author: PER CURIAM. WELLS, J.,

text:
    THE FLORIDA BAR, Complainant, v. Mark W. McFALL, Respondent.
    No. SC02-1350.
    Supreme Court of Florida.
    Nov. 26, 2003.

      John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, Florida; and Stephen Christopher Whalen, Assistant Staff Counsel, Tampa, FL, for the Florida Bar, Complainant.
    Mark W. McFall, pro se, Piney Flats, TN, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Mark W. McFall. We have jurisdiction. See art. V, § 15, Fla. Const.

Pursuant to the Bar’s Petition for Emergency Suspension, this Court suspended McFall on April 26, 2002. Thereafter, the Bar filed a disciplinary complaint against McFall alleging that he violated numerous Rules Regulating the Florida Bar by misappropriating and mishandling funds.

FACTS

McFall and the Bar entered into a “Joint Stipulation of Facts,” in which they also stipulated to rule violations. The parties agreed that McFall misappropriated escrow funds. After a hearing, the referee issued a report incorporating the stipulation, in which she made the following findings and recommendations.

In July 1999, McFall agreed to serve as an escrow agent pursuant to an escrow agreement with Amtel (Amtel) and Commercial Electrical Systems (Commercial). McFall received $181,750 on behalf of Am-tel, which he deposited in an escrow account.

In May 2001, Commercial issued its final work invoice for $3,093.75. At that time, the escrow account had $6,287.39 remaining. Around September 19, 2001, McFall issued a check from the account for $3,093.75 payable to Commercial for Commercial’s final invoice. This left a balance of $3,193.64 in the account, which was Am-tel’s property. On September 24, 2001, McFall sent a letter to Suwalee Thang-sumphant, the President of Amtel, in which he requested an additional fee of $1000. Around September 24, without the knowledge or authorization of Amtel, McFall issued a check from the escrow account for $1000 made payable to himself. He used the funds to satisfy personal expenses. On September 25, Thangsum-phant sent a letter to McFall objecting to his request and demanding that he forward the entire escrow balance to Amtel.

On September 28, McFall sent another letter to Thangsumphant making a “final request” for payment of an additional $1000 fee. Around October 3, without the knowledge or authorization of Amtel, McFall issued a second check from the account for $1000, which he made payable to himself. He used these funds to satisfy personal expenses. This left a balance of $1,226.14 in the trust account. On October 8, Thangsumphant, on behalf of Amtel, submitted an inquiry/complaint to the Bar stating that McFall refused to disburse the balance of the escrow funds to Amtel. On October 31, the Bar sent a letter of inquiry to McFall.

Around November 5, without the knowledge or authorization of Amtel, McFall issued a third check from the trust account for $1000, which he made payable to himself. He also used these funds to satisfy personal expenses. This left a balance of $226.14 in the account. On November 13, McFall deposited $2000 to replace some of the escrow funds that he had removed, thereby creating an account balance of $2,226.14.

On November 15, McFall provided the Bar with his response to Thangsumphant’s inquiry/complaint and stated that he was holding $3,193.64 escrow balance in trust. McFall knew this statement was false.

Also on November 15, McFall sent a letter to Thangsumphant in which he tendered a check from the account for $2,193.64 and stated that the remaining $1000 was being held in the escrow account. McFall knew this statement was false. On November 19, Thangsumphant sent a letter to McFall objecting to his offer and returning his check.

Around November 26, without the knowledge or authorization of Amtel, McFall issued a fourth check from the account for $2000, which was payable to himself. He again used these funds to satisfy personal expenses. This left a balance of $226.14 in the account.

On January 24, 2002, the local grievance committee issued a subpoena duces tecum that was served on McFall, directing him to provide his trust account records to the Bar’s branch auditor. McFall informed the Bar’s branch auditor that he did not possess the records, allegedly due to a computer virus that destroyed his trust account records. However, McFall sent the Bar copies of the trust account checks that he issued to himself.

After holding the hearing and considering the parties’ stipulation, the referee recommended that McFall be found guilty of violating rules 4-1.15(a) (1992) (a lawyer shall hold in trust, separate from the lawyer’s own property, funds and property of clients or third persons), 4-8.4(a) (a lawyer shall not violate the Rules of Professional Conduct), 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), 5-1.1(a) (1995) (money entrusted to an attorney for a specific purpose is held in trust and must be applied only to that purpose), and numerous trust accounting rules, including rules 5-l.l(c) (1995), 5-1.2(b)(2), 5-1.2(b)(3), 5-1.2(b)(4), 5-1.2(b)(5), 5-1.2(b)(6), 5-1.2(b)(7), 5-1.2(c)(l), 5-1.2(c)(2), and 5-1.2(c)(3).

In considering a disciplinary recommendation, the referee found the aggravating factors of (1) dishonest and selfish motive; (2) multiple offenses; and (3) intentionally misleading the Bar about the whereabouts of the funds. In mitigation, the referee found: (1) no prior disciplinary history; (2) McFall was a self-starter (McFall and his wife put him through college and law school, and McFall previously worked for seven years with the Polk County Sheriffs Office without any disciplinary complaints and became a detective sergeant); (3) good reputation; (4) McFall suffers from medical problems including depression (since 1995) and chronic pain (since 1998), and he had significant pain treatments and health problems that affected his ability to perform in a law firm or in a solo practice; (5) his conduct was out of character and was the result of his diminished mental and physical capacities; (6) restitution was made in full; (7) the amounts of money were small in comparison to the total amounts entrusted to him; (8) the thefts were short in duration, isolated in time, and limited to one account; (9) McFall admitted all violations and became cooperative with the Bar; (10) remorse; (11) rehabilitation is probable and, with proper treatment, McFall’s mental and physical conditions can be maintained; and (12) McFall is unlikely to commit further offenses.

As to discipline, the referee recommended that McFall be suspended for six months, retroactive to the date of the emergency suspension (April 26, 2002), followed by three years of probation with the following conditions: (1) he must receive psychological/psychiatric counseling and treatment, which includes taking prescribed medication; (2) he shall authorize the treatment provider to make quarterly reports to the Bar on his fitness to practice law; (3) at the Bar’s request, he shall submit to an annual evaluation by a treatment provider of the Bar’s choice; (4) he shall submit to random audits of his office accounts, trust accounts, and escrow accounts; and (5) he shall attend a debt management course. The referee awarded costs of the proceeding to the Bar, which total $1,108.04.

The Bar petitioned the Court for review of the referee’s disciplinary recommendation, arguing that disbarment is the appropriate sanction.

ANALYSIS

As a preliminary matter, neither party contests the referee’s findings of fact or recommendations as to guilt, which were based on the parties’ stipulation. Therefore, the Court adopts the referee’s findings and recommendations, except for the finding that the small amount of the misappropriated funds constituted a mitigating factor.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because ultimately it is the Court’s responsibility to order the appropriate sanction. See Florida Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999). In the instant case, the referee did not cite to case law or the Florida Standards for Imposing Lawyer Sanctions in recommending a six-month suspension for McFall’s misappropriation of trust funds.

It is well settled that the misuse of funds held in trust is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate sanction. Florida Bar v. Travis, 765 So.2d 689, 691 (Fla.2000); see also Florida Bar v. Tillman, 682 So.2d 542 (Fla.1996). However, there are older cases involving attorney misconduct relating to client funds in which the attorneys were disciplined by a six-month suspension instead of disbarment. In such cases, the attorney’s misconduct was due to negligence rather than an intentional act to misappropriate funds. See Florida Bar v. Neu, 597 So.2d 266 (Fla.1992) (suspending attorney for six months for negligently commingling personal and trust fund accounts); Florida Bar v. Weiss, 586 So.2d 1051 (Fla.1991) (suspending attorney for six months for gross negligence in failing to properly supervise accountant’s work in handling trust accounts). In the instant case, the referee found that McFall admitted that he took the funds to benefit himself and his family and that McFall made repeated unauthorized withdrawals. Further, the parties’ stipulated facts indicate that McFall wrote three of the checks after Amtel specifically demanded that McFall forward the entire escrow balance. Therefore, these older cases, which found a six-month suspension appropriate due to negligence, are distinguishable from the instant case. We conclude that the referee’s recommended discipline does not have a reasonable basis of support in ease law.

The Bar relies on Florida Bar v. Travis, 765 So.2d 689 (Fla.2000), in arguing that disbarment is appropriate for McFall. However, we conclude that Travis is distinguishable. The attorney in Travis was disbarred for intentionally misappropriating clients’ funds over several years and making unauthorized payments to himself that totaled $35,850. In comparison, McFall’s misconduct occurred during a short period of time. Further, the attorney in Travis did not make any attempts to pay back the trust account. Rather, he purchased a new home worth $210,000 that he placed in his wife’s name, and he helped pay for his daughter’s trip to Costa Rica, while earning $150,000 in one year. In contrast,' McFall made restitution. Further, the attorney in Travis had five mitigating factors, while McFall has eleven. Although we conclude Travis is distinguishable from the instant case, we find the decision whether to disbar McFall is a close one.

Disbarment is usually the appropriate sanction for an attorney’s misuse of funds. However, Florida Standard for Imposing Lawyer Sanctions 4.1 states that mitigating circumstances can be taken into account. Similarly, this Court stated in Travis that the presumption of disbarment for misappropriation can be rebutted by mitigating evidence. See Travis, 765 So.2d at 691. In the instant case, the referee recommended a suspension based on numerous mitigating factors. Our review of the record indicates that there is evidentiary support for those findings. For example, the referee emphasized McFall’s personal and medical problems. The record indicates that McFall had severe, debilitating physical pain due to a form of neuropathy and that he had operations on his feet. According to testimony, McFall saw podiatrists, a neurologist, a neurosurgeon (who was looking for spinal damage), anesthesiologists (who had attempted epidural nerve blocks in his spine to alleviate the pain), a vascular surgeon, a cardiologist, and other specialists. Further, McFall had a history of clinical depression and was seeing a psychiatrist. Due to the pain and depression, doctors placed McFall on medications such as Oxycontin, Effexor, Prozac, Neurontin, Methadone, and Fentanyl. Sometimes McFall was taking more than one of these medications at the same time, for the two conditions. Testimony in the record indicates that while McFall was taking these medicines, he did not act like his usual self, he was not thinking clearly, and the medication seemed to cloud his judgment. Testimony given at the hearing also indicated that McFall had always been a “by the book” kind of person, so his behavior during the period in question was out of character. This Court will not “excuse an attorney for dipping into his trust funds as a means of solving personal problems,” but it will recognize that “mental problems ... may impair judgment so as to diminish culpability.” Florida Bar v. Shanzer, 572 So.2d 1382, 1384 (Fla.1991); see also Florida Bar v. Condon, 632 So.2d 70 (Fla.1994). The record and the referee’s findings in mitigation regarding McFall’s medical and mental health problems, and the impact those conditions had on him, indicate that McFall had diminished culpability. Considering the unique facts of this case and the numerous mitigating factors, we conclude that disbarment is not warranted and that suspension is appropriate.

Next, we consider the appropriate length of the suspension. In Florida Bar v. Tauler, 775 So.2d 944 (Fla.2000), the Court suspended Tauler for three years for misappropriation of client funds. Tau-ler had issued over $56,600 in checks to herself from her trust account, which she used to satisfy personal and business obligations. However, like McFall, Tauler returned the funds. Also similar to McFall, Tauler suffered from very serious hardships that resulted in “diminished culpability due to the circumstances surrounding [her] misconduct.” Id. at 947. The referee in Tauler found the mitigating factors of (1) personal and emotional problems; (2) positive character and reputation; (3) restitution; and (4) remorse. In approving the referee’s recommendation in Tau-ler of a three-year suspension, the Court emphasized that “[t]rust funds are never to be used as a means for solving personal problems,” id. at 949, and that “without the unique mitigating circumstances presented in [Tauler’s] case ... we would not hesitate to disbar Tauler.” Id.

Although we are troubled by and condemn McFall’s misconduct, we conclude that a three-year suspension is appropriate. But for the unique facts and mitigating circumstances, which indicate that McFall had impaired judgment due to his medications and mental health, we would disbar McFall.

CONCLUSION

Accordingly, we hereby suspend Mark W. McFall from the practice of law in Florida for three years, effective, nunc pro tunc, April 26, 2002, the date of McFall’s emergency suspension. See Florida Bar v. McFall, No. SC02-750 (Fla. April 26, 2002) (unpublished order). In that order, we afforded McFall thirty days to close out his practice and protect the interests of existing clients. Further, we ordered McFall not to accept any new business starting April 26, 2002, the date the order was issued. Accordingly, we find that providing McFall with an additional thirty days is not necessary.

We approve the referee’s disciplinary recommendation of probation for three years, including the five conditions specified in the referee’s report, if McFall is reinstated to the practice of law in Florida.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Mark W. McFall in the amount of $1,108.04, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

WELLS, J., dissents with an opinion, in which BELL, J., concurs.

WELLS, J.,

dissenting.

I dissent as to the three-year suspension. I conclude that the necessary and required discipline is disbarment.

I recognize that McFall has presented a case in which there is mitigation explaining his violation of the Rules of Discipline. However, this mitigation cannot avoid the crucial fact that he intentionally took money for his personal use from funds he held in trust for his client.

I repeat what I stated in my opinion in Florida Bar v. Tauler, 775 So.2d 944, 950 (Fla.2000) (Wells, C.J., dissenting).

I do not diminish the heavy stress and pressure which respondent’s personal crisis had upon her and her family. However, lawyers must know and the public must have confidence that lawyers know that funds held by lawyers in trust are as unavailable for personal use as funds which are in a bank in another person’s name. Intentionally taking that money for whatever purpose is stealing, for which the consequence is certain — no longer having the privilege of being a member of The Florida Bar.

I recognize that such absolutes are often tested by factual circumstances which make this imposition harsh. However, public trust and confidence in lawyers, which is a necessary foundation for public trust and confidence in the judicial system, can stand on nothing less. There simply has to be public assurance that funds entrusted to lawyers will not be stolen by the lawyer, and if that public assurance is breached by a lawyer, that lawyer will not longer be a Florida lawyer.

I would find that McFall’s disbarment is required by this Court’s decisions in Florida Bar v. Travis, 765 So.2d 689 (Fla.2000), and Florida Bar v. Korones, 752 So.2d 586 (Fla.2000).

BELL, J., concurs.

      . The stipulated facts do not account for the transactions that resulted in the $6,287.39 figure. However, the Bar has not made any allegations of misconduct regarding these earlier transactions.

      . The parties do not argue that this case involves a fee dispute. Rather, McFall admitted that his actions constitute misappropriation.

      . Math calculations indicate that this amount should be $1,193.64. However, these are the amounts stipulated to by the parties, which might include interest payments. Further, no one has challenged the amounts.

      . This Court has reiterated many times that misappropriation is one of the most serious violations an attorney can commit. It is irrelevant whether the misappropriation involved a large or small amount of funds, because it is the act of misappropriation that constitutes the misconduct. The Rules Regulating the Florida Bar do not condition a rule violation for misappropriation based on the amount of the funds involved. See R. Regulating Fla. Bar 4-1.15, 4-8.4, 5-1.1(a). Accordingly, we disapprove the referee’s finding of this mitigating factor.

      . As stated previously, however, we disapprove the referee's finding of one mitigating factor. See supra note 4.

      . The Bar argues that McFall did not demonstrate a causal connection between his ailments and the theft of the funds. However, in contrast to the Bar's argument, the referee specifically found McFall’s mental and physical conditions constituted mitigating factors (i.e., significant pain treatments and health problems affected McFall's ability to perform in a law firm or in a solo practice; McFall’s conduct was out of character and was the result of his diminished mental and physical capacities) and took these into account when recommending the disciplinary sanction. Further, the referee recommend that McFall receive psychological/psychiatric counseling and treatment, take any prescribed medications, and submit to an annual evaluation. Our review of the record, discussed above, found evidentiary support for the referee's conclusion that there was a causal link between McFall's ailments and his actions.

      . The referee in Tauler also found the mitigating factor of full and free disclosure.

      . We approve the referee’s recommendation of the following conditions for McFall’s probation: (1) respondent shall receive psychological/psychiatric counseling and treatment, including taking medication as prescribed; (2) respondent shall authorize such treatment provider to report quarterly to The Florida Bar on the respondent's fitness to practice law; (3) respondent shall, at the request of The Florida Bar, and at respondent’s expense, submit to an annual evaluation by a treatment provider of The Florida Bar's choice, to ensure the respondent's fitness to practice law; (4) respondent shall submit to random audits of his office accounts, trust accounts, and escrow accounts by The Florida Bar; and (5) respondent shall attend a debt management course within the first year of probation at the direction of The Florida Bar.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BAY ANESTHESIA, INC., Petitioner, v. Darlene ALDRICH, et al., Respondents.
    No. SC03-286.
    Supreme Court of Florida.
    Nov. 26, 2003.
    V. James Facciolo of Hayden, Facciolo & Vaughn, P.A., Amelia Island, FL, for Petitioner.
    Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola, Florida; and Donald M. Hinkle of Hinkle & Foran, Tallahassee, FL, for Respondents.
   PER CURIAM.

We originally accepted jurisdiction to review Jackson County Hospital Corp. v. Aldrich, 835 So.2d 318 (Fla. 1st DCA 2002), pursuant to article V, section 3(b)(4), of the Florida Constitution. However, after further consideration, we decline to exercise our discretion to review this matter.

Accordingly, this case is hereby dismissed.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


author: BELL, J.

text:
    Philip C. D’ANGELO, M.D., et al., Petitioners, v. John J. FITZMAURICE, et al., Respondents John J. Fitzmaurice, et al., Petitioners, v. Philip C. D’Angelo, M.D., et al., Respondents.
    Nos. SC03-33, SC03-97.
    Supreme Court of Florida.
    Nov. 26, 2003.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, FL, for Petitioners/Respondents.
    Wagner, Vaughan & McLaughlin, P.A., Tampa, FL; and Joel D. Eaton of Po-dhurst Orseck, P.A., Miami, FL, for Respondents/Petitioners.
    Wendy F. Lumish, Alina Alonso, and Cristina Alonso of Carlton Fields, P.A., Miami, FL, for Florida Defense Lawyers Association, Amicus Curiae.
   BELL, J.

We have for review a decision of the Second District Court of Appeal in which that court certified the following question as one of great public importance:

IS IT APPROPRIATE TO SET OFF AGAINST THE DAMAGES PORTION OF AN AWARD AGAINST ONE TORTFEASOR IN A MEDICAL MALPRACTICE ACTION THE AMOUNT RECOVERED FROM SETTLEMENT FROM ANOTHER FOR THE SAME INCIDENT CAUSING THE INJURY WHERE THE SETTLING ALLEGED TORTFEASOR WAS NOT INCLUDED ON THE VERDICT FORM?

D’Angelo v. Fitzmaurice, 832 So.2d 135, 137 (Fla. 2d DCA 2002). For the reasons set forth below, we answer the certified question in the affirmative as to economic damages. We hold that it is appropriate to set off against the economic damages portion of an award against one tortfeasor in a medical malpractice action the economic damages portion of any settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tortfeasor was not included on the verdict form. However, there should be no setoff for noneconomic damages.

We also review DAngelo for certified conflict with Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999), and Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999), on an attorney’s fees and cost question under section 768.79, Florida Statutes (1997). We accept jurisdiction in this case and approve the Second District’s holding on the attorney’s fees issue.

I. FACTUAL AND PROCEDURAL BACKGROUND

John and Carole Fitzmaurice (the Fitz-maurices) filed a medical malpractice action against Phillip C. D’Angelo, M.D. and Phillip C. D’Angelo, M.D., P.A. (collectively referred to as Dr. D’Angelo). The Fitz-maurices alleged that a laparotomy pad was left inside John Fitzmaurice’s abdominal cavity during an appendectomy performed by Dr. D’Angelo on August 23, 1997, at Charlotte Regional Medical Center. The Fitzmaurices reached a presuit settlement with Charlotte Regional that included both a cash settlement and the forgiveness of an outstanding hospital bill. Under the terms of the settlement, the Fitzmaurices received an undifferentiated lump sum payment of $200,000, and the hospital “discharge[d] any further obligations for payment of any outstanding bills which are due or owing” to the hospital for services rendered as a result of the procedure.

The case proceeded to trial against Dr. D’Angelo. Dr. D’Angelo defended the medical malpractice action on the theory that the hospital’s negligence alone had caused the pad to remain in Mr. Fitzmau-rice’s abdomen and that the plaintiffs had sued the wrong party. However, Dr. D’Angelo did not request that the hospital appear on the verdict form for apportionment of liability purposes.

The jury returned a verdict finding Dr. D’Angelo negligent. Dr. D’Angelo was the only defendant on the verdict form; therefore, the jury did not apportion fault. The jury awarded Mr. Fitzmaurice $128,-732.81 in past medical expenses and $200,000 for past noneconomic damages. Additionally, the jury awarded Mrs. Fitz-maurice $50,000 in past damages for loss of consortium.

Dr. D’Angelo filed a motion asking the trial court to set off against this damage award the entire amount of the hospital settlement. The trial court granted the motion as to economic damages and reduced the economic damages portion of the verdict by $67,980.47. The trial court denied any setoff as to noneconomic damages. As a result, an amended final judgment was entered against Dr. D’Angelo awarding Mr. Fitzmaurice $260,752.34 and Mrs. Fitzmaurice $50,000.

Dr. D’Angelo appealed this setoff determination, and the Fitzmaurices cross-appealed. The district court of appeal rejected Dr. D’Angelo’s arguments on appeal. It reversed the trial court’s setoff order, holding that Dr. D’Angelo was not entitled to a setoff because the hospital was not included on the verdict form for apportionment of fault purposes. The court certified the question as being of great public importance.

Prior to trial, the Fitzmaurices served an offer of settlement upon Dr. D’Angelo. The offer was for $250,000 in settlement of both Mr. and Mrs. Fitzmaurice’s claims. The offer did not specify the amount each spouse was willing to accept to settle his or her individual claims. Dr. D’Angelo rejected the offer. After trial, the Fitzmau-rices requested an award of attorney’s fees pursuant to section 768.79, Florida Statutes (1997). After setting off the jury verdict with the hospital settlement, the trial court did not have to consider the motion for attorney’s fees because the new verdict was less than 125% of the settlement offer.

The Fitzmaurices filed another motion for attorney’s fees with the district court of appeal, which the court considered after reversing the setoff. Dr. D’Angelo argued that the proposal for settlement was invalid because it contained a joint offer and did not specify the amount each spouse was willing to accept to settle his or her individual claims, in violation of Florida Rule of Civil Procedure 1.442(c)(3). The district court of appeal denied the motion for attorney’s fees and certified conflict with Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999), and Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999).

II. CERTIFIED QUESTION OF GREAT PUBLIC IMPORTANCE

The district court failed to note in its opinion and certified question the distinction between noneconomic and economic damages setoffs. In our analysis, we address each type of setoff separately. We begin our discussion by referencing . the relevant statutory scheme established by the three setoff statutes and the separate apportionment provisions of section 768.81, Florida Statutes (1997). We then review the critical difference between non-economic and economic damages under this scheme by discussing each separately. Finally, we apply this distinction to the case before us.

A. APPLICABLE LAW

The standard of review for the pure questions of law before us is de novo. See Armstrong v. Harris, 773 So.2d 7 (Fla.2000). Therefore, no deference is given to the judgment of the lower courts.

1. Applicability of Section 768.81, Florida Statutes (1997)

Florida law regarding setoffs is found in sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes (1997). Each of these statutes presupposes the existence of multiple defendants jointly and severally liable for the same damages. See Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 253 (Fla.1995). After these statutes were first enacted, the Legislature enacted section 768.81, Florida Statutes (1997). Section 768.81 eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages. The pertinent part of the statute provides:

APPORTIONMENT OF DAMAGES.— In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

§ 768.81(3) Fla. Stat. (1997). Section 768.81(4) expressly provides that the statute applies to negligence cases, including professional malpractice cases.

2. Noneconomic Damages

In Wells, the Court considered the interrelationship between the three setoff statutes and the apportionment provisions of section 768.81. We highlighted the critical difference this interrelationship makes between economic and noneconomic damages. Wells filed suit against Tallahassee Memorial Regional Medical Center (TMRMC) and two other defendants. Wells settled with all the defendants except TMRMC. Wells, 659 So.2d at 250. The jury was instructed to apportion fault, if any, among all the defendants. Id. The jury returned a verdict for economic and noneconomic damages, finding TMRMC 90% at fault and the other two defendants each 5% at fault. Id. TMRMC requested a setoff, arguing that the judgment should be reduced by the total amount paid by the settling defendants. Id. This Court concluded that the setoff statutes do not apply to noneconomic damages for which defendants are only severally liable pursuant to section 768.81(3), but held that the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability. Wells, 659 So.2d at 253.

To facilitate the pretrial application of this differentiation, the Court adopted a rule for determining the amount of the economic damages setoff in an undifferentiated economic and noneconomic damages settlement. See id. at 254. The Court held that each defendant is solely responsible for its share of the noneconomic damages and that only that portion of the settlement which represents a recovery for economic damages is available to offset a defendant’s liability for economic damages. The portion of the settlement which represents economic damages is then based on the percentage of economic to noneconomic damages as determined by the jury. See id.

The following year in Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996), this Court outlined the procedure for apportioning the fault of a person or entity not joined as a defendant in the suit. Under the facts in Nash, we held that the outlined procedure was a prerequisite for the apportionment of non-economic damages under section 768.81 and Wells. Nash, an employee of Methodist Hospital, brought a negligence claim against Wells Fargo, a contractor for Methodist. Nash, 678 So.2d at 1263. Nash’s complaint did not name Methodist as a defendant. Id. After the close of testimony, Wells Fargo moved to have the jury apportion noneconomic damages between it and Methodist by including Methodist on the verdict form. We held that “in order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty.” Nash, 678 So.2d at 1264. We reasoned that “notice prior to trial is necessary because the assertion that noneconomic damages should be apportioned against a nonparty may affect both the presentation of the case and the trial court’s rulings on evidentiary issues.” Id. The Court further held that the defendant has the burden of proving that the injury was caused in part by the negligence of the nonparty. “If the pleading and proof requirements are met, a jury instruction should be given regarding the apportionment of fault and the nonparty should be included in the appropriate section of the verdict form.” Id. The Court stated in Nash:

Wells Fargo’s answer to Nash’s complaint did not include an affirmative defense that Methodist’s negligence contributed to Nash’s injuries nor was such a defense raised by Wells Fargo during the pretrial conference. In fact, throughout the trial, Wells Fargo asserted that Methodist’s negligence was not at issue because Methodist was not a defendant in the ease. Under these circumstances, we believe that Wells Fargo waived the defense that noneconomic damages should be apportioned to Methodist.

Nash, 678 So.2d at 1265. Because the defendant in Nash did not plead the negligence of a nonparty, the Court held that the defendant had waived its right to apportionment under section 768.81 and that it was, therefore, liable for 100% of the plaintiffs noneconomic damages. Such a result is consistent with Florida Rule of Civil Procedure 1.140(h)(1), which states: “A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).” This principle is reiterated in Clark v. Polk County, 753 So.2d 138 (Fla. 2d DCA 2000): “A defendant seeking to have the jury apportion its fault with that of a nonparty has the burden to plead and prove its entitlement to that benefit.” Id. at 142.

3. Economic Damages

Unlike noneconomic damages, for which section 768.81 eliminated joint and several liability, the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability. Wells, 659 So.2d at 253. Therefore, a settling defendant does not have to be found liable before an economic damages setoff can be given.

Six years after Wells, the Court in Gouty v. Schnepel, 795 So.2d 959 (Fla.2001), considered whether a setoff could be given when the settling defendant is expressly found not liable. In Gouty, this Court held that the setoff statutes could not be used to set off an economic damages award when the settling defendant is found to be 0% liable. Gouty, who had been shot with a gun owned by the defendant, Schnepel, sued both Schnepel and the gun’s manufacturer, Glock, Inc. He settled with Glock prior to trial, but Glock remained on the verdict form as a Fabre defendant. The jury returned a verdict awarding economic and noneconomic damages and finding Schnepel 100% liable and Glock 0% liable. Schnepel requested a setoff in the full amount of the settlement with Glock. The district court of appeal certified the following question to this Court:

WHERE THE PLAINTIFF HAS DELIVERED A WRITTEN RELEASE OR COVENANT NOT TO SUE TO A SETTLING DEFENDANT ALLEGEDLY JOINTLY AND SEVERALLY LIABLE FOR ECONOMIC DAMAGES, SHOULD THE SETTLEMENT PROCEEDS APPORTIONABLE TO ECONOMIC DAMAGES BE SET OFF AGAINST ANY AWARD FOR ECONOMIC DAMAGES EVEN IF THE SETTLING DEFENDANT IS NOT FOUND LIABLE?

Schnepel v. Gouty, 766 So.2d 418, 419 (Fla. 1st DCA 2000) (emphasis added), quashed, 795 So.2d 959 (Fla.2001). This Court answered the certified question in the negative and stated: “We conclude, following our reasoning in Wells, that the applicability of the setoff statutes is predicated on the existence of other tortfeasors who are liable for the same injury as the settling party.” Gouty, 795 So.2d at 965. “Where a defendant is found 100% liable for the plaintiffs damages, the settling defendant who is not found liable cannot be considered a joint tortfeasor.” Id. at 965. The Court also stated: “In this case, Schnepel was found 100% liable for Gouty’s injuries and the jury expressly rejected a finding that Glock was a joint tortfeasor.” Id. at 966. It should be noted that although the certified question concerned a defendant who was “not found liable,” the actual defendant in the case was “found not liable.” This distinction is not trivial. A defendant who is “not found liable” could be a defendant whose liability was not even considered by a jury, whereas a defendant may only be “found not liable” after a verdict. This distinction was recognized by the Second District Court of Appeal in D’Angelo.

B. APPLICATION OF LAW

1.Applicability of Section 768.81, Florida Statutes

D’Angelo argues that section 768.81 only applies to cases where there is more than one defendant at trial or where the defendant elects to proceed under section 768.81 by including the settling defendant(s) on the verdict form. Because D’Angelo was the only defendant at trial and was the only defendant that appeared on the verdict form, he argues that section 768.81 does not apply and that he is entitled to a full setoff against both economic and non-economic damages.

Section 768.81(4)(a), Florida Statutes (1997), states: “This section applies to negligence cases.” No language in the statute limits its applicability to cases where more than one defendant appeal’s on the verdict form. If section 768.81 were inapplicable in cases where only the nonsettling defendant appears on the verdict form, the section of the statute eliminating joint and several liability for noneconomic damages would not apply, and the nonsettling defendant would be entitled to a setoff for noneconomic damages in addition to economic damages. Such a result is contrary to legislative intent and this Court’s reasoning in Wells and Nash.

2.Noneconomic Damages

Wells clearly stated that the setoff statutes do not apply to noneconomic damages for which defendants are only severally liable, but held that the setoff statutes do apply to economic damages for which parties continue to be subject to joint and several liability. To receive a setoff for noneconomic damages, defendants must follow the procedure outlined in Nash. The nonsettling defendant is obligated to file appropriate pleadings and to ensure that any settling party under Fabre appears on the verdict form. The jury must then allocate some portion of liability to the settling party or the nonparty. In this ease, D’Angelo tactically chose not to include the settling party, Charlotte Regional, on the verdict. Consequently, no apportionment of liability was made by the jury. Accordingly, D’Angelo is not entitled to a setoff for noneconomic damages.

3.Economic Damages

In Gouty, the certified question answered by this Court was whether a setoff for economic damages is permitted where a settling defendant is “not found liable.” Gouty, 795 So.2d at 960. We acknowledge that the Gouty opinion interchanges “not found liable” and “found not liable.” However, the tortfeasor in Gouty was listed on the verdict form and was expressly found not to be liable. The opinion states: “In this case, Schnepel was found 100% liable for Gouty’s injuries and the jury expressly rejected a finding that Glock was a joint tortfeasor.” Id. at 966. The question, therefore, is whether Gouty stands for the proposition that “a failure to establish liability will obviate set-off or that there must be a finding of no liability to preclude recovery.” D’Angelo, 832 So.2d at 137. Glock appeared on the verdict form and was found 0% liable by the jury. Thus, the settling party was “found not liable.” In D’Angelo, Charlotte Regional did not appear on the verdict form and was not apportioned liability. Although Charlotte Regional was “not found liable,” the hospital also was not “found not liable.” The D’Angelo court held: “Because the language of the specific question certified and answered was ‘not found liable,’ we conclude this is the rule we should consider in deciding this case.” D’Angelo, 832 So.2d at 137. Interpreting Gouty in this manner requires a jury finding of liability on the part of the settling party before a setoff for economic damages may be obtained. This interpretation is not supported by the “is or may be jointly and severally liable” language in the setoff statutes and is contradictory to this Court’s holding in Wells. Accordingly, we limit the Gouty holding to cases where a settling defendant is expressly found not liable.

The Florida Defense Lawyers’ Association, amicus curiae, argues that the Fitz-maurices will receive a windfall unless a full noneconomic and economic damages pro tanto setoff is given. This argument is without merit. As this Court stated in Wells:

Settlement dollars are not synonymous with damages but merely a contractual estimate of the settling tortfea-sor’s liability; they include not only damages but also the value of avoiding the risk and expense of trial. Given these components of a settlement, “there is no conceptual inconsistency in allowing a plaintiff to recover more from a settlement or partial settlement than he could receive as damages.”

Wells, 659 So.2d at 252 (quoting Neil v. Kavena, 176 Ariz. 93, 859 P.2d 203, 206 (Ct.App.1993) (citations omitted)). The windfall argument was rejected in Wells, and we again reject the argument.

We hold that D’Angelo is not entitled to a noneconomic damages setoff in accordance with Wells and Nash but is entitled to an economic damages setoff in the amount of $98,096.22.

III. CERTIFIED CONFLICT

The certified conflict in this case was resolved by this Court in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), which disapproved the holdings in Flight Express and Spruce Creek. This Court held in Willis Shaw that a joint proposal of settlement which did not specifically apportion damages between plaintiffs was invalid and that the plaintiffs were, therefore, not entitled to attorney’s fees and costs under section 768.79, Florida Statutes. Accordingly, we approve the holding of the Second District Court of Appeal on this issue.

IV. CONCLUSION

We answer the certified question in the affirmative as to economic damages. We hold that it is appropriate to set off against the economic damages portion of an award against one tortfeasor in a medical malpractice action the economic damages portion of any settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tort-feasor was not included on the verdict form. However, there should be no setoff for noneconomic damages. We quash the Second District Court of Appeal’s ruling on the setoff issue, approve the court’s ruling on the attorney’s fees issue, and remand this case to the trial court for entry of a judgment consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . This was a strategic decision. Defense counsel had filed a motion to amend the defendant's answer to add a Fabre defense naming the hospital as a joint tortfeasor but withdrew the motion in a pretrial conference. Fabre v. Marin, 623 So.2d 1182 (Fla.1993). Defense counsel later explained that this decision was designed to prevent the jury from splitting the blame between Dr. D’Angelo and the hospital and to persuade the jury to accept the defense’s argument that the plaintiffs had sued the wrong party.

      .Although the Second District opinion states that the "jury determined that 100% of the Fitzmaurices’ damages were attributable to Dr. D'Angelo,” D’Angelo, 832 So.2d at 136, the jury only answered a special interrogatory which asked whether there was "negligence on the part of Phillip C. D'Angelo, M.D., which was a legal cause of loss, injury, or damage to John J. Fitzmaurice?”

      . This amount includes the $88,603.18 hospital bill that was forgiven by Charlotte Regional as part of its settlement with the Fitzmau-rices.

      . This figure represented 33.99% of the $200,000 undifferentiated lump sum payment by Charlotte Regional.

      . 46.015 Release of parties.—

      (2) At trial, if any person shows the court that the plaintiff, or his or her legal representative, has delivered a written release or covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment.

      . 768.041 Release or covenant not to sue.—

      (2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

      . 768.31 Contribution among tortfeasors.—

      (5) RELEASE OR COVENANT NOT TO SUE. — When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
      (a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater....

      . Section 768.81(3) was amended in 1999; however, the applicable version is that which was in effect when the cause of action arose. See Basel v. McFarland & Sons, Inc., 815 So.2d 687 (Fla. 5th DCA 2002).

      . The formula used in Wells to determine the amount of the judgment is set forth below:
      (1) economic damages / total jury award = percentage of jury's award allocated to economic damages;
      (2) settlements x percentage of jury's award allocated to economic damages = portion of settlements that nonsettling defendant is entitled to set off;
      (3) economic damages-portion of settlements that nonsettling defendant is entitled to set off-social security benefits = economic damages for which nonsettling defendant is liable;
      (4) noneconomic damages x percentage of fault apportioned to nonsettling defendant = noneconomic damages for which nonset-tling defendant is liable;
      (5) economic damages for which nonsettling defendant is liable + noneconomic damages for which nonsettling defendant is liable + costs = nonsettling defendant's liability.

        Wells, 659 So.2d at 254 n. 3.

      . There were actually two defendants at trial, Philip C. D'Angelo, M.D. and Philip C. D’Angelo, M.D., P.A. The professional association was only vicariously liable and was therefore not apportioned liability.

      . The economic damages setoff is computed using the Wells formula as follows:
      1. Percentage of jury's award allocated to economic damages
      = $128,732.81/$378,732.81=.3i99
      2. Portion of settlement that nonsettling defendant is entitled to set off
      = $288,603.18 (200K cash settlement + hospital bill forgiveness) x .3399 = $98,-096.22.

      Because the forgiven hospital bill was included in the calculation of economic damages, we believe it should also be included in the settlement amount to determine the setoff.


author: LEVY, Judge.

text:
    ROYAL WORLD METROPOLITAN, INC., Appellant, v. The CITY OF MIAMI BEACH, Appellee.
    No. 3D02-3161.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.
    Rehearing Denied Jan. 16, 2004.
    Brigham Moore and Amy Brigham Boulris, Miami; Hopping Green & Sams and Gary K. Hunter, Jr. and D. Kent Safriet (Tallahassee), for appellant.
    Boies, Schiller & Flexner and Jennifer G. Altman, Fort Lauderdale, and Patricia Melville; Murray Dubbin, City Attorney, and Robert Dixon and Deborah J. Turner, Assistant City Attorneys, for appellee.
    Pacific Legal Foundation and Frank A. Shepherd, as Amicus Curiae for appellant.

      Before LEVY, RAMIREZ and WELLS, JJ.
   LEVY, Judge.

Royal World Metropolitan, Inc. (“Royal World”) brought suit against the City of Miami Beach (“the City”) pursuant to The Bert J. Harris, Jr., Private Property Rights Protection Act (“the Harris Act” or “the Act”), Section 70.001, Florida Statutes, contending that the City’s newly-adopted ordinances had the effect of denying Royal World all economically viable use of its property. The City filed a Motion for Summary Judgment, arguing that Royal World could not maintain the action in light of Section 13 of the Act which provides: “This section does not affect the sovereign immunity of government.” § 70.001(13), Fla. Stat. (1999). The trial court agreed with the City and granted Final Summary Judgment. We reverse.

Legislative intent is the polestar that guides the court’s statutory construction analysis. Reynolds v. State, 842 So.2d 46, 49 (Fla.2002); State v. J.M., 824 So.2d 105, 109 (Fla.2002). To this end, a statute should be construed and applied to give effect to the legislative intent, regardless of whether such construction varies from the statute’s literal meaning. Deason v. Florida Department of Corrections, 705 So.2d 1374, 1375 (Fla.1998); see also Department of Environmental Protection v. Millender, 666 So.2d 882, 885-886 (Fla.1996) (quoting Plante v. Smothers, 372 So.2d 933, 936 (Fla.1979) “Intent is traditionally discerned from historical precedent, from the present facts, from common sense, and from an examination of the purpose the provision was intended to accomplish and the evils sought to be prevented.”).

Rules of construction also require that courts look for a reason to uphold the acts of the legislature and adopt a reasonable view that will do so. Department of Legal Affairs v. Rogers, 329 So.2d 257, 263 (Fla.1976). Thus, if a statute is fairly susceptible of two constructions, one of which will give effect to it, and the other which will defeat it, the former construction is preferred. See Id. Similarly, when conflicting provisions, that cannot be reconciled, exist within the same statute, the most recent expression contained in the statute normally prevails, but if the last expression in one section is plainly inconsistent with preceding sections which conform to the legislature’s obvious policy and intent, the later section must be construed as to give it effect consistent with such other sections and the policy they indicate. Sharer v. Hotel Corp. of America, 144 So.2d 813, 816-817 (Fla.1962); Allstate Ins. Co. v. Rush, 777 So.2d 1027, 1033 (Fla. 4th DCA 2000); Jordan v. Food Lion, Inc., 670 So.2d 138, 140 (Fla. 1st DCA 1996); Millender, 666 So.2d at 886.

In the instant case, the legislative intent of the Harris Act is evident within the first section of the Act which clearly provides that the statute was intended to protect private property interests against “inordinately burdensome” governmental regulation, which do not necessarily amount to a constitutional taking. § 70.001(1), Fla. Stat. (1999).

The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a sepa rate and distinct cause of action from the law of takings, the Legislature herein provides for relief or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.

§ 70.001(1), Fla. Stat. (1999)(emphasis added).

A literal reading of Section 18, as advocated by the City, is in direct contravention of the statute and its purpose. In sum, this literal reading of Section 13 negates everything the legislature purports to achieve through the enactment of the Act. See Sharer, 144 So.2d at 817.

In Jones v. Brummer, 766 So.2d 1107 (Fla. 3d DCA 2000), this Court considered a similar argument. In Jones, the Appellant/Employee brought suit against her Employer, the Public Defender, under Florida’s Civil Rights Act. Her discrimination Complaint was dismissed by the trial court on the ground that the Public Defender was immune from suit. On appeal, this Court reversed. The Court considered the legislature’s inclusion of “ ‘the state; or any governmental entity or agency’ within the definition of a ‘person’ who may be an ‘employer’ subject to civil liability for unlawful employment practices under the Act.” Jones, 766 So.2d at 1108. Additionally, the Court looked to other sections within the Act that referred to governmental entities, and an additional subsection which cross-referenced a limitation on governmental liability. See Jones, 766 So.2d at 1108.

We conclude[d] that the statutory provisions ..., read together, evidence legislative intent that civil actions for damages under Florid’s Civil Rights Act be prosecuted against the state, its agencies or subdivisions. If the legislature had not intended that civil actions for damages be prosecuted in such a manner, there would be no reason for the inclusion of such public entities within the definition of employer....

Jones, 766 So.2d at 1109.

Similarly, in the instant case, we find that a fair reading of Section 70.001(1), Florida Statutes, evinces a sufficiently clear legislative intent to waive sovereign immunity as to a private property owner whose property rights are inordinately burdened, restricted, or limited by government actions where the governmental regulation does not rise to the level of a taking under the Florida and United States Constitutions. See Jones, 766 So.2d at 1108. A literal reading of Section 13 is inconsistent with the clear intent and purpose of the Act, as it would be absurd to interpret Section 13 to undo everything the Act is designed to achieve. Since it is impossible under the appropriate rules of statutory construction to give Section 13 literal effect within the meaning of the statute, its application must construed consistent with the general purpose and intent of the Act. See State ex rel. City of Casselberry v. Mager, 356 So.2d 267, 268-69 (Fla.1978); see also Seminole County v. City of Lake Mary, 347 So.2d 674 (Fla. 4th DCA 1977). We therefore hold that Section 13 does not bar a private property rights claim pursuant to the Harris Act, but merely preserves the sovereign immunity benefits the City in the instant case, and governmental entities in general, otherwise enjoy.

In light of the clear intent of the statute and the pertinent rules of statutory construction, the trial court erred in construing Section 70.001(13), Florida Statutes, to bar a cause of action against a governmental agency. Accordingly, the Order granting Final Summary Judgment should be reversed and the matter remanded for further proceedings consistent with the Court’s opinion.

Reversed and remanded.

      . The constitutionality of the Harris Act was not raised as an issue in this case and we express no views thereon.


author: PER CURIAM. COPE, J.,

text:
    Kirk Douglas BILLIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1303.
    District Court of Appeal of Florida, Third District.
    July 30, 2003.
    Rehearing and Rehearing En Banc Denied Jan. 16, 2004.

      Bruce Rogow and Beverly A. Pohl, Fort Lauderdale, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General; Katherine Fernandez Run-dle, State Attorney, and Christine E. Zahralban, Assistant State Attorney, for Appellee.
    Before COPE, LEVY, and RAMIREZ, JJ.
   PER CURIAM.

Kirk Douglas Billie (“Billie”), a Mieco-sukee Indian, appeals from two Second Degree Murder convictions, alleging that several evidentiary errors during the trial denied him a fair trial. We agree with Billie and, accordingly, reverse and remand for a new trial.

Billie was charged with two counts of First Degree Murder for the drowning deaths of two of his children, Kurt and Keith Billie. At trial, the jury was presented with evidence that Billie intentionally drove his ex-girlfriend, Sheila Tiger’s (“Ms.Tiger”), Chevy Tahoe into a canal while two of their children slept in the backseat. The only dispute at trial concerned Billie’s knowledge of the children’s presence in the car at the time he drove the car into the canal.

The trial testimony revealed that Ms. Tiger had a habit of driving around the reservation late at night and either leaving the children with her mother, Marie Jim, or taking them with her in the car and letting the children sleep in the backseat. On the evening of the drownings, Ms. Tiger was driving around the reservation with her cousin, Melody Osceola (“Ms.Os-eeola”), in the passenger seat, the two victims in the backseat sleeping, and the victims’ younger sister in the front on Ms. Osceola’s lap.

At some point during the night, Billie called Ms. Tiger to inquire about the children’s whereabouts and was told that they were with their grandmother, Marie Jim. The testimony discloses that, at approximately one o’clock in the morning, Ms. Tiger went to visit her boyfriend and left Ms. Osceola with the vehicle and the children. Billie subsequently saw the vehicle and followed it to a residence. When Billie approached the vehicle, Ms. Osceola was out of the vehicle, on the passenger side, holding Billie’s and Ms. Tiger’s youngest child. Billie inquired about Ms. Tiger and was told that her whereabouts were unknown. He then took the vehicle and drove it to a canal where he released it to sink. His two children were in the backseat of the vehicle at the time. As a result, Billie was charged with, among other things, two counts of First Degree Murder.

The State focused its case on the theory that Billie knew the children were in the vehicle when he released it into the canal. To this end, the State offered the testimony of, among others, Sheila Tiger and Captain Pamela Parker (“Captain Parker”). Ms. Tiger testified that while Billie was in the holding cell, she asked him where the truck was. She testified that he was unresponsive, simply asking her why she was running from him. She testified that she subsequently asked him whether he saw the kids back there and he said “yeah.” On cross, Ms. Tiger explained that Billie did not show any emotions in his response to her inquiry about the children but, that when he was later told that the children were in the vehicle, he got emotional and cooperated with the investigators to locate the vehicle.

Captain Parker was part of the air rescue team that arrived at the scene to locate the vehicle. Her contact with Billie came during the search and recovery of the vehicle. She testified that when she asked Billie whether he drove the vehicle into the canal with the children he responded: “that’s why you’re here.... I had an argument with my wife, I made a threat, and I carried it out.”

Billie offered his own evidence and testimony to defend his theory of the case, that he did not know the children were in the vehicle when he released it into the canal.

Billie raises three issues on appeal. First, he challenges the admission at trial of Williams Rule testimony. Second, he challenges the admissibility of the expert testimony of the Assistant Medical Examiner to the extent she testified that the type of injuries the victims suffered were of such a nature so as to have awakened them from their sleep. Billie’s final issue on appeal challenges the jury view of the crime scene, specifically the vehicle, to the extent that the jury was exposed to several alternative versions of the view. We agree with Billie that some of the Williams Rule evidence was improperly admitted. However, we affirm the trial court’s rulings relating to the Medical Examiner’s testimony and the alternative views of the lighting inside the vehicle.

I. THE WILLIAMS RULE ISSUE

Prior to trial, the State filed four Notices of Intent to Rely on Williams Rule evidence, contending that the evidence was admissible to show Billie’s motive, intent, premeditation, absence of mistake and/or accident, and to dispute Billie’s position that he did not know the children were in the backseat. With the first and second Notices of Intent to Rely on Other Crimes, Wrongs, or Acts, the State sought to introduce evidence of Billie’s violent tendencies toward Ms. Tiger, including previous threats “to injure or kill,” previous instances of hitting, slapping, and kicking Ms. Tiger, an aggravated battery with a broomstick while Ms. Tiger was pregnant, and threats and/or takings of Ms. Tiger’s vehicle without her consent. The first Notice also refers to a threat to one of the victims in November of 1994. The third Notice of Intent to Rely on Williams Rule evidence concerns Billie’s threats in 1994 and/or 1995 to kill himself and the children he fathered with his ex-wife, Mary Jane, because he was not permitted to see the children. The fourth Notice of Intent to Rely on Williams Rule evidence concerns Billie’s comment that Marie Jim, Ms. Tiger’s mother, “got what she deserv[ed]” when he beat her after she was awarded custody of his children by the Child Protection Team.

Despite Billie’s objections that the information sought to be introduced was irrelevant and/or intended only to establish his propensity for violence and bad character in complete disregard of the Williams Rule criteria and Section 90.404(2), Florida Statutes, the trial court permitted introduction of all of the evidence. Consequently, at trial, the State presented testimony from Ms. Tiger and Rebecca Smith (“Ms.Smith”), a past girlfriend of Billie, regarding the collateral Williams Rule evidence, and introduced additional collateral evidence in response to Billie’s testimony.

Ms. Tiger testified that Billie was abusive and violent toward her when he drank. She testified about several specific incidents of abuse, including a time when she was pregnant with the couple’s third child and Billie hit her on the stomach repeatedly in front of the children. She also described an incident in November of 1994 where Billie held a hammer over the head of one of the victims, who was sleeping at the time (“hammer incident”). Ms. Tiger admitted that she was scared and that she put herself between the child and the hammer. On cross-examination, Ms. Tiger explained that Billie previously asked her not to take or leave the children with her mother, Marie Jim, because Marie Jim’s boyfriend had previously pointed a gun at the children and Ms. Tiger. Ms Tiger explained that Billie’s actions were intended to demonstrate how he felt when she left the children at Marie Jim’s house with Marie Jim’s boyfriend.

Ms. Smith testified that Ms. Tiger told her about the “hammer incident” and that when she confronted Billie about the incident he did not deny that it occurred. She testified that Ms. Tiger probably told her about the incident because Ms. Smith and Billie were seeing each other at the time. Ms. Smith also testified that when Billie was not permitted to see the children that he fathered with his ex-wife, Mary Jane, he told her that if he was not permitted to see the children, he would kill them and himself. During cross-examination, Ms. Smith testified that she did not believe that Billie would act on his thoughts, and that Billie spent a lot of time with his children and treated them kindly.

During Billie’s testimony, defense counsel elicited testimony relating to Billie’s relationship with his children, more specifically, the victims. Billie testified that he saw his children regularly and that he taught them about the Indian culture. In response, on cross-examination, the State elicited testimony from Billie relating to his abusive relationship with his ex-wife, Mary Jane, and elicited testimony that he previously slapped and threatened the child he fathered with Mary Jane. The State argued, and the trial court agreed, that Billie opened the door to this line of impeachment by suggesting that he was a good father.

After a thorough review of the trial transcript, including closing arguments, the Record on appeal, and relevant case law, we find that the evidence admitted as Williams Rule evidence, with the exception of the testimony relating to the “hammer incident,” was improperly admitted.

The test for admissibility of evidence of prior bad acts or other crimes is relevance. See § 90.404(2)(a), Fla. Stat. (1997). However, relevant evidence may be inadmissible where its probative value “is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence” and where the evidence is submitted to show a defendant’s propensity toward commission of the offense or to show a defendant’s bad character, with nothing more. See § 90.403, Fla. Stat. (1997); see also Hebel v. State, 765 So.2d 143 (Fla. 2d DCA 2000); Williams v. State, 621 So.2d 413, 414 (Fla.1993); Bryan v. State, 533 So.2d 744 (Fla.1988); Evans v. State, 693 So.2d 1096 (Fla. 3d DCA 1997). Section 90.404(2)(a), Florida Statutes, which codified Williams v. State, 110 So.2d 654 (Fla.1959), provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (1997).

Thus, similar fact evidence is subject to the basic premise that relevant evidence having probative value in establishing a material issue is admissible except if precluded by a specific rule of exclusion, to, wit: attack a defendant’s character or show negative propensities. Similar fact evidence or Williams evidence is generally admissible when relevant to prove a material fact in issue, such as defendant’s identity, motive, intent, modus operandi, common scheme or plan, or to prove the absence of mistake or accident. See Zack v. State, 753 So.2d 9, 17 (Fla.2000)(eollat-eral crimes evidence was relevant as part of a prolonged criminal episode demonstrating the defendant’s motive, intent, mode of operation, and the entire context from which the murder arose); Pittman v. State, 646 So.2d 167 (Fla.1994)(similar fact evidence is admissible if it is relevant to establish a material issue); Williams v. State, 621 So.2d 413 (Fla.l993)(similar fact evidence relating to sexual assaults on other women was relevant to dispute the defendant’s claim of consent where the evidence showed that the assaults occurred in the same general area and where the defendant’s scheme and mode of operation were the same in each of the assaults); Townsend v. State, 420 So.2d 615, 617 (Fla. 4th DCA 1982) (evidence of six other homicides and two assaults which the defendant committed were relevant to prove identity and similar mode of operation because the incidents were so similar); Duffey v. State, 741 So.2d 1192, 1196 (Fla. 4th DCA 1999)(evidence that the defendant previously attacked another woman was probative of the defendant’s mental condition and rebutted the defendant’s accident defense where the prior attacks were almost identical).

This Court has approved the introduction of collateral crimes, or prior bad acts, evidence where the evidence is relevant and intended to show motive, intent or premeditation. See Evans v. State, 693 So.2d 1096 (Fla. 3d DCA 1997); State v. Everette, 532 So.2d 1124 (Fla. 3d DCA 1988); Mayberry v. State, 430 So.2d 908 (Fla. 3d DCA 1982). In Evans, the defendant was charged -with the murder of his stepson. The trial court accepted collateral evidence that the defendant beat the victim child for a one-month period immediately preceding the child’s death. Additionally, evidence that, a few months prior to the incident, the defendant nearly drowned the child and that the defendant beat the child throughout the year preceding his death was admissible to rebut defendant’s claim of mistake or accident. See Evans, 693 So.2d at 1098-99. Similarly, in Brown v. State, 611 So.2d 540 (Fla. 3d DCA 1992) this Court affirmed the admission of evidence relating to the “rocky relationship” between the defendant and the victim. Evidence of defendant’s jealous threats to kill the victim if he caught her with another man was admissible as evidence of motive, intent and premeditation in the attempted murder case. See Brown, 611 So.2d at 542; see also Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990)(evidence of defendant’s prior sexual misconduct with the victim/daughter admissible to the issues of motive, intent and modus operandi; to establish the existence of a relationship between the two; and to show that the charged crime was not an isolated incident).

Nevertheless, limitations on the admission of relevant evidence have been established. For example, evidence submitted to show a defendant’s propensity toward commission of the offense or to show the defendant’s bad character, with nothing more, is inadmissible. See § 90.404(2)(a), Fla. Stat. (1997); Heuring v. State, 513 So.2d 122 (Fla.1987); see also Foburg v. State, 744 So.2d 1175, 1176 (Fla. 2d DCA 1999); Snowden v. State, 537 So.2d 1383 (Fla. 3d DCA 1989); Johnson v. State, 432 So.2d 583 (Fla. 4th DCA 1983). Similarly, where the probative value of the evidence is substantially outweighed by the prejudicial value, the evidence is inadmissible. See Snowden v. State, 537 So.2d 1383 (Fla. 3d DCA 1989); see also Bryan v. State, 533 So.2d 744 (Fla.1988). Moreover, relevant evidence of prior bad acts should not become a feature of the trial. .

. The Supreme Court of Florida has recognized that

[t]o minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses.

Heunng v. State, 513 So.2d 122, 124 (Fla.1987); see also Robertson v. State, 829 So.2d 901 (Fla.2002). In Heuring, the Court reversed the defendant’s conviction for sexual battery of his stepdaughter, finding that the State’s attempt to elicit evidence that defendant molested five other children was prejudicial error. The Court noted that, although evidence of the previous molestation of his daughter and stepson was admissible since those cases involved sexual battery committed within the familial context, the alleged molestation of the other five children was not sufficiently similar to the' charged offenses to justify its introduction into evidence. See Heuring, 513 So.2d at 125. This Court, in Snowden v. State, 537 So.2d 1383 (Fla. 3d DCA 1989) expressed concern with the potential of convicting a person for his criminal propensities or bad character rather than for the charged crime. See Snowden, 537 So.2d at 1384.

The concern is that “the jury may choose to punish the defendant for the similar rather than the charged act, or the jury may infer that the defendant is an evil person inclined to violate the law.”

Snowden, 537 So.2d at 1384 (quoting Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499-1500, 99 L.Ed.2d 771, 780 (1988)).

The Supreme Court of Florida recently had the opportunity to review a matter involving the introduction of Williams Rule evidence in Robertson v. State, 829 So.2d 901 (Fla.2002). In Robertson, the Court reaffirmed Heuring, finding that evidence that the defendant had, six years prior, threatened his ex-wife with a rifle was not sufficiently similar to introduce as evidence in the defendant’s trial for the murder of his girlfriend utilizing a handgun. See Robertson, 829 So.2d at 909-11. The Court focused on the differences among the crimes — specifically, the prior act was a threat while the current charge was the completed act of murder; and the defendant used a rifle in the prior act, but used a handgun in the current charge. The Court specifically noted that the cases regarding admissible Williams Rule evidence “involve[] either prior crimes against the same victim as the charged offense, or the charged offenses and the prior of-fences involved similar completed crimes of violence.” Robertson, 829 So.2d at 910 (citations omitted).

In light of long-standing Florida law, and the Supreme Court of Florida’s reaffirmation in Robertson, the items of collateral evidence introduced in the instant case, with the exception of the “hammer incident,” are not sufficiently similar to justify or support their admission at Billie’s trial for the drowning deaths of the two victims. To begin with, none of the “other” Williams Rule evidence is relevant to an issue of material fact. Additionally, none of the evidence is relevant to show Billie’s motive, intent, modus operandi, a common scheme, nor the absence of mistake or accident. Moreover, the prejudicial effect of the improper Williams Rule evidence greatly outweighs any probative value the evidence may have. With respect to the “hammer incident,” the matter is relevant to the extent that the threat was directed at one of the victims and, as a result, (1) raises a jury issue as to what Billie intended by his actions, and (2) relates to a primary issue in case, to-wit: Billie’s capacity for inflicting harm on his children. Thus, the collateral evidence, except the “hammer incident” evidence, should not have been admissible.

A. PRIOR BAD ACTS RELATING TO DEFENDANT’S VIOLENT TENDENCIES

A series of items of evidence relating to Billie’s violent temperament was elicited during the State’s case-in-chief and closing arguments, including testimony that he hit Ms. Tiger with a broomstick when she was pregnant with their child, that he hit another ex-girlfriend with a bat after he learned that she obtained a restraining order, and that he slapped another woman across the face.

This evidence shows nothing more than Billie’s bad temper and controlling personality in his relationships with women. The evidence of prior bad acts relating to Billie’s bad temperament toward his girlfriends, as elicited by the State, is irrelevant to the issue of whether he knew that his children were in the back of the truck when he let it go into the canal. See Robertson, 829 So.2d at 909-11; Heuring v. State, 513 So.2d at 124; Snowden, 537 So.2d at 1384. As such, the evidence shows nothing more than the fact that Billie is capable of putting the Tahoe into the canal in an attempt to exert control over his ex-girlfriend. The Record is clear, and Billie does not dispute the fact, that he took the truck and put it in the canal. Rather, he only claims that he did not know that his children were in the truck at the time. Consequently, the introduction of these prior bad acts was erroneous and served only to show Billie’s propensity for violence and/or bad character.

B. PRIOR “THOUGHTS” TO KILL CHILDREN FROM PREVIOUS RELATIONSHIP

The State also elicited testimony from Smith regarding an occasion where Billie stated that he would kill himself and his children from another relationship if he was prohibited from seeing the children. The State sought to show that Billie had the necessary intent and motive to kill his children in the instant case because he had, on another occasion, thought about killing his other children. Again, this evidence does not meet the strict Williams Rule criteria that the collateral evidence must be strikingly similar to the charged crime and possess unique characteristics to the crime for which Billie is currently being tried. See Heuring, 513 So.2d at 124; see also Robertson, 829 So.2d at 909-10.

The circumstances leading up to Billie’s statements and thoughts that he would take his life and the lives of his children presented a much different scenario than the situation which led to the deaths of the victims, Kurt and Keith. To begin with, the statement to Ms. Smith was made after Billie’s ex-wife obtained a restraining order against him which prohibited him from coming to his ex-wife’s home and seeing the children. In the instant case, there was no evidence that Billie was prohibited from seeing his children. In fact, the Record reflects that he spent a substantial amount of time with his children.

Moreover, the evidence elicited from Rebecca Smith, who was dating Billie at the time the statement was made, relates to an event that occurred three or four years prior to the charged offense, and serves no purpose except to bolster the State’s propensity case against Billie. Additionally, there is no evidence that Billie acted on the “threat” in any manner. As in Robertson, the evidence involved different crimes and different victims. There is nothing in the Record to connect one with the other. Again, the questions surrounding this evidence and testimony appear to have no purpose except to show Billie’s propensity to be impetuous and controlling. This evidence was also improperly admitted and, independent of the previously discussed evidence, would also require reversal.

C. “HAMMER INCIDENT”

The “hammer incident” presents the most similar prior bad act which, in light of the State’s position and the fact that the potential threat involved one of the victims, was properly admitted. The State elicited the “hammer incident” testimony in an attempt to show intent, or absence of mistake, i.e., that Billie was capable of committing murder against his children where he previously threatened one of them with a hammer. The defense argument is that the matter was taken out of context. To this end, Ms. Tiger testified that the “hammer incident” occurred during an argument between Billie and Ms. Tiger concerning the fact that Ms. Tiger had previously promised Billie that she would not leave the children at her mother’s house because of Billie’s concern that the children would suffer physical harm from Marie Jim’s boyfriend. Ms. Tiger explained during her testimony that Billie previously asked that she not take or leave the children with her mother because Marie Jim’s boyfriend had, in a previous instance, pointed a gun at the children and Ms. Tiger. She explained that Billie was yelling at her for having broken her promise and having left the children with her mother and Marie Jim’s boyfriend. Ms. Tiger admitted that she was scared and that she put herself between the child and the hammer but, on cross-examination, explained that Billie’s actions were intended to illustrate his own fear and concerns when the children were at Marie Jim’s house, and not to threaten the child. Because the circumstances surrounding the “hammer incident” involve a threat against one of the victims, we find the evidence relevant to prove a material fact in issue, i.e., intent and absence of mistake or accident. Duffey v. State, 741 So.2d 1192, 1196 (Fla. 4th DCA 1999). See also Pittman v. State, 646 So.2d 167 (Fla.1994). Accordingly, we find no error in the introduction of evidence relating to the “hammer incident”. The evidence of that event, and the determination of what, if anything, it proved, presented a question of fact for the jury’s consideration.

In sum, the prior bad act evidence submitted in the instant case, with the exception of the “hammer incident,” was not relevant to prove a material issue. See § 90.402, Fla. Stat.; § 90.404(2)(a), Fla. Stat.; Robertson, 829 So.2d at 909-11; Heuring v. State, 513 So.2d 122, 124 (Fla.1987); Snowden, 537 So.2d at 1384. First, in the instant case, the alleged prior bad acts were nothing more than illustrations of Billie’s bad temper and need to control the women in his relationships. Cf. Schwab v. State, 636 So.2d 3 (Fla.1994); Williams v. State, 621 So.2d 413 (Fla.1993); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999); Brown v. State, 611 So.2d 540 (Fla. 3d DCA 1992); Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982). Additionally, the evidence does not suggest that these acts were part of an ongoing scheme or part of a prolonged criminal episode. Cf. Damren v. State, 696 So.2d 709 (Fla.1997); Bryan v. State, 533 So.2d 744 (Fla.1988).

Contrary to the State’s suggestion, the defense did not open the door for the introduction of the collateral evidence. See Robertson v. State, 829 So.2d at 911-13; Rodriguez v. State, 753 So.2d 29 (Fla. 2000) (collateral crimes evidence is admissible where the defendant opened the door by attempting to show that the witness disliked him in order to show the witness’ bias against the defendant); Tompkins v. State, 502 So.2d 415, 419 (Fla.1986); Simmons v. State, 790 So.2d 1177 (Fla. 3d DCA 2001)(admission of the defendant’s prior aggressions with another victim was permissible after the defendant opened the door during his direct and cross examinations,, suggesting that he was the peaceful victim and that he had never been violent with the victim or anyone else.); Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994)(the defendant claimed a lack of violent propensity); see also Dennis v. State, 817 So.2d 741, 753 (Fla.2002); Williams v. State, 621 So.2d 413 (Fla.1993); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999); Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997)(concept of opening the door is “based on consideration of fairness and the truth-seeking function of a trial.”). The State suggests that Billie placed his character at issue by suggesting that he was a good father. However, the Record is clear that the State elicited testimony regarding the prior bad acts from Ms. Tiger and Ms. Smith during its case-in-chief. On cross-examination, Billie simply rebutted the State’s claim. See Robertson, 829 So.2d at 911-12; Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997) (“To open the door to evidence of prior bad acts, the defense must first offer misleading testimony of make a specific factual assertion which the state has the right to correct so that the jury will not be misled.”)(emphasis added). Cf. § 90.404(l)(a) & (c), Fla. Stat.; § 90.608(5), Fla. Stat.

Billie also claims on appeal that the State made the prior “bad acts” a feature of the trial. We agree. In Bush v. State, 690 So.2d 670 (Fla. 1st DCA 1997), the Court explained that admission of excessive evidence of other crimes is fundamental error to the extent that it becomes a feature of the trial. In the instant case, Billie was prejudiced by this error. A lot of focus was placed at trial on Billie’s violent and controlling character. Billie admitted and does not dispute that he released the truck into the canal. It is undisputed that the children were in the truck and died as a result. The only issue at trial was whether Billie knew his children were in the car at the time the truck was released into the canal. Thus, the witnesses’, especially Billie’s, character and credibility played a crucial role in the trial. Consequently, introduction of the Williams evidence in the instant matter was error and highly prejudicial to Billie’s case. Moreover, the State compounded the error by making the prior bad acts the feature of closing arguments and, therefore, the feature of its case.

In sum, we find that, with the exception of the “hammer incident,” the Williams Rule evidence introduced in the instant case was irrelevant and served only to show Billie’s bad character and propensity for violence. Unlike permissible Williams Rule evidence, the evidence in the instant case was not elicited to show an ongoing criminal activity or to show a common scheme, plan or intent. Moreover, contrary to the State’s argument, Billie did not open the door to character evidence. The prejudicial effect of this evidence clearly outweighs any probative value the evidence may have and, furthermore, Billie objected to the presentation of the evidence both during pretrial hearings on the State’s Notices of Intent to Rely on Williams Rule evidence and at trial during the testimony of Ms. Tiger and Ms. Smith. It is clear from the Record that defense counsel’s objections were related to the introduction of the improper Williams Rule evidence. Accordingly, we reverse Billie’s convictions for Second Degree Murder on the ground that the trial court admitted improper Williams Rule evidence, and remand for a new trial.

II. MEDICAL EXAMINER’S EXPERT TESTIMONY

Billie next challenges the admission of testimony from Dr. Emma Lew, an Assistant Medical Examiner, who testified regarding the autopsy reports. Over defense objection, the Medical Examiner testified that, given the angle of entry of the vehicle into the water, the children would have-slid off the seat and onto the floor. The children showed evidence of fresh minor cuts and bruises. It was the opinion of the Medical Examiner that sliding off the seats, the cuts and bruises, or both, would likely have awakened the children.

In Terry v. State, 668 So.2d 954, 960 (Fla.1996), the Supreme Court noted that “[t]he determination of a witness’s qualifications to express an expert opinion is peculiarly within the discretion of the trial judge whose decision will not be reversed absent a clear showing of error.” Id. We find that the trial court did not abuse its discretion in allowing the Medical Examiner, a medical doctor, to testify that, based on the nature and severity of the scratches and other injuries on the children, the children would have awakened and yelled as a result of the impact of the car hitting the water and the injuries caused by that impact. We find that the testimony is within the expertise of a medical doctor and, therefore, there was no error as to this issue.

III. JURY VIEW

As a third issue, Billie raises concerns regarding the alternative scenarios of the crime scene given at the jury view. The parties in the instant case stipulated to a view of the scene for purposes of appreciating the darkness in the vehicle on the evening in question. The jury was taken to the area of the canal where the drownings took place and were presented with a substantially similar vehicle to the one in which the victims drowned. Each jury member was then given an opportunity to stand by the driver side door as Billie would have done as he let the vehicle go into the canal. The dispute arises with respect to the State’s request, and the trial court’s permission, to have three different scenarios of the truck’s lighting at the view. The first, with the headlights and dash lights on, but no other lights. The second, with the dash lights, headlights, and door courtesy lights on, but no dome lights. The third, with the dash lights, the headlights, the door courtesy lights, and the dome lights on.

Billie argues on appeal that the trial court erroneously permitted the three alternative scenarios in violation of Section 918.05, Florida Statutes, because the evidence did not support the three views and because the lighting evidence was disputed. The State contends that its expert testified that the lights “flickered,” when a new battery was installed in Sheila Tiger’s vehicle after it was pulled out of the canal, thereby suggesting that the lights were working, and, therefore, the issue of whether the lights were working on the night in question was a factual issue for the jury. We agree with the State on this point.

The Record reflects that Billie and Ms. Tiger testified that the only lights working on the night of the incident were the headlights and the dashboard lights. Ms. Tiger testified that the interior lights went out some weeks prior to the incident. Billie testified that only the headlights and dashboard lights were functioning on the evening he released the vehicle into the canal. The State, however, without objection from the defense, presented the testimony of a Miami-Dade County homicide detective who testified that after the truck was taken out of the canal, a new battery was put in and all the lights in the truck “flickered.” From this evidence, the officer concluded that the flickering lights indicated that the interior lights were working at the time of the incident in question, which is contrary to the defense theory that the interior lights were not working at the time of the incident.

A jury view is intended to assist the jury in understanding and applying the evidence presented at trial. See McCollum v. State, 74 So.2d 74 (Fla.1954); Washington v. State, 86 Fla. 588, 98 So. 605 (1923). Section 918.05, Florida Statutes, permits a view of the crime scene by the jury where the trial court determines that the demonstration will be beneficial to the case. However, cases utilizing this procedure have consistently pointed out that no evidence may be taken at the view. See McCollum v. State, 74 So.2d 74 (Fla.1954). Upon thorough review of the Record, we find there was no error in admitting all three scenarios into evidence. The State submitted, without objection from the defense, the testimony of its investigator whose testimony is consistent with the lights working. The defense submitted testimony that the interior lights were not working. Consequently, we find there was no error in admitting all three scenarios into evidence where the evidence supports the alternative theories.

In view of the foregoing, defendant’s convictions are reversed and the matter remanded for a new trial consistent with this Court’s opinion.

Reversed in part; affirmed in part; and remanded with directions.

LEVY and RAMIREZ, JJ., concur.

COPE, J.,

(concurring).

I write separately to comment about point III, the jury view. One of the scenarios which was presented to the jury was one in which the dome light was operational. I have some discomfort about whether that scenario rests on a sound scientific basis.

After the vehicle, a Chevrolet Tahoe, was pulled out of the water, it was towed to a police facility. The vehicle battery was dead, presumably as a result of being submerged.

Homicide detective Gene Surman used jumper cables to connect a live battery to the dead battery in the Chevrolet Tahoe. When the detective did this, all of the vehicle lights flickered, including the dome light.

On the basis of this experiment, the prosecution argued that the dome light on the Chevrolet Tahoe was operational prior to its entry into the canal. The defendant and Ms. Tiger had both testified that the dome light did not work.

The question in my mind is whether the detective’s testimony rests on a sound scientific basis. The issue is whether the presence of water in the electrical connection would cause the flickering effect the detective described, even if the dome light had not previously been working.

At the trial level, the defense did not raise an objection to the scientific basis for the detective’s testimony. Thus, the trial court was entirely correct in admitting the detective’s testimony and this testimony sufficiently supported one of the three scenarios, namely that the dome light was working.

My point is that if the detective’s testimony rests on a faulty scientific basis, nothing prevents the defense from raising this issue for a determination prior to the retrial.

      . Williams v. State, 110 So.2d 654 (Fla.1959) codified as § 90.404, Fla. Stat.

      . There is some evidence in the Record that Billie asked that the children be brought to him on the night of the drownings. However, there is nothing in the Record that supports a theory that he was, as on the previous occasion with his other children, prohibited, permanently nor temporarily, from seeing his children.

      . The witness did not perform the autopsies of the children. The Medical Examiner who performed the autopsies and wrote the report is no longer with the Medical Examiner's office in Dade County.