author: WINDOM, Judge. WELCH, Judge,

text:
    Lavernon Anthony PAGE v. STATE of Alabama.
    CR-08-0192.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Rehearing Denied Oct. 2, 2009.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090060.
    Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   WINDOM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, P.J., and MAIN, J., concur.

WELCH, J., concurs in part and dissents in part, with opinion, which KELLUM, J., joins.

WELCH, Judge,

concurring in part and dissenting in part.

Lavernon Anthony Page appealed his convictions for first-degree assault, a violation of § 13A-6-20, Ala.Code 1975; first-degree burglary, a violation of § 13A-7-5, Ala.Code 1975; and discharging a gun into an occupied dwelling, a violation of § 13A-11-61, Ala.Code 1975. The majority affirms these convictions in an unpublished memorandum. I concur with the majority’s affirmance of Page’s convictions for first-degree assault and first-degree burglary. I respectfully dissent, however, from the majority’s affirmance of Page’s conviction for discharging a gun into an occupied dwelling; as to that conviction I would reverse and render a judgment for Page.

Among the issues Page raises on appeal is his contention that the trial court erred in denying his motions for a judgment of acquittal as to the charge of discharging a gun into an occupied dwelling because, he says, the evidence was insufficient to find him guilty of that offense. The statute setting out the offense of discharging a firearm into a building, train, etc., § 13A-ll-61(a), provides:

“No person shall shoot or discharge a fireai'm, explosive or other weapon which discharges a dangerous projectile into any occupied or unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft in this state.”

Specifically, Page argued on appeal that because the evidence admitted at trial indicated that he was standing inside the doorway of the victim’s apartment when he fired his pistol, the State did not prove the necessary element of discharging a projectile into an occupied dwelling.

Initially, because I would reverse his conviction, I must address two arguments presented by the State on appeal not addressed by the majority. The State’s assertion on appeal — that the intent of § 13-11-61 is to “punish defendants who discharge weapons inside a dwelling, regardless of whether the defendant was outside of the dwelling or inside of it” — is not well-taken. (State’s brief, at p. 27.) “Into” is “used as a function word to indicate entry, introduction, insertion, superposition, or inclusion.” Merriam-Webster’s Collegiate Dictionary 656 (11th ed.2003). Thus, a gunshot cannot be fired “into” a dwelling unless it originates from “outside” the dwelling. “[T]he unit of prosecution in a case that involves discharging a firearm into an occupied dwelling is the act of discharging the firearm into that dwelling.” McPherson v. State, 933 So.2d 1114, 1118 (Ala.Crim.App.2005) (emphasis added). “Section 13A-11-61 seeks to punish all individuals who shoot into an occupied or unoccupied [dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft in this state].” Hawkins v. State, 621 So.2d 400, 401 (Ala.Crim.App.1993) (emphasis added).

Also, contrary to the State’s assertion on appeal, I find that Page did preserve a challenge to the sufficiency of the evidence when he objected at the end of the State’s case and at the end of the defense’s case stating: “I have to move for a directed verdict of acquittal. They have not put on any- testimony that would entitle the case to go to the jury on the charge on the indictments.” (R. 116.) I believe this is similar to other poorly expressed motions that the Alabama Supreme Court has held to preserve error. See Ex parte McNish, 878 So.2d 1199, 1200 (Ala.2003) (holding that statement “I make a motion for a judgment of acquittal on the grounds that the State has not proven the case beyond a reasonable doubt,” and written motion for a judgment of acquittal filed in open court stating, “as grounds for said motion would show unto the court the evidence is insufficient to support a finding of guilt beyond a reasonable doubt to the charged offenses” preserved a challenge to the State’s evidence); Ex parte Parks, 923 So.2d 330 (Ala.2005).

The following evidence was presented in Page’s case. The victim, Adrian Hunter, lived in Tenisha Shoemaker’s apartment with Tenisha and her two-year-old child. At approximately 11:25 on the night of August 24, 2007, Hunter, Tenisha, Lakeisha Shoemaker — Tenisha’s sister — and Lakeisha’s two children — both under the age of five — were inside Tenisha’s apartment when Page appeared at the open door of the apartment. A. provocative verbal exchange began between Hunter and Page and continued as the men moved from inside the apartment into the yard outside the apartment. Once outside the apartment, Page and Hunter began to push and shove each another. When the altercation ended, Hunter, Tenisha, Lakeisha, and the children went back inside Tenisha’s apartment and shut the door. Within two or three minutes, Page returned to Tenisha’s apartment with a pistol. The following testimony was presented regarding what transpired next.

Tenisha testified that Page “kicked [the apartment door] in and immediately [Page] shot [Hunter]” in the stomach. (R. 83.) Tenisha specifically testified:

“Q. [The prosecutor:] All right. And you say [Page] shot [Hunter]. Who did you see shoot [Hunter]?
“A. [Tenisha:] Lavernon [Page].
“Q. And [Page] was standing sort of outside the door there when the shot was fired?
“A. [Page] was inside the doorway.”

(R. 84.) After shooting Hunter, Page fired a second shot that missed Hunter, and Hunter, though shot in the stomach, fled through the back door of the apartment. Page’s location when the second shot was fired was not the subject of questioning at trial. However, Tenisha testified that Page “ran out the front door” after Hunter fled through the back door. (R. 84.)

Hunter testified that after the initial altercation in the yard with Page, he returned to the apartment with Tenisha, Lakeisha, and the children. He stated that within two minutes Page “just kicked in the door ... [and] just started shooting.” (R. 98.) Hunter stated that he was shot in the stomach, and he testified that, “I told [Page] he shot me. He raised the gun up and I took off running and he shot again.” (R. 99.) Hunter was asked, “[D]id you at any time give [Page] permission to be in your place, in your apartment?” and Hunter answered “[n]o, sir.” (R. 100.)

Lakeisha Shoemaker testified that within three or four minutes of returning to the apartment from the yard, Page “had kicked the door and he was already shooting.” (R. 111.) Lakeisha testified regarding the second shot: “[Page] was walking away, but he — I guess he thought about something and he turned around and shot again.” (R. 112.) Page chased Hunter as Hunter ran toward the back door, but “he stopped ... and he walked out the front door.” (R. 113.)

Officer Theodore Johnson of the Mobile Police Department testified that the police discovered a bullet lodged inside one of the interior walls of the apartment and discovered two shell casings. One shell casing “was just outside the door frame ... and one was inside of the residence behind a shelf that the TV was sitting on.” (R. 114-15.)

Page testified regarding the shooting that he “[c]ame in the door, I shot, I hit him, he ran to the back, so I ran behind him to make sure he wasn’t getting nothing. Once I [saw] he couldn’t defend himself or get nothing else, I left out the front.” (R. 141-42.)

The majority affirms this conviction in an unpublished memorandum based the following facts and analysis:

“In this case, the State presented evidence that Page kicked in the door to Shoemaker’s apartment and fired a shot striking Hunter, who was in the apartment. (R. 98, 111). Officer Theodore Johnson, of the Mobile Police Department, testified that he located a shell casing from a bullet outside the door frame of the apartment. (R. 114). Based on the testimony that Page kicked in the door of the apartment and fired a shot and the fact that a shell casing from a fired bullet was located outside the door frame to the apartment, the jury could have reasonably concluded that Page was outside the apartment when he fired the first shot at Hunter.1 Consequently, the question of whether Page was guilty of discharging a gun into an occupied dwelling was properly left for the jury’s determination. Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996).
“1 Page’s sufficiency argument appears to be based on Tenisha Shoemaker’s testimony that Page was ‘inside the doorway5 when the shooting occurred. ‘It is well settled that any “inconsistencies and contradictions in the State’s evidence, as well as [any] conflict between the State’s evidence and that offered by the appellant, [go] to the weight of the evidence and [create a question] of fact to be resolved by the jury.” ’ Gargis v. State, 998 So.2d 1092, 1096 (Ala.Crim.App.2007) (quoting Rowell v. State, 647 So.2d 67, 69-70 (Ala.Crim.App.1994)). Because Shoemaker’s testimony conflicted with the State’s physical evidence, this conflict created a question of fact for the jury.”

Based on the above, the majority did acknowledge that Tenisha testified that Page was inside the apartment when he discharged his weapon. However, the majority apparently took the view that the testimony that Page began shooting as soon as he kicked the door open meant that Page was discharging his weapon from a location outside the apartment. Thus, it appears that the majority found this to be a case of conflicting evidence to be resolved by the jury, which is inviolable on appeal. As to this rationale, I respectfully disagree. I do not believe the charge of discharging a weapon into an occupied dwelling should have been submitted to the jury, because I do not believe the State proved the necessary element of discharging a projectile “into ” an occupied dwelling.

During the State’s direct examination of eyewitness Tenisha Shoemaker, the State asked the following leading question: “And [Page] was standing sort of outside the door there when the shot was fired?” Tenisha Shoemaker responded, “[Page] was inside the doorway” when he discharged his weapon. (R. 84.) Thus, the fact that Page was inside the doorway when he fired the gun was brought out by the State on direct examination of its own witness and was not disputed by any evidence. Although other witnesses testified that Page began shooting as soon as he kicked open the door, I do not believe that a reasonable inference from this testimony is that Page was outside the apartment when he began shooting. Other than Ten-isha, no witness broached the subject of where Page was standing — inside or outside the apartment — when he discharged his weapon. Thus, the fact that Page was inside the apartment doorway when he discharged his weapon was the only evidence before the jury regarding Page’s location when the shot was fired.

“Inside” is defined as “an interior or internal part or place ... the part within ... on the inner side of.” Merriam-Webster’s Collegiate Dictionary 647 (11th ed.2003). Thus, I believe that Page’s being inside a doorway constitutes his being inside the apartment, and, thus, Page’s conduct was not within the scope of § 13A-11-61, Aa.Code 1975.

The location of the shell casings — one near, but outside the apartment door, and one inside the apartment — would not have allowed the jury to draw an inference that Page was outside the apartment when he fired the weapon and that he fired into the apartment without some testimony regarding the position of the shell casings that allowed such an inference be drawn. It is common knowledge that shell casings are ejected from automatic and semi-automatic weapons — although this fact was not brought out at trial. However, the use of the location of the shell casings as evidence of guilt would require knowledge of the specific type of weapon used and testimony from an expert to explain the trajectory of an ejected shell casing from the type of pistol used, as well as other factors, such as the effect of the angle the weapon was held when fired. Absent this evidence, the testimony regarding the location of shell casings could not be used to infer that Page was inside or that he was outside the apartment when he discharged his weapon. It is not a matter within the common knowledge of a juror.

Thus, I do not see a conflict in the evidence. The statute prohibits shooting into a dwelling from a location outside the dwelling. The only evidence presented to the jury addressing the issue whether a weapon was discharged “into” an occupied dwelling was Tenisha’s testimony that Page was inside the doorway when he fired. Because there was no other evidence regarding Page’s location when he discharged his weapon, the charge should not have been submitted to the jury.

Page’s conduct of shooting once he was within the apartment is not within the purview of the statute. I would reverse Page’s conviction for discharging a weapon into an occupied dwelling and render a judgment of acquittal.


source: Caselaw Access Project

author: WINDOM, Judge.

license: Public Domain

text:
    Preston Louis MOORE v. STATE of Alabama.
    CR-06-1609.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 2009.
    Rehearing Denied Jan. 22, 2010.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090609.

      Joshua J. Lane, Anniston, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   WINDOM, Judge.

Preston Louis Moore was convicted of one count of murder made capital because it was committed during the course of a burglary, a violation of § 13A-5-40(a)(4), Ala.Code 1975, and of two counts of attempted murder, violations of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. Moore was sentenced to life without the possibility of parole for the capital murder conviction and was sentenced as an habitual felony offender to life in prison for each attempted murder conviction.

On the evening of October 14, 2003, Eugene Johnson, Demarious Kirksey, and Donte McGrue were visiting Xerxes Stanford at his home in Oxford that he shared with his 15-year-old daughter, Tatiana Johnson (“Tatiana”), and her infant son. Around 10 p.m., Travokeo Bradford and Delrekus Jernigan arrived and sold Stanford cocaine. Stanford attempted to walk outside with Bradford and was shot in the head as he opened the door. The shooters, Preston Moore and Samuel Kelly, then entered the house. Kirksey, who was in the kitchen at the time, ran down a hallway and hid inside a closet in one of the bedrooms. Tatiana and Johnson were unable to escape. Moore ultimately shot Tatiana in the face and left her bleeding in the living room near her father. After Tatiana was shot, Johnson attempted to run but was gunned down and died in a field across the street from the residence. Johnson died as a result of multiple gunshot wounds.

Tatiana testified she was in the kitchen preparing a bottle for her son when she heard a gunshot, turned around, and saw Moore coming toward her with a gun. She then ran down a hallway toward her bedroom, entered the room and shut the door. Shortly thereafter, Moore pushed the door open and told her to hurry to the front of the house.

When Tatiana returned to the living room, she saw her father on the floor slumped against the sofa with a gunshot wound to his head. (R. 1099.) Moore then ordered Tatiana onto the front porch where she saw several people, including Johnson. Tatiana testified that while they were on the porch, Moore put the gun to her head and pulled the trigger; however, the gun just “clicked.” (R. 1085.) At that point, Moore ordered Tatiana and Johnson back into the house and told them to get on the floor. Moore then pointed a gun at her, pulled the trigger, and shot her in the face. Tatiana then heard another gunshot and assumed Johnson fell. Tatiana then heard footsteps running out of the house and down the front steps. When she no longer heard anything, she got up, ran to her son’s bedroom, grabbed him, and ran out the back door of the house. She eventually found a neighbor who helped her and telephoned emergency 911.

Demarious Kirksey testified that when Bradford and Jernigan arrived, they went into the kitchen, and Bradford sold Stanford crack cocaine. According to Kirksey, Jernigan was acting very nervous. During the transaction, Stanford asked Bradford if he had any scales to weigh the crack cocaine, and Bradford told him that he had scales in his vehicle. Bradford, Jernigan, and Stanford then headed toward the front door to retrieve the scales. Kirksey said that he then heard a gunshot, looked toward the front door, and saw Kelly come through the front door holding a gun. Kirksey stated that he did not see Moore.

After hearing the gunshot, Kirksey ran down the hall and hid in a closet in one of the bedrooms where he remained until the police arrived. While he was in the closet, he heard Moore’s voice, which he described as distinctive. Kirksey then heard several more gunshots over the next few minutes. Kirksey stated that Moore and Kelly had a problem with Stanford relating to a burglary of Kelly’s grandmother’s house, and that the problem also involved a man with the nickname “Birmingham.” (R. 1440.)

Stanford initially survived the shooting but two years later succumbed to numerous medical complications resulting from the gunshot wound. Roger Phillips, a detective with the Oxford Police Department, testified that he spoke with Stanford in December 2003, approximately two months after the shooting and a little more than two years before Stanford’s death. According to Det. Phillips, Stanford was unable to speak, but he could grunt, make hand gestures, and appeared to understand what was going on around him. Det. Phillips said he showed Stanford two photographic lineups — one included a photograph of Moore and one included a photograph of Kelly — and that he asked Stanford if anyone in the lineups was involved in the shooting. Stanford immediately pointed to the photographs of Moore and Kelly as the shooters.

In addition to the testimony of Tatiana and Kirksey and Stanford’s identification, the State also presented evidence that Moore had previously been convicted in 1993 of first-degree robbery. Specifically, during its case-in-chief, the State called Grady McGlothin, one of the victims of Moore’s prior robbery, who testified regarding the details of the robbery and Moore’s violent actions on that occasion.

In an attempt to establish his innocence, Moore presented an alibi defense. He denied going to the street on which Stanford’s house is located on October 14, 2003 and denied shooting anyone. He testified that he was employed with Willstaffing Unloading Service at the SuperValu grocery store in Oxford, and that he was at work the night of the shooting from approximately 8:00 p.m. until sometime after 5:00 a.m. the following morning.

To buttress his alibi defense, Moore presented the testimony of Ollice Hansford. Hansford, also employed by Willstaffing Unloading Service at the SuperValu in Oxford, stated that he saw Moore when he arrived to work between 7:00 and 8:30 p.m. the night of October 14, 2003, but he did not see him during the rest of his shift, which ended at approximately 7:00 a.m. the next day. Demetrius Holcomb, Moore’s supervisor at the SuperValu, testified that he saw Moore several times throughout the night of October 14, 2003, including initially at approximately 9:00 p.m., and again during their “lunch break” at approximately 1:00 a.m. (R. 1522.)

In rebuttal, the State presented the testimony of Roosevelt Hardy, Jr., Dennis Whiteside, and Larry Champion. Hardy testified that on the night of October 14, 2003, he saw Moore at Jernigan’s house between 9:30 and 10:00 p.m. Whiteside, the night-shift manager at the SuperValu, testified that he was working on the night of October 14, 2003, and Moore was not at work. Finally, Champion testified that he supervised the night-shift unloading crew at the SuperValu in Oxford and on the night of October 14, 2003, Moore was not at work.

On appeal, Moore contends that the circuit court erred in allowing the State to present evidence of his 1993 first-degree robbery conviction. Specifically, Moore contends that his prior robbery conviction and the facts underlying that conviction were relevant only to show his bad character and thus should have been excluded pursuant to Rule 404(b), Ala. R. Evid.

Before trial, the State filed notice of its intent to introduce the prior conviction under Rule 404(b). Thereafter, Moore filed a motion for a pretrial determination of the admissibility of the prior conviction and requested a hearing on the matter. At pretrial hearings on February 1, 2007, and March 20, 2007, the circuit court heard arguments and accepted evidence on the admissibility of the prior conviction.

Grady McGlothin, the victim of the pri- or robbery, testified at the pretrial hearing, and later at trial, that in 1992 Moore, Kelly, and three other individuals entered his residence in Anniston and robbed him. At that time, McGlothin was running a “shot house” out of his residence. (R. 210.) On the night of December 11, 1992, there were between 30 and 40 people at his residence including Moore, Kelly, and Lavon Wynn, all of whom were underage and appeared to be intoxicated. McGlothin ordered them to leave. After protesting, the three eventually left but later returned with two others. When they returned, the men were armed with shotguns and pistols and ordered everyone onto the floor. At some point, Moore held a shotgun to McGlothin’s head and asked, “[w]hose house is this now?” (R. 1489.) McGlothin also testified that during the robbery, Moore shot the jukebox and the ceiling and hit a patron on the back of the head with the butt of a shotgun. Moore and his accomplices took all the cash McGlothin had in the house as well as some alcohol.

After hearing arguments, the circuit court ruled that the prior robbery conviction was admissible under Rule 404(b) to show intent, motive, knowledge, opportunity, preparation, and common plan, scheme, or design exceptions to the exclusionary rule and allowed its admission. We disagree.

Rule 404(b), provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....”

The Alabama Supreme Court has “held that the exclusionary rule prevents the State from using evidence of a defendant’s prior bad acts to prove the defendant’s bad character and, thereby, protects the defendant’s right to a fair trial.” Ex parte Drinkard, 777 So.2d 295, 302 (Ala.2000) (citing Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983)). This court has explained that “[o]n the trial for the alleged commission of a particular crime, evidence of the accused’s having committed another act or crime is not admissible if the only probative function of such evidence is to prove bad character and the accused’s conformity therewith.” Lewis v. State, 889 So.2d 623, 661 (Ala.Crim.App.2003) (quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1996)).

“‘“This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds, of the jurors.” ’ ”

Ex parte Jackson, 33 So.3d 1279, 1284-1285 (Ala.2009) (quoting Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting in turn McElroy’s supra, § 69.01(1)).

The State is not prohibited from ever presenting evidence of a defendant’s prior bad acts. This court has stated:

“If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by showing of bad character, then proof of such other act is admissible. [Some] well-established exceptions to the exclusionary rule include: (1) relevancy to prove identity; (2) relevancy to prove res gestae; (3) relevancy to prove scienter; (4) relevancy to prove intent; (5) relevancy to show motive; (6) relevancy to prove system; (7) relevancy to prove malice; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes.”

Harris v. State, 2 So.3d 880, 907 (Ala.Crim.App.2007) (internal citations and quotations omitted). However, “[f]or collateral-act evidence to be admissible for one of the ‘other purposes’ in Rule 404(b), there must be ‘ “a real and open issue as to one or more of those ‘other purposes.’ ” ’ ” Draper v. State, 886 So.2d 105, 117 (Ala.Crim.App.2002) (quoting Gillespie v. State, 549 So.2d 640, 645 (Ala.Crim.App.1989), quoting in turn Bowden v. State, 538 So.2d 1226, 1227 (Ala.1988)).

The common plan, scheme, or design exception to the exclusionary rule “is essentially coextensive with the identity exception” and must be analyzed under the same standards. Ex parte Darby, 516 So.2d 786, 789 (Ala.1987). “[T]he plan, scheme, or design exception is an extension of the identity exception — where the charged crime and the collateral crime are committed in the same novel or peculiar manner, evidence of the collateral crime is admissible to identify the defendant as the perpetrator of the charged crime.” Register v. State, 640 So.2d 3, 6 (Ala.Crim.App.1993). “ ‘When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused.’ ” Ex parte Baker, 780 So.2d 677, 680 (Ala.2000) (quoting United States v. Clemons, 32 F.3d 1504, 1508 (11th Cir. 1994) (further citations omitted)). In other words, “ ‘evidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime “exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.” ’ ” Irvin v. State, 940 So.2d 331, 347 (Ala.Crim.App.2005) (quoting Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting in turn Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983)). “‘Under the identity exception [and common plan, scheme, or design exception] to the general exclusionary rule prohibiting the admission of other or collateral crimes as substantive evidence of the guilt of the accused, the prior crime is not relevant to prove identity unless both that and the now-charged crime are “signature crimes” having the accused’s mark and the peculiarly distinctive modus oper-andi so that they may be said to be the work of the same person.’” Irvin, 940 So.2d at 347 (quoting Bighames v. State, 440 So.2d 1231, 1233 (Ala.Crim.App.1983)). “ ‘Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated ... rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ ” Hurley v. State, 971 So.2d 78, 83 (Ala.Crim.App.2006) (quoting 1 McCormick on Evidence § 190 at 801-03 (4th ed.1992) (footnotes omitted)). “ ‘[T]he mere prior occurrence of an act similar in its gross features — i.e., the same doer, and the same sort of act, but not necessarily the same mode of acting nor the same sufferer’ ” is insufficient. Brewer, 440 So.2d at 1162 (quoting 2 J. Wigmore, Evidence, § 304 at 251 (Chadbourn rev.1979)).

Applying these principles, this court holds that the circuit court erroneously determined that evidence relating to Moore’s previous robbery conviction was relevant “to show some plan or design, pattern, or scheme of operation.” In this case, the facts underlying the prior robbery and the present crimes are not so similar and unique as to render evidence relating to the robbery admissible as a signature crime. The two crimes had two different motives, i.e., robbery and revenge. (R. 1440, 1589.) Although one person was hit in the head with the butt of a shotgun, no one was shot or otherwise seriously injured during the prior robbery, while in the present crimes three people were shot, two of whom died as a result. Further, the number of perpetrators and the number of -victims were different. In the prior robbery, Moore was accompanied by four other individuals and held between 30 and 40 people at gunpoint, while in the present crimes, testimony indicated that only Moore and Kelly were involved and that there were only five people and one infant in the house at the time of the shooting. Additionally, the length of time involved in the prior and present crimes was different. During the prior robbery, the victims were held at gunpoint for at least two hours, while testimony indicated that the present crimes were completed in only a matter of minutes.

In fact, when explaining the most salient similarities between the two crimes, the prosecutor stated:

“Judge, you know, whether you terrorize somebody by leaving them on the floor for two hours or you shoot up the walls and ceiling and jukebox or you terrorize them by shooting their dad in front of them and then shooting them in the face it’s still a violent act committed by this man, and that’s a distinctive thing in and of itself.”

(R. 284.) However, Moore’s prior violent act was inadmissible to establish his propensity toward violence and thus guilt of the charged violent crime. See Brewer, 440 So.2d at 1162 (quoting 2 J. Wigmore, Evidence, § 304 at 251 (Chadbourn rev. 1979) (“ ‘[T]he mere prior occurrence of an act similar in its gross features — i.e., the same doer, and the same sort of act, but not necessarily the same mode of acting nor the same sufferer’ ” is insufficient.)).

Viewing all of the circumstances of the prior robbery and the present crimes, we cannot say that a reasonable person would naturally assume that both were committed by the same person. The prior robbery and the present crimes were not so unusual and distinctive and were not committed in such a novel and peculiar manner as to justify admission of evidence of the prior robbery pursuant to the common plan, scheme, or design or identity exceptions to the exclusionary rule. Because the facts underlying Moore’s previous robbery conviction were not sufficiently similar to the current crime and because there were no facts arising out of either crime that were so distinct as to mark those crimes as signature crimes, the circuit court erroneously ruled that the prior robbery conviction was admissible to establish “to show some plan or design, pattern, or scheme of operation.” (R. 1487-88, 1711.)

Moreover, under the facts of this case, we cannot say that the erroneous admission of Moore’s prior robbery conviction was harmless beyond a reasonable doubt. Rule 45, Ala. R.App. P.; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Here, the State not only admitted evidence of Moore’s prior conviction for robbery, it also admitted graphic details of Moore’s actions during the two hours he and his accomplices spent robbing the victim and his guests. Further, absent the inadmissible evidence, only Tatiana’s identification, Stanford’s out-of-court identification, and Kirksey’s voice identification of Moore linked Moore to the shootings. Moore, on the other hand, presented alibi witnesses who testified that he was at work at the time of the shootings. Although the State presented a strong case of guilt, this court cannot say that the State’s evidence was so overwhelming as to render the improper admission of Moore’s prior conviction harmless beyond a reasonable doubt.

Because evidence relating to Moore’s prior robbery conviction may have contributed to the jury’s verdict, we conclude that the error adversely affected Moore’s substantial rights and thus was not harmless. Accordingly, the judgment of the circuit court is reversed, and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH and MAIN, JJ., concur. WISE, P.J., and KELLUM, J., concur in the result.

      . According to Moore, he did not participate in the crime. However, Moore stated that Kelly admitted to him that he shot Stanford and a man with the nickname “Birmingham” because they had broken into his house and stolen his drugs. (R. 1589.)

      . Jernigan was one of the individuals who went to Stanford's house to sell Stanford drugs, and who was accompanying Stanford outside when Stanford was shot in the head.

      . The robbery actually occurred in 1992; however, Moore was not convicted until 1993.

      . Moore raises seven issues: however, because of our disposition of this case, this court only addresses one.

      . Although the circuit court determined that die evidence relating to Moore’s prior robbery conviction was admissible to show intent, motive, knowledge, opportunity, preparation, and common plan, scheme, or design, the circuit court instructed the jury it could consider the evidence of the prior robbery only “to show some plan or design, pattern, or scheme of operation.” (R. 1487-88, 1711.)

      . Although Tatiana testified that she believed that more people were involved, no evidence was presented of anyone else’s involvement.


author: CLARK, J. VAN NORTWICK, J., BERGER, W., Associate Judge,

text:
    Samantha BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1958.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2010.

      David H. Abrams, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Lisa Raleigh, Special Counsel, Office of the Attorney General, Tallahassee, for Appel-lee.
    Randall C. Marshall and Maria Kayan-an, American Civil Liberties Union of Florida, Miami, and Diana Kasdan, American Civil Liberties Union Foundation, New York, N.Y., amici curiae.
   CLARK, J.

This is an appeal of a circuit court order compelling a pregnant woman to submit to any medical treatment deemed necessary by the attending obstetrician, including detention in the hospital for enforcement of bed rest, administration of intra-venous medications, and anticipated surgical delivery of the fetus. The action was initiated in the circuit court by the State Attorney under the procedure described in In re Dubreuil, 629 So.2d 819 (Fla.1994). As provided in Dubreuil, after the State Attorney received notification from a health care provider that a patient refused medical treatment, the State Attorney exercised his discretion to determine that a sufficient state interest was at stake to justify legal action.

This appeal is moot with regard to Appellant because, as ordered, she submitted to the hospital confinement, medical treatment and surgical delivery. Two days after entry of the order, Appellant’s deceased fetus was delivered by Cesarean section. Thus, the justiciable controversy between these parties has expired. However, mootness does not preclude appellate jurisdiction if the issue is “capable of repetition yet evading review,” as in the case of medical issues which require immediate resolution. See Roe v. Wade, 410 U.S. 113, 98 S.Ct. 705, 35 L.Ed.2d 147 (1973); Matter of Dubreuil, 629 So.2d 819 (Fla.1993); Holly v. Auld, 450 So.2d 217, n. 1 (Fla.1984); Philip Padovano, Florida Appellate Practice, § 1.4, p. 9 (2007-8 ed.).

The situation presented to the trial court in this case is capable of repetition yet evading review. Florida case precedent has addressed the right to privacy where a patient seeks to discontinue life-sustaining medical treatment, refuse a life-saving medical procedure, and as applied to statutory regulation of a minor’s decision whether or not to continue her pregnancy. In re Guardianship of Browning, 568 So.2d 4 (Fla.1990); In re Dubreuil, 629 So.2d 819 (Fla.1994); In re T.W., 551 So.2d 1186 (Fla.1989). However, case precedent governing the use of a Dubreuil proceeding to compel a pregnant woman to undergo medical confinement, treatment and procedures against her wishes for the benefit of her unborn fetus is not found in Florida’s jurisprudence. In an effort to assist trial courts and counsel involved in these expedited, if not emergency proceedings, we exercise our discretionary authority to address this appeal. See In re T.A.C.P., 609 So.2d 588 (Fla.1992); Harrell v. St. Mary’s Hospital, 678 So.2d 455 (Fla. 4th DCA 1996).

The trial court found that the appellant had failed to follow the doctor’s instructions and recommendations, rendering her pregnancy “high-risk,” and found a “substantial and unacceptable” risk of severe injury or death to the unborn child if the appellant continued to fail to follow the recommended course of treatment. The trial court stated the rule that “as between parent and child, the ultimate welfare of the child is the controlling factor,” and concluded that the State’s interests in the matter “override Ms. Burton’s privacy interests at this time.” The court ordered Samantha Burton to comply with the physician’s orders “including, but not limited to” bed rest, medication to postpone labor and prevent or treat infection, and eventual performance of a cesarean section delivery.

The law in Florida is clear: Every person has the right “to be let alone and free from government intrusion into the person’s private life.” Art. I, sec. 23, Fla. Const. This fundamental right to privacy encompasses a person’s “right to the sole control of his or her person” and the “right to determine what shall be done with his own body.” In re Guardianship of Browning, 568 So.2d 4, 10 (Fla.1990). The Florida Supreme Court has specifically recognized that “a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health.” Browning, 568 So.2d at 11.

A patient’s fundamental constitutional right to refuse medical intervention “can only be overcome if the state has a compelling state interest great enough to override this constitutional right.” Singletary v. Costello, 665 So.2d 1099, 1105 (Fla. 4th DCA 1996). Thus, the threshold issue in this situation is whether the state established a compelling state interest sufficient to trigger the court’s consideration and balance of that interest against the appellant’s right to refuse to submit to the medical intervention the obstetrician prescribed. The state’s interest in the potentiality of life of an unborn fetus becomes compelling “at the point in time when the fetus becomes viable,” defined as “the time at which the fetus becomes capable of meaningful life outside the womb, albeit with artificial aid.” Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); In re T.W., 551 So.2d 1186, 1193 (Fla.1989). The Legislature has defined “viability” as “that stage of fetal development when the life of the unborn child may with a reasonable degree of medical probability be continued indefinitely outside the womb.” § 390.0111(4), Fla. Stat. No presumption of viability is provided in the statute.

Because there is no statutory or precedential presumption of viability, in terms of the stage of pregnancy or otherwise, there must be some evidence of viability via testimony or otherwise. Only after the threshold determination of viability has been made may the court weigh the state’s compelling interest to preserve the life of the fetus against the patient’s fundamental constitutional right to refuse medical treatment.

Even if the State had made the threshold showing of viability and the court had made the requisite determination, the legal test recited in the order on appeal was a misapplication of the law. The holding in M.N. v. Southern Baptist Hosp. of Florida, 648 So.2d 769 (Fla. 1st DCA 1994), “that as between parent and child, the ultimate welfare of the child is the controlling factor,” does not apply to this case. Unlike this case, in M.N., the parents refused consent for a blood transfusion and chemotherapy for their 8-month-old infant. No privacy rights of a pregnant woman were involved.

The test to overcome a woman’s right to refuse medical intervention in her pregnancy is whether the state’s compelling state interest is sufficient to override the pregnant woman’s constitutional right to the control of her person, including her right to refuse medical treatment. Dubreuil, 629 So.2d 819; Browning, 568 So.2d 4; Public Health Trust of Dade County v. Wons, 541 So.2d 96 (Fla.1989). In addition, where the state does establish a compelling state interest and the court has found the state’s interest sufficient to override a pregnant patient’s right to determine her course of medical treatment, the state must then show that the method for pursuing that compelling state interest is “narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.” Browning, 568 So.2d at 14.

REVERSED.

VAN NORTWICK, J., Concurs with Written Opinion, and BERGER, WENDY, Associate Judge, Dissents with Written Opinion.

VAN NORTWICK, J.,

concurring.

I concur completely with Judge Clark’s opinion. I write because, given the deprivation of her physical liberty and violation of her privacy interests, the proceeding below violated Samantha Burton’s constitutional right to appointed counsel in this case. Accordingly, I would reverse on these constitutional grounds as well.

The constitutional right to appointed counsel in criminal proceedings is well-established under the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In civil proceedings, however, there is no corollary to the Sixth Amendment right to counsel. The Supreme Court has held that, under the Due Process Clause, “an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). For example, in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Court held that the Due Process Clause of the Fourteenth Amendment requires appointment of counsel to represent a child in state civil delinquency proceedings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed.” Id. at 36, 87 S.Ct. 1428.

In the context of a case involving the termination of parental rights, the Court in Lassiter examined the limited nature of the right to counsel in civil proceedings. There, the Court applied the case-by-case due process analysis established in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to the question of whether indigent parents are entitled to counsel in proceedings to terminate their parental rights. Lassiter, 452 U.S. at 27, 101 S.Ct. 2153 (citing Eldridge, 424 U.S. at 339, 96 S.Ct. 893). As the Lassiter court explained, courts must first evaluate the three Eldridge elements: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Id. Courts then “must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” Id.

The Florida Supreme Court has recognized the right to appointed counsel in certain civil proceedings under Florida’s Due Process Clause. See Art. I § 9, Fla. Const. Thus, “[t]he subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process.” In Re Beverly, 342 So.2d 481, 489 (Fla.1977); see also Pullen v. State, 802 So.2d 1113, 1116 (Fla.2001). Similarly, there is a right to appointed counsel in proceedings which can result in the permanent loss of parental custody. In Interest of D.B., 385 So.2d 83, 90-91 (Fla.1980).

An individual who faces involuntary hospitalization and mandated invasive medical treatment under the procedure established in In Re Dubreuil, 629 So.2d 819 (Fla.1994), has serious liberty and privacy interests at stake. Here, Ms. Burton was involuntarily admitted to the hospital and, ultimately, required to undergo a caesarian section against her will. She suffered a significant deprivation of her physical liberty and personal freedom at least the equivalent of the interests at stake in D.B. and Beverly. Although in the order under review the trial court directed the special assistant state attorney appointed for this proceeding to contact North Florida Legal Services, Inc., to request that office to provide Ms. Burton representation, no counsel appeared on her behalf until after the caesarian section was performed. Appointment of counsel after the fact does not satisfy the due process requirements under the Federal and Florida Constitutions. Here, the State had the time to appoint a special assistant state attorney to institute this proceeding. I see no reason why there was not also the opportunity to appoint counsel for Ms. Burton prior to the hearing.

BERGER, W., Associate Judge,

dissenting.

I agree with the majority that the trial judge applied the wrong legal standard. If this case were not moot, I would reverse and remand for consideration using the correct, compelling state interest standard. However, because I disagree with the majority view that this is a case capable of repetition yet evading review, I would dismiss the appeal as moot. Accordingly, I dissent.

This court was not presented with a case of first impression warranting an opinion to assist trial courts and counsel in similar future expedited cases. It matters not that the ease before us involves a hospital’s desire to compel medical treatment over the objection of a pregnant woman. See Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 66 F.Supp.2d 1247 (N.D.Fla.1999) (State’s interest in preserving the life of the unborn child outweighed the pregnant mother’s constitutional right to refuse medical treatment.). The law to be followed is clear and unambiguous. The proper test to be applied when a trial court is presented with a request to override a competent adult’s constitutional right to refuse medical treatment was decided in In re Guardianship of Browning, 568 So.2d 4 (Fla.1990) (State has a duty to assure that a person’s wishes regarding medical treatment are respected unless the State has a compelling interest great enough to override this constitutional right.). The proper procedure to be followed when a healthcare provider wishes to override a patient’s decision to refuse medical treatment was outlined in In re Matter of Dubreuil, 629 So.2d 819 (Fla.1994) (Healthcare provider must immediately provide notice to both the state attorney, who.is responsible for deciding whether to engage in legal action, and to interested third parties known to the provider.). Additionally, it is well settled that the State’s interest in preserving the life of an unborn child becomes compelling upon viability. Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705 (1973); In re T.W., 551 So.2d 1186, 1194 (Fla.1989) (Viability under Florida law occurs at that point in time when the fetus becomes capable of meaningful life outside the womb through standard medical measures. Under current standards, this point generally occurs upon completion of the second trimester.). Here the trial judge followed the correct procedure but applied the wrong legal standard. Instead of determining whether the State had a compelling interest in overriding the appellant’s right to refuse medical treatment, the judge determined forced treatment was in the best interest of the child.

The trial court specifically found that the risk of severe injury or death to the unborn child was substantial and unacceptable and that the interests of the State in this matter overrode appellant’s privacy interests. While I believe the balancing of interests employed by the trial judge would have been appropriate under Browning, it was the trial court’s application of the State’s parens patriae authority to override the appellant’s right to refuse medical treatment for an existing child that was in error. However, since the principles of law to be applied in this case are not new and the case is now moot, I would dismiss the appeal.

      . The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI.

      . Due to the lack of an adequate record, we must presume there was sufficient evidence to support the trial judge’s decision, e.g., that viability was determined. See J.P. Morgan Chase Bank v. Combee, 883 So.2d 330 (Fla. 1st DCA 2004) (Inadequacy of record on appeal required District Court of Appeal to presume that sufficient evidence supported trial court’s dismissal of bank’s complaint ... the trial court's decision could well be supported by evidence adduced at trial or hearing but not stated in the judge's order or otherwise apparent in the incomplete record on appeal.); See also Hill v. Hill, 778 So.2d 967 (Fla.2001), quoting Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory.)

      . A finding of viability must be made before the trial court may engage in a balancing test. It is undisputed that appellant was in the 25th week, or third trimester, of pregnancy. Although this fact alone is not dispositive, it supports a finding of viability, even though not specifically stated in the judge’s order.


author: PER CURIAM.

text:
    Shawn Wayne ELLIOT, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3010.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2010.
    Rehearing Denied Dec. 8, 2010.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Shawn Wayne Elliot, appeals his judgment and sentence for second-degree murder. He argues on appeal that the trial court fundamentally erred by failing to specifically instruct the jury that the State had the burden to prove beyond a reasonable doubt that the killing was not an act of justifiable or excusable homicide. We reject this argument for the reasons that follow and affirm.

The appellant was charged by indictment with the premeditated murder of Ira Dixon. The State’s theory was that the appellant, fueled by alcohol and drugs and the fact that Dixon was hitting on his girlfriend, intentionally shot and killed Dixon. The appellant’s only defense was that the State did not prove beyond a reasonable doubt that a crime was committed or that he was the one who committed the crime.

The State provided the jury instructions and the defense had the opportunity to review and make any objections. Without objection, the trial court instructed the jury on first-degree murder as well as the lesser crimes of second-degree murder and manslaughter. The trial court also gave the jury the standard instructions on excusable and justifiable homicide and on burden of proof. The jury found the appellant guilty of the lesser-included offense of second-degree murder.

By not objecting to the jury instructions at trial, the appellant failed to preserve this issue for appellate review. See State v. Delva, 575 So.2d 643, 644-45 6(Fla.1991). On appeal, the appellant argues the jury instructions constituted fundamental error. This Court reviews the issue of unpreserved fundamental error under the de novo standard. See Beckham v. State, 884 So.2d 969, 970 (Fla. 1st DCA 2004).

Fundamental error is error which reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” See Delva, 575 So.2d at 644-45 (quotation omitted). In the context of jury instructions, fundamental error occurs only when an omission is pertinent or material to what the jury must consider in order to convict. See Stewart v. State, 420 So.2d 862, 863 (Fla.1982).

The crux of the appellant’s fundamental error argument relies on the fact that the failure to instruct the jury on a disputed element of a charged offense constitutes fundamental error. See Reed v. State, 837 So.2d 366 (Fla.2002) (finding the failure to use correct definition of malice in standard jury instruction for aggravated child abuse was fundamental error, where the element of malice was disputed at trial). See also Delva, 575 So.2d at 644-45. However, the appellant’s reliance on Reed and Delva is misplaced because excusable and justifiable homicide are not elements of the offense at issue; rather, they have the effect of legally excusing the defendant from an act that would otherwise be a criminal offense. Furthermore, this Court recently found no error where the jury was not specifically instructed that the State had the burden to disprove self-defense beyond a reasonable doubt. See Mosansky v. State, 33 So.3d 756, 758-59 (Fla. 1st DCA 2010) (holding that where a challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is so flawed as to deprive defendants claiming the defense of a fair trial).

In the instant case, the instructions read to the jury without objection included a direction that the State must prove its case beyond a reasonable doubt as well as the instruction on justifiable or excusable homicide. The jury instructions explicitly stated the State had the burden of proving the crime and that the defendant did not have to prove anything. Thus, there was no reason for the jury to think a different standard applied to the instruction on justifiable or excusable homicide. As in Mo-sansky, “the instructions, taken as a whole, clearly, comprehensively, and correctly instructed the jury on the state’s burden of proof.” Id. See also Bolin v. State, 297 So.2d 317, 319 (Fla. 3d DCA 1974) (“A conviction will not be reversed because a particular jury instruction has not been given where, on the whole, the charges as given are clear, comprehensive, and correct.”).

Moreover, the appellant failed to demonstrate that he was deprived of a fair trial. The alleged error did not “permeate or saturate the trial with such basic invalidity” as is required to find fundamental error. See Brown v. State, 124 So.2d 481, 484 (Fla.1960).

Accordingly, we affirm the appellant’s judgment and sentence.

AFFIRMED.

THOMAS, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Danny T. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2981.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2010.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Danny T. Jackson appeals his judgment and sentence for second degree murder arguing that State v. Montgomery, 39 So.3d 252 (Fla.2010), approving Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009), requires reversal because the jury was given the then-existing standard instruction on manslaughter by act which imposed upon the jury the requirement to find that the defendant intended to kill the victim. Subsequent to Montgomery, in Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), this court relied upon its previous decision in Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010), and ruled that fundamental error does not occur even if the jury was given the erroneous manslaughter by act instruction if the jury was also instructed on manslaughter by culpable negligence giving the jury the option of finding the appellant guilty of a lesser included offense which did not require an intent to kill. As in Joyner and Salonko, even though the erroneous instruction on manslaughter by act was given, the jury in this case was given the option of finding manslaughter by culpable negligence. We are bound to follow our decisions in Joyner and Salonko. See also Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010); Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010).

AFFIRMED.

HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur.


author: MAY, J. FARMER, J.,

text:
    PROGRESSIVE SELECT INSURANCE COMPANY, INC., Appellant, v. Michele Mason LORENZO, Appellee.
    No. 4D09-127.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2010.

      Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for appellant.
    Theodore J. Leopold, Jodi C. Page and Diana L. Martin of Leopold-Kuvin, P.A., Palm Beach Gardens, for appellee.
   MAY, J.

An insurer appeals a jury verdict in an uninsured motorist case. It argues the trial court erred in denying its motions for new trial and remittitur. We agree and reverse.

An uninsured motorist rear-ended the plaintiffs vehicle. When the plaintiffs insurer did not tender its uninsured motorist coverage upon demand, the plaintiff filed a complaint against the insurer. The insurer admitted the existence of coverage, but claimed the plaintiffs injuries were preexisting and not caused by the accident.

The plaintiff presented testimony from multiple doctors, who testified that the accident aggravated the insured’s preexisting herniated discs, making them symptomatic for the first time. The plaintiff and her husband also testified.

The plaintiff admitted that she did not strike anything inside of her vehicle during the accident. She sustained no cuts or bruises; she told the other driver she was okay. She did not seek medical treatment immediately following the accident, but she began experiencing pain and muscle stiffness in her neck later that night. She went to an urgent care facility a few days later.

Eight months later, the plaintiff was seen by a chiropractor. She did not provide the chiropractor with any medical records; he was unaware of her prior medical condition.

Two years later, a pain doctor performed two epidural steroid injections, which revealed evidence of disc disease and arthritis. He reported the plaintiff was suffering from nerve entrapment in the back going down to the right leg and bilateral lumbar facet arthritis, a degenerative condition in the form of bony spurs in the spine, with drying out of spinal discs. He testified that multiple level disc hernia-tions and bulges are more likely caused by aging than trauma.

A physiatrist, specializing in physical medicine and rehabilitation, reviewed x-ray and MRI films taken before and after the accident. He testified:

This is at this point a non-surgical patient, number one; number two, with a history of a neck and back problem secondary to injuries;, and number three, she’s got some preexisting conditions.
This accident does not cause herniated discs. These herniated discs were there before the accident.
But what this accident did, it caused this pre-existing condition that was relatively asymptomatic to be symptomatic. In other words, the frequency, the duration and the intensity of her pain changed.

He testified that the plaintiff had a permanent increase in the frequency, duration, and intensity of her neck and back pain as a result of the accident, and sustained a thirteen-percent impairment. He opined that the plaintiff would have a five-year reduction in work life expectancy.

The plaintiffs forensic economist offered two models for future medical care costs. The economist testified that his opinions were based on the physiatrist’s opinions concerning the plaintiffs condition and need for medical care. In his more conservative approach, he estimated future medical expenses of $514,750. In his more expensive model, including surgical intervention, he estimated the cost to be $745,107.

If the plaintiff was required to stop working five years early due to her injuries, she would lose approximately $135,300 in salary, plus an estimated ten to twenty-five percent reduction in vocational capacity, i.e., the lack of opportunity to get new jobs, for which he added another $115,667. When these two additional amounts were added to the more expensive cost of medical care, the total lifetime future losses totaled $958,229. Adding past medical expenses of $53,391, the economist testified to total damages of $1,017,657.

The defense expert, an orthopedic surgeon, testified that he examined the plaintiff and found nothing abnormal. At most, the plaintiff might have suffered a temporary exacerbation of preexisting conditions from the accident, but not a permanent aggravation or new injury, and certainly not an aggravation to the degeneration in her lumbar spine.

It is my opinion based on the review of the medical records; the chronology of medical records; the MRI studies; her prior history; the findings a year before — the MRI findings the year before and afterwards and subsequently that Ms. Lorenzo did not sustain any permanent injury, aggravation or new injury or impairment from the accident of March 11, 2006.

He opined the plaintiff “does not need any ongoing medical treatment in chiropractic, in physical therapy, base procedures, surgery or any other treatment as a result of this accident.” He placed no activity or work-related restrictions on the plaintiff.

During cross-examination, plaintiffs counsel asked the defense expert a series of questions concerning the doctor’s use of foreign help to transcribe his medical records. Specifically, the doctor was asked to explain why he sends his dictation to India to be transcribed. Plaintiffs counsel also asked a series of questions concerning the defense expert’s insistence that plaintiff disrobe and wear a flimsy paper robe during the examination, insinuating that the doctor had some perverse sexual orientation. Defense counsel immediately objected to the second line of questioning as argumentative, inappropriate, and highly inflammatory.

The trial court held a sidebar conference, sustained the objection, but denied the request for a curative instruction. The court also denied the defense motion for mistrial. The court commented: “This is — I’ll tell you truthfully, that made me uncomfortable. And I think it does prejudice the jury.” After further questioning, defense counsel renewed his motion for mistrial. Once again, the trial court denied the motion.

The defense then played the video deposition of a radiologist, who testified that the MRI images revealed abnormalities prior to the accident that were not related to trauma, but from degenerative disc disease. The MRIs done after the accident revealed a “drying out process” in the disc space that occurs over a long period of time, and was not caused by the accident.

The court denied the insurer’s motion for directed verdict on past medical bills and on permanency. During deliberations, the jury had many questions, which were returned unanswered. It ultimately returned a verdict finding causation, but NO permanent injury. The jury awarded past medical expenses of $53,391 and future medical expenses of $514,750. It awarded nothing for future loss of earnings, past pain and suffering, or future pain and suffering.

When the jury returned with its verdict, the court noticed the jury had failed to total the verdict. The court returned the verdict form to the jury, instructing it that “the last line, it says ‘TOTAL.’ ” When the jury returned to deliberate, the trial court inquired if there was any irregularity in the verdict. Plaintiffs counsel answered “no.” Defense counsel responded: “From a form standpoint, Your Honor ... other than the total, no. From an eviden-tiary standpoint, yes. But that argument is for another day.” At that point, plaintiffs counsel stated: “Neither party is waiving their right on other issues.”

When the jury returned, it totaled the numbers and reached a verdict of $568,141. Defense counsel then asked the court to poll the jury to insure that the award was for future medical treatment. After some discussion, the court agreed to poll the jury, but not to ask a specific question about the damage amount.

The insurer filed a Motion for New Trial, Renewed Motion for Directed Verdict or, in the Alternative, Motion for Remitti-tur. The latter motion argued that the verdict was excessive because the jury awarded lifetime future medical expenses without a finding of permanency. The court denied the motions. With respect to the argument that the award of lifetime future medical expenses was excessive, the court stated:

On the argument by the Defendant of an inconsistent verdict, the Court in fact agrees with the Defendant that the jury in its verdict found no permanent injury and entered an inconsistent verdict by awarding $514,750.00 for medical expenses to be sustained in the future. The Court finds that the jury awarded medical expenses in the future as if the Plaintiff had sustained a permanent injury which the jury found that the Plaintiff had not. Though the case law permits an award of future economic damages without a finding of permanent injury, a permanent injury is a significant factor in establishing a reasonable certainty of the future damages. This underlying theory is set forth in Owen v. Morrisey, 793 So.2d 1018 (Fla. 4th DCA 2001),....
Although a finding of a permanent injury is not a prerequisite for an award of future economic losses, it also cannot be ignored.
This Court finds that the verdict was inconsistent and had the Defendant objected to the verdict and claimed that it was inconsistent at the time of trial, this Court would have considered its Motion at that time and would have resubmitted the issue to the jury affording the jury an opportunity to correct the inconsistency. See, Lucas v. Orchid Island Props., 982 So.2d 758 (Fla. 4th DCA 2008).

The court entered a final judgment for $100,000, the amount of coverage, and subsequently awarded costs of $21,195.57. From this judgment, the insurer now appeals.

The insurer argues the trial court erred in denying its motion for a mistrial based on the cross examination of the defense expert, which attempted to show the expert was: (1) “un-American” by outsourcing transcription jobs to India; and (2) a sexual predator or pervert because he made the examinees wear “a very thin piece of paper cloth over their body.” The plaintiff responds that the trial court acted within its discretion in denying the motion for mistrial on this ground. We agree and find no error in the court’s handling of this issue.

The insurer next argues that because the jury found no permanent injury, the award of damages for future medical treatment was excessive. Further, the insurer argues that the excessive verdict also resulted from the incendiary and inflammatory impeachment of the defense expert, as noted by the trial court during the post-trial hearing: “[T]he questioning of [the defense expert] by the Plaintiffs counsel was prejudicial to the Defense’s case as a result of the fact that [the defense expert] was in large part the entirety of the defense’s case.”

And last, the insurer argues the trial court abused its discretion in failing to order a remittitur because “only medical expenses which are reasonably certain to be incurred in the future are recoverable.” Truelove v. Blount, 954 So.2d 1284, 1287 (Fla. 2d DCA 2007) (quoting Loftin v. Wilson, 67 So.2d 185, 188 (Fla.1953)). Here, the award of future medical expenses is excessive based on the jury’s finding of no permanent injury.

The plaintiff responds that the insurer failed to preserve the excessiveness issue because it really is an inconsistent verdict argument in disguise. Because the insurer did not object to the inconsistent verdict before the jury was excused, it waived the issue. Alternatively, the verdict is not excessive as it is supported by the evidence.

We first address preservation. Looking back over almost eighty years of Florida case law reveals a consistent goal of ensuring that “the intent of the jury in rendering the verdict may fairly and with certainty be gleaned from the words used.... ” Gen. Motors Acceptance Corp. v. Judge of Circuit Court, 102 Fla. 924, 136 So. 621, 622 (1931). To that end, Florida courts have required any objection to the form of the verdict to be made before the discharge of the jury to allow correction of a correctable error. Higbee v. Dorigo, 66 So.2d 684, 685 (Fla.1953). When that verdict is rendered and “no objection appears to have been made to the form of verdict when the same was presented to the court, the form thereof was waived.” General Motors, 136 So. at 622. This requirement has withstood the test of time and remains the law today. See Atl. Coast Line R. Co. v. Price, 46 So.2d 481, 483 (Fla.1950); Dep’t of Transp. v. Stewart, 844 So.2d 773, 774 (Fla. 4th DCA 2003); Moorman v. Am. Safety Equip., 594 So.2d 795, 799 (Fla. 4th DCA 1992).

On the other hand, objections to the inadequacy or excessiveness of a verdict can be raised in motions for new trial without the need for an objection prior to the jury’s discharge. See Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941).

It has been held that under the old common law rule, a motion for new trial for inadequacy of damages should not be granted but the general rule now seems to be that a verdict for grossly inadequate damages stands on the same ground as a verdict for excessive or extravagant damages and that a new trial may as readily be granted in one case as the other.

Id. at 377-78.

In recent years, the line of demarcation between inconsistent and excessive or inadequate verdicts has been blurred. Scott v. Sims, 874 So.2d 21 (Fla. 1st DCA 2004) (acknowledging confusion in the case law concerning verdicts that are both inconsistent and inadequate). This is especially true in the area of no fault litigation and with the advent of special interrogatory verdict forms. Massey v. Netschke, 504 So.2d 1376, 1377 (Fla. 4th DCA 1987) (finding that the “[defendants have confused an inconsistent verdict with an inadequate verdict”). What might appear as an inconsistent verdict may actually be an excessive or inadequate verdict. The confusion has in part occurred because these arguments are often combined or intertwined, thereby obfuscating the line between the two. We use our judicial pen to draw a clearer line for preservation purposes.

In doing so, we acknowledge language in Steioart, which might suggest that an excessive or inadequate verdict argument cannot be made if an objection is not lodged prior to discharge of the jury. 844 So.2d at 774-75. However, in Stewart, the appellant argued the verdict was both inconsistent and excessive. Id. at 774. We stated:

This court has consistently held that a party’s failure to object or otherwise inform the court of an inconsistent verdict before the jury is dismissed waives the inconsistency in the verdict as a point on appeal. It follows that a party ■ may not circumvent these cases by later arguing the verdict is inadequate or contrary to the manifest weight of the evidence.

Id. (internal citations omitted). To the extent Stewart suggests these arguments can never be separately made, we clarify that an inconsistent verdict is an argument that can be made separately from an argument of excessiveness of inadequacy. See Delva v. Value Rent-A-Car, 693 So.2d 574, 576-77 (Fla. 3d DCA 1997).

Consistent with common law and its evolution throughout Florida case law, a jury verdict which is truly inconsistent requires an objection prior to the discharge of the jury. “[Ejrrors of form or consistency must be raised on the spot....” Moorman, 594 So.2d at 799. Also, consistent with common law and its evolution, a jury verdict that is either inadequate or excessive, but not inconsistent, may be raised in a motion for new trial without the necessity of an objection prior to the discharge of the jury. Ludwig v. Ladner, 637 So.2d 308 (Fla. 2d DCA 1994); see also Cowen v. Thornton, 621 So.2d 684, 688 (Fla. 2d DCA 1993) (Altenbernd, J., specially concurring).

Here, the insurer consistently argued the verdict was excessive without mentioning the word “inconsistent.” When the trial court gave defense counsel the opportunity to raise the issue of an inconsistent verdict, counsel responded there was an irregularity “[fjrom an evi-dentiary standpoint” but that “that argument is for another day.” By raising the excessiveness issue in the motions for new trial and remittitur, defense counsel preserved the issue for consideration. See Radiant Oil, 200 So. at 377-78. The trial court erred in refusing to consider the issue based upon a lack of preservation. In fact, plaintiffs counsel reassured defense counsel and the court that “[n]either party is waiving their right on other issues.” The trial court agreed, stating it is “[understood” and there is “[n]o question.” We turn now to the merits of the excessiveness issue.

A trial “court should not order a new trial unless it believes that the amount awarded is so great ‘as to indicate that the jury must have found it while under the influence of passion, prejudice or gross mistake.’” State Farm Mut. Auto. Ins. Co. v. Rindner, 996 So.2d 932, 934-35 (Fla. 4th DCA 2008) (quoting Glabman v. De La Cruz, 954 So.2d 60, 62 (Fla. 3d DCA 2007)). “ ‘Remittitur c6annot be granted unless the amount of damages is so excessive that it shocks the judicial conscience and indicates that the jury has been influenced by passion or prejudice.’ ” City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008) (quoting Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 1002 (Fla. 4th DCA 2004)).

Section 768.043, Florida Statutes, requires a trial court to review a jury’s award of damages in personal injury actions arising out of automobile accidents:

In any action for the recovery of damages based on personal injury or wrongful death arising out of the operation of a motor vehicle, whether in tort or in contract, wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remitti-tur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

§ 768.043(1), Fla. Stat. (2008). Subsection (2) requires the trial court to consider five criteria “[i]n determining whether an award is clearly excessive ... and in determining the amount ... that such award exceeds a reasonable range of damages ....” Id. These factors are:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.043(2), Fla. Stat.

The defendant argues the jury’s award of future medical expenses demonstrated the jury’s prejudice against the defense expert, based on the improper questions concerning his out-sourcing of work and requiring examinees to disrobe. The defendant couples this argument with the economist’s reliance on opinions of the plaintiffs physiatrist to justify his opinion on future medical expenses. While the physiatrist testified that the plaintiff suffered a permanent injury, the jury in fact found the opposite. This argument essentially encompasses all five factors of section 768.045(2), Florida Statutes.

After the Florida Supreme Court’s pronouncement in Auto-Owners Insurance Co. v. Tompkins, 651 So.2d 89 (Fla.1995), Florida has permitted awards of future economic damages even when the jury finds no permanent injury. As the trial court recognized, while not a prerequisite, a permanent injury “is a significant factor in establishing the reasonable certainty of the future damages.” Id. at 91; see also Owen, 793 So.2d at 1018.

Here, the trial court did not undertake an analysis of the five factors of section 768.045(2) because it found the verdict inconsistent and the error unpreserved. Rather, the court denied both the motions for new trial and remittitur based upon a lack of preservation. Tompkins makes clear that future economic damages, including future medical expenses, can be awarded absent a finding of permanent injury. 651 So.2d at 91. However, “damages for future medical expenses” must be “reasonably certain to be incurred in the future.... ” Truelove, 954 So.2d at 1287 (quoting Loftin, 67 So.2d at 188).

Because we find the excessiveness issue preserved, we reverse and remand the case to the trial court. On remand, the trial court should focus on whether the verdict was excessive given the jury’s finding of no permanent injury under the factors outlined in section 768.043(2), Florida Statutes, and whether a new trial or remit-titur should be granted.

Reversed and Remanded.

HAZOURI, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

The majority opinion poses a false dichotomy. The choice is not between a verdict that is inconsistent and one that is excessive, each cancelling the other. We are not called here to exercise a facility in nomenclature and taxonomy. Rather, the question presented is one of composition: whether the damages fixed for future medical expenses were legally precluded because of the Jury’s finding of no permanent injury. It is inconsequential to preservation that the damages for future medical expenses also had the ancillary effect making total damages excessive to that extent. Because the legal error was apparent on the face of the final verdict, the Insurer was under an obligation to raise the issue before discharge of the Jury or suffer the loss of the issue in post trial proceedings and on appeal.

In Florida Department of Transportation v. Stewart, 844 So.2d 773 (Fla. 4th DCA 2003), where we faced the same issue presented by this case, we held:

“To preserve the issue of an inconsistent verdict, the party claiming inconsistency must raise the issue before the jury is discharged. If the trial court agrees, the trial court may reinstruct the jury and send it back for further deliberations. This procedure allows the jury an opportunity to ‘correct’ the inconsistency. This procedure is in contrast to what is needed to challenge an inadequate verdict, which a party may raise for the first time in a post-trial motion. This court has consistently held that a party’s failure to object or otherwise inform the court of an inconsistent verdict before the jury is dismissed waives the inconsistency in the verdict as a point on appeal. It follows that a party may not circumvent these cases by later arguing the verdict is inadequate or contrary to the manifest weight of the evidence. It logically follows that most inconsistent verdicts, in some respect, would be either inadequate or contrary to the manifest weight of the evidence. However, where the thrust of DOT’S objection to the verdict was based on the inconsistency between an award for future economic damages and no finding of permanent injury, the DOT waived any error by not raising this issue before the jury was discharged.” [e.s., c.o.]

844 So.2d at 774. The final sentence in the above quotation perfectly and precisely describes the identical error in this case.

Stewart explicitly holds that for this kind of verdict the choice between inconsistency and excessiveness is false. When the excess represents an amount not authorized by the Jury’s specific finding of fact (in Stewart, and here, a lack of permanent injury) the verdict is truly inconsistent — in consequence of which it contains excessive damages. To preserve the issue the party opposing such damages as are inconsistent with the factual finding is required to act before the jury is discharged. Stewart could not possibly be more definitive and conclusive on this point.

The majority’s analysis seems to reflect a culture of treating this specific preservation requirement as an inconvenience freely excusable by deconstructing various aspects embraced in damages and elevating them to undeserved import. I think this is contrary to the policy on which the preservation requirement is based. We explained in Moorman v. American Safety Equipment, 594 So.2d 795 (Fla. 4th DCA 1992), that:

“there are compelling reasons not to excuse a previous failure to speak out when the original jury itself could have corrected the supposed error. They are found ... in the sanctity of a jury verdict and society’s interest in avoiding repeat trials for the same dispute. Verdict inconsistencies which could have been corrected while the jury was still available are simply not important enough to bypass the ordinary finality attached to their decision.”
“... Appellate courts should not appear to strain to reach issues which have not been adequately preserved below. There is nothing unjust about refusing to relieve a party of its own failure to do something about an internal inconsistency in a verdict until long after the rendering jury had been discharged.”

594 So.2d at 800. Progressive had a handy tool available to settle the inconsistency problem with future economic damages while the Jury was still in the courtroom. The Judge could have then properly reinstrueted the Jury on the issue and required a new verdict. Instead the party claiming prejudice from the inconsistency elected .to “take it up later” in spite of the rule of preservation requiring consideration then and there or lose it. There is nothing unjust about an appellate court declining to engage in linguistic metaphysics to save an unpre-served verdict inconsistency.

In sum, the problem with the future damages here is not simply an issue of either-or. It is instead a single compositional error involving an award of future damages forbidden unless the injury is permanent. Under Moorman it is improper to “use our judicial pen to draw a clearer line for preservation purposes” when a more apt clarity results by simply and correctly restating the rule itself. Stewart, 844 So.2d at 774-75; Colon, 725 So.2d at 1145. The majority’s decision conflicts with our decisions in Stewart and Moorman and the Third District’s in Colon.

I would affirm.

      . In Allstate Insurance Co. v. Manasse, 707 So.2d 1110 (Fla.1998), the Florida Supreme Court did not reach a certified question that may have clarified this issue. The court found that a plaintiff who sustained a permanent injury and received future medical expenses, but no monetary award for future pain and suffering did not warrant a new trial. Id. at 1111-12. The second certified question asked whether the plaintiff was required to object before the discharge of the jury to raise the inadequate verdict in a motion for new trial. Having decided the case on the first issue, the court did not reach the second certified question. Id. at 1112.

      . In criminal cases, we have made a similar distinction between a "truly” or legally interlocking inconsistent verdict and a. factually inconsistent verdict. See State v. Carswell, 914 So.2d 9 (Fla. 4th DCA 2005).

      . Interestingly, it was the trial court that determined the verdict was inconsistent, not an argument made by defense counsel.

      . Because a transitory injury may need more time to resolve, we have held that some amount of post-trial medical expenses might be proper in spite of the absence of permanent injury. See Owen v. Morrisey, 793 So.2d 1018 (Fla. 4th DCA 2001) (unjust to prevent claimant from recovering post-trial economic damages resulting from nonpermanent injury). Here, however, the amount fixed by the Jury was undeniably based on claimant’s life expectancy — as with permanent injuries— therefore facially impossible under the legal rule.

      . In a sense damages denied by law could be thought excessive, but that is merely implicit in being precluded. Again, to ascertain the nature of the error one must probe beneath nomenclature. Hence there is no basis to discern a demarcation between inconsistency and excessiveness because the Jury's decisional error involves both. They are facets of the same stone; there is a single error in the verdict.

      . See also C.G. Chase Constr. Co. v. Colon, 725 So.2d 1144, 1145 (Fla. 3d DCA 1998), review denied, 740 So.2d 527 (Fla.1999) ("it logically follows that most inconsistent verdicts would, in some respect, be either inadequate or contrary to the manifest weight of the evidence”).


text:
    AA GUTTER CLEANING, INC. and First Commercial Claims Services, Appellants, v. Nicholas CESARIO, Appellee.
    No. 1D09-2382.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2010.
    David R. Drill and Kimberly J. Fer-nandes of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, Miami Lakes, for Appellants.
    David A. McCranie of David A. McCra-nie, P.A., Orange Park, and Michael P. Sullivan of Michael P. Sullivan, P.A., Jacksonville, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the employer and carrier argue that the judge of compensation claims erroneously interpreted section 440.13(9)(c), Florida Statutes (2004), to require that the disagreement between health care providers necessary for the appointment of an expert medical advisor be between health care providers within the same specialty. We agree and, accordingly, reverse and remand for further proceedings.

Here, an orthopedic specialist and a pain management specialist expressed differing opinions as to whether the workplace injury remained the major contributing cause of claimant’s low back condition and need for treatment. The fact that section 440.13(9)(a), Florida Statutes (2004), requires that the Agency for Health Care Administration “certify expert medical ad-visors in each specialty” does not compel the judge’s narrow interpretation of paragraph (c). Paragraph (c) addresses the situation where there is a “disagreement in the opinions of the health care providers.” A “health care provider” is a physician “certified by the agency.” § 440.13(l)(h), Fla. Stat. (2004). A claimant’s treatment for a particular condition may encompass multiple specialists, and causation issues may arise which various health care providers can appropriately address. Because the judge erred as matter of law in his interpretation of section 440.13(9), we reverse the denial of the request for appointment of an expert medical advisor, and remand for further proceedings consistent with this opinion. See Horticulture Plus, Inc. v. Ash, 791 So.2d 535, 536 (Fla. 1st DCA 2001) (reversing a determination that, as matter of law, section 440.13(9)(c) did not apply, and remanding because the judge failed to make a determination as to whether a factual disagreement existed between health care providers).

REVERSED and REMANDED, with directions.

WEBSTER, DAVIS, and VAN NORTWICK, JJ„ concur.


text:
    Edmond David BELCHER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3466.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2010.
    Rehearing Denied Dec. 8, 2010.
    Edmond David Belcher, pro se, Petitioner.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, C.J., ROBERTS and ROWE, JJ., concur.


author: PARSONS, W., Associate Judge.

text:
    Egerton K. VAN DEN BERG, Appellant/Cross-Appellee, v. Caroline M. VAN DEN BERG, Appellee/Cross-Appellant.
    No. 5D09-475.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2010.
    Rehearing Denied Dec. 10, 2010.
    Kathleen M. Skambis and Christopher C. Skambis, of The Skambis Law Firm, Orlando, for Appellant/Cross-Appellee.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appel-lee/Cross-Appellant.
   PARSONS, W., Associate Judge.

This case involves an appeal and cross-appeal from a Final Judgment of Dissolution. We affirm the trial court’s decision as to all matters except two. We reverse the trial court’s decision as to the disposition of the Foley and Lardner pension contract and farm expenses.

At the time of trial, the Husband was 77 years old and the Wife was 65. They married on April 29, 1972, and separated on January 7, 2007. The Wife filed for dissolution on April 9, 2007, and the Husband filed a counter-petition for dissolution. The Husband suffers from heart disease and prior to May of 2007, had undergone quadruple coronary bypass surgery. The Wife appeared to be in good health.

FOLEY AND LARDNER PENSION ACCOUNT

The Husband, an attorney, was admitted to The Florida Bar in November of 1959, and continued practicing law until his retirement in 1995. In 1964, he formed the law firm of Van Den Berg, Gay and Burke which was later known as Van Den Berg, Gay, Burke, Wilson and Arbin. At the time the parties married he had been practicing law for 12 1/2 years. His firm merged with the national firm of Foley and Lardner on March 1, 1985, where he worked until his retirement. At the time of the merger the Husband was given full credit for his years of service with the new firm without that firm requiring any contribution of money or a buy-in.

At trial, the Husband asserted a partial non-marital interest in the Foley and Lardner pension contract as well as a non-marital interest in the NBC IRA account which was apparently funded from accumulations that occurred at his law firm. The trial court found that both the NBC IRA and the Foley and Lardner pension contract obligation were marital assets. The Husband, on appeal, concedes that the trial court was correct as to the NBC IRA but challenges both the finding that the Foley and Lardner pension contract was entirely marital and that it was an appropriate subject for the immediate offset method in determining the Wife’s present value in light of the plan’s characteristics.

The Foley and Lardner pension contract arose as a result of the 1985 partnership agreement. The plan involved the firm’s contractual obligation to provide a defined benefit to its retirees which was initially unfunded. The partnership agreement was changed in 1992 to create a defined contribution segment as well as the already existing but unfunded defined benefit portion.

The defined contribution segment only partially funded the firm’s pension contract obligation with employee contributions but did not change or add value to the Foley and Lardner pension contract. The Husband’s contribution to the defined contribution segment between 1992 and 1995, when he retired, was only $12,000.

The defined benefit pension contract provided money benefits to the retiree based on years of service and a salary calculation during his remaining life. In other words, receipt of the plan benefits was contingent on his longevity. This plan, unlike many, had a provision that the monthly benefit would decrease by forty percent when the retiree reached the age of 80. In addition, payment was contingent on the survival of Foley and Lardner as an entity and was also conditioned to the extent that the Foley and Lardner pension contract was limited to a payment to its retirees of no more than ten percent of its net profit in any given year.

The Husband was credited with 31 years and 11 months of service which equals 383 months with Foley and Lardner. He was married for 23 years and 7 months during that time, or a total of 283 months. The Husband’s expert, Gary David Kane, therefore calculated the marital portion of the Foley and Lardner contract obligation at 73.8% and applied that percentage to the expected pension payout over the Husband’s life adjusting for the scheduled reduction at the age of 80. The Wife’s expert, Leslie W. Eiserman, did a parallel analysis where he arrived at a “blended rate” of 80.73%, but only if the court found a non-marital component.

The Final Judgment, dealing with the Foley and Lardner pension contract, indicated that “the court was not persuaded by his proof as to the value of the non-marital share and in light of the comingling of withdrawals deems all of it marital.” As a result the trial court found that the Foley and Lardner pension contract was a 100% marital asset subject to equal distribution.

Section 61.075(5)(b)l., Florida Statutes (2007), defines a non-marital asset as one acquired by either party prior to the marriage. The facts fully show that the Husband received a defined benefits credit for 100 months of service before his marriage. Therefore, some portion of the retirement asset was a result of non-marital labor which makes that portion a non-marital asset as a matter of law. Bain v. Bain, 553 So.2d 1889 (Fla. 5th DCA 1990); Zaborowski v. Zaborowski, 547 So.2d 1296 (Fla. 5th DCA 1989).

Non-marital assets lose their character if the asset itself becomes comingled and untraceable. Archer v. Archer, 712 So.2d 1198 (Fla. 5th DCA 1998); see also Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000). That occurred in this case only as each payment was received and to the extent that those funds were used by the parties jointly. There is no legal authority for the proposition that the use of the payments as received would change the nature of the entire asset. See Lakin v. Lakin, 901 So.2d 186 (Fla. 4th DCA 2005).

The use of a “coverture fraction” for purposes of determining the marital portion of a retirement or deferred compensation plan was approved in Trant v. Trant, 545 So.2d 428 (Fla. 2d DCA), review denied, 551 So.2d 464 (Fla.1989). In this case, there is competing evidence as to the appropriate coverture share which will need to be addressed below.

In addition, the trial court, having found the Foley and Lardner pension contract to be entirely marital, employed the immediate offset method and converted the Wife’s half interest into a lump sum distribution based on a discounted present value applying an assumed life expectancy which recognized a reduction in benefits occurring at age 80. This approach is considered the preferred approach. Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). At the same time, a lump sum distribution may not be the best way to ensure equitable distribution in every case. Boyett v. Boyett, 708 So.2d 451 (Fla.1997).

This court has expressly held that if determining the present value of a pension is too speculative, a trial court should make an award of a portion of the future payments when and if received. Brock v. Brock, 690 So.2d 737 (Fla. 5th DCA 1997); see also Swanson v. Swanson, 869 So.2d 735 (Fla. 4th DCA 2004). It is clear, however, that the trial court has a great deal of discretion in making such awards. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The proper determination, given these facts, will lie within the sound discretion of the trial court on remand.

FARM EXPENSES

The parties bought the marital home which was a horse farm in 1999. Monthly maintenance was alleged to be approximately $10,057. At trial, the Wife indicated that she would be responsible for one-half of the “real expenses” on the farm until it was sold. The Wife’s attorney also announced- that the parties had agreed that: (1) the Husband would stay in the home; (2) the Wife would have access to the home to keep it in saleable condition; (3)the parties would split expenses; (4) any expense over $300 would require the written permission of the other party; and (5) the responsibility would continue even after death of one of the parties. Both parties further agreed to arbitrate any dispute as to expenses over $300.

The parties concede that the Final Judgment has conflicting provisions as to the marital residence or farm expenses. It should be noted that this appeal is surrounded by a great deal of commotion concerning language submitted in the Wife’s proposed final judgment which found its way into several paragraphs of the Final Judgment after it became common knowledge that the Husband planned to remarry. Without going into the details, suffice it to say that the parties had a clear agreement which was made in and accepted in open court. The parties’ agreement as stated should be honored. There should be no constraint on who lives with the husband in the marital home and he should not be required to pay a “fee” for any such occupancy.

Accordingly, we approve the dissolution and holdings of the trial court with the exception of the court’s findings in regard to the Foley and Lardner pension contract and farm expenses. We remand to allow the trial court to reconsider these matters keeping the entire equitable distribution scheme in mind. See Ray v. Ray, 624 So.2d 1146, 1148 (Fla. 1st DCA 1993).

AFFIRMED in part; REVERSED part; and REMANDED for further proceedings.

GRIFFIN and SAWAYA, JJ„ concur.

      . The record demonstrates that the expenses for the marital residence or farm which the parties agreed to divide included mortgage (principal and interest), taxes, insurance, major repairs and utilities required for upkeep of the grounds not utilized as a result of occupancy of the residence.