source: Caselaw Access Project

author: PARIENTE, J. WELLS, J.,

license: Public Domain

text:
    Beth LINN, et al., Petitioners, v. Basil D. FOSSUM, M.D., et al., Respondents.
    No. SC05-134.
    Supreme Court of Florida.
    Nov. 2, 2006.
    Rehearing Denied Jan. 11, 2007.

      Major B. Harding, Martin B. Sipple and Jennifer M. Heckman of Ausley and McMullen, P.A., Tallahassee, FL, for Petitioners.
    Mark Hicks and Richard A. Warren of Hicks and ’ Kneale, P.A., Miami, FL, S. William Fuller, Jr. and William D. Horgan of Fuller, Johnson and Farrell, P.A., Tallahassee, FL, and J. Nixon Daniel of Beggs and Lane, Pensacola, FL, for Respondents.
   PARIENTE, J.

We review the First District Court of Appeal’s decision in Linn v. Fossum, 894 So.2d 974 (Fla. 1st DCA 2004), based on express and direct conflict with the Fourth District Court of Appeal’s decision in Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue is whether an expert can testify on direct examination that the expert relied on consultations with colleagues or other experts in .forming, his, or her opinion. We hold that such testimony is inadmissible because it impermissibly, permits the testifying experts to bolster their opinions and creates the danger that the testifying experts will serve as conduits for the opinions of others who are not subject to cross-examination. We emphasize that our opinion today in no way precludes experts from relying on facts or data that are not independently admissible in evidence “[i]f the facts or data are a type reasonably relied upon by experts in the subject.” § 90.704, Fla. Stat. (2005). We quash Linn and approve Schwarz to the extent it is consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Beth Linn and her husband Anthony filed a medical malpractice action against Dr. Basil Fossum alleging that he was negligent for failing to diagnose an injury to Beth’s ureter caused by Dr. Dennis Lewis during a diagnostic laparoscopy. The Linns alleged that Dr. Lewis cut Beth’s ureter during the procedure, causing urine to leak into her abdomen.

One week after the laparoscopy, Beth complained of abdominal pain and nausea. She was admitted to Twin Cities Hospital in Nieeville, Florida. During her hospital stay, a renal ultrasound and renal scan indicated a possibility that urine was leaking into Beth’s abdomen. The ultrasound revealed “extensive fluid present above the bladder.” The radiologists who reviewed these studies raised the possibility of a “cut ureter.” Following these tests, Dr. Fossum performed a bilateral retrograde pyelogram. Dr. Fossum concluded that the results of the pyelogram were negative for a urine leak and performed no further tests to resolve the possible inconsistency between the initial radiology studies and the pyelogram. The damage to Beth’s ureter was ultimately diagnosed after a CT scan performed at Emory University Hospital in Atlanta showed a large fluid collection in the lower abdomen and another bilateral retrograde pyelogram was performed.

Before trial, the Linns took the deposition of Dr. Dana Weaver-Osterholtz, the expert witness for the defense. Dr. Weaver-Osterholtz stated that based on her review of Beth’s records she would have inserted two stents to drain the urinary system. However, Dr. Weaver-Osterholtz opined that Dr. Fossum’s “watch and wait” approach complied with the prevailing professional standard of care. Dr. Weaver-Osterholtz stated that she reached this conclusion based on a brief conference with several other urologists whom she regarded as representative of the general urologic community. These urologists were not witnesses in the trial. Dr. Weaver-Osterholtz said that she had presented Beth’s case to her fellow physicians as a hypothetical scenario in a “curbside consult,” and they all agreed that Dr. Fossum had met the standard of care.

The Linns filed a motion to exclude the expert testimony of Dr. Weaver-Oster-holtz that Dr. Fossum met the standard of care. They argued that her proposed testimony was a conduit for the inadmissible hearsay opinions of the other doctors and emphasized that her personal standard of care differed from that of the doctors she consulted. The trial court denied the motion.

During the jury trial, the Linns presented Dr. Carlos Santa Cruz, who testified that Dr. Fossum had breached the applicable standard of care. Dr. Weaver-Os-terholtz testified as a defense witness to rebut Dr. Cruz’s opinion. On direct examination, defense counsel elicited Dr. Weaver-Osterholtz’s opinion regarding the appropriate standard of care:

Q At my request, have you reviewed some records in this case involving a patient by the name of Beth Linn?
A Yes. I’ve reviewed a lot of records.
Q And a lot of depositions?
A A lot of depositions.
Q Okay. And in that review, I had asked you to render some opinions regarding “standard of care”; did I not?
A Correct.
Q And in order to give those opinions about the “standard of care” in this particular case, what, if anything, did you do to try to determine the appropriate standard of care for this case as it applies to my client, Dr. Fossum?
[Plaintiffs’ objection to “any hearsay and use of this witness as a conduit for hearsay from other physicians.” Objection overruled.]
By Mr. Fuller:
Q Do you understand my question?
A Yes. What I did was I presented the case in a several — in a couple of different forums. One is to five private practice urologists, and they varied from having experience of three years to— well, three years to 25 years of experience. ' And then I also presented it at the University of Missouri that has five staff and their experience varies from a couple of years to as many as 40 years.
Q And based upon that determination of what the appropriate standard of care is for this case, did you come to an opinion as to whether Dr. Fossum met the standard of care?
[Plaintiffs’ renewed objection. Objection overruled.]
A Can you state the question again? By Mr. Fuller:
Q Yes. Based on your determination of what the appropriate standard of care is for this case, do you have an opinion, within a reasonable medical probability, as to whether what Dr. Fossum did met that standard of care?
A Yes, I do, and he met the standard.

(Emphasis supplied.)

At the conclusion of the trial, the jury returned a verdict for Dr. Fossum. The Linns filed a posttrial motion for judgment notwithstanding the verdict or in the alternative for a new trial, arguing that the trial court erred in allowing Dr. Weaver-Osterholtz to provide expert testimony on the appropriate standard of care. The trial court denied the motion and entered judgment in favor of Dr. Fossum.

The Linns appealed the judgment and the First District affirmed, concluding that the trial court did not err in admitting the opinion testimony of Dr. Weaver-Oster-holtz even though it was based in part on what she described as a “curbside consult.” Linn, 894 So.2d at 978-79. In dissent, Judge Kahn asserted that the holding of the First District majority conflicted with several decisions by the other district courts of appeal, including the Fourth District’s decision in Schwarz. Linn, 894 So.2d at 984 (Kahn, J., dissenting). In Schwarz, the forensic pathologist who performed an autopsy on the victim testified on direct examination that he consulted with several other pathologists in forming his opinion on the victim’s cause of death. 695 So.2d at 454. The Fourth District concluded that this testimony impermissi-bly bolstered the expert’s opinion. See id. at 455.

ANALYSIS

We first address whether conflict exists between Schwarz and this case. We disagree with the dissent’s assertion that the Fourth District in Schwarz did not decide the same issue as the First District in this case. The Fourth District framed the issue as “whether experts can testify that they discussed the case with other experts in the same field in order to .arrive at their opinion.” Schwarz, 695 So.2d at 454. The Fourth District’s conclusion that this testimony “improperly permits one expert to become a conduit for the opinion of another expert who is not subject to cross-examination,” Schwarz, 695 So.2d at 455, was the precise argument raised on appeal in this case by the Linns. See Linn, 894 So.2d at 977-78 (stating that the Linns “contend that Dr. Weaver-Osterholtz was merely a conduit for the hearsay statements made by the other doctors and that they were deprived of an opportunity to cross-examine any of these doctors”). We agree with Judge Kahn’s conclusion in dissent that

[t]he conflict with Schwarz is ... inescapable. The Schwarz court adopted a rule that prohibits an expert from bolstering or corroborating her opinions with the opinions of other experts who do not testify because such testimony, as in the present case, “improperly permits one expert to become a conduit for the opinion of another expert-who is not subject to cross-examination.” 695 So.2d at 455. .

Linn, 894 So.2d at 984 (Kahn, J., dissenting).

We now turn to the resolution of the conflict issue, which is whether experts can testify on direct examination that they relied on the hearsay opinions of other experts in forming their opinions. Because we must decide as a matter of law whether the rules of evidence allow an expert to testify on direct examination that he or she consulted with other experts, we apply a de novo standard of review.

Expert testimony is governed by sections 90.702-90.706, Florida Statutes (2005). Section 90.702 provides that experts may testify in the form of an opinion “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.” The expert’s testimony “is not objectionable because it includes [an opinion on] an ultimate issue to be decided by the trier of fact.” § 90.703, Fla. Stat. (2005). In other words, the evidence code permits an expert to give an opinion on any disputed issue if the expert has specialized knowledge that will assist the trier of fact in resolving .that issue.

Unlike lay witnesses, experts can rely on “facts or data” not admissible in evidence in forming' their opinions. § 90.704, Fla. Stat. (2005). However, there are important limits to this general rule. First, the facts or data must be “of a type reasonably relied upon by experts in the subject to support the opinion expressed.” § 90.704. Second, an expert cannot bolster his or her testimony by testifying that a particular treatise supports an opinion. See Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003), and the cases cited therein. But literature that the expert or trial court recognizes as authoritative can be used in cross-examination. See 90.706, Fla. Stat.

Section 90.704, which was modeled after Federal Rule of Evidence 703, significantly expanded the facts or data on which experts could rely in forming their opinions on an issue for trial. Before the adoption of section 90.704, with limited exceptions, an expert’s opinion was admissible at trial only if it was based on the facts in evidence or on facts personally known by the expert. See Cirack v. State, 201 So.2d 706, 709 (Fla.1967) (“The rules relating to opinion evidence likewise require that the opinion of an expert be based on facts in evidence, or within his knowledge.”).

Initially, we note that by- its plain terms section 90.704 is restricted to “facts or data reasonably relied on” by experts. Opinions of other experts who have no first-hand knowledge of the case that are solicited by the testifying expert constitute neither “facts” nor “data.” These hearsay opinions are neither recorded nor verifiable objective evidence. Cf. Brennan v. State, 754 So.2d 1, 4 (Fla.1999) (concluding that the trial court did not err in allowing a medical examiner who did not perform the autopsy on the victim to testify as to cause of death because the medical examiner’s opinion was based on objective evidence such as the autopsy report, a report by a forensic anthropologist, depositions, photographs, and dental records).

Further, the decisions on which the First District relied to support its conclusion that “[i]t is proper for an expert witness to consult with other experts in the same field in formulating an opinion” are distinguishable. Linn, 894 So.2d at 977. None of these cases involved expert testimony based on consultations with other experts who had no first-hand knowledge of the case. For example, in Capehart v. State, 583 So.2d 1009, 1012-13 (Fla.1991), this Court concluded that a medical examiner who did not perform the autopsy on the victim could properly testify as to the cause of death. The expert in Capehart formed her opinion based on the autopsy report, which was not admitted into evidence, and on the toxicology report, the evidence receipts, the photographs of the body, and all other paperwork filed in the case. See id. at 1013. The autopsy report, toxicology report, and photographs are clearly “facts or data” reasonably relied on by experts in the field. In Bender v. State, 472 So.2d 1370, 1371 (Fla. 3d DCA 1985), the expert psychiatrist relied on a CAT scan report that contained the opinion of the radiologist who read the test. Unquestionably, CAT scan reports are the type of “facts or data” reasonably relied on by doctors.

However, assuming, as did the district courts in Linn and Schwarz, that section 90.704 allows an expert to testify even if his or her opinion is based in part on consultations with other experts, Florida courts have routinely recognized that an expert’s testimony “may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.” Erwin v. Todd, 699 So.2d 275, 277 (Fla. 5th DCA 1997); see also Riggins v. Mariner Boat Works, Inc., 545 So.2d 430, 432 (Fla. 2d DCA 1989) (recognizing a line of cases that “prohibits the use of expert testimony merely to serve as a conduit to place otherwise inadmissible evidence before a jury”).

The rationale for this prohibition is twofold. First, allowing the presentation of otherwise inadmissible evidence merely because an expert relied on it in forming an opinion undermines the rules of evidence that would have precluded its admission. Cf. Gerber v. Iyengar, 725 So.2d 1181, 1185 (Fla. 3d DCA 1998) (concluding that by offering an expert’s testimony regarding the expert’s conversation with an author of a treatise, the defendant sought to use the expert’s testimony to introduce inadmissible hearsay); Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So.2d 891, 893 (Fla. 2d DCA 1983) (concluding that section 90.704 “does not permit an expert witness in one field to testify as to the expert opinion given to him by another expert” because “such testimony is inadmissible hearsay”). When an expert’s testimony acts as a conduit for inadmissible hearsay, the evidence is presented to the jury without affording the opposing party an opportunity to cross-examine and impeach the source of the hearsay. See Gerber, 725 So.2d at 1185 (concluding that the result of allowing the expert’s testimony to act as a conduit for inadmissible hearsay is that the “highly impeachable statement ... was presented for the jury’s consumption without affording ... an opportunity to cross-examine”).

Second, testimony that serves as a conduit for inadmissible evidence is inadmissible under section 90.403, Florida Statutes (2005), because its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of issues [or] misleading the jury.” See Schwarz, 695 So.2d at 455 (holding that the expert should not have been allowed to testify that he consulted with other experts in his field because “[a]ny probative value would be ‘substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury ... ’ § 90.403, Fla. Stat.”) (alteration in original); Maklakiewicz v. Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA 1995) (“[T]he presentation of the inadmissible evidence before the jury through the testimony of the officer as an accident reconstruction expert unfairly prejudiced the plaintiff and misled the jury by giving the inadmissible evidence the expert’s imprimatur of approval and reliability.”); Riggins, 545 So.2d at 432 (concluding that an expert opinion on blood alcohol level based exclusively on an inadmissible report “unfairly prejudices the plaintiff and misleads the jury by emphasizing otherwise inadmissible evidence and by placing an aura of scientific truth upon a document which is legally unreliable”).

Federal Rule of Evidence 703 expressly recognizes the danger of allowing expert testimony to become a conduit for inadmissible evidence by creating a presumption against disclosing to the jury the inadmissible facts or data relied on by the expert in forming an opinion. The last sentence of rule 703, which was added in 2000, provides: “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Fed.R.Evid. 703.

Usually, experts can testify that they formed their opinions in reliance on sources that contain inadmissible information without also conveying the substance of the inadmissible information. However, when the sources are the expert witness’s colleagues who have responded to a case-specific inquiry by the expert, source and substance are blended. Informing the jury that the expert formed his or her opinion from consultations of this nature indicates a group consensus based on hearsay that would not be conveyed by testimony that the expert relied on records, tests, or reports from the patient or other medical providers directly involved in the diagnosis or treatment of the patient.

Further, opinion testimony by consensus is essentially immune to challenge. The opposing party is unable to cross-examine the nontestifying experts who participated in the consultation. Moreover, there is no way for the trial court to assess whether the consulting expert, upon whom the testifying expert relied in whole or in part, is herself qualified or had a proper foundation upon which to base an opinion. For example, did the testifying expert provide the expert or experts with all the pertinent facts and records? Also, there are no clear limits on how far consultations could extend. Would an expert be able to solicit opinions over the internet? Would the battle of the experts become a battle over how many other experts were consulted?

As the Fourth District recognized in Schwarz, the expert’s testimony regarding the consultations serves only to bolster his or her opinion on the issue to which the expert is testifying. See 695 So.2d at 455. Under section 90.706, which allows the use of authoritative literature only on cross-examination, it is inappropriate to allow experts on direct examination to bolster their credibility or to supplement their opinions by “testifying that a treatise agrees with their opinion.” Schwarz, 695 So.2d at 455; see also Theus v. State, 922 So.2d 391, 391 (Fla. 1st DCA 2006) (trial court erred in allowing expert witness to refer on direct examination to a scientific article that supported expert’s decision not to conduct a physical examination of the victim); Quarrel v. Minervini, 510 So.2d 977, 978 (Fla. 3rd DCA 1987) (“Medical treatises cannot be used to bolster the testimony of a physician on direct examination.”). This is consistent with the general rule that it is improper on direct examination to introduce evidence to support the credibility of a witness. See Rodriguez v. State, 842 So.2d 1053, 1053 (Fla. 3d DCA 2003) (trial court erred in allowing the victim of an alleged aggravated assault to testify that she obtained a restraining order after the incident); Simpson v. State, 824 So.2d 280, 282 (Fla. 4th DCA 2002) (trial court erred in “permitting the state to bolster the testimony of the officers when their testimony had not been impeached first”).

We conclude that referring to consultations with other experts creates the danger of bolstering the- credibility of the testifying expert’s opinion without providing the opposing party the ability to effectively cross-examine the expert as to the basis for the opinion. Allowing the expert to testify on direct examination that he or she relied on consultations with other experts creates “too much of a possibility of an inference being drawn that these experts agreed” with the testifying expert. Schwarz, 695 So.2d at 455. We therefore hold as a matter of law that under the Florida Evidence Code an expert is not permitted to testify on direct examination that the expert relied on consultations with colleagues or other experts in reaching his or her opinion.

THIS CASE

In this case, Dr. Weaver-Oster-holtz testified on direct examination that in order to determine the appropriate standard of care and whether Dr. Fossum complied with that standard, she presented the case to fellow urologists in two different forums. Despite the fact that Dr. Weaver-Osterholtz did not state that the other urologists she consulted agreed with her final opinion, this was the clear implication.

The fact that this is a medical malpractice case does not change the analysis. The dissent implies that our decision would require less than full disclosure when a medical expert is asked to testify as to the basis for his or her opinion on the prevailing professional standard of care. See dissenting op. at 1046. The argument that full disclosure requires that experts testify that they discussed their case with other experts in order to arrive at an opinion could apply to all cases, not just medical malpractice cases. As explained above, this type of testimony is inadmissible because it results in improper bolstering and any probative value is outweighed by the danger, of unfair prejudice and of misleading the jury that the expert’s testimony has the approval of other experts in the field.

The danger of unfair prejudice is especially pronounced when, as in this case, there are groups of colleagues with whom the expert conducts informal “curbside consults” regarding the particular facts of the case-. There is simply no way for a party to effectively cross-examine an expert based on hearsay conversations with a group of individuals. Whether characterized as an impermissible conduit for hearsay or impermissible bolstering, such opinion testimony does not serve to advance the search for the truth.

Dr. Weaver-Osterholtz stated that based on her own practice, she would not have used Dr. Fossum’s “watch and wait” approach but would have inserted two stents to drain Beth’s urinary system. It was only after she “presented the case ... in a couple of different forums” that she made a determination about whether the defendant met the standard of care. Allowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care. And we reject the dissent’s reliance on the fact that this is a medical malpractice case to justify carving out a special rule. Experts are qualified to render opinions based on their experience, background, and training. In medical malpractice actions, the law imposes additional requirements to ensure that the expert has the necessary expertise. See 766.102(5), Fla. Stat. (2005). It would be contrary to the purpose of this statute to allow qualified experts to testify that they consulted with unidentified individuals who may or may not meet the requirements of section 766.102(5).

We conclude that the trial court erred in allowing Dr. Weaver-Osterholtz to testify that she consulted with colleagues and that this error was not harmless because the competing expert opinions on the proper standard of care were the focal point of this medical malpractice trial. Compare Donshik v. Sherman, 861 So.2d 53, 56 (Fla. 3d DCA 2003) (‘Where, as here, the competing expert opinions, on both sides, were the focal point of the trial, we cannot deem the error in the introduction of the ACAS report to be harmless.”), with Schwarz, 695 So.2d at 455-56 (holding that the error in allowing the expert to testify on direct that he consulted with other experts was harmless in a nonjury trial because “the trial judge was well aware of the weight to be given this testimony”).

CONCLUSION

For the reasons set forth above, we hold that an expert is not permitted to testify on direct examination that the expert consulted with colleagues or other experts in formulating an opinion. Because the trial court’s error in allowing this testimony was not harmless, we quash the First District’s decision affirming the judgment for the defendant with directions to order a new trial. We approve the Fourth District’s decision in Schwarz to the extent it is consistent with this opinion.

It so ordered.

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

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

WELLS, J.,

dissenting.

I dissent. I conclude that conflict does not exist between the present case and Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997), and that jurisdiction should be discharged.

My departure from the majority stems from the majority opinion not being directed to the limited issue raised below in this case. The majority states that “the conflict issue ... is whether experts can testify on direct examination that they relied on the hearsay opinions of other experts in forming their opinions.” Majority op. at 1036. However, the issue framed by the majority was not the issue in the Linns’ appeal to the First District Court of Appeal and was not decided by that court. The First District wrote: “[The Linns] contend that testimony given by the defendant’s medical expert should not have been admitted in evidence, because it was based entirely on the hearsay statements of other doctors.” Linn v. Fossum, 894 So.2d 974, 975 (Fla. 1st DCA 2004). The First District then specifically stated that the issue before it was “whether the opinion given by Dr. Weaver-Osterholtz at trial was based entirely on the hearsay statements of the other urologists.” Id. at 978. The First District held, “Our review of the record convinces us that it was not.” Id. The First District determined that in addition to talking with other urologists, Dr. Weaver-Osterholtz had reviewed medical records for approximately ten hours, read depositions of other witnesses, and relied on her own medical education, training, and experience. Id. at 978.

In order to justify its determination that conflict exists, the majority relies upon Judge Kahn’s dissent. Majority op. at 1036. This is contrary to the repeated holdings of this Court that conflict must be determined within the four corners of the district court’s majority decision. Reaves v. State, 485 So.2d 829 (Fla.1986). The majority here fails to explain how my recitation of the First District’s issue was incorrect and not based on the four corners of the district court’s majority decision. This Court’s majority opinion only cites to what the district court stated the Linns contended. Our jurisprudence is clear that this Court’s conflict jurisdiction is based not upon a party’s contentions but, rather, is based upon a district court’s majority’s decision. Art. V, § 3(b)(3), Fla. Const. (Supreme Court may review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court or Supreme Court on the same question of law).

Additionally, in respect to the Linns’ contention, in determining not only the conflict issue but also the substantive issue in this case, it is also crucial to recognize, as the district court’s majority did, that the testimony challenged by the Linns was Dr. Weaver-Osterholtz’s opinion about the standard of care. The record shows that the issue as to whether Dr. Weaver-Oster-holtz could testify was initially presented to the trial judge prior to trial by the plaintiffs’ motion in limine. The record discussion was:

THE COURT: What are you asking me to do, exclude her testimony based on—
MR. SIPPLE: I’m asking you not to allow—
THE COURT: — standard of care in the community?
MR. SIPPLE: Yeah, I mean, she — •
THE COURT: How does another doctor — how does a doctor know what the standard of care is without talking to other doctors?
MR. SIPPLE: I think the testimony from all of the other doctors in the ease will be that the standard of care is what I — I mean, I apply the standard of care, I mean—
THE COURT: Each doctor says I know — I know what the standard of care is how I do it, and that’s the way it’s supposed to be done.
I mean, honestly, let me just say this, it’s about the same thing, Counsel, that I run into on attorney’s fees, when I’m trying to set attorney’s fees. One lawyer ask[s] another lawyer, “Well, what is the normal and usual fee for this type of activity from an attorney representation in this area?” Well, the only way that I know that an attorney is going to know that is by asking other lawyers, by getting that information from other attorneys in order to make that determination. And I think the law is clear that that’s one of the things that a judge is supposed to determine in setting attorney’s fees..
Now, same thing in a medical case. What is the standard of care? Well, in a particular area or community, I think standard of care in my opinion is, and based on all of the case law that I’ve ever seen, it’s — well, what is the normal procedure followed by professionals in this area in a particular location or region of the country, and how are you going to know that? Well, only way you’re going to know it is by asking other people, unless you happen to — I mean, I can’t see someone standing watch over other doctors while they perform or diagnose cases, so the only way you’re going to know that is by examining the records or talking to the physicians in those other cases and situations.

From this review of the record, it is plain that the issue, raised to the trial judge and decided by the First District in the present case was not the issue before the Fourth District in Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997). Schwarz involved neither a hearsay objection nor a standard of care question. The question in Schwarz was whether the pathologist who testified about the cause of death could testify on direct examination that he had consulted with other pathologists about the cause of death. The Fourth District decided the legal issue in Sdnüarz not on the issue of hearsay but rather on the issue of whether the pathologist could bolster his opinion by testifying that he had consulted with other experts as to the cause of death.

The First District correctly determined that Schwarz did not conflict with its decision in the present case because Schwarz was not decided on the basis of a hearsay objection:

[T]he plaintiffs in this case are not arguing that Dr. Weaver-Osterholtz improperly bolstered her testimony. This point was not made in the trial court, nor was it made in this court. The appellants mentioned the alleged improper bolstering in passing in their initial brief, but it was clearly not the thrust of their argument. Nor could it have been. The argument was that Dr. Weaver-Oster-holtz’s opinion was based entirely on hearsay.

Linn, 894 So.2d at 979 (emphasis added). I agree with the First District. We should discharge jurisdiction.

Moreover, I dissent from the majority’s resolution of the issue it does consider, specifically as it applies in the instant case to testimony about the standard of care. The very definition of standard of care in section 766.102(1), Florida Statutes (2005), requires proof of what is “recognized as acceptable and appropriate by reasonably prudent similar health care providers.” This obviously requires discussions with similar health care providers. Standard- of care is a particularized requirement of medical malpractice litigation. The opinion in this case should be limited to the medical malpractice context and to specific issues which by their nature . require knowledge by the expert of what others in a particular profession do under similar circumstances. The trial judge, who demonstrated on the record that he had trial experience in hearing expert testimony on such subjects, made the following insightful comment at the time of the motion in limine hearing:

THE COURT: So you don’t find out what the standard of care — how do you find out what other attorneys are charging in a — on an hourly rate representing a plaintiff in a lawsuit?
MR. SIPPLE: Through your experience practicing in the community.
THE COURT: Well, that’s fine in theory, but in practicality, how do you do it? How do you know — how do you know what Mr. Daniel is charging his client if someone were to ask you if you were familiar with the attorney’s fees in a particular case? The only way that you would know, the only way that you will know is for him to tell you or for you to look at his books or records and yet, like I say, in an issue of expert opinion on attorney’s fees that’s one of the things we have to testify to.
So I think we’re in the same situation here. Standard of care, in my opinion, necessarily requires the use of hearsay evidence in arriving at an opinion on standard of care in a community.
Now, in your example when you say, -‘Well, you practice with the other doctors.” Well then, you might be personally familiar with the standard of care in your little clinic or in your hospital, but you take — particularly somewhere — you take a big city like Miami or Chicago or New York City, you might have 500 hospitals and 500 different areas. And no one doctor is going to be able to .testify just because something might be the standard of care in his clinic or in the operations in which he’s involved. So, honestly, I don’t know how in the world I can exclude reliance on hearsay as it relates to forming an opinion on standard of care. So I wouldn’t be inclined to do that for that reason.

The First District agreed with the trial court’s assessment:

The testimony at issue in this case is an opinion regarding the proper standard of medical care. According to section 766.102(1), Florida Statutes, the prevailing standard of care for a health care provider is “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” This subject, by its nature, requires an understanding of what other experts in the field consider appropriate. A doctor would have to communicate in some way with other health care professionals to know what they regarded as “acceptable and appropriate.”
The fact that Dr. Weaver-Osterholtz spoke with other urologists in a setting she described as “curbside consult” does not lead us to conclude that her opinion was inadmissible. It is proper for an expert witness to consult with other experts in the same field in formulating an opinion. See, e.g., Bender [v. State, 472 So.2d 1370 (Fla. 3d DCA 1985)]; Capehart v. State, 583 So.2d 1009 (Fla.1991); see also Lewis v. Rego Co., 757 F.2d 66 (3d Cir.1985); United States v. Brown, 299 F.3d 1252, 1257 (11th Cir.2002) (interpreting the federal rules). And this is particularly true in the health care field, given the statutory definition of the standard of care. We would expect a doctor to speak with other doctors in the same field, either in connection with a particular case or in a more general setting. Otherwise, it would be difficult to know the proper standard of medical care as defined by law.

Linn, 894 So.2d at 977.

In considering an issue similar to that raised in the trial court and First District, the Supreme Court of Oregon, in Jefferis v. Marzano, 298 Or. 782, 696 P.2d 1087, 1092 (1985), stated:

It is clear that there can be no valid objection to the fact that a witness’s opinion rests upon hearsay in the sense that the information he relies upon to know the appropriate medical practice is derived in part from extrajudicial statements of others. Such statements may include lectures in medical school, writings of various kinds and conversations with colleagues. It is by assimilation of hearsay of this sort that expert opinions are in fact, for the most part, made, and to demand education independent of the statement of others is to demand what does not exist and will not be forthcoming. See Weinstein, Mansfield, Abrams and Berger, Cases and Materials on Evidence 399 (7th ed.1983).
None of these objections was well taken. The appropriate medical practice is most commonly proven by learning what other specialists in the field do in the area. The appropriate medical practice in this case could have been observed by the physician at a hospital or in any other clinical setting; learned at a staff meeting at a hospital or at an educational seminar; ascertained from reading medical literature; and, finally, the appropriate medical practice could be ascertained by discussing the proper method for sorting out Pap smear reports with other doctors in the community as to what they do.
All this information is what a specialist actually uses to decide what medical practice to utilize in his or her chosen specialty. All this information is usually and properly relied upon by specialists when making their day-to-day life and death decisions in the practice of medicine. It is only incidental that this same information may be used by a physician in rendering an expert opinion in court.

I adopt and would follow Oregon’s well-reasoned view on this subject.

The majority opinion attempts to distinguish the Oregon Supreme Court’s decision. But the majority points to no reasonable basis for a distinction. Nor does the majority dispute the plain logic of the reasoning of the Oregon Supreme Court. The majority does not explain how a physician learns of the standard of care other than as set forth by the Oregon Supreme Court. Importantly, the majority does not explain how the standard of medical care can be proven under its decision.

This conclusion is consistent with the Florida Evidence Code. Section 90.704, Florida Statutes (2005), states:

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

Soon after the adoption of section 90.704, the Third District Court of Appeal correetly observed that the very purpose of the statute was “to bring the judicial practice into line with the practice of the experts themselves when not in court.” Bender v. State, 472 So.2d 1370, 1372 (Fla. 3d DCA 1985) (quoting § 90.704, Fla. Stat. Ann. (1979) (Law Revision Council Note 1976)). The majority, without citing to any authority, asserts in its opinion that “by its plain terms section 90.704 is restricted to ‘facts or dáta reasonably relied on’ by experts. Opinions of other experts who have no first-hand knowledge of the case that are solicited by the testifying expert constitute neither ‘facts’ or ‘data’.” Majority op. at 1037. Even accepting the majority’s unsupported view to be correct in respect to opinions on issues such as cause of death in Schwarz, it cannot be correct as to an opinion on the standard of care which, as the trial judge in this case recognized, is necessarily formulated in part by discussions among peers and which, as the statute defines, is based on what is recognized by other similar physicians.

Determining whether the evidence that is the basis for an expert’s opinion may be admitted at trial is a matter left to the trial judge’s discretion. I do not find that the trial court abused its discretion in allowing the jury to hear the basis for Dr. Weaver-Osterholtz’s testimony in answer to the question as to what she did to determine the standard of care for the treatment in this case. That was the question to which the objection was made and the question which is at issue in this case. I believe that a medical expert must be permitted to testify truthfully and completely in answer to that question. The truthful and complete response to the question is what was answered in this case, which is that the basis for the medical expert’s opinion as to what the standard of care is includes training, experience, reading text and treatises, and talking with other physicians who provide similar care and treatment.

The majority appears to fall back upon an argument based upon section 90.403, Florida Statutes, in stating “this type of testimony is inadmissible because any probative value is outweighed by the dangers of unfair prejudice and of misleading the jury that the expert’s testimony has the approval of other experts in the field.” Majority op. at 1040. However, this argument was not1 made to the trial court, is procedurally barred, and it is unfair to rely upon it in this Court. Similarly, the argument in the majority’s footnote 6 was not made below.

Finally, assuming without agreeing that the trial judge abused his discretion in overruling the hearsay objection to the question as to the basis for the opinion as to the standard of care, clearly that error was harmless. Both sides presented lengthy testimony from experts. There was full and complete cross-examination of both experts. The petitioner does not explain how the allowing of the defendant’s expert to explain that she conferred with other doctors as to what the standard of care was became a focus in the trial. In fact, the testimony that petitioner points to in petitioner’s brief as being the objectionable testimony did not come in answer to the objected-to question. Rather, that testimony was in response to questions asked by petitioner’s counsel in cross-examination. The petitioner does not point to any of the objectionable testimony being brought out in closing argument. Petitioner has not even made the closing argument a part of the appellate record. See Apple-gate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (appellant has burden to provide record of trial proceedings in order to demonstrate reversible error). I conclude that the appellate record does not support a determination that the trial judge committed reversible error.

For the reasons stated above, if jurisdiction is not discharged, I would affirm the decision of the First District.

BELL, J., concurs.

      .The First District’s majority attempted to distinguish Schwarz by highlighting what it believed were two "critical differences” between its decision and Schwarz. See Linn, 894 So.2d at 979. First, the district court determined that the Linns did not argue that ■ Dr. Weaver-Osterholtz improperly bolstered her testimony. See id. However, as noted above, the language the Linns used in their argument is almost identical to the rule articulated in Schwarz. The First District's second "critical difference,” that "Dr. Weaver-Oster-holtz did not testify on direct examination that other experts agreed with the opinion she was about to give,” id., also does not meaningfully distinguish Schwarz. The Fourth District in Schwarz specifically stated: "The precise issue before us is not whether Dr. Burton could testify that other experts in. his field agreed with him, but rather whether he could testify that he had consulted other experts in his same field.” Schwarz, 695 So.2d at 455.

      . Section 90.706 provides:
      Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

      . Federal Rule 703 provides:

        The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at, or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

      . The Third Circuit Court of Appeals’ decision in Lewis v. Rego Co., 757 F.2d 66 (3d Cir. 1985), which provides the most persuasive authority for the First District's conclusion, can also be distinguished. In that case, the testifying expert’s consultation was with the expert who first examined the alleged defective equipment. See id. at 73-74.

      . The case cited by the dissent is distinguishable. See Jefferis v. Marzano, 298 Or. 782, 696 P.2d 1087 (1985). Jefferis involved a defendant in a medical malpractice case who was permitted to testify why he believed that a certain procedure that he followed for reviewing Pap smear test results was proper. He explained that his practice was based on several factors: (1) he used this practice in his training as a resident specializing in obstetrics and gynecology and in his service training; (2) this had been his practice in handling hundreds of patients over a ten-year period; and (3) the practice was used at the Cancer Referral Center for Wisconsin and by a Dr. Adolph Staff one of the foremost experts in the field. See id. at 1091-92. This is an entirely different situation than allowing an expert to testify that his or her opinion on the standard of care is based, in part, on hearsay conversations with colleagues that took place after the incident giving rise to the lawsuit.

      . Although we do not decide the issue, if an expert such as Dr. Weaver-Osterholtz cannot form an opinion on the appropriate standard of care based on her own past practices and knowledge in the field, perhaps that expert is not qualified to render the opinion.

      . "Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” Evans v. State, 808 So.2d 92, 102 (Fla.2001) (quoting Ray v. State, 755 So.2d 604, 610 (Fla.2000)). A trial court applies the following test in making a determination on the admission of such evidence:
      Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading' the jury, or needless presentation of cumulative evidence.
      § 90.403, Fla. Stat. (2005).


author: PER CURIAM.

text:
    Inquiry Concerning Judge John R. SLOOP.
    No. SC05-555.
    Supreme Court of Florida.
    Dec. 7, 2006.
    Rehearing Denied Jan. 4, 2007.

      Lauri Waldman Ross of Lauri Waldman Ross, P.A., Miami, FL, Marvin E. Barkin, Interim General Counsel, of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill and Mullís, P.A., Tampa, FL, The Honorable Thomas B. Freeman, Chairman, Hearing Panel, Tallahassee, FL, and John Beranek, Counsel, Hearing Panel, Ausley and McMullin, P.A., Tallahassee, FL, for Florida Judicial Qualifications Commission, Petitioner.
    The Honorable John R. Sloop, County Judge, Eighteenth Judicial Circuit, Sanford, FL, and Damon Chase of Chase Freeman, P.A., Lake Mary, FL, for Judge Sloop, Respondent.
   PER CURIAM.

This is a judicial disciplinary proceeding concerning Seminole County Judge John R. Sloop. We have jurisdiction. See art. V, § 12, Fla. Const. Pursuant to our constitutional authority, we remove Judge Sloop from office for violations of the Code of Judicial Conduct in three separate incidents, the last resulting in the unjustified and preventable arrests and incarceration of eleven citizens. Having reviewed the record in this case, including Judge Sloop’s own admissions, we conclude that these incidents collectively demonstrate Judge Sloop’s present unfitness to remain on the bench. Judges stand at the pinnacle of the justice system, and each judge in this State represents the face of justice. This is particularly the case in county court, a “people’s court” where ordinary citizens come to resolve minor disputes and transgressions, often without counsel. In determining the discipline appropriate in cases of judicial wrongdoing, our obligation is first and foremost to the public and to our state’s justice system. We conclude that through his misconduct in this case, Judge Sloop has forfeited the privilege to serve on the bench.

FACTS

Florida’s system for investigating allegations of misconduct by judges and imposing discipline is set out in article V, section 12 of the Florida Constitution. Under the Constitution, the Judicial Qualifications Commission (JQC) is an independent entity comprising members who serve as an Investigative Panel and other members who serve as a Hearing Panel. In the first stage of JQC proceedings, the Investigative Panel investigates alleged misconduct and, where appropriate, files formal charges. A Hearing Panel of the JQC then hears evidence on the charges and makes findings, conclusions, and recommendations concerning both the alleged misconduct and the resulting discipline. Art. V, § 12(b), Flá. Const. This Court may accept, reject, or modify the Hearing Panel’s findings, conclusions, and recommendations and has authority to impose discipline, including removal from the bench. Art. V, § 12(c)(1), Fla. Const.

In this case, although the Investigative Panel advocated for the removal of Judge Sloop for the misconduct charged, the Hearing Panel recommended serious sanctions that stop short of removal. Under the constitution, it is this Court’s ultimate responsibility to determine the appropriate discipline, up to and including removal from office. See In re Henson, 913 So.2d 579, 589 (Fla.2005).

This case marks the fourth occasion Judge Sloop has faced allegations of judicial misconduct. Judge Sloop first came to the JQC’s attention early in his tenure as a county judge in Seminole County, where he has served since 1991. In his first year on the bench, he was investigated by the JQC for alleged misconduct in an eviction proceeding and for displaying a firearm in court. Those investigations concluded with private admonishments and findings of no probable cause. In 2002, the JQC again investigated Judge Sloop, this time for alleged rude and abusive behavior. Although the JQC again found no probable cause, it warned him about his temper. Judge Sloop acknowledges that at several points during his fifteen years on the bench, other judges have also cautioned him about his temper. With this history in mind, we address Judge Sloop’s most recent misconduct.

The current charges against Judge Sloop arise from three incidents in 2004. The allegations regarding the first two incidents, alleged in Counts Three and Four of the Amended Notice of Formal Charges filed by the Investigative Panel, were as follows:

In the case[ ] of State v. Ramos, (Case No.: 04-002343-CFA), ... you declined to release a defendant pursuant to the clear mandate of Florida Rule[ ] of Criminal Procedure 3.134, thereby requiring the defendant’s release pursuant to a writ of habeas corpus.[]
On or about October 18, 2004, in the case of State v. Mercano, (Case No. 94-12684 MMA), you were rude, abrupt, and abusive in your treatment of the defendant, acting more like a prosecutor than a [county] court judge.

In the pleadings and hearing before the JQC Hearing Panel, Judge Sloop admitted fault in both counts.

Regrettably, the previous JQC admonishments, feedback from the bench and bar, and other current charges serve merely as a backdrop for the misconduct alleged in Count One of this ease:

On or about December 3, 2004, you issued arrest warrants for approximately 11 traffic defendants who had not answered your docket call, but who were in fact, properly in an adjoining courtroom pursuant to their summonses or the direction of the judicial deputy sheriffs or bailiffs. You were informed of the circumstances, but nevertheless proceeded to have the arrest warrants carried out, and these defendants arrested, and you initially declined to release them. As a result, these traffic defendants remained in jail until their release was considered by another judge. You then revisited your arrest warrants.

Judge Sloop admitted this allegation as well.

The Investigative Panel sought removal from the bench. Because Judge Sloop contested this recommendation, a full hearing was held before the Hearing Panel. Following the hearing, the Hearing Panel made these findings on Count One:

The events of December 3, 2004, occurred in the new Seminole County Courthouse. Due to uncertainty as to which courtrooms judges would be located in based on delays in completion of the new courthouse, there was confusion as to precisely where citizens were required to respond to their traffic citations. Judge Sloop was assigned to courtroom 1A and Judge Erickson, also a county judge, was assigned to courtroom IB. Due to misdirection, the 11 people in question sat in courtroom IB for hours until Judge Erickson recognized that something was wrong and checked their paperwork. Judge Erickson then advised them that they were in the wrong courtroom and sent them to courtroom 1A.
Judge Sloop had ended his morning session at approximately 11:00 a.m. and before leaving the bench he had the Clerk issue arrests warrants on all individuals who had not shown up for their scheduled hearings. These warrants included the 11 citizens who had been in Judge Erickson’s courtroom. There was uncertainty as to precisely when these arrest warrants were actually signed but they were clearly issued before noon of December 3, 2004. At about 11:15 a.m. Bailiff Olli Csisko found Judge Sloop who was eating lunch and told him that certain of the people who had not shown up were now in his courtroom. The details on these people being directed to the wrong courtroom were not initially provided by Bailiff Csisko and Judge Sloop did not check further as to their prior location in the other courtroom. He simply told his bailiff that court was over and the warrants were already signed.
Subsequently, Judge Erickson and another county judge, Judge Herr, came to Judge Sloop and suggested to him that these people had been present in the wrong courtroom and should not be arrested. Another bailiff made the same or a similar suggestion. Judge Sloop’s reaction to all of these suggestions was that the warrants had already been issued and that each defendant had the obligation to appear in the proper courtroom. There was general concern among the judges and staff in the courthouse over these arrests.
Judge Sloop had left the courthouse during the noon recess on a personal errand and then returned at 1:15 p.m. to get ready for his calendar of First Appearances. He was finally convinced that the 11 individuals should be released and he signed orders for their “immediate release.” This was partly due to the fact that Judge Herr himself had actually prepared the paperwork. Chief Judge Perry was also taking steps to get these citizens released.
The release orders by Judge Sloop were time-stamped at 2:22 p.m., but not faxed by the Clerk to the jail until 3:49 p.m. Judge Sloop could give no explanation for the approximate 1-1/2 hour delay. Judge Sloop stated that his order required the “immediate” release of all of the individuals without bond and he was shocked when he learned that they actually were not released until approximately 9:00 p.m. that evening. Judge Sloop was not even aware of the number of people who had actually been arrested. He never saw the 11 arrested people in a group and was only advised that the number was 11 after they had been transported to jail. Judge Sloop repeatedly stated that he assumed that they would be immediately released and he denied having any idea that persons arrested under such circumstances would be strip searched in the jail facility. This was apparently the policy of the Seminole County corrections staff who operate the jail facility.
The arrests occurred on Friday and on the following Monday, Chief Judge Jámes Perry sat down with Judge Sloop and asked him why he had not solved the problem by simply walking back into his courtroom and taking care of it immediately. Judge Sloop responded that he did not understand why this was a “big' deal.” Judge Sloop had taken no steps to check on the citizens he had caused to be arrested.

The Hearing Panel also summarized the testimony of Alda Mae .Rugg and Ronald Parilla, two of the eleven persons arrested on December 3, 2004:

Both Rugg and Parilla gave graphic testimony that they had been misdirected by Sheriffs officers or courthouse per-sorinel to the wrong courtroom (Courtroom IB) and that they sat in- this courtroom for several hours and were then directed by Judge Erickson to go to Judge Sloop’s courtroom which was Courtroom 1A. Judge Sloop was not present because his court session had ended. The warrants had already been issued and signed and the 11 people, to their great surprise, were then arrested in Courtroom 1A beginning at approximately 11:24 a.m. They were handcuffed and chained by approximately 15 officers and transported to the jail where they were processed and strip searched. They remained in the jail for several hours. They were arrested before noon and were not released from the jail until approximately 9:00 p.m. 'that evening.
Those arrested were understandably outraged and frustrated. They had repeatedly demanded to be able to see the judge who had ordered their arrests. This request to the deputies and bailiffs was denied after bailiffs attempted to contact the judge. There were actually 12 people arrested. A juvenile had also been among those arrested but she was released by the deputies when her age was discovered before being transported to the jail. The records on all of these arrests and incarcerations were officially expunged and only came into evidence by stipulation and an order of the chief judge.
The prosecution offered in evidence three DVD’s which were electronically displayed before the Panel. The December 3, 2004, DVD showed the Sheriffs officers while actually arresting and placing the traffic offenders in custody in courtroom 1A. As described by Rugg and Parilla, the DVD showed each individual was handcuffed and chained and then transported out of the courthouse by the 15 officers who gathered from all over the courthouse. The arrests oe-curred in. Judge Sloop’s courtroom after he had recessed his morning session. He did not return to this courtroom until later in the afternoon.

The Hearing Panel found that the three instances of misconduct violated Canons 1, 2 A, and 3 B(2), (4), and (8) of the Code of Judicial Conduct. Canon 1 requires judges to personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. Canon 2 A requires judges to respect and comply with the law and “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 3, which concerns judges’ performance of their judicial duties, provides in pertinent part:

B. Adjudicative Responsibilities.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control.
(8) A judge shall dispose of all judicial matters promptly, efficiently, and fairly.

Although he admitted guilt on each of these counts, Judge Sloop presented evidence in mitigation that, after the December 3, 2004 incident, he completed anger management counseling and sought and received a diagnosis and treatment for Attention Deficit Hyperactivity Disorder (ADHD). Judge Sloop maintains that ADHD contributed to his poor judgment that day.

Dr. Heidi Napolitano, a psychiatrist who began treating Judge Sloop in February 2005, testified before the Hearing Panel that Judge Sloop’s conduct on December 3, 2004, was caused at least in part by the then-undiagnosed ADHD. She stated that persons with ADHD are easily distracted, impulsive, and have a low frustration tolerance, all of which could have contributed to Judge Sloop’s poor decision-making on December 3. Dr. Napolitano testified that Judge Sloop reported that after being placed on stimulant medication, he could better tolerate situations, had a lower frustration level, and had greater patience— typical responses to medication for those with ADHD. Dr. Daniel Tressler, a clinical and forensic psychologist, testified that in counseling sessions since March 2005 based on Dr. Napolitano’s diagnosis, Judge Sloop has shown greater understanding of how he interacts with people, greater awareness of the outcomes of those interactions, and a significant improvement in empathy. Dr. Tressler testified that if Judge Sloop stays on medication and in therapy, there was little probability of a recurrence of the events resulting in the current charges of misconduct. However, Dr. Tressler also stated that results of personality tests suggested that in striving to demonstrate calm in difficult situations, Judge Sloop placed himself in “emotional over-control.” Dr. Tressler said he hoped that over time, Judge Sloop would be able to incorporate emotions into his life without worrying he would display inappropriate anger.

In rebuttal, counsel for the Investigative Panel presented the testimony of Dr. Deborah Day, a licensed psychologist who had given Judge Sloop a battery of personality tests. Dr. Day concluded that Judge Sloop likely has adult Attention Deficit Disorder, but she did not believe it contributed to his conduct on December 3, 2004. She testified that the testing indicated an “additional anger management issue related to his personality characteristics.” When asked how Judge Sloop’s anger is likely to be manifested, Dr. Day stated:

He is likely to be an individual who is rude, insensitive. We saw characteristics of having a lack of empathy, not recognizing how his behavior impacts on others. He likes to be in control, so there was a control feature to his anger. He is likely to use his anger as a control mechanism.

Dr. Day recommended that Judge Sloop readdress the anger issue, which’ she did not believe had been dealt with sufficiently in sessions with Dr. Tressler or in nine weeks of anger management counseling with another counselor. Dr. Day testified that although she could not reliably predict whether Judge Sloop would ever engage in similar misconduct, she thought “the data indicate [it] is more likely than not.”

The Hearing Panel found, “based on the admissions and the totality of the evidence, that Judge Sloop does have an ADHD disorder and that his treatment thus far has been beneficial.” The panel recommended a broad array of sanctions:

• A public reprimand by this Court and payment of the costs of the JQC proceedings;
• Suspension from the bench for 90 days without pay;
• A requirement that Judge Sloop pay the cost of the substitute judge who covers his caseload during his suspension;
• A requirement that Judge Sloop continue treatment and medication, and file a report with the JQC every six months confirming his treatment status;
• A requirement that Judge Sloop issue letters of apology to the eleven persons wrongly arrested, and publish a full-page newspaper apology;
• A requirement that Judge Sloop offer to make a personal apology to all those wrongly arrested;
• A requirement that Judge Sloop comply with his commitment to retire from the bench at the end of his current term in January 2011 and not seek service as a senior judge;
• A requirement that if Judge Sloop returns to the practice of law, he must continue his treatment and medication, and file reports under the supervision of Florida Lawyer’s Assistance, Inc.

In opting for a recommendation short of removal from the bench, the Hearing Panel pointed out that, as of the March 28, 2006 hearing, there had been no further incidents of improper behavior by Judge Sloop while on the bench. The Hearing Panel also noted that Judge Sloop was effectively managing a large civil caseload, to which he had been assigned after being removed from hearing criminal cases following the events of December 3, 2004. The Hearing Panel concluded:

The Investigative Panel argues that the 11 citizens should never have been subjected to arrest and incarceration and the accompanying insults which occurred even if some of these events were unforeseeable. It is asserted that Judge Sloop did not take the necessary steps to make certain that these arrests were absolutely necessary and to promptly release these people after they were arrested. In retrospect it is obvious that serious mistakes were made and that immediate action should have been taken. The question is, however, whether Judge Sloop is presently unfit to hold office and whether his conduct was fundamentally inconsistent with his being a judge. The Panel concludes that removal is not warranted.
... Judge Sloop may not have a personality which endears him to all of his fellow judges and court personnel. However, there simply has been no demonstration by clear and convincing evidence that he is not presently fit to remain in office.

(Emphasis supplied.)

DISCUSSION AND ANALYSIS

We first consider the JQC’s factual findings and determination that Judge Sloop violated the Code of Judicial Conduct as alleged, and then address the appropriate discipline.

I. Findings and Determination of Guilt

This Court upholds a JQC Hearing Panel’s findings on alleged misconduct that are supported by clear and convincing evidence. In re Woodard, 919 So.2d 389, 391 (Fla.2006). In cases in which a judge admits wrongdoing and the JQC’s findings are undisputed, the Court ordinarily concludes that the findings are supported by clear and convincing evidence. In re Diaz, 908 So.2d 334, 337 (Fla.2005); see also In re Andrews, 875 So.2d 441, 442 (Fla.2004).

In both his formal answer to the charges and the hearing thereon, Judge Sloop admitted the alleged misconduct. Further, he declined the opportunity to contest the JQC Hearing Panel’s findings in this Court. Therefore, no additional showing is necessary to support the JQC’s findings and its conclusion that, as to Counts 1, 3, and 4, Judge Sloop violated Canons 1, 2 A, and 3 B(2), (4), and (8) of the Code of Judicial Conduct as alleged. Additionally, based on our independent review of the JQC hearing transcript as well as the video of the proceedings forming the basis for the charges in Counts 1 and 4, we conclude that the Hearing Panel’s findings are supported by clear and convincing evidence. Accordingly, we approve these findings and the conclusion that Judge Sloop violated the Code of Judicial Conduct as alleged.

II. Recommended Sanction

“[T]he object of disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge’s fitness to serve as an impartial judicial officer.” In re McMillan, 797 So.2d 560, 571 (Fla.2001) (citing In re Kelly, 238 So.2d 565, 569 (Fla.1970)). We have authority under the constitution to remove a judge from office for “willful or persistent failure to perform judicial duties or for other conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.” Art. V, § 12(e)(1), Fla. Const. “Malafides, scien-ter or moral turpitude” is not required for removal as long as the conduct demonstrates a present unfitness to hold office. Id. In fulfilling our constitutional responsibility to determine the appropriate sanction, we address two preliminary questions. First, what criteria do we use to determine whether particular misconduct demonstrates present unfitness to hold office? Second, what weight do we give the Hearing Panel’s disciplinary recommendation not to remove a judge from office?

A. Present Fitness to Hold Office

The standard of fitness to hold office calls for examination of misconduct from two perspectives: its effect on the public’s trust and confidence in the judiciary as reflected in its impact on the judge’s standing in the community, and the degree to which past misconduct points to future misconduct fundamentally inconsistent with the responsibilities of judicial office. Canon 1 of the Code of Judicial Conduct requires judges to personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. Canon 2 A requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 3, which concerns judges’ performance of their judicial duties, provides that a judge shall be “patient, dignified and courteous” to all those with whom the judge deals in an official capacity. Fla.Code of Jud. Cond. Canon 3 B(4).

In opinions accompanying our removal of judges, we have linked the determination of fitness to remain in office to the effect of misconduct on public trust and confidence in the judges involved. As we recently stated in removing a judge for practicing law while still holding judicial office and in advising a client facing prosecution to flee the country, “[njeither those who appear before [the judge] nor the public at large can have confidence in a judge who has committed these flagrant violations of our ethics rules.” Henson, 913 So.2d at 582. In removing a judge for a pattern of deceit and deception, we stated that “[t]he judicial system can • only function if the public is able to place its trust in judicial officers.” In re Ford-Kaus, 730 So.2d 269, 277 (Fla.1999). In removing a county court judge for misconduct that included treating attorneys abusively and maintaining a hostile work environment, we explained that “[a] judgeship is a position of trust, not a fiefdom. Litigants and attorneys should not be made to feel that the disparity of power between themselves and the judge jeopardizes their right to justice.” In re Graham, 620 So.2d 1273, 1277 (Fla.1993). In removing a circuit judge for exerting judicial authority to obtain employment for a friend, we stated that “[t]he judicial system cannot provide the service required of it without public trust of judicial officers.” In re Graziano, 696 So.2d 744, 753 (Fla.1997). Further, we have concluded that a judge should be removed if he or she “commits a grievous wrong which should erode confidence in the judiciary,” independent of its actual public impact. In re LaMotte, 341 So.2d 513, 518 (Fla.1977) (emphasis supplied). -

,Our inquiry into whether judicial misconduct demonstrates a present unfitness to hold office is also forward-looking, in that it presents a window into judicial temperament and judgment. The Court’s concern that misconduct will recur is. evident in In re Crowell, 379 So.2d 107 (Fla. 1980), in- which we removed a judge for unfitness that was “substantially due to his tendency to lose his temper when confronted by the human failings and shortcomings of others.”; Id. at 110. We found “a pattern of conduct1 over a long period of time ... which demonstrates a lack of proper judicial temperament and a tendency to abuse the authority of the office.” Id.; see also In re Wood, 720 So.2d 506, 509 (Fla. 1998) (concluding that the Court would be inclined to impose sterner sanction than reprimand if not for judge’s assurances that he would continue anger and stress management therapy “until no longer necessary”); In re Lantz, 402 So.2d 1144, 1146 (Fla.1981) (concluding that circuit judge “is sufficiently rehabilitated to continue service”). To the degree that proven misconduct demonstrates that a judge lacks the proper judicial temperament, removal may be appropriate.

B. Weight Given JQC Recommendation

When we assess the effect of misconduct on a judge’s present fitness to remain in office, we normally place great weight on the Hearing Panel’s disciplinary recommendation. See In re Renke, 933 So.2d 482, 493 (Fla.2006). However, our recent decision in Renke demonstrates that the Court exercises its independent judgment in fulfilling its responsibility to protect the public from judges who are unfit to hold office. There we overrode a JQC recommendation and removed a judge who attained office through an election in which he committed campaign finance violations that amounted to a “fraud on the electorate” and were fundamentally inconsistent with the responsibilities of office. Id. at 495. As we stated in In re Davey, 645 So.2d 398, 404 (Fla.1994) (quoting In re LaMotte, 341 So.2d at 516), although the “findings and recommendations of the Judicial Qualifications Commission are of persuasive force and should be given great weight ..., the ultimate power and responsibility in making a determination rests with this Court.” In Davey, we rejected a JQC recommendation of removal from office because we found inadequate proof that Judge Davey committed one of the alleged acts of misconduct or that he deliberately made false statements before the JQC. Id. at 409. Here, all three instances of misconduct found by the Hearing Panel are supported by clear and convincing evidence.

In this case, we reject the Hearing Panel’s recommendation that Judge Sloop remain in office. Although the Hearing Panel concluded that there was not clear and convincing evidence of present unfitness, its recommendation is weakened by concerns suggesting that the Panel considers Judge Sloop only conditionally and temporarily fit to continue. First, the Hearing Panel recommended that the Court require Judge Sloop to continue his treatment and medication and file a biennial report confirming his treatment status. More importantly, the Hearing Panel recommended that Judge Sloop be required to retire from the bench at the end of his current term, in January 2011, and not seek service as a senior judge.

A determination that Judge Sloop is fit to remain in office for four years but unfit after that point would convey greater concern for the welfare of the judge than the welfare of the public. In striving to ensure a fair and impartial judiciary, we owe our allegiance to the people of Florida, not to individual judges. If Judge Sloop is fit to remain in office now, his misconduct to date would not render him unfit four years from now. Conversely, if that misconduct warrants mandatory early retirement in four years, it demonstrates unfitness to hold judicial office now.

We distinguish In re Downey, 937 So.2d 643 (Fla.2006), in which we accepted a stipulated disciplinary recommendation that permitted a judge to remain in office until the end of his term, less than six months from the date of our decision. We concluded that under the facts and circumstances of that case, “the stipulation present[ed] a reasonable, expeditious, and assured way of securing Judge Downey’s permanent removal from office.” Id. at 649. In contrast, Judge Sloop’s case does not come to us as a stipulation, and the recommendation of an enforced early retirement in four years does not present an expeditious method of removing an unfit judge from office.

C. The Appropriate Sanction in this Case

We conclude from the evidence presented to the JQC Hearing Panel that Judge Sloop has irreparably damaged public confidence in his judicial authority, and that he lacks the proper judicial temperament and judgment necessary to continue to serve as a judicial officer. Although we rely on all the misconduct established in the JQC hearing as well as Judge Sloop’s disregard of prior warnings concerning his demeanor, we focus primarily on the evidence in Count One of his failure to promptly order the release of the eleven citizens who had been directed to the wrong courtroom.

Before addressing Count One, we briefly discuss Count Four. Judge Sloop’s shortcomings in both temperament and judgment were on vivid display in his condescending tirade against Ms. Mercano. As alleged by the Investigative Panel, Judge Sloop was “rude, abrupt, and abusive” in his treatment of this defendant, and acted “more like a prosecutor than a court judge.” Judge Sloop asserts that his conduct was purposeful and that he did not lose his temper. We are not sure which explanation is worse. Either way, his conduct violated a basic tenet of the Code of Judicial Conduct. A judge who cannot control his or her temper, or who acts disrespectfully to litigants, directly contravenes the command in Canon 3 B(4) of the Code of Judicial Conduct that “[a] judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

Standing alone, Judge Sloop’s misconduct in Count Four might have warranted a sanction short of removal. However, his abusive treatment of Ms. Merca-no is merely the latest episode in a judicial career marred by displays of anger that have resulted in warnings by the JQC and fellow judges to Judge Sloop concerning his temper. “When a judge continuously acts in a manner to undermine [public] confidence, drastic remedial action, including removal from the bench, is required.” In re Trettis, 577 So.2d 1312, 1313 (Fla. 1991).

We acknowledge that in the past, we have imposed sanctions short of removal for judges who have repeatedly engaged in rude, abusive, or insulting behavior and then taken or agreed to steps to ameliorate the problem. See Woodard, 919 So.2d at 392 (approving stipulated sanction of public reprimand and “suitable anger management counseling”); In re Schapiro, 845 So.2d 170, 173-74 (Fla.2003) (approving stipulated discipline of public reprimand, public apology, and participation in psychological/behavioral therapy with emphasis on sensitivity training); In re Schwartz, 755 So.2d 110, 114-15 (Fla.2000) (approving stipulated recommendation of public reprimand for judge who apologized for intemperate or discourteous conduct, and undertook a program of personal counseling and stress management); Wood, 720 So.2d at 509 (approving stipulated sanction of public reprimand for judge who made assurances he would continue course of medical treatment and anger management control until no longer necessary). Significantly/each of those cases involved a stipulation. Here, in contrast, the JQC Investigative Panel advocated for the offending judge’s removal from the bench.

We need not decide whether Judge Sloop’s tirade in October 2004 alone warrants removal, because it serves as a mere prelude to his much graver misconduct occurring less than two months later when he failed to halt the unjustified arrest and incarceration of eleven citizens on arrest warrants he had issued.

A trial court’s authority to order the arrests of persons who fail to appear pursuant to a summons or notice to appear carries a grave responsibility to exercise appropriate judicial restraint. Judge Sloop failed utterly in this regard. Although we do not fault him for issuing warrants when the individuals failed to appear when their cases were called, the gravamen of this offense is his failure to rescind the arrest warrants once he learned from two fellow judges and a bailiff that' the eleven persons had been directed to the wrong courtroom. How did Judge Sloop react, faced with this knowledge? ' As found by the Hearing Panel, he “left the courthouse during the noon recess on a personal errand.” Not only did he fail to immediately take action to rescind the arrest warrants; the testimony shows he just did not care. It was only after he returned from his personal errand that he was finally convinced that the eleven individuals should be released. But as the Hearing Panel concluded, by then another judge had prepared the paperwork and the chief judge was also taking steps to get the citizens released. Further, we can and do fault Judge Sloop for failing to follow up on his release orders, once issued, to ensure that they were promptly executed. Because he failed to personally ensure the citizens’ prompt release, all eleven were subjected to jail intake procedures that included a strip search, and were not released until 9:00 that evening.

The Hearing Panel gave credence to testimony that Judge Sloop was suffering from untreated ADHD when this incident occurred. However, Judge Sloop’s indifference over hours and then days to the plight of the' eleven persons arrested cannot be fully explained by the subsequent diagnosis. Perhaps the strongest indicator that Judge Sloop’s conduct demonstrates an unfitness to serve as a judge is his responses the following Monday to Chief Judge James Perry. That day, Judge Perry asked him why he had not solved the problem by simply walking back into his courtroom and taking care of it immediately. After an entire weekend to reflect on the incident, Judge Sloop responded that he did not understand why this was a “big deal.”

The arrest of eleven citizens and their continued confinement for nine hours is a very big deal. A judge’s fundamental responsibility is to protect the constitutional rights of others. Judge Sloop’s callous disregard for these individuals was the antithesis of his judicial obligations. His conduct in dealing with these citizens, and his failure to recognize the enormity of the situation — to our knowledge, he has yet to send letters of apology to the eleven persons arrested — constitutes a clear abuse of the authority of the office. Judge Sloop’s misconduct on December 3, 2004, brought tremendous disrepute upon himself and the justice system as a whole. We conclude that in engaging in the misconduct alleged and admitted in Count One, Judge Sloop has committed a “grievous wrong which should erode confidence in the judiciary,” weighing in favor of removal. See LaMotte, 341 So.2d at 518.

This misconduct. also leads us to conclude that Judge Sloop lacks the necessary temperament and judgment to continue to serve as a judge. We acknowledge that Judge Sloop presented evidence to the Hearing Panel that he has handled his judicial duties well, with no further allegations of misconduct, since being removed from criminal and traffic cases. However, the absence of subsequent misconduct while current charges are pending does not preclude a finding of present unfitness. See In re Renke, 933 So.2d 482, 495 (Fla. 2006). We also recognize that testimony shows that Judge Sloop has made efforts to address both his temper and the ADHD that he and the expert witnesses believe contributed to the misconduct in this case. However, these efforts are too little, too late. Although Judge Sloop sought a diagnosis, entered counseling, and completed an anger management course, he took these steps only after the negative publicity caused by his misconduct on December 3, 2004, made .JQC proceedings likely. Had he taken these steps earlier in his judicial career, perhaps in response to the prior JQC warnings or admonitions from fellow judges, he might have been a very different judge by October and December, 2004. .

Further, the expert testimony is in conflict on whether the type of misconduct at issue in these proceedings could recur, even with counseling and ADHD medication. Dr. Day, who administered a battery of personality tests in December 2005 and February 2006, after Judge Sloop had been in therapy and on medication for many months, testified that anger continues to be a prominent feature of his personality. Dr. Day stated that Judge Sloop remains likely to eventually become rude and insensitive, and use anger as a control mechanism. Judge Sloop’s therapist, Dr. Tressler, testified that Judge Sloop was over-controlling his emotions and, at the time of the hearing, had not mastered incorporating emotions into his life without worrying he would display inappropriate anger. The Hearing Panel made no findings on whether improper displays of anger were likely to recur. From the evidence presented to the Hearing Panel, wé are unconvinced that Judge Sloop can both effectively manage his temper and remain an effective jurist.

In short, we conclude that through his own actions culminating in the misconduct in' this case, Judge Sloop has lost the public’s confidence in his ability to perform his judicial duties in a fair, evenhanded, and even-tempered manner. Further, he has forfeited our confidence in his ability to perform effectively while controlling the personality traits that have led to three private warnings by the JQC, the abusive treatment of Ms. Mercano, and the wrongful arrest and incarceration of eleven citizens. Judge Sloop’s indifference to the anxiety, humiliation, and hardship imposed upon these eleven citizens reflects a callous disregard for others that is among the most egregious examples we have seen of abuse of judicial authority and lack of proper judicial temperament. Under all the circumstances, we conclude that Judge Sloop has engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office,” requiring his removal under article V, section 12 of the Florida Constitution.

CONCLUSION

For the reasons set forth herein, we hereby remove Seminole County Judge John R. Sloop from that office, effective when this decision becomes final. We hope that our decision today will remind all judges of their solemn obligation to “personally observe” high standards of conduct “so that the integrity and independence of the judiciary may be preserved.” Fla.Code of Jud. Conduct, Canon 1. Serving as a judge is a privilege and not a right. Finally, we take this opportunity to apologize on behalf of the justice system to the citizens of the State, to the citizens of Seminole County, and in particular to the eleven citizens harmed by Judge Sloop’s misconduct in failing to promptly ensure their release.

It is so ordered.

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

      . An allegation of the same misconduct in a second case was dismissed by the JQC prosecutor and has been redacted.

      . In his formal answer to the JQC complaint, Judge Sloop characterized his ADHD diagno- • sis as an affirmative defense, but then presented the diagnosis and treatment as mitigation during'the proceeding before the Hearing Panel.

      . We have viewed the DVD of Judge Sloop during his entire morning docket on the day of the Mercano matter. We note that Judge Sloop's displays of anger (or obvious attempts to restrain his temper) were directed not only at Ms. Mercano but also on occasion at the prosecutor and defense attorneys as well.


text:
    Roy Clifton SWAFFORD, Appellant, v. STATE of Florida, Appellee.
    No. SC06-242.
    Supreme Court of Florida.
    Dec. 21, 2006.
    Neal Dupree, Capital Collateral Regional Counsel, Southern Region, Terri L. Backhus, Assistant CCRC and Celeste Bacchi, Staff Attorney, Fort Lauderdale, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from a circuit court order following DNA testing under Florida Rule of Criminal Procedure 3.853. This Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.

Roy Clifton Swafford was convicted of first-degree murder and sexual battery and sentenced to death. The facts of this case are set out fully in our opinion affirming the convictions and death sentence on direct appeal. Swafford v. State, 533 So.2d 270, 271 (Fla.1988). We have since affirmed the denial of Swafford’s three post-conviction motions and have denied various petitions for writs of habeas corpus. Swafford v. State, 828 So.2d 966 (Fla.2002); Swafford v. State, 636 So.2d 1309 (Fla. 1994); Swafford v. Singletary, 584 So.2d 5 (Fla.1991); Swafford v. Dugger, 569 So.2d 1264 (Fla.1990).

Swafford filed a fourth motion for post-conviction relief, and he filed a motion for DNA testing pursuant to Florida Rule of Criminal Procedure 3.203 on October 9, 2002. The circuit court denied the motion for DNA testing and dismissed the motion for postconviction relief. Swafford appealed the two orders separately in Case Nos. SC03-931 and SC03-1153. On March 26, 2004, we remanded the DNA testing case to the circuit court for further proceedings, see Swafford v. State, 871 So.2d 874 (Fla. 2004) (No. SC03-931) (table report of unpublished order), in an order stating:

Appellant Roy Clifton Swafford appeals an amended order denying his motion for DNA testing under Florida Rule of Criminal Procedure 3.853. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const.
The amended order is reversed, and this case is remanded to the circuit court with directions that' the circuit court hold an evidentiary hearing to determine which pieces of evidence that appellant moved to have tested are capable of being tested for DNA. The evidence which the Court determines to be capable of being tested is to be tested pursuant to Florida Rule of Criminal Procedure 3.853[c](7). The results of the tests shall be provided in writing pursuant to rule 3.853[e](8). The circuit court shall then enter an order making findings as to whether the evidence which was tested is authentic,' has been contaminated, or such other findings in respect to the tested evidence as the circuit court determines to be appropriate.

We reversed the order dismissing the motion for postconviction relief, remanding for further proceedings following the trial court’s ruling on the motion for DNA testing. See Swafford v. State, 871 So.2d 874 (Fla.2004) (No. SC03-1153) (table). Swaf-ford now appeals to this Court, arguing that the circuit court erred in the proceedings below. We find that the circuit court has complied with our order. The circuit court held an evidentiary hearing on June 11, 2004. At that hearing, the parties determined which pieces of evidence were to be DNA tested. That evidence was tested by the Florida Department of Law Enforcement (FDLE) and MitoTyping Technologies, LLC, as reflected in various reports filed by those laboratories from November 2, 2004, through November 18, 2005.

Following that testing, the circuit court entered an order which stated that it had complied with the directions from this Court on remand. Swafford v. State, No. 83-3425-BB (Fla. 7th Cir. Ct. order filed Jan. 25, 2006). We affirm the circuit court’s order, including its denial of Swaf-ford’s motions for an additional evidentiary hearing under rule 3.853 and his motion seeking further DNA testing by a laboratory not certified as required by rule 3.853(c)(7). This denial is without prejudice to Swafford presenting DNA issues, including any issues concerning possible contamination of DNA samples, in further proceedings under rule 3.851. Swafford is granted sixty days from the date this opinion is final to amend his rule 3.851 motion to present any DNA issues.

We therefore affirm the circuit court’s order. We also lift the stay previously granted on March 28, 2006, in this case.

It is so ordered.

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