue samples taken from appellant’s wife. The first detected succinylmonocholine in the kidney, brain, and lung samples; the second detected succinylmonocholine in those organs and the spleen and fatty tissue; and the third (using newer and more sensitive equipment) detected succinylmonocholine in only the brain and kidney. More than trace amounts were detected. According to Ballard, the presence of succinylmono-choline established the presence of its parent drug, succinylcholine.

Mr. LeBeau testified that he conducted tests on the specimens received from NMS using Ballard’s bench procedure, with some modifications, and the FBI’s more selective LC-MS/MS/MS instrument, and found succinylmonocholine only in the kidney sample. Both he and Ballard theorized that succinylmonocholine could be detected in the tissues of appellant’s wife, despite the instability of succinylmonocho-line and the passage of time, because embalming acidified the tissue, a condition in which succinylmonocholine was more stable. However, Ballard acknowledged that he did not know the chemical makeup of the embalming fluid. LeBeau testified that his results differed from those of NMS because of different methodology and instrumentation, because the specimens had been thawed, or because of differences in the homogenization procedures.

Drs. Mozayani and Jones, and Mr. Walls, testified that succinylcholine rapidly degraded and was generally out of the body in less than ten minutes while sued-nylmonocholine degraded eight times more slowly because of its different chemical structure. Mozayani and Walls testified, further, that embalming could vary the process depending on whether the embalming fluid contained sodium hydroxide, which would cause the succinylcholine to degrade more quickly, or an acid, which would stabilize it. They cited a study published in the Journal of Forensic Science involving degradation rates of succinyleho-line in canine kidney tissue which established that a body must be immediately placed in minus 70 degrees Celsius to prevent degradation of succinylcholine. In 40 days, 78 percent of succinylcholine was gone at minus 20 degrees Celsius, and 91 percent was gone in refrigerated temperatures. Using LeBeau’s detection limits, Mozayani and Walls agreed that any succi-nylmonocholine would have degraded by the time NMS conducted its tests even if the tissue samples had been stored in a freezer. In their opinion, suecinylmono-choline could not be detected within the tissues after two years when the tissues were embalmed 90 minutes after death and immediately preserved in a freezer. Moreover, they agreed that there was no reasonable explanation why succinylmono-eholine was found in the brain, spleen, lung and fatty tissue in December 1999, but could not be found by the FBI in the same tissue 61 days later. If the compound degraded so quickly between the NMS and FBI testing, Dr. Jones testified that this was inconsistent with the tests being positive in the first place.

D.

Also during the trial, the state called Judy Ray Sybers, who married appellant three years after the death of appellant’s wife. She testified that she had begun having a sexual relationship with appellant in February 1991, but that she and appellant had not discussed marriage. She acknowledged lying to the police about the affair, but stated that appellant had told her to tell the truth.

Another -witness, Diane Houser, was permitted to testify, over objection, that about a month before the death of appellant’s wife, Judy had told her that she was seeing appellant and that she thought appellant was going to try to get a divorce. Again over objection, David Levin, a divorce attorney, was permitted to testify that under Florida law, marital assets would be divided equally on divorce and that, assuming a net worth of $5-6 million, the wife would receive between $2/6-3 million.

II.

A.

“[N]ovel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923),” which requires that such evidence “ ‘be sufficiently established to have gained general acceptance in the particular field in which it belongs.’” Flanagan v. State, 625 So.2d 827, 828 (Fla.1993) (quoting Frye, 293 F. at 1014). Accord Hadden v. State, 690 So.2d 573, 577-78 (Fla.1997); Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (Ramirez II). Among other things, “[t]his standard requires a determination ... that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community.” Brim v. State, 695 So.2d 268, 272 (Fla.1997). As our supreme court has explained:

The underlying theory for this rule is that a courtroom is not a laboratory, and as such is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use.

Stokes v. State, 548 So.2d 188, 193-94 (Fla.1989). In other words, the Frye test is “designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound.” Flanagan, 625 So.2d at 828 (citing Stokes).

When applying the Frye test, “the burden is on the proponent of the evidence to prove [by the greater weight of the evidence] the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Ramirez II, 651 So.2d at 1168. This requires more than “[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles,” particularly “if the witness’s application of these principles is untested and lacks indi-cia of acceptability,” or “if the expert has a personal stake in the new theory or is prone to an institutional bias.” Ramirez v. State, 810 So.2d 836, 844, 844 n. 13 (Fla.2001) (Ramirez III). As our supreme court has emphasized, “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.” Id. at 851.

Our standard of review when considering a trial court’s ruling on a Frye issue is de novo, rather than abuse of discretion. Murray v. State, 838 So.2d 1073, 1077 (Fla.2002); Ramirez III, 810 So.2d at 844; Brim, 695 So.2d at 274. Moreover, we must address the matter of general acceptance as of the time of appeal, rather than the time of trial. Ramirez III, 810 So.2d at 844-45 (citing Hadden, 690 So.2d at 579). In reaching our decision regarding general acceptance, we “may examine expert testimony, scientific and legal writings, and judicial opinions.” Hadden, 690 So.2d at 579 (citing Flanagan, 625 So.2d at 828). “Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction.” Ramirez III, 810 So.2d at 853.

B.

The scientific evidence in this case involved two basic underlying principles: (1) the detection of succinylmonocholine establishes the prior presence of its parent compound, succinylcholine; and (2) succi-nylmonocholine can remain in embalmed tissue nine years after death. The evidence is uncontradicted that succinyleho-line is a very unstable compound that breaks down rapidly to produce succinyl-monocholine, a less unstable compound that breaks down to form succinic acid and choline, which are naturally present in the human body. Appellant’s experts testified that succinylmonocholine is too unstable to be present in embalmed tissue nine years after death. The state’s experts hypothesized that the chemicals used in the embalming process preserved succinylmonocholine in the tissues by making it more stable. Appellant’s experts acknowledged that embalming fluids containing acids might slow the decomposition of succinylmonocholine, but further testified that embalming fluids containing sodium hydroxide would accelerate the degradation process. There is no evidence in the record establishing the chemical composition of the embalming fluids used in this case. Furthermore, no literature or studies have been cited or found addressing the effect of embalming on the decomposition of succinylmonocholine.

In addition, appellant advanced two possible explanations for the presence of suc-cinylmonocholine in the embalmed tissues of appellant’s wife other than the injection of succinylcholine. The first was the natural recombination of succinic acid and choline in the body to form succinylmono-choline in trace amounts. While acknowledging that there were no scientific studies confirming or rejecting this hypothesis, appellant’s experts testified that it was theoretically possible and needed further study. The state’s experts, Dr. Ballard and Mr. LeBeau, dismissed this as very unlikely given the energy required to recombine succinic acid and choline. The second explanation advanced by appellant was contamination.

We conclude that the state has failed to carry its burden of establishing by “independent and impartial proof’ that the scientific principles underlying the testing, i.e., that an unstable compound like succi-nylmonocholine can be preserved in nine-year-old embalmed tissue and that it could come only from an injection of suecinylcho-line, are generally accepted in the relevant scientific community. Other than the assertions of Dr. Ballard and Mr. LeBeau, the state offered no evidence to suggest that either scientific principle is generally accepted. As the court noted in Ramirez III, such assertions by experts who developed and performed the testing procedures are not, alone, sufficient. Id., 810 So.2d at 844. Rather, proof of general scientific acceptance “requires the testimony of impartial experts or scientists,” id. at 851, “that the ... underlying principles ... have been sufficiently tested and accepted by the relevant scientific community.” Brim, 695 So.2d at 272.

The state argues that we should disregard Ramirez III because it was not decided until after the trial had been concluded. We reject this argument for two reasons. First, the requirement that general acceptance be established by “independent and impartial proof’ is nothing more than a common-sense conclusion drawn from the supreme court’s decisions which preceded Ramirez 111. Accordingly, Ramirez III did not announce a new rule of law in this regard. Second, even if it had, any decision of the supreme court “announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final,” unless the supreme court states otherwise. Smith v. State, 598 So.2d 1063, 1066 (Fla.1992), as limited by Wuornos v. State, 644 So.2d 1000, 1007 n. 4 (Fla.1994). The supreme court has not. suggested that Ramirez III should not be given retrospective application.

C.

The actual testing procedure used to detect succinylmonocholine in this case was developed by Dr. Ballard at NMS. The first half of the procedure was an extraction process which involved (1) using a blender to homogenize the tissue sample in water; (2) using a liquid-liquid extraction procedure called the Bligh-Dyer method to remove unwanted lipids (fats) from the sample; and (3) using an ion-pairing solid phase extraction procedure to yield a final liquid matrix suitable for liquid chromatography. The second half of the procedure was an instrumental analysis which involved using liquid chromatography (LC) to separate the analyte of interest from the liquid matrix and tandem mass spectrometry (MS/MS) to identify it. Follow-up testing was performed at the FBI laboratory by Mr. LeBeau, who testified that he performed a similar extraction procedure to that used by NMS, but performed a different instrumental analysis which involved a combination of LC-MS/MS and LC-MS/MS/MS. While appellant’s experts agreed that the individual steps of the extraction procedure and the use of LC-MS/MS and LC-MS/MS/MS were generally accepted in the relevant scientific community, they asserted that the application of the extraction procedure and instrumental analysis to isolate and detect suceinylmonocholine in nine-year-old embalmed tissue was not generally accepted in the relevant scientific community. No scientific literature has been cited by the parties, or uncovered by our independent research, which addresses similar testing procedures for suceinylmonocholine in embalmed tissues, especially tissues that are many years old.

The parties have cited three other appellate cases which addressed the testing of post-mortem tissue for the presence of succinyleholine, and the state points out that, in all three, the presentation of expert testimony regarding tests used to detect the presence of the drug was affirmed on appeal. The cases are Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), Jones v. State, 716 S.W.2d 142 (Tex.Ct.App.1986), and People v. Davis, 199 Mich.App. 502, 503 N.W.2d 457 (1993), leave to appeal denied, 444 Mich. 966, 518 N.W.2d 475 (1994). We find these cases to be of little help. All involved different testing techniques; all involved different testing equipment; all involved testing for succi-nylcholine, rather than its metabolite, suc-cinylmonocholine; none involved testing of tissue that had been embalmed for a period remotely approaching nine years; and all involved application of a much more permissive interpretation of the Frye test than that which has been mandated by our supreme court. In addition, the court in Coppolino applied the abuse of discretion standard of review, which is much more permissive than the de novo standard since mandated by our supreme court; and the Jones and Davis cases both recite that expert witnesses other than the developers of the tests testified that the tests were generally accepted within the relevant scientific community.

We conclude that the state has failed to carry its burden of establishing by “independent and impartial proof’ that the testing procedures used are generally accepted in the relevant scientific community. The only testimony offered by the state to establish the general scientific acceptance of the testing procedures came from Dr. Ballard and Mr. LeBeau, each of whom either had a personal stake in the procedure or was prone to potential institutional bias. Such assertions are not, alone, sufficient. Ramirez III, 810 So.2d at 844, 844 n. 13. Rather, proof of general scientific acceptance “requires the testimony of impartial experts or scientists” as to “both the underlying scientific principle and the testing procedures used to apply the principle to the facts of the case at hand.” Id. at 851.

D.

It is clear that concern for reliability is the foundation upon which our supreme court has built its Frye test. E.g., Ramirez III, 810 So.2d at 843; Ramirez II, 651 So.2d at 1167. Thus, in Hadden, the court said:

[W]e firmly hold to the principle that it is the function of the court to not permit cases to be resolved on the basis of evidence for which a predicate of reliability has not been established. Reliability is fundamental to issues involved in the admissibility of evidence.... Novel scientific evidence must ... be shown to be reliable on some basis other than simply that it is the opinion of the witness who seeks to offer the opinion. In sum, we will not permit factual issues to be resolved on the basis of opinions which have yet to achieve general acceptance in the relevant scientific community; to do otherwise would permit resolutions based upon evidence which has not been demonstrated to be sufficiently reliable and would thereby cast doubt on the reliability of the factual resolutions.

690 So.2d at 578. On the record before us, the state has failed to carry its burden of demonstrating that essential portions of the expert testimony it presented at trial were based upon scientific principles and testing procedures that are generally accepted in the relevant scientific community. Accordingly, we are constrained to reverse appellant’s conviction and to remand for a new trial. Should the state again attempt to establish the admissibility of the same expert testimony on remand, the trial court shall also determine whether chain of custody and contamination problems identified by appellant’s experts actually exist and, if so, whether they are of sufficient magnitude to warrant their consideration on the issue of general acceptance of the testing procedures employed, rather than treating them as relevant merely to the weight of the evidence. See Murray v. State, 838 So.2d 1073, 1081 (Fla.2002).

III.

Appellant next contends that the trial court committed reversible error when, over a timely objection, it permitted the state to present testimony from Diane Houser that, about a month before the death of appellant’s wife, Judy Ray Sybers had told her that she thought appellant was going to get a divorce. According to appellant, the out-of-court statement of one person may not be used to establish the state of mind of another. The state responds that this testimony was admissible, either because it was not offered to establish appellant’s state of mind and, thus, was not hearsay; or because it constituted proper impeachment of Ms. Sy-bers. In the alternative, the state argues that, if the testimony was not admissible, the trial court’s error in permitting it was harmless.

The standard of review applicable to this issue is abuse of discretion. Ray v. State, 755 So.2d 604, 610 (Fla.2000) (“Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion”). However, when ruling on eviden-tiary matters, “a trial court’s discretion is limited by the rules of evidence.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

We reject the state’s argument that the testimony was admissible because it was offered to establish appellant’s motive for committing murder and, therefore, was not hearsay because it was not being offered to prove the truth of the matter asserted. In this context, “motive” is synonymous with “emotion,” “passion” or “feeling.” In other words, it refers to a defendant’s state of mind. See IA John Henry Wigmore, Evidence § 117, at 1697 (Tillers rev.1983). The courts of this state have repeatedly held that out-of-court statements such as that attributed by Ms. Houser to Ms. Sybers do constitute hearsay, and cannot be used to prove the state of mind or motive of someone other than the declarant. See, e.g., Woods v. State, 733 So.2d 980, 987 (Fla.1999); Kelley v. State, 543 So.2d 286, 288 (Fla. 1st DCA 1989); Fleming v. State, 457 So.2d 499, 502 (Fla. 2d DCA 1984); Bailey v. State, 419 So.2d 721, 722 (Fla. 1st DCA 1982).

We also reject the state’s contention that the testimony was admissible to impeach Ms. Sybers, who testified at trial that she had not spoken to appellant about divorcing his wife. As appellant correctly notes, (1) Ms. Sybers’ out-of-court statement was not inconsistent with her in-court testimony because, as Ms. Houser admitted during her testimony, Ms. Sybers did not say that she had spoken with appellant about divorce; and (2) Ms. Houser’s testimony would not constitute proper impeachment in any event, because (if not offered to prove the truth of the matter asserted) it was designed to impeach on a collateral matter. See Wood v. State, 656 So.2d 605, 606 (Fla. 1st DCA 1995) (stating that, as a “general rule,” “if a witness is cross-examined on a collateral or irrelevant matter, the cross-examiner must ‘take’ and be bound by the answer and may not subsequently impeach the witness with extrinsic evidence in contradiction”). Accordingly, we conclude that the trial court abused its discretion when it permitted the state to introduce the testimony of Ms. Houser regarding the out-of-court statement of Ms. Sybers.

Appellant also complains about the admission, again over timely objection, of the testimony of David Levin. Levin, a divorce lawyer, was permitted to testify that, under Florida law, marital assets would be divided equally on divorce and that, assuming a net worth of $5-6 million, the wife would receive between $2/6-3 million. Other than the inadmissible hearsay testimony of Ms. Houser, there was no evidence that appellant had considered dissolving his marriage. Without some factual predicate, Levin’s testimony was irrelevant, and should also have been excluded.

Having concluded that the trial court erred when it permitted the testimony of Ms. Houser and Mr. Levin, we must' address the state’s harmless error argument. It is the state’s burden to establish that those errors were harmless. To do this, it must demonstrate, to the exclusion of all reasonable doubt, that neither error affected the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986); Goodwin v. State, 751 So.2d 537 (Fla.1999) (applying the DiGuilio test to non-constitutional errors). Having carefully reviewed the entire trial transcript, we are unable to say, to the exclusion of all reasonable doubt, that the errors had no affect on the jury’s verdict. Accordingly, the state has failed to carry its burden, and we conclude that the errors were not harmless.

IV.

In summary, we hold that the trial court committed reversible error when it admitted (1) the expert testimony of Dr. Ballard and Mr. LeBeau, which was based on tests purportedly establishing the presence of succinylmonocholine in the victim’s embalmed tissues nine years after the victim’s death; (2) the testimony of Ms. Houser that Judy Sybers told her that she thought appellant was going to try to get a divorce; and (3) the testimony of Mr. Lev-in regarding Florida divorce law and its impact on the distribution of marital property. Because of these errors, we reverse, and remand for a new trial. This disposition moots appellant’s postconviction claims.

REVERSED and REMANDED, with directions.

DAVIS and VAN NORTWICK, JJ., concur.


text:
    Ronnie G. LUSK, Appellant, v. Deana M. SWEET, Appellee.
    No. 5D02-2926.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Rehearing Denied April 7, 2003.

      Ronnie G. Lusk, Polk City, pro se.
    No appearance for Appellee.
   PER CURIAM.

As this appeal was filed beyond the jurisdictional time allowed, it is dismissed. Fla. R. of App. P. 9.020(h); 9.110(b).

DISMISSED.

THOMPSON, C.J., SAWAYA and MONACO, JJ, concur.

      . An untimely and thus improper motion to vacate does not toll the time in which to appeal an order on modification of child support.


author: CASANUEVA, Judge.

text:
    NORWEGIAN CRUISE LINE, LTD., Appellant, v. Marilyn CLARK and Richard Clark, Appellees.
    No. 2D02-945.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.

      Curtis J. Mase and Beverly D. Eisen-stadt of Mase & Gassenheimer, P.A., Miami, for Appellant.
    Hendrik Uiterwyk of Abrahamson & Ui-terwyk, and Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa, for Appellees.
   CASANUEVA, Judge.

Norwegian Cruise Line, Ltd., challenges the trial court’s nonfinal order denying its motion to dismiss for improper venue, or, in the alternative, to transfer the cause to Dade County in accordance with the forum selection clause in its form cruise ticket contract. We reverse and, in so doing, join the majority of jurisdictions that have decided this matter and hold that the forum selection clause in the form cruise ticket that Marilyn and Richard Clark received shortly before their departure date is enforceable. This conclusion is in accord with Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). The Clarks argue that Shute is inapposite because the Supreme Court there assumed that the passengers could reject the offer of the cruise line “with impunity,” but the Clarks could not do so “with impunity” because they would have forfeited some or all of their ticket price had they decided not to go on the cruise because of any objectionable clause in the form cruise ticket contract, including the venue provision. Given the evolution of business practices in today’s world, especially where many contracts are formed electronically or telephonically, and where the offeree receives the complete contract only after paying the cost, we believe the majority view is the better reasoned statement of law. As we note below, the majority view is tempered by the passenger’s ability to refuse to accept the offer under well-established principles of the law of contract formation.

Factual Background

In mid-December 2000, the Clarks ordered and paid for tickets through their travel agent for a cruise in the Caribbean aboard Norwegian Star, a cruise ship owned and operated by Norwegian. The departure date of the cruise was January 10, 2001. The Clarks received their tickets around December 17, 2000. The form ticket, a folded, legal-sized document, had the title “Passenger Ticket Contract” at the top of the first page. Lower down on the first page two warnings or notices were prominently displayed. The first warning stated:

IMPORTANT NOTICE
The Passenger’s attention is specifically directed to the terms and conditions of this contract set forth below. These terms and conditions affect important legal rights and the passenger is advised to read them carefully.

A bold black line creating a rectangular border around this notice attracted the reader’s attention. The text of the warning was in white letters on a brown background, further highlighting it and distinguishing it from the surrounding text. The second warning, similarly highlighted, stated:

Passengers are advised to read the terms and conditions of the Passenger Ticket Contract set forth below. Acceptance of this Passenger Ticket Contract by Passenger shall constitute the agreement of passenger to these Terms and Conditions.

(Emphasis added.) Following this second warning, filling the rest of the first page and all of the reverse, were twenty-eight paragraphs of fine print detailing the contractual terms and conditions. Paragraph 1 stated:

This passenger ticket contract (hereafter “Contract”) constitutes a Contract of Passage between the carrier, Norwegian Cruise Line (hereafter referred to as “Carrier”), and the passenger or purchaser (whether or not signed by or on his behalf). All the terms and provisions of all sides of this Contract, including all of the following matter printed below, are a part of this Contract to which the passenger and/or purchaser, both on his/her behalf and on behalf of any other person or persons, including children, for whom this ticket is purchased, acknowledge and agree to be bound thereby by accepting this Contract or transportation from the Carrier

(Emphasis added.) Paragraph 28 stated:

This Contract shall be governed in all respects by the laws of the State of Florida and the laws of the United States of America. It is hereby agreed that any and all claims, disputes or controversies whatsoever arising from or in connection with this Contract and the transportation furnished hereunder shall be commenced, filed and litigated, if at all, before a court of proper jurisdiction located in Dade County, Florida, U.S.A.

The Clarks never objected to any term or condition of the ticket contract before they sailed as scheduled.

Unfortunately, Mrs. Clark slipped and fell on wet decking the first day out during the crush of the mandatory lifeboat drill, injuring her leg and ankle. The Clarks subsequently filed a negligence lawsuit against Norwegian in the Sixth Judicial Circuit in Pinellas County, ignoring the forum selection clause in their ticket contract. Citing the forum selection clause, Norwegian moved to dismiss or, in the alternative, to transfer the cause to the circuit court in Dade County but the trial court denied its motion. Norwegian then filed this appeal.

Discussion

A passenger ticket for a cruise and its terms are considered a maritime contract to be analyzed under federal maritime law. The Moses Taylor, 71 U.S. (4 Wall.) 411, 427, 18 L.Ed. 397 (1866); Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 909 (3d Cir.1988). The United States Supreme Court has held that forum selection clauses are prima facie valid even though they have not been historically favored, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9-10, 92 S.Ct. 1907, 82 L.Ed.2d 513 (1972), and they should be “given controlling weight in all but the most exceptional cases.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (Kennedy, J., concurring, citing The Bremen, 407 U.S. at 10, 92 S.Ct. 1907). A party contesting enforcement of a forum selection provision bears the “heavy burden” of demonstrating why enforcement would be unreasonable. The Bremen, 407 U.S. at 17, 92 S.Ct. 1907; Hicks v. Carnival Cruise Lines, Inc., No. Civ. A. 93-5427, 1995 A.M.C. 281, 1994 WL 388678 (E.D.Pa. July 26, 1994). Shute directs that these clauses be scrutinized under a fundamental fairness standard. 499 U.S. at 595, 111 S.Ct. 1522. See also Smith v. Doe, 991 F.Supp. 781 (E.D.La.1998) (holding that the forum selection clause in the cruise ticket contract did not violate the statutory prohibition against limiting liability for negligence of vessel owners contained in 46 U.S.C. § 183c, and that such clause is prima facie valid and will be enforced unless the passenger shows insufficient notice of it or that the clause is fundamentally unfair).

This fundamental fairness standard requires that the provision at issue be “reasonably communicated” to the passenger, to ensure that the passenger receives sufficient notice of the conditions that he or she is accepting. Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir.1987). The court must gauge the physical characteristics of the contractual terms and the sufficiency of the warnings as to how well they alert the passenger to the terms under which the contract will be performed. Id. This two-part test is a question of law. Hodes, 858 F.2d at 908.

The Clarks do not, as they cannot, argue that the warnings on their ticket were insufficient to notify them of the contract terms that would apply to them if they took the cruise. Rather, they contend that because they received the tickets within the penalty period and would have forfeited an undetermined amount of the ticket price had they decided to cancel, Norwegian provided them with insufficient notice of the ticket’s conditions so as to render the contract fundamentally unfair. We, and the majority of jurisdictions, disagree. See, e.g., Hicks, 1995 A.M.C. 281 (E.D.Pa.1994) (holding that provided the passenger received the ticket prior to boarding, the issue is not when the passenger received the ticket but how the forum selection clause was communicated in the ticket).

The Supreme Court’s case of Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622, is the seminal authority on venue provisions in form contracts for passage on cruise ships. Mrs. Shute, a resident of Washington State, bought a ticket for a cruise with Carnival, a Florida-based company, for a cruise to Puerto Vallarta, Mexico, that departed from Los Angeles, California. While on board in international waters off the coast of Mexico, she slipped on a deck mat during a tour of the ship’s kitchens and injured herself. She filed a negligence action in federal district court in the state of Washington. That court enforced the forum selection clause, Shute v. Carnival Cruise Lines, Inc., No. C86-1204D, 1988 A.M.C. 591 (W.D.Wash.1987), but was reversed by the Ninth Circuit, Shute v. Carnival Cruise Lines, 897 F.2d 377 (9th Cir.1990). The Supreme Court, in turn, reversed the Ninth Circuit, and began its discussion by extending its analysis of a case it had decided in 1972 that dealt with the forum selection clause in a contract between two international business entities, The Bremen, 407 U.S. at 1, 92 S.Ct. 1907. The Court held in Shute that, unlike the contract between two business corporations, a forum selection clause in a routine form passenger cruise line ticket, which was not subject to individual negotiation, was nonetheless enforceable and fundamentally fair because, among other reasons, the forum selection clause was not used as a means of discouraging cruise ship passengers from pursuing legitimate claims. 499 U.S. at 594, 111 S.Ct. 1522.

The Supreme Court found that the clause was permissible for several reasons: the cruise line had a special interest in limiting the forums in which it could be sued, the clause was beneficial in dispelling any confusion about where suits arising from the contract could be brought and defended, sparing the parties and the court the time and expense of pretrial motions to determine the correct forum, and passengers who purchased tickets containing a forum selection clause benefitted by reduced fares that reflected the savings the cruise line enjoyed by limiting the forums in which it may be sued. Id.

The cruise line in Shute, Carnival, had its principal place of business in Florida, so its forum selection clause designated courts in Florida as the jurisdiction in which to resolve disputes with its passengers. Id. at 588-89, 111 S.Ct. 1522. There was also no evidence of fraud or overreaching, despite the contract not being subject to individual negotiation. Mrs. Shute conceded receipt of notice of the forum selection clause, so the Supreme Court “presumed” she retained the option of “rejecting the contract with impunity.” Id. at 595, 111 S.Ct. 1522. It concluded that the forum selection clause should be enforced.

It is the “with impunity” language of Shute that divides the parties before us. Justice Stevens, in his lengthy dissent, 499 U.S. at 597-605, 111 S.Ct. 1522, in which Justice Marshall joined, specifically objected to Mrs. State’s predicament, which he considered unfair. He pointed out that many passengers receive actual notice of the forum selection clause long after their ability to obtain a refund had passed:

Of course, many passengers, like the respondents in this case, see ante, at 587, 111 S.Ct. 1522, will not have an opportunity to read paragraph 8 until they have actually purchased their tickets. By this point, the passengers will already have accepted the condition set forth in paragraph 16(a), which provides that “the Carrier shall not be liable to make any refund to passengers in respect of ... tickets wholly or partly not used by a passenger.” Not knowing whether or not that provision is legally enforceable, I assume that the average passenger would accept the risk of having to file suit in Florida in the event of an injury, rather than canceling — without a refund — a planned vacation at the last minute. The fact that the cruise line can reduce its litigation costs, and therefore its liability insurance premiums, by forcing this choice on its passengers does not, in my opinion, suffice to render the provision reasonable. Cf. Steven v. Fidelity & Casualty Co. of New York, 58 Cal.2d 862, 888, 27 Cal.Rptr. 172, 377 P.2d 284, 298 (1962) (refusing to enforce limitation on liability in insurance policy because insured “must purchase the policy before he even knows its provisions”).

Shute, 499 U.S. at 597-98, 111 S.Ct. 1522 (Stevens, J., dissenting). We share Justice Stevens’s and Justice Marshall’s concern. However, we do not find that the time frame that remained for the Clarks to reject the offer to cruise, approximately twenty-four days, too short a time that they could not have cancelled the cruise “with impunity.” Accord, Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837 (Tenn.Ct.App.1994).

In Thomas, Mr. Thomas stated in his affidavit that he had not seen anything in the promotional literature or on the ticket about a forum selection clause and considered that he had concluded the agreement with the cruise line when he paid their required price and received their assurance that space described by them had been reserved for him. Id. at 841. The Tennessee Court of Appeals noted that under similar circumstances the Supreme Court in Shute enforced the forum-selection clause. The Tennessee appellate court found that Mr. Thomas’s receipt of the ticket containing the contract terms about a month before embarkation, combined with his subsequent passage on the cruise, was sufficient to ratify the contract. The court noted that while the ticket contract was essentially a contract of adhesion, which may appear unfair to Mr. Thomas, “it would be more unfair — and grossly inefficient — to compel cruise lines and other common carriers to negotiate all contract terms with their many passengers.” Id. Had there been different circumstances, such as where tickets with these limiting provisions were not given to passengers until they embarked, the court might have taken a different view. Id. at 841-42 (citing Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983) (refusing to enforce a contractual limitations period because the ticket stated that all conditions of transportation were held by the group’s leader)). In Mr. Thomas’s case, he would have suffered a 25% penalty for cancelling the cruise at the time he received his ticket. Mr. Thomas found himself in a similar situation to Mrs. Shute’s. Indeed, Mrs. Shute’s ticket stated that the fare would be considered earned when paid and did not appear refundable at all. 892 S.W.2d at 841-42 n. 2. The Tennessee appellate court then assumed, as did the United States Supreme Court, “that such a provision would be unenforceable for a reasonable period of time following receipt of the ticket since it was not called to the passenger’s attention in time to cancel with impunity.”

We also question whether such a penalty could have been legally enforced had the Clarks decided not to take the cruise, but that question is not presently before us. That discussion would entail the principles of contract formation, specifically, the su-bissues of offer and acceptance. See Sumerel v. Finder, 83 So.2d 692 (Fla.1955) (holding that to form a contract, it is necessary that there be a meeting of the minds by an acceptance and performance within the terms of the offer); Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539, 541-42 (1947) (holding that a mere offer not assented to does not constitute a contract and so long as the proposal is not acceded to, it is binding on neither party and may be retracted); Continental Cas. Co. v. City of Ocala, 99 Fla. 851, 127 So. 894 (1930) (holding that an insurance policy as issued and accepted is prima facie the contract of parties). Id.

The Supreme Court clearly recognized that policy benefits accrued to the cruise lines only when the policy regarding the forum for litigation was uniform. The Supreme Court was well aware that passengers like Mrs. Shute would not necessarily be able to obtain a full refund of the ticket price if they objected to the forum selection clause in the passenger ticket, but it nonetheless rejected the idea that some passengers — though not all passengers— would not be able to avoid the forum selection clause simply because they received their tickets within the penalty period. Weighing the disadvantages to Mrs. Shute against the advantages to the cruise line industry, the Supreme Court nonetheless determined as a matter of law that this same type of passenger ticket with this same type of forum selection clause has public policy benefits, that there are overriding national concerns that mandated enforcement of the contract, and that inconsistent and varying adjudications within the fifty states would have a detrimental impact on federal law. Shute, 499 U.S. at 593-94, 111 S.Ct. 1522.

We find no factual or legal basis to distinguish this case from Shute or the many cases that comprise the majority view. Indeed, the majority of courts following Shute have recognized that many (if not most of the passengers, like the Clarks) never read the ticket. See, e.g., Cross v. Kloster Cruise Lines, Ltd., 897 F.Supp. 1304 (D.Or.1995); Lousararian v. Royal Caribbean Corp., 951 F.2d 7 (1st Cir.1991); Kendall v. American Hawaii Cruises, 704 F.Supp. 1010, 1017 (D.Haw.1989); Marek v. Marpan Two, 817 F.2d 242. These courts have determined that the reasonable communication of the ticket, that is, the ability to become informed — and not the timing of its purchase or receipt — controls the issue of whether the forum selection clause, or any other clause for that matter, was reasonably communicated to the passenger. See also Viney v. Kloster Cruise, Ltd., No. 96-20480, 1997 AMC 544 (N.D.Cal.1996) (holding that the passenger was bound by the forum selection clause even where she received her ticket only a few days before the cruise and where she could not have canceled her trip without incurring a penalty).

We adopt the majority rule as discussed above and, accordingly, reverse and remand with instructions to transfer this cause to the Eleventh Judicial Circuit Court in Dade County.

Reversed and remanded with instructions.

ALTENBERND, C.J., and KELLY, J„ concur.

      . Norwegian claimed it sent the tickets to the Clarks' travel agent via air express on December 15, 2000, so they would certainly have arrived there by December 17, 2000. The travel agent forwarded the tickets to the Clarks, but Mrs. Clark claimed she received the tickets only twelve days before the sailing date of January 10, 2001. Because both the travel agent and the Clarks received the tickets within the penalty period, our analysis does not change. Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 912 (3d Cir.1988) ("through their own and their agent's possession of the tickets, the appellees are charged with notice of the ticket provisions”), abrogated on other grounds, Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989); Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir.1987) (determining that a friend's possession of ticket information is sufficient to charge traveler with notice).

        . Norwegian and the Clarks dispute just how much money the Clarks would have forfeited had they not accepted the terms of the contract and declined to cruise aboard the Norwegian Star after they received their tickets.
      In any event, the forfeiture amount is not controlling. The majority view is that forum selection clauses, such as Norwegian’s, are enforceable because the passenger had adequate and reasonable notice of them, despite the cancellation fee. See, e.g., Ferketich v. Carnival Cruise Lines, No. 02-CV-3019, 2002 WL 31371977 (E.D.Pa. Oct.17, 2002) (enforcing similar clause although passenger would have paid a $350 cancellation fee had she not accepted the contract terms and refused to cruise); Cross v. Kloster Cruise Lines, Ltd., 897 F.Supp. 1304, 1309 (D.Or.1995) ($400 cancellation fee); Hicks v. Carnival Cruise Lines, Inc., No. Civ. A. 93-5427, 1994 WL 388678 (E.D.Pa. July 26, 1994); Miller v. Regency Maritime Corp., 824 F.Supp. 200, 203 (N.D.Fla.1992) (enforcing forum selection clause despite 45% of ticket cost forfeiture provision).


author: WHATLEY, Judge.

text:
    Elizabeth C. ENGEL, Appellant, v. LOUIS WOHL & SONS, INC., and Unemployment Appeals Commission, Appellees.
    No. 2D02-1163.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.
    Rehearing Denied April 10, 2003.

      Elizabeth C. Engel, pro se, St. Peters-burg.
    Jeffrey R. Roth, Miami, for Appellee.
    No Appearance for Florida Unemployment Appeals Commission, Appellee.
   WHATLEY, Judge.

Elizabeth C. Engel appeals an order of the Unemployment Appeals Commission (UAC), which reversed the appeals referee’s determination that she was qualified to receive unemployment compensation benefits. We reverse.

The appeals referee concluded that En-gel was entitled to unemployment benefits because she voluntarily quit with good cause attributable to the employer, Louis Wohl & Sons, Inc., pursuant to section 443.101(l)(a), Florida Statutes (2001). The referee found that Engel was employed as a sales trainee from July 3, 2001, through July 11, 2001, and that she had over twenty-five years of sales experience. The referee further found that Engel had similar or more experience than her male coworkers. When Engel discovered that she was making approximately $100 less per week than her male coworkers during the training period, she confronted the sales manager.' The sales manager responded that it was a managerial decision. Thereafter, Engel resigned. The referee noted that Wohl’s witness refused to discuss the difference in the salaries between the males and the females.

In reversing the decision of the appeals referee, the UAC rejected the referee’s finding that Wohl was a food service sales company. The UAC concluded that such finding was not supported by competent, substantial evidence, as both witnesses testified that Wohl sold commercial restaurant equipment and supplies. The UAC also rejected the referee’s finding that En-gel quit with good cause attributable to Wohl, because it found that Engel did not provide any evidence that she had as much or the same type of sales experience as the male workers who were paid higher salaries during the training period.

We would first note that gender discrimination does confer good cause on the employee to terminate her employment. Fowler v. Unemployment Appeals Comm’n, 670 So.2d 1202 (Fla. 4th DCA 1996). In Carey McAnally and Co. v. Woodring, 629 So.2d 301 (Fla. 2d DCA 1993), this court held that the determination of whether an employee left her employment voluntarily without good cause attributable to her employer is a question of fact, and the UAC cannot reverse the referee’s decision unless it was not based on substantial, competent evidence. Credibility falls solely within the purview of the hearing officer’s discretion as finder of fact. Glover v. Sanford Child Care, Inc., 429 So.2d 91 (Fla. 5th DCA 1983).

We agree with the UAC’s conclusion that Wohl was in the business of selling commercial restaurant equipment and supplies and was not a food service sales company. However, we disagree with its conclusion that Engel did not provide any evidence that she had as much or the same type of sales experience as the male workers who were paid higher salaries. Engel testified that she had twenty-five years of sales experience and that she had comparable experience to the male employees. When she discovered that several men were making more money than she was during the training period, she asked a sales manager about the salary discrepancy and noted her years of sales experience. The manager replied that it was a “committee decision.” He did not tell Engel that the salary discrepancy was based on sales experience in the specific field of commercial restaurant equipment and supplies.

Steven Paver, the vice president and general manager of Wohl, admitted that Engel was paid less than some of the male employees. Although he testified that the salaries were based on experience selling commercial restaurant equipment and supplies, Paver refused to give any specific examples or describe the type of experience any of the higher paid male employees had in the industry. Because there was substantial, competent evidence to support the referee’s decision, we reverse the order of the UAC and remand with instructions to reinstate the appeals referee’s decision that Engel is eligible for unemployment compensation benefits.

Reversed and remanded.

SILBERMAN and KELLY, JJ., concur.


text:
    Thomas AVERETTE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4197.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his rule 3.800 motion for jail credit. The appellant has made a facially sufficient claim for jail credit under rule 3.800 by providing the dates for which he is seeking credit, the date of his sentence, and alleging that the jail certificate would show that he is entitled to credit. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). The trial court failed to reference or attach any records refuting the appellant’s allegations. We accordingly reverse and remand for the trial court to support its denial with record attachments or to grant the relief sought.

REVERSED and REMANDED.

BOOTH, BENTON and POLSTON, JJ., concur.


text:
    Jason C. GUY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-787.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Jason C. Guy, Pro Se.
    Charlie Crist, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the order by which the trial court summarily denied his Florida Rule 3.850 motion for postconviction relief. We conclude that the motion sets forth one colorable claim. In his first claim for relief, the appellant alleges a colorable claim that his trial counsel was ineffective for failing to investigate or call various exculpatory witnesses. See Gaskin v. State, 737 So.2d 509 (Fla.1999). Accordingly, the trial court’s summary denial of this claim is reversed and this case is remanded for further proceedings under the rule. We affirm the trial court’s denial of the remaining claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ALLEN, C.J., BENTON and HAWKES, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. APAC-FLORIDA, INC., a Delaware corporation, Appellee.
    No. 2D01-4613.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.

      Robert A. Bauman of Robert E. Morris, P.A., Tampa, for Appellant.
    Dana G. Toole of Dunlap & Toole, P.A., Tallahassee, for Appellee.
   ORDER ON MOTION TO RECALL MANDATE AND STAY PROCEEDINGS PENDING DISCRETIONARY REVIEW IN THE SUPREME COURT OF FLORIDA

ALTENBERND, Chief Judge.

More than fifteen days after the issuance of our opinion in this case, the appellant filed a motion stating that it intended to file, or had filed, a notice to invoke the discretionary jurisdiction of the supreme court. Pursuant to Florida Rule of Appellate Procedure 9.310(a), the appellant asks this court to stay the judgment on appeal pending further review.

The judgment on review is in the nature of a monetary judgment. This court has concluded that it does not have the power to withhold issuance of mandate in such a case when the motion to stay is filed more than fifteen days after the issuance of the opinion and no timely motion for rehearing has been filed pursuant to Florida Rule of Appellate Procedure 9.330(a). See Fla.R.App. P. 9.340; State ex rel. Price v. McCord, 380 So.2d 1037 (Fla.1980); see also State v. Miyasato, 805 So.2d 818 (Fla. 2d DCA 2001). Because this court is required to issue its mandate upon the expiration of the fifteen-day period established in rule 9.340, the court has concluded that it does not have authority thereafter to withdraw its mandate in order to stay a judgment except perhaps upon some extraordinary showing not present in this case.

Accordingly, this court denies the motion to stay. In so doing, however, we expressly recognize that the appellant seeks review in the supreme court in good faith and that, if the law allowed, this court would be willing to stay the trial court’s judgment during review in the supreme court upon a showing that the existing bond would remain in effect and would be adequate to secure the obligation.

This order is subject to review in the supreme court pursuant to Florida Rule of Appellate Procedure 9.310(f). To the extent that this court maintains that it lacks jurisdiction to grant this stay, our order may also be subject to challenge by petition for writ of prohibition.

CASANUEVA and DAVIS, JJ., Concur.


author: TAYLOR, J.

text:
    Lee M. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4465.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Rehearing Denied April 17, 2003.
    Carey Haughwout, Public Defender, Jeffrey Anderson and Samuel A. Walker, Assistant Public Defenders, and West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant was convicted of robbery and false imprisonment after a jury trial. He appeals, arguing that the trial court erred in denying his request for a Frye hearing to determine whether the calculation technique used to determine the statistical frequency of the DNA match in his case was reliable. We agree, on the authority of Arnold v. State, 807 So.2d 136 (Fla. 4th DCA 2002), and reverse.

On December 29, 1999, Kathy Tresize was working alone at Tag Insurance in West Palm Beach. At around 3:00 p.m., two men entered the store and inquired about insurance. One of the men was wearing a fisherman’s hat. After Tresize gave them a quote on insurance premiums, the two men said they would consider it and come back. At around 5:00 p.m., the men returned to the store and told Tresize that they had decided to buy the insurance. As Tresize was preparing the policy, the man wearing the fisherman’s hat jumped over her desk and demanded money. Tresize showed him the cash drawer. As he searched for money, the other man tied Tresize up. The man wearing the fisherman’s hat pointed a gun at her head and demanded more money. She told him it was in the filing cabinet. He opened the drawer, removed a manilla folder, and took the money. The two men then left the agency and walked across the street past a Miami Subs restaurant and a dumpster.

After the men left, Tresize hopped to a phone and called the police. Officer Mcdevitt responded with a K-9 unit. The dog picked up a scent that he followed from the front of the insurance agency, across the street, and to the back of the dumpster. The dog alerted to a fisherman’s hat lying on the ground behind the dumpster. Officer Wexler obtained a fingerprint from the manilla folder that had contained the stolen money; it matched one of appellant’s fingerprints.

On the first day of trial, before jury selection, appellant moved to exclude DNA evidence and expert opinions. Specifically, appellant objected to testimony from the state’s witness, Tara Hockenberry, that appellant’s DNA profile matched the profile of one of the DNA samples taken from the fisherman’s hat. Appellant challenged Hockenberry’s qualifications to give an expert opinion evaluating the population statistical data used for the DNA match. When the trial court asked defense counsel whether he wanted a Frye hearing, he responded that he did. The court, however, determined that a Frye hearing was not necessary to determine the admissibility of the statistical formula used for the DNA match; it thus limited the hearing to determining whether Hockenberry was qualified to testify as an expert in the area of population genetics and statistics.

Appellant argues that, based on Arnold, he was entitled to a Frye hearing to determine whether the calculation technique used to determine the statistical frequency of the DNA match was reliable. In Arnold, we reversed the defendant’s burglary conviction because the trial court denied the defendant a Frye hearing on the admissibility of DNA evidence. See id. at 141-42. The defendant there moved for a Frye hearing to determine whether (1) the Polymerase Chain Reaction (PCR) DNA testing method employed by the state met the Frye test for admissibility at trial, (2) the population data employed in the probability calculations used by the state’s expert to report the frequency of a match between the defendant’s DNA and the evidence sample recovered from the crime scene met the Frye test, and (3) whether the state’s expert witness, Tara Hockenberry, qualified as an expert regarding the probability calculations. The state argued that a Frye hearing was not necessary because the PCR method and probability calculations were scientifically reliable and accepted in the relevant scientific community. Without stating its reasons, the court denied the motion for a Frye hearing. It did, however, hold a hearing on Hockenberry’s qualifications and determined that she could render an expert opinion in the area of statistical methodology for calculating the frequency of the DNA match. See id. at 138-39.

As we discussed in Arnold, the second step of the DNA testing process “relies on principles of statistics and population genetics to give statistical significance to the DNA match, by indicating the statistical frequency with which such matches might occur in the population.” Id. at 140 (citing Brim v. State, 695 So.2d 268, 269-70 (Fla.1997)). Accordingly, “the calculation techniques used in determining and reporting DNA population frequencies must also satisfy the Frye test.” Id. As in Arnold, the trial court here determined that a Frye hearing was not necessary on an issue concerning the probability calculations used for the DNA match and held a hearing only to determine whether Hock-enberry was qualified to testify as an expert. In denying appellant’s request for a Frye hearing, the court denied appellant the opportunity to call his own statistician or population geneticist to challenge the state’s evidence regarding general acceptance in the scientific community of the calculation techniques employed. This constituted a violation of appellant’s due process rights. See id. at 141 (citing Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)).

Appellant contends that the error in admitting the statistical evidence, without a Frye hearing, cannot be considered harmless beyond a reasonable doubt. Although the victim saw the robbers, she could not identify appellant as one of them. The only other evidence identifying appellant as one of the robbers was testimony that his fingerprint was on the manilla envelope that had contained the stolen money. As appellant points out, however, there were several other unidentified fingerprints on the envelope and the possibility that appellant’s fingerprint was placed there by a legitimate means was not excluded. Furthermore, during closing argument, the prosecution argued that the DNA statistics were more compelling evidence of appellant’s guilt than the fingerprint evidence. Thus, we cannot say beyond a reasonable doubt that the DNA evidence did not contribute to appellant’s convictions.

Accordingly, as we did in Arnold, we reverse appellant’s conviction and sentence and remand this case to the trial court for a Frye hearing to determine if the calculation techniques used to determine the statistical frequency of the DNA profiles satisfy the Frye test. See id. at 142. If, following a hearing, the court determines that there was a sufficient basis for admitting the DNA evidence presented at trial, the court should reinstate the conviction and sentence. However, if the trial court determines that the DNA evidence failed to meet the Frye test, then it should grant a new trial. Our remand is limited solely to this issue and we direct that the hearing be held within sixty days from the date this opinion becomes final.

REVERSED and REMANDED.

KLEIN and GROSS, JJ., concur.

      . Appellant submits that the state failed to call a statistician or population geneticist who could testify that the calculation technique used was generally accepted in the scientific community.