author: PER CURIAM. CANADY, C.J., POLSTON, J.,

text:
    Aundra JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-966.
    Supreme Court of Florida.
    Oct. 7, 2010.
    As Revised on Denial of Rehearing Jan. 27, 2011.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Nicholas Merlin, Assistant Attorneys General, Miami, FL, for Respondent.
   PER CURIAM.

Aundra Johnson seeks review of the decision of the Third District Court of Appeal in Johnson v. State, 10 So.3d 680 (Fla.3d DCA 2009), on the basis that it expressly and directly conflicts with decisions of the Fourth District Court of Appeal in Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987); Huhn v. State, 511 So.2d 583 (Fla. 4th DCA 1987); and Rigdon v. State, 621 So.2d 475 (Fla. 4th DCA 1993). The issue before this Court is whether it is per se reversible error when a judge erroneously instructs a jury prior to deliberations that it cannot have any testimony read back. We hold that the error, if preserved, is per se reversible because it is impossible to determine the effect of the erroneous instruction on the jury without engaging in speculation, and thus a reviewing court is unable to conduct a harmless error analysis. Accordingly, we quash the Third District’s decision in Johnson and approve of the Fourth District’s decisions in Biscardi, Huhn, and Rigdon.

FACTS

Aundra Johnson was tried on charges of burglary and fleeing a police officer. At trial, prior to jury deliberation, the judge read a set of standard jury instructions that were compiled with the approval of the State and the defense. The judge then added the following instruction not previously mentioned at the charge conference:

Now let me caution you regarding the communication, if you want to ask a question regarding the facts, let me caution you that we don’t have I [sic] simultaneous transcript of these proceedings so we don’t have a transcript and any questions regarding the facts, I will tell you that you must rely upon your own recollection of the evidence.

The judge went on to instruct the jury: “If you have a question regarding the law, I will tell you that you have all the laws that pertains to this ease in those instructions, there are no other laws.”

Johnson specifically objected' to the judge’s instruction that the jury could not have testimony read back, stating that the jury has a right to have testimony read back. The judge overruled the objection, and prior to the jury retiring to deliberate, the judge once again instructed the jury:

Ladies and gentlemen and, again, if you have a question regarding the facts, I cannot reopen the facts. I cannot explain the evidence to you. The normal answer that I give you is that you must rely upon your own recollection of the evidence. If you have differences of opinion you must hash them out amongst yourselves.

After deliberations without any questions being asked by the jury or any requests for the read-back of testimony, the jury convicted Johnson of the crime of fleeing a police officer, but acquitted him of the burglary charge.

On appeal to the Third District, Johnson claimed that the trial judge erred in instructing the jury that the law did not permit him to read back testimony. The Third District agreed and concluded that the trial court erred by discouraging the jury from requesting any read-back of testimony, which the State conceded. In particular, the Third District stated: “[W]hile the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a read-back is prohibited.” Johnson, 10 So.3d at 681 (quoting Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001)). However, the Third District held that the error was harmless based upon its conclusion that the evidence against Johnson was “overwhelming.” Id. Consequently, the Third District affirmed Johnson’s conviction and sentence. Id. at 682. Judge Cope dissented to the use of a harmless error test and alternatively disagreed that the error could be deemed harmless in this case:

We should order a new trial. Defense counsel timely and correctly objected to the trial court’s instruction. Neither the State nor the majority opinion has cited any authority for the proposition that this type of error is subject to harmless error analysis. Assuming arguendo that such an analysis could be applied, it is inappropriate here, where the jury had enough reasonable doubt about the State’s case to acquit the defendant on a number of charges.

Id.

The Third District’s holding that the error was harmless conflicts with the Fourth District’s decisions in Biscardi, Huhn, and Rigdon, all cases in which the Fourth District applied the per se reversible error rule to similar misleading jury instructions.

ANALYSIS

The issue before this Court is whether a trial court’s erroneous instruction that the jury is not permitted to request read-backs of testimony is per se reversible or whether a reviewing court can determine that the error was harmless. To resolve the issue, we first explain why the trial court’s instruction was erroneous. Next, we discuss the harmless error test and per se reversible error. We then discuss the situations in which Florida courts apply the per se reversible error rule and review the reasoning of the Fourth District cases that are in conflict with the decision on review in this case. We conclude that when a judge erroneously instructs a jury that it may not request to have testimony read back, a reviewing court is unable to conduct a harmless error analysis because it is impossible to determine the effect of the erroneous instruction on the jury. The reviewing court cannot determine what testimony the jurors might have requested to have read back, and thus it is impossible to determine the effect of the error on the jury without engaging in speculation. Accordingly, we must hold that such error is per se reversible.

It is undisputed that it is error for a judge to instruct a jury, prior to deliberations, that it cannot have any testimony or instruction read back. Florida Rule of Criminal Procedure 3.410 states:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them.

Because the rule provides that juries may have testimony read back, it is clearly error for a trial judge to advise a jury otherwise. Johnson objected to the erroneous instruction, thereby preserving the error for review.

When an error is preserved for appellate review by a proper objection, an appellate court applies either a harmless error test or a per se reversible error rule. Although a defendant is not entitled to a completely error-free trial, he or she has a constitutional right to a fair trial free of harmful error. See Goodwin v. State, 751 So.2d 537, 538-39, 541 (Fla.1999). Thus, the role of the appellate courts is to ensure that criminal trials are free of harmful error, the presence of which would require reversal. The harmless error rule is “concerned with the due process right to a fair trial” and “preserves the accused’s constitutional right to a fair trial by requiring the state to show beyond a reasonable doubt that the specific [errors] did not contribute to the verdict.” State v. DiGuilio, 491 So.2d 1129, 1135-36 (Fla.1986).

The test for harmless error focuses on the effect of the error on the trier of fact. Id. at 1139. “The question is whether there is a reasonable possibility that the error affected the verdict.” Id. The burden is on the State to prove beyond a reasonable doubt that the error did not contribute to the outcome. Id. The harmless error test is not

a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.

Id.; see also Ventura, 29 So.3d at 1089-90; Cuervo v. State, 967 So.2d 155, 167 (Fla.2007); Cardenas v. State, 867 So.2d 384, 395 (Fla.2004); Williams, 863 So.2d at 1189-90. Thus, to apply the harmless error test, the reviewing court must be able to determine the effect of the error on the trier of fact.

Like the harmless error test, the per se reversible error rule is concerned with the right to a fair trial. DiGuilio, 491 So.2d at 1135. “The test of whether a given type of error can be properly categorized as per se reversible is the harmless error test itself.” Id. “If application of the test to the type of error involved will always result in a finding that the error is harmful, then it is proper to categorize the error as per se reversible.” Id.

This Court has also applied the per se reversible error rule to those cases where the appellate court is unable to conduct a harmless error analysis because it would have to engage in pure speculation in order to attempt to determine the potential effect of the error on the jury. These circumstances include when a trial judge “respond[s] to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request.” Ivory v. State, 351 So.2d 26, 28 (Fla.1977); see also Bradley v. State, 513 So.2d 112, 113-14 (Fla.1987) (“[Bjoth the state and the defendant must have the opportunity to participate, regardless of the subject matter of the jury’s inquiry. Without this process, preserved in the record, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial.” (emphasis omitted) (quoting Curtis v. State, 480 So.2d 1277, 1279 (Fla.1985))). This Court has more recently applied the per se reversible error rule when a bailiff has unsupervised communications with a jury. See State v. Merricks, 831 So.2d 156, 161 (Fla.2002) (“To apply a harmless error analysis to such improper communications as the State proposes would ‘unnecessarily embroil trial counsel, trial judges and appellate courts in a search for evanescent harm, real or fancied.’ ”) (quoting Ivory, 351 So.2d at 28 (England, J., concurring)). Per se reversible error also occurs when a sitting juror is substituted after deliberations begin because it is “nearly impossible to perform a harmless error analysis” since “any well-intentioned questioning of the jurors, original or alternate, in a good-faith attempt to provide those safeguards recognized under such an analysis is itself fraught with potential to contaminate the jury process.” Williams v. State, 792 So.2d 1207, 1210 (Fla.2001).

Another circumstance in which this Court has held that an error is per se reversible because the reviewing court cannot conduct a harmless error analysis is when a jury is not instructed on a lesser-included offense one step removed from the charged offense. In such a situation, the reviewing court cannot determine the effect of the error on the jury because the court cannot know whether the jury would have convicted the defendant of the next lesser included offense if the jury had been given the option. As explained by this Court: “If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.” Pena v. State, 901 So.2d 781, 787 (Fla.2005) (citing State v. Abreau, 363 So.2d 1063 (Fla.1978)). To conduct a harmless error analysis in that situation would be to engage in pure speculation.

Similar to the reasoning in these cases, the Fourth District concluded in Biscardi, Huhn, and Rigdon that when a trial judge indicates in his or her instruction to the jury that it will not be allowed to have testimony read back, reversible error occurs because it conveys to the jury that asking for rereading of testimony is prohibited. Thus, it is impossible to determine what testimony the jurors might have requested to have read back.

In Biscardi, the Fourth District held that a trial judge committed reversible error by telling the jury in the course of providing instructions that “ ‘there is really no provision’ for reinstruction or to have testimony read back.” 511 So.2d at 580. The Fourth District reasoned:

[T]he judge’s words may reasonably have conveyed to jurors that to ask for clarification of instructions or rereading of testimony would be futile. As a result they may have reacted as they did because they misapprehended the law or had a distorted recollection of some of the testimony.

Id. at 581. In response to the State’s argument that prejudice must be shown, the Fourth District disagreed, stating, “Obviously, without going into the jurors’ heads or their communication with each other appellant cannot demonstrate prejudice.” Id.

In Huhn, which was issued on the same day as Biscardi, the Fourth District held that the trial judge committed harmful error by indicating to the jury during instruction that it could not have instructions repeated or testimony reread. Huhn, 511 So.2d at 591. Specifically, the trial judge stated:

Also, there is really no provision for me to either reinstruct you after I instruct you or certainly to have any testimony read back or certainly to call any witnesses back. You are going to have to remember the testimony and the instructions on the law as best you can and probably the next time we hear from you will be when that buzzer in there rings and we all jump about a foot up in the air and then, you have a verdict.

Id. The Fourth District reasoned that these remarks led at least some of the jurors to understand that they were prohibited from asking for further instruction or for a read-back. Id. It concluded: “[Pjerhaps jurors would have ... sought to have certain testimony read to them if they had thought it possible. In our view, the error was harmful.” Id.

In Rigdon, the Fourth District again stated that it was reversible error “for the trial court to instruct the jury that any request to have testimony read back would be refused.” 621 So.2d at 479. It reasoned:

[Wjhile the instruction given contains indications that there remained a possibility of having testimony read back, it nevertheless resembles the instruction condemned in [Biscardi and Huhn ] because the trial judge’s comments may reasonably have conveyed to the jurors that to ask for rereading of testimony would be futile or was prohibited. This was reversible error.

Id. at 480.

We agree with the Fourth District’s approach. We conclude that when a judge preemptively and erroneously instructs a jury that it cannot have any testimony read back, a reviewing court cannot properly conduct a harmless error analysis because it is impossible to determine what effect the erroneous instruction had on the jury-

A court attempting to conduct a harmless error analysis cannot know what testimony a jury would have requested to have read back or even whether a jury would have asked for a read-back at all. Therefore, a reviewing court cannot determine whether a jury was confused or needed clarification about the facts of the case, and it is impossible to discern whether the defendant was prejudiced by the error. An appellate court would be required to engage in pure speculation because if the jury followed the erroneous instruction, the jury would be misled to believe that it was not permitted to request read-backs of testimony. Because a harmless error analysis cannot be conducted when a judge preemptively instructs a jury that it cannot have any testimony read back, we hold that such error is per se reversible error.

In this case, the trial court preemptively instructed the jury as follows:

[I]f you want to ask a question regarding the facts, let me caution you that we don’t have I [sic] simultaneous transcript of these proceedings so we don’t have a transcript and any questions regarding the facts, I will tell you that you must rely upon your own recollection of the evidence.

This may have misled the jury to erroneously believe that it could not request read-backs of testimony. During deliberations, the jury did not ask questions or request read-backs of testimony. Because of the trial court’s erroneous instructions in this case, it is impossible to determine whether the jury would have requested a read-back of testimony and thus impossible to determine whether or how the defendant may have been prejudiced by the erroneous instruction.

The United States Circuit Court of Appeals for the Second Circuit has applied a per se rule for the same reasons we do here. In United States v. Criollo, 962 F.2d 241 (2d Cir.1992), the trial lasted only two days and involved few witnesses. Nevertheless, the Second Circuit reasoned:

We have no way of determining whether the jury wanted to request a read-back, but was chilled from doing so by the court’s prohibition against read-backs stated in the midst of defense counsel’s summation. Since this ease was so short and involved only a few witnesses, we might well conjecture that any request for a read-back would not be the result of a confused jury attempting to sort through reams of evidence, but rather such a request could indicate that the jury had a genuine inability to resolve serious questions of fact.

Id. at 244; see also United States v. White, 23 F.3d 404, 1994 WL 177280, at *6 (4th Cir. May 11, 1994) (unpublished) (Phillips, J., specially concurring) (“[Tjhere’s much to be said for ... declaring [the error] not subject to harmless error excuse — prejudicial per se error. The Second Circuit recently has done just that in United States v. Criollo, 962 F.2d 241, 244 (2d Cir.1992), for the very good reason that principled harmless error analysis is impossible, there being no way, given the prohibition, ever to know whether a jury may have felt the need for a clarification that could have avoided a prejudice now forever hidden.”).

Justice Polston’s dissent relies on State v. Schopp, 653 So.2d 1016 (Fla.1995), and Galindez v. State, 955 So.2d 517 (Fla.2007), cases in which this Court applied a harmless error analysis to situations where a trial court failed to hold a Richardson hearing and where an Apprendi error occurred, respectively. However, the rationales for applying a harmless error analysis to those errors are not applicable here.

In Sehopp, we receded from the rule that a trial court’s failure to hold a Richardson hearing concerning a discovery violation is per se reversible error because there we determined it was clear from the record that the violation did not “materially hinder[ ] the defendant’s trial preparation or strategy” and thus was harmless. Schopp, 653 So.2d at 1020. However, here, unless the jurors request a read-back despite the preemptive ban, the reviewing court cannot determine from the record whether the jurors would have asked for a read-back had they been given the opportunity. Such a determination would be speculation, even if the trial was short or there were few witnesses who all gave consistent testimony. Indeed, in such a situation, a jury’s request for a read-back may indicate that the jury was particularly confused and unable to resolve issues of fact. This is distinguishable from discovery violations, where the reviewing court will sometimes have enough information from the record, even absent an adequate Richardson inquiry, to make a harmless error determination.

The issue in this case is likewise distinguishable from Apprendi errors. As with discovery violations, Apprendi errors are evaluated for harmlessness based on information contained in the record. Galindez, 955 So.2d at 523 (evaluating whether Ap-prendi error was harmless based on “whether the record demonstrates beyond a reasonable doubt that a rational jury would have found” the fact). This is in contrast to the error at issue here, where any harmless error determination would be based on speculation.

CONCLUSION

For the reasons stated above, we hold that it is per se reversible error when a trial judge preemptively instructs a jury that it cannot have testimony read back and the erroneous instruction is properly preserved for appellate review. Accordingly, we quash the Third District’s decision in Johnson and remand for proceedings consistent with this opinion. We also approve of the Fourth District’s decisions in Biscardi, Huhn, and Rigdon.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

CANADY, C. J., concurs in part and dissents in part with an opinion, in which POLSTON and LABARGA, JJ., concur.

POLSTON, J., concurs in part and dissents in part with an opinion, in which LABARGA, J., concurs.

CANADY, C.J.,

concurring in part and dissenting in part.

I agree with Justice Polston that the error at issue here does not fall within the category of per se reversible error. I therefore disagree with the majority’s decision that requires a new trial. Instead, I would reverse and remand to the district court for a determination of whether the error was harmful.

In State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986), we recognized that a rule of per se reversible error is a “draconian measure.” Rejecting the view that the constitutional violation at issue in DiGuilio required such a rule of per se reversal, we unequivocally held that “[p]er se reversible errors are limited to those errors which are ‘so basic to a fair trial that their infraction can never be treated as harmless error.’ ” Id. at 1135 (emphasis added) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). We further acknowledged the high cost of improperly categorizing a type of error as “per se reversible”: “[I]f an error which is not always harmful is improperly categorized as per se reversible, the court will erroneously reverse an indeterminate number of convictions where the error was harmless.” Id.

As indicated by our reliance on Chapman, our understanding of per se reversible error in DiGuilio was rooted in the federal law concerning constitutional error. The United States Supreme Court has repeatedly recognized that even constitutional errors are ordinarily subject to harmless-error analysis. Only constitutional errors that “necessarily render a trial fundamentally unfair” can be held to “require reversal without regard to the evidence in the particular case.” Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

“Harmless-error analysis ... presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Id. at 578, 106 S.Ct. 3101. Accordingly, the denial of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), or the presence of a biased adjudicator, see Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), ai’e “errors that could never be harmless.” Rose, 478 U.S. at 578 n. 6, 106 S.Ct. 3101. Per se reversal is an appropriate response to the absence of the “basic protections” without which a “criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Id. at 577-78, 106 S.Ct. 3101 (citation omitted).

But such errors that require reversal automatically “are the exception and not the rule.” Id. at 578, 106 S.Ct. 3101. Indeed, the Supreme Court has articulated a presumption against per se reversal: “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Id. at 579, 106 S.Ct. 3101.

The Supreme Court has identified errors “which defy analysis by ‘harmless-error standards’ ” as errors which result in “structural defects in the constitution of the trial mechanism” — “structural defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (emphasis added). The unlawful exclusion of members of the defendant’s race from a grand jury, see Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), the denial of the right to self-representation at trial, see McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), and the denial of the right to public trial, see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), are examples of structural defects not subject to harmless-error analysis. Fulminante, 499 U.S. at 310, 111 S.Ct. 1246.

Given the nature of such structural error, it is not surprising that the Supreme Court has “found an error to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ ” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). The Supreme Court has repeatedly rejected claims that various errors were not subject to harmless-error analysis. See, e.g., Washington v. Recuenco, 548 U.S. 212, 221-22, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (holding that failure to submit a sentencing factor to the jury was not a structural error and thus was subject to harmless-error review); Neder, 527 U.S. at 10, 119 S.Ct. 1827 (holding that trial court’s error in omitting an element of a crime from the jury instructions was subject to harmless-error analysis); Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (holding that improper denial of a defendant’s right to impeach a witness under the Confrontation Clause was subject to harmless-error analysis); United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (holding that prosecutor’s improper comments about defense’s failure to present evidence were subject to harmless-error analysis).

Here, the trial court’s error did not create a “structural defeet[] in the constitution of the trial mechanism.” Fulminante, 499 U.S. at 309, 111 S.Ct. 1246. It is totally implausible to suggest that a defendant has a right to have testimony read back to the jury which is “basic to a fair trial,” DiGuilio, 491 So.2d at 1135, or that the possible failure to read back testimony that may have arisen from the trial court’s erroneous instruction “necessarily rendered] [the] trial fundamentally unfair,” Rose, 478 U.S. at 577, 106 S.Ct. 3101. As the majority acknowledges, a trial court may exercise its discretion to deny a request to have testimony read back to the jury. Majority op. at 1006 n. 4 (citing State v. Riechmann, 777 So.2d 342, 365 (Fla.2000)). Since whether to have testimony read back to the jury is a discretionary matter, it cannot be the case that the erroneous instruction resulted in the denial of a “basic protection[ ]” necessary for a criminal trial to “reliably serve its function as a vehicle for determination of guilt or innocence.” Rose, 478 U.S. at 577-78, 106 S.Ct. 3101.

There is no principled basis for distinguishing the error here from other jury instruction errors which are subjected to harmless-error analysis. See, e.g., Hunter v. State, 8 So.3d 1052, 1071 (Fla.2008) (applying harmless-error analysis to trial court’s use of the term “and/or” in jury instructions), cert, denied, — U.S. -, 129 S.Ct. 2005, 173 L.Ed.2d 1101 (2009); Cardenas v. State, 861 So.2d 384, 393 (Fla.2004) (applying harmless-error analysis to trial court’s error in instructing the jury on the presumption of impairment in a driving with an unlawful blood — or breath — alcohol level case); Lara v. State, 699 So.2d 616, 618 (Fla.1997) (applying harmless-error analysis where the trial court gave an unconstitutional jury instruction regarding an aggravating factor).

The trial court’s error therefore should be evaluated in the full context of the trial to determine if it was harmless.

POLSTON and LABARGA, JJ., concur.

POLSTON, J.,

concurring in part and dissenting in part.

I disagree with the majority’s conclusion that it is per se reversible error when a trial judge instructs a jury, prior to deliberations, that it cannot have testimony read back. Although I agree that the instruction is in error, I believe that in some cases the error can be harmless. Therefore, I would quash the Third District’s decision and remand for a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, I respectfully concur in part and dissent in part.

The majority holds that the read-back error here is per se reversible “because it is impossible to determine the effect of the erroneous instruction on the jury without engaging in speculation.” Majority op. at 1005. I disagree. In State v. Schopp, 653 So.2d 1016 (Fla.1995), this Court receded from a similar per se reversible error ruling based upon presumed harm from the possibility of uncertainty. Specifically, in Schopp, this Court receded from its holding in Smith v. State, 500 So.2d 125 (Fla.1986), wherein this Court held that the failure to conduct a Richardson hearing was per se reversible error, assuming that “a reviewing court is in no position to determine from a cold record whether a discovery violation is harmless.” Schopp, 653 So.2d at 1019 (describing Smith, 500 So.2d 125). The Smith court had reasoned that “an appellate determination as to whether a Richardson violation is harmless is impossible in light of the fact that ‘[t]he purpose of a Richardson inquiry is to ferret out procedural, rather than substantive, prejudice.’ ” Id. (quoting Smith, 500 So.2d at 126). But the Schopp Court determined that there are exceptions to that stringent rule.

In Schopp, the State sought to admit the testimony of a police officer who was not included on the State’s original witness list but was added to an amended witness list shortly before trial. Id. The trial court overruled defense counsel’s objection and concluded that a Richardson hearing was not required, in part because of Schopp’s request for a speedy trial. Id. The Fourth District Court of Appeal reversed based on this Court’s opinion in Smith, although it was “ ‘absolutely convinced that the admission of the testimony of the undisclosed witness and the failure to conduct a Richardson inquiry were harmless,’ under the harmless error analysis set out in [DiGuilio ].” Id. (quoting Schopp v. State, 641 So.2d 141, 142 (Fla. 4th DCA 1994)). The Fourth District was convinced the error was harmless because “1) the undisclosed witness presented testimony that was known to the defendant, was cumulative to other testimony, and concerned facts openly admitted by the defendant; 2) defense counsel admitted during opening statement that Schopp committed the offenses of which he was ultimately convicted; and 3) Schopp was acquitted of the charged offenses and thus ‘won’ his case.” Id.

This Court concluded that the circumstances in Schopp “demonstrate[d] that there are cases in which a reviewing court can determine that a discovery violation is harmless beyond a reasonable doubt, absent an adequate Richardson inquiry” because in that case it was clear “beyond a reasonable doubt that neither the discovery violation nor the trial court’s failure to inquire into whether corrective sanctions were warranted materially hindered the defendant’s trial preparation or strategy.” Id. at 1019-20.

This Court reiterated that “a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” Id. at 1020 (citing DiGuilio, 491 So.2d at 1134— 35) (emphasis added). We then explained that “we have never held that the failure to conduct a Richardson hearing always results in an unfair trial. Rather, we established the per se reversal rule based on our assumption that ‘no appellate court can be certain that errors of this type are harmless.’ ” Id. (quoting Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977)). But Schopp presented a case where a review of the record revealed that this type of error could be found harmless.

As in Smith, the majority has held here that the trial court’s erroneous instruction on read-backs constitutes per se reversible error based upon uncertainty in determining whether, in some cases, this procedural error could be harmful — the same reasoning that was proved to be unworkable in Schopp. In Schopp, however, the district court performed a thorough review of the record and described the circumstances present in that case. Here, the Third District’s opinion does not discuss its review of the record but simply states that the evidence against Johnson was “overwhelming.” Johnson v. State, 10 So.3d 680, 681 (Fla. 3d DCA 2009). But finding that the evidence is overwhelming is not the test for harmless error in Florida.

In Florida, an error is harmless if there is no reasonable possibility that the error affected the verdict. DiGuilio, 491 So.2d at 1139. As this Court has explained,

[Hjarmless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence....
The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the eiror contributed to the conviction. Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict....
... The test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Ventura v. State, 29 So.3d 1086, 1089-90 (Fla.2010) (quoting DiGuilio, 491 So.2d at 1138-39). ' I believe this Court should refrain from rejecting a harmless error standard in favor of creating this per se reversible error rule when a harmless error analysis under DiGuilio was not performed or reviewed by this Court.

In Galindez v. State, 955 So.2d 517, 518 (Fla.2007), this Court held that violations of Apprendi and Blakely are subject to a harmless error analysis. In Galindez, a jury found the defendant guilty of “two counts of lewd and lascivious assault on a minor and one count of child abuse by impregnating the victim.” Galindez, 955 So.2d at 519-20. Yet Galindez’s score-sheet assessed 240 points for penetration. Id. at 520. This Court concluded that any Apprendi error was harmless. Id. at 523. This Court stated that “[i]n light of the clear and uncontested record evidence of penetration ... we hold that no reasonable jury would have returned a verdict finding there was no penetration.” Id. at 524. In reaching its conclusion, this Court relied on the harmless error analysis applied by the United States Supreme Court in Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (reversing the Washington Supreme Court’s holding that harmless error analysis does not apply to an Apprendi error). See 955 So.2d at 521-22. This Court noted that it had “long applied” the harmless error test announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and outlined in DiGuilio, which we described as questioning whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” 955 So.2d at 522 (quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).

In Galindez, this Court applied a harmless error analysis even though the fact that led to the enhanced sentence had never been submitted to the jury. Although we did not know what the jury would have actually determined or what questions the jury would have asked if the fact enhancing the sentence had been submitted to the jury, we held that a harmless error analysis was appropriate. Similarly, here we do not know what the jury would have done absent the erroneous read-back instruction. We do not know what, if any, questions the jury would have had regarding the facts submitted to it for its consideration. And just as we perform a harmless error analysis when faced with the uncertainty surrounding an Apprendi violation, we should perform a harmless error analysis when faced with an erroneous read-back instruction.

I believe that, just as with violations of Apprendi, there are circumstances under which an erroneous read-back instruction can be harmless. At least one federal court has concluded that the specific read-back error at issue here can be harmless. In United States v. White, 23 F.3d 404, 1994 WL 177280 (4th Cir.1994) (unpublished), the Fourth Circuit concluded that an erroneous read-back instruction was harmless based upon its observations that the appellant’s trial lasted just one-and-one-half days, and he was the only defendant; the announcement prohibiting read-backs was made after all the evidence was presented; four incriminating witnesses told consistent stories; the defense was not based on fine distinctions; and the appellant “point[ed] to nothing, either in general or in particular, that might have generated confusion among the jurors.” White, 1994 WL 177280 at *3. The Fourth Circuit explained:

Of course we have no way of knowing whether the jury in White’s trial would have asked for a read-back of any testimony, just as a reviewing court can never know with absolute certainty what weight a jury put on an erroneously admitted piece of evidence. It is difficult, and no doubt sometimes nigh impossible, to gauge the effect on a jury’s verdict of, say, a coerced confession, but we are bound to do so when presented with such a case. The difficulty of applying the harmless error test in some (or even most) cases, however, is an inadequate basis for declaring a per se rule for all cases.

Id.

As in White, a proper review of the record here may have revealed the error was harmless, that is, that there was no reasonable possibility that the error affected the verdict. For example, it is possible that several witnesses gave consistent testimony, or that Johnson or his counsel admitted that he fled from a police officer, or that all the facts in the case were undisputed, or any number of other possible scenarios which could have led the Third District to conclude beyond a reasonable doubt that the read-back error did not contribute to the verdict.

On the other hand, a proper analysis could have led to the conclusion that the error was harmful. Maybe a review would have revealed the presence of conflicting testimony, or an exceptionally lengthy jury deliberation, or some questionable admission of evidence, or any number of other circumstances which could have led the Third District to conclude that the error was harmful. But even finding the error harmful in this case does not mean that the error could not be found harmless in another case. As in Smith, the majority is assuming that “no appellate court can be certain that errors of this type are harmless.” Schopp, 653 So.2d at 1020 (quoting Cumbie, 345 So.2d at 1062). But “a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” Id. (emphasis added) (citing DiGuilio, 491 So.2d at 1134-35). That this type of error is always harmful has not been proven here. Therefore, this case does not present a sufficient basis for creating a per se reversible rule, especially considering that this Court has not been apprised of all the facts. Instead, in my view, this case should be reversed and remanded so that the Third District can perform a harmless error analysis under the standards adopted by this Court in DiGuilio.

Accordingly, I respectfully concur in part and dissent in part.

LABARGA, J., concurs.

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

      . We recognize that this instruction was not objected to and thus any error is not preserved. Therefore, we do not discuss this instruction further.

      . The Third District actually used an incorrect harmless error test by focusing only on the “overwhelming evidence.” As recently emphasized by this Court in Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010), an "overwhelming evidence” test is not the correct test for determining whether an error was harmless. See also Williams v. State, 863 So.2d 1189, 1189-90 (Fla.2003).

      . We note, however, that if a jury requests a specific read-back, a trial judge has broad discretion in deciding whether to grant the jury’s request. State v. Riechmann, 777 So.2d 342, 365 (Fla.2000). Refusing a jury's specific request for a read-back is distinguishable from the preemptive ban at issue here. When a specific request from the jury to read back testimony is at issue, a reviewing court is able to conduct a harmless error analysis. Thus, if a trial judge refuses a jury's request for a specific read-back of testimony, the refusal is reviewed for abuse of discretion and is subject to a harmless error analysis, provided the issue is preserved. See Coleman v. State, 610 So.2d 1283, 1286 (Fla.1992).

      . Both per se reversible error and harmful error analysis apply only if the issue is properly preserved for appellate review. See Rodas v. State, 967 So.2d 444, 446-47 (Fla. 4th DCA 2007) ("There is a difference between ‘per se reversible error’ and 'fundamental error.’ The general rule is that a reversal in a criminal case must be based on a prejudicial error that was preserved by a timely objection in the trial court. A fundamental error is an exception to the contemporaneous objection rule.... A per se reversible error means that a reviewing court does not undertake harmless error analysis.... A per se reversible error is not necessarily a fundamental one.” (citations omitted)). This is in contrast to fundamental error, which applies when an issue is not preserved. Cox v. State, 966 So.2d 337, 347 (Fla.2007) ("[A] claim of error that is not preserved by an objection during trial is procedurally barred on appeal unless it constitutes fundamental error.”).

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2010-04.
    No. SC10-1644.
    Supreme Court of Florida.
    Jan. 6, 2011.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has filed a report in which it proposes an amended standard jury instruction and asks the Court to authorize the amended instruction for publication and use.

The Committee proposes that Instruction 7.8, Felony Murder — First Degree be amended by moving second-degree (depraved mind) murder in the table of lesser-included offenses from the Category One, necessarily lesser-included offense, box to the Category Two, permissive lesser-included offense, box. The proposed amendment is in response to our decision in Coicou v. State, 39 So.3d 237 (Fla.2010).

In Coicou, we explained that attempted second-degree murder is not a necessarily lesser-included offense of attempted first-degree felony murder and, therefore, we receded from Linehan v. State, 476 So.2d 1262 (Fla.1985), and Scurry v. State, 521 So.2d 1077 (Fla.1988), to the extent those decisions were inconsistent with our decision in Coicou. 39 So.3d at 243. We held that “a case-by-case determination is warranted when deciding whether attempted second-degree murder is a permissive lesser-included offense of attempted first-degree felony murder.” Id. at 244. We also directed the Committee to consider a revision to the Standard Jury Instructions in Criminal Cases in light of our decision. Id. at 243.

After considering the Committee’s report and proposal, we hereby authorize the publication and use of . the amended instruction as set forth in the appendix to this opinion. In doing so, we express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction nor contesting the legal correctness of the instruction. We further caution all interested parties that any notes and comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to its correctness or applicability.

New language is indicated by underlining, and deleted language is struck-through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

7.3 FELONYMURDER-FIRST DEGREE

§ 782.04(l)(a), Fla._Stat.

To prove the crime of First Degree Felony Murder, the State must prove the

following three elements beyond a reasonable doubt:

1. (Victim) is dead.

Give 2a, 2b, or 2c as applicable.

2. a. [The death occurred as a consequence of and while (defendant) was engaged in the commission of

(crime alleged).]

b. [The death occurred as a consequence of and while (defendant) was attempting to commit (crime alleged).]

c. [The death occurred as a consequence of and while (defendant), or an accomplice, was escaping from the immediate scene of

(crime alleged).]

Give 3a if defendant actual perpetrator.

3. a. [(Defendant) was the person who actually killed (victim).]

Give 3b if defendant not actual perpetrator.

b. [(Victim) was killed by a person other than (defendant); but both (defendant) and the person who killed (victim) were principals in the commission of (crime alleged).]

In order to convict of First Degree Felony Murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.

1. Define the crime alleged. If Burglary, also define crime that was the object of burglary.

2. If 2b above is given, also define “attempt” (see 5.1).

3. If 3b is given, immediately give principal instruction (3.5(a)).

j. Since the statute does not require its proof, it is not necessary to define “premeditation. ”

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and was amended in 1985, and 1992, and 2011.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www. floridasupremecourt.org/jury-instmctions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


text:
    In re AMENDMENTS TO THE FLORIDA EVIDENCE CODE.
    No. SC10-190.
    Supreme Court of Florida.
    Jan. 13, 2011.
    Robert Michael Eschenfelder, Chair, Code and Rules of Evidence Committee, Bradenton, Florida, John F. Harkness, Jr., Executive Director, and Ellen H. Sloyer, Bam Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

We have for consideration the regular-cycle report filed by the Florida Bar Code and Rules of Evidence Committee (Committee) concerning recent legislative changes to the Florida Evidence Code (Evidence Code). See Ch. 2008-172, § 9, Laws of Fla. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The amendments at issue in this case are those enacted by the Florida Legislature since this Court last considered amendments to the Evidence Code. See In re Amendments to the Fla. Evidence Code, 960 So.2d 762 (Fla.2007). The Committee has recommended that the Court adopt the legislative changes to the Evidence Code by a vote of twenty-one members in favor, ten opposed, and one vote in abstention. The Board of Governors of The Florida Bar unanimously approved the Committee’s recommendations. The proposed amendments were published for comment in The Florida Bar News; none were received.

In chapter 2008-172, section 9, Laws of Florida, the Legislature amended section 90.404(2)(b)2, Florida Statutes. This statute, in general, governs admission of character evidence in a criminal trial. Subsection 90.404(2)(b) provides that, in a criminal case where the defendant is charged with “a crime involving child molestation,” evidence related to the defendant’s commission of “other crimes, wrongs, or acts of child molestation” is admissible and may be considered for its bearing on any matter to which it is relevant. Subsection (2)(b)2 defines the specific acts that are considered “child molestation” in this context, when committed against a person sixteen years old or younger. Chapter 2008-172, section 9, amends subsection 90.404(2)(b)2 to expand the definition of “child molestation” to include conduct prohibited under section 847.0185(5), Florida Statutes.

The Committee has also proposed a comment to sections 90.502 and 90.507, Florida Statutes, related to inadvertent disclosure of privileged communications and materials. Because we have concerns with the comment, which appears to address an issue of law we have not yet ruled on, we decline to include it in those sections.

Accordingly, consistent with the Committee’s recommendation, we adopt chapter 2008-172, section 9, Laws of Florida, to the extent it is procedural. We express no opinion on the substance of the amendment. See In re Amendments to the Fla. Evidence Code, 825 So.2d 339, 341 (Fla.2002) (“In the absence of a true ‘case and controversy,’ we express no opinion on the substance of the amendments or on the challenges to chapter 2001-221, section 1, that were raised in these proceedings.”). Our adoption of the amendment is effective retroactively to the date the amendment became law.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Section 90.404(2)(b)2, as amended, provides as follows:
      For the purposes of this paragraph, the term "child molestation" means conduct proscribed by s. 794.011, or s. 800.04, or s. 847.0135(5) when committed against a person 16 years of age or younger.

      . Section 847.0135(5), Florida Statutes, provides as follows:
      (5) CERTAIN COMPUTER TRANSMISSIONS PROHIBITED.—
      (a) A person who:
      1. Intentionally masturbates;
      2. Intentionally exposes the genitals in a lewd or lascivious manner; or
      3. Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity
      live over a computer online service, Internet service, or local bulletin board service and who knows or should know or has reason to believe that the transmission is viewed on a computer or television monitor by a victim who is less than 16 years of age, commits lewd or lascivious exhibition in violation of this subsection. The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this subsection shall not constitute a defense to a prosecution under this subsection.
      (b) An offender 18 years of age or older who commits a lewd or lascivious exhibition using a computer commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (c) An offender less than 18 years of age who commits a lewd or lascivious exhibition using a computer commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084.
      (d) A mother's breastfeeding of her baby does not under any circumstance constitute a violation of this subsection.


text:
    Michael GOLDMAN, Appellant, v. Faye RESNICK, Appellee.
    No. 3D09-2640.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Rehearing Denied March 4, 2011.
    Michael Goldman, in proper person.
    Navon and Lavin and Andrew T. Lavin, Fort Lauderdale, for appellee.
    Before GERSTEN and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).


author: SUAREZ, J.

text:
    Willard Hiram GIBSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D10-2399.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Rehearing Denied Jan. 4, 2011.
    Willard Hiram Gibson, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before SUAREZ, CORTINAS, and LAGOA, JJ.
   SUAREZ, J.

William Hiram Gibson has filed petitions for mandamus requesting this Court compel the trial court to rule on petitions that the defendant claims are pending below. We dismiss the petitions as moot and successive.

First, Gibson seeks an order compelling the trial court to rule on the merits of a 3.850 motion that he filed on March 1, 2002. The record shows that his petition was denied by the trial court on March 3, 2003 and that the trial court’s denial was affirmed by this Court. Gibson v. State, 855 So.2d 65 (Fla. 3d DCA 2003) (Table) (3D03-1607); Gibson v. State, 854 So.2d 201 (Fla. 3d DCA 2003) (Table) (3D03-1845). Gibson’s petition is denied as moot.

Gibson next appears to attempt to appeal from the denial of his motion to correct sentence rendered December 9, 2009. This appeal is untimely filed. Additionally, the trial court correctly ruled that the issues raised were previously raised and ruled upon and that the motion was successive.

Dismissed.


author: PER CURIAM. KAHN, J.,

text:
    Humberto MARIN, Appellant, v. AARON’S RENT TO OWN and Broadspire, Appellees.
    No. 1D10-0824.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Rehearing Denied Feb. 9, 2011.

      William F. Souza of the Law Offices of William F. Souza, P.A., North Miami Beach, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that denies permanent total disability (PTD) benefits and awards the authorization of a physia-trist in Colombia, though with a condition precedent — which Claimant contends is in variance with the terms of the parties’ stipulation. We affirm the JCC’s denial of PTD without further comment, and write to address the award of a physiatrist in Colombia. Based on our analysis, we modify the award of a physiatrist by striking errant findings and conclusions, and affirm the order as modified.

Claimant suffered a compensable right knee injury on June 4, 1998, for which he was provided authorized medical care in the United States. After reaching the age of sixty-two, Claimant retired from his employment and moved to his native country of Colombia, in June of 2004. Claimant then filed a petition for benefits (PFB) for authorization of a physiatrist in Colombia. On April 4, 2008, the parties entered into a pretrial statement wherein the E/C stipulated that it would furnish Claimant a phy-siatrist in Colombia, without conditions or contingencies.

A final hearing was held on September 22, 2009, nearly 18 months after the parties entered into the stipulation. For the first time, the E/C sought to amend the pretrial stipulation to add the defense of medical necessity in response to the claim for authorization of a physiatrist. In the merit order which followed, the JCC concluded the E/C was bound by its April 8, 2008 stipulation to provide a physiatrist in Colombia. Nevertheless, the JCC ordered that the E/C provide a physiatrist in Colombia “upon referral” from Claimant’s authorized treating orthopedist (also in Colombia), thus modifying and rewriting the agreement which Claimant sought to enforce. Claimant brought this irregularity to the JCC’s attention via a motion for rehearing and the motion was denied without comment.

On appeal, Claimant contends that absent sufficient grounds for avoidance or modification, both the JCC and the E/C were bound by the E/C’s April 8, 2008 stipulation to provide a physiatrist in Colombia — with no additional conditions.

The primary purpose of a pretrial stipulation is to provide the parties an opportunity to state and simplify the issues to be determined by the JCC. See Fla. Admin. Code R. 60Q-6.113(2)(a)-(f). To effectuate this purpose, parties are encouraged to enter into stipulations to limit the issues for consideration and eliminate unnecessary proof. Id. Because due process rights are implicated, a party has a right to rely upon the issues as framed in the pretrial statement. See Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004) (reversing denial of compensation based on affirmative defense not raised pretrial). Although the rules of workers’ compensation procedure allow a party to amend its pretrial statement whenever such amendment is approved by the JCC, (See Fla. Admin. Code R. 60Q-6.113(4)), this administrative rule does not alter substantive law governing the binding nature of stipulations and agreements. See generally Turner v. Miami-Dade County Sch. Bd., 941 So.2d 508, 509 (Fla. 1st DCA 2006) (“As a general rule, a stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” (internal citations and quotation marks omitted)); Jacobs v. Volker Stevin Constr., 609 So.2d 132, 133 (Fla. 1st DCA 1992) (JCC may void or modify a stipulation founded on fraud, misrepresentation, or concealment); Gus Stephens Drywall v. Durr, 569 So.2d 844, 845 (Fla. 1st DCA 1990) (A stipulation should not be ignored absent showing of fraud, overreaching, or misrepresentation).

Although the regular course of litigation commonly requires parties to amend or supplement claims, defenses, objections, or witnesses, as provided for in Rule 60Q-6.113(4), the circumstances presented here do not present a mere amendment or supplement to a defense. Here, in response to Claimant’s PFB for authorization of a physiatrist in Colombia, the E/C not only failed to raise the medical necessity defense in the pretrial statement, but took the additional and affirmative step of entering into a stipulation to provide a physiatrist in Colombia, obviating any defense or requirement of further proof. The JCC approved and found the stipulation binding and enforceable. Notwithstanding the friendlier title bestowed by the E/C, its purported amendment under the facts presented here was, in substance, an attempt to void or set aside a binding stipulation previously approved by the JCC. While there are certainly occasions which might require the voiding of a stipulation or agreement, a party’s mere change of litigation strategy, without more, provides insufficient grounds to set aside a binding agreement. See Lockheed Space Operations v. Pham, 600 So.2d 1261, 1263 (Fla. 1st DCA 1992) (party cannot avoid binding stipulation because he “falls out of love” with his earlier litigation strategy). Accordingly, here the JCC erred in modifying the terms of the parties’ agreement in the absence of any asserted or ostensible legal basis for such relief. Cf. Salinas v. C.A.T. Concrete, LLC, 46 So.3d 600 (Fla. 1st DCA 2010) (explaining legal bases for voiding stipulations).

It is never a court’s function to rewrite the terms of an agreement to make it more reasonable. See Churchville v. GACS Inc., 973 So.2d 1212, 1216 (Fla. 1st DCA 2008). The JCC effectively rewrote the terms of the stipulation to require that the E/C would provide a physia-trist in Columbia “upon referral” from Claimant’s authorized treating orthopedist. The joint stipulation of the parties is binding on the JCC, and a finding by the JCC at variance with the stipulation will be overturned. Wright v. Golf Drive Residence, Inc., 412 So.2d 884 (Fla. 1st DCA 1982). Here, the parties’ joint agreement simply provides that the E/C “will provide” a physiatrist in the area of Claimant’s residence (Colombia). Neither party asserts any ambiguity in this agreement. Accordingly, the order on appeal is hereby modified by striking any requirement that Claimant obtain a referral before receiving authorization for a physiatrist. See Lawrence v. Aquarius Sales & Serv., Inc., 30 So.3d 690 (Fla. 1st DCA 2010) (modifying order by striking JCC’s errant findings, and affirming as modified).

Except as modified, the order is AFFIRMED.

LEWIS and CLARK, JJ., concur.

KAHN, J., Concurs with Opinion.

KAHN, J.,

concurring.

I agree with the majority opinion. In fact, that opinion is a fine and concise explanation of the use of stipulations by parties to workers’ compensation matters. Unfortunately, the opinion is in conflict with Salinas v. C.A.T. Concrete, LLC, 46 So.3d 600 (Fla. 1st DCA 2010). In Sail- nas, a panel of this court held, “a JCC is not required to follow a stipulation that is refuted by competent, substantial evidence.” Id. at 600.

Here, given the length of time between the stipulation and the hearing, the E/C argued that medical necessity no longer supported provision of the medical specialty in question. The JCC quite correctly nixed such an objection; but, under Salinas, it appears such an objection could be made. Interestingly, counsel for appellee, the same able lawyer who represented the successful party in Salinas, characterizes Salinas as a case involving “a stipulation rejected as against public policy....” (Answer Brief, p. 28, n. 7) Salinas does not really articulate such a rationale, but instead relies upon evidence purportedly countermanding the parties’ stipulation in that case. More specifically, the case law relied upon in Salinas is Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008), a case simply construing a statute. That statute, section 440.02(28), Florida Statutes (2007), an enactment the majority in Caraballo characterized as unambiguous, mandates that wages, for purposes of the Florida Workers’ Compensation Act, and therefore for the purpose of calculating average weekly wage, include only those wages “earned and reported for federal income tax purposes.... ” See id. at 356.

In the present case, and by correct analogy to the situation in Salinas, long-standing statutory law mandates “the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require .... ” § 440.13(2)(a), Fla. Stat. (2009). By the stipulation here at issue, the E/C agreed that the claimant would be relieved of her burden to demonstrate medical necessity under the statute, just as the employer in Salinas had stipulated that Mr. Salinas would be relieved of his burden of demonstrating average weekly wage, thus “removing certain elements of the claim from consideration by the JCC.” See Salinas, 46 So.3d at 603 (Kahn, J. dissenting.). Despite that stipulation, the E/C argued to the JCC, successfully it seems, that medical necessity would still be an issue in the provision of care. Today’s opinion holds that the E/C was bound by its stipulation despite the apparent existence of evidence raising a question concerning present medical necessity; contrariwise, the E/C in Salinas prevailed on appeal in a situation where, just as here, the JCC allowed presentation of evidence that impeached the stipulation. I have a great deal of difficulty in drawing a significant procedural distinction between this case and Salinas.

With these observations, I concur.


text:
    Nathaniel C. McCLAIN, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D10-2262.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Rehearing Denied Jan. 28, 2011.

      Nathaniel C. McClain, pro se, for Appellant.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

Nathaniel C. McClain, an inmate in the custody of the Florida Department of Corrections, challenges the denial of his petition for a writ of habeas corpus. We agree with appellant that the trial court was obligated to allow appellant to file a reply to the response filed below by the Florida Parole Commission, appellee. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). Because the appellant’s petition below did not state a basis for relief, see Lopez v. Florida Parole Comm’n., 943 So.2d 199 (Fla. 1st DCA 2006), however, a show cause order should not have issued below. Accordingly, we affirm the denial of the petition for writ of habeas corpus.

AFFIRMED.

KAHN, VAN NORTWICK, AND THOMAS, JJ., concur.


author: WOLF, J.

text:
    Joan COLEMAN, Appellant, v. BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC., Appellee.
    No. 1D10-1366.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.
    Rehearing Denied Jan. 27, 2011.

      Kenneth W. Sukhia, Tallahassee; and Benjamin D. Rust of Benjamin D. Rust, P.A., Tallahassee, for Appellant.
    Harry 0. Thomas of Radey, Thomas, Yon & Clark, P.A., Tallahassee, for Appel-lee.
   WOLF, J.

Appellant challenges the dismissal of her declaratory judgment action. We find merit in two of appellant’s challenges. Namely, the trial court (1) incorrectly determined the exclusive jurisdiction over the cause of action was in federal court, and (2) prematurely dismissed the complaint based on the preemption provisions of the Employment Retirement Income Security Act (ERISA). We reverse and remand for further proceedings.

After successfully settling a personal injury action in federal court, appellant filed a complaint in state court requesting a declaratory judgment prohibiting appellee from seeking subrogation against the settlement proceeds. Specifically, appellant asserted appellee had not met the pre-subrogation notice requirements outlined in subsections 768.76(7) and (9), Florida Statutes (2009) (the collateral sources statute), and thus, had waived its right to subrogation pursuant to the provisions of that statute.

In response, appellee filed a motion to dismiss alleging (1) the state statute would not apply to the underlying plan for benefits because the plan was an ERISA plan and, thus, the state statute was preempted by 29 U.S.C. § 1144(a) (2009); and (2) the trial court lacked subject matter jurisdiction because 29 U.S.C. § 1132(e)(1) granted exclusive jurisdiction to the United States District Court to hear civil matters related to ERISA. The trial court agreed and dismissed the action.

29 U.S.C. § 1132(e)(1)

We first discuss the jurisdictional question. ERISA provides that “[ejxcept for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by ... a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title.” 29 U.S.C. § 1132(e)(1).

29 U.S.C. § 1132(a)(1)(B), however, permits state courts to hear actions in which a participant or a beneficiary of an ERISA plan seeks to enforce his or her rights, to recover benefits, or to clarify his or her rights to future benefits under the terms of the plan.

Appellee asserts the underlying declaratory action is not an action in which appellant is seeking to enforce or clarify her rights or to recover benefits under her plan, and thus, the action must be heard in federal court. In Arana v. Ochsner Health Plan, 338 F.3d 433, 438 (5th Cir.2003), the Fifth Circuit considered a similar declaratory action seeking to prohibit subrogation based on a Louisiana anti-subrogation statute and held the action fell under the concurrent jurisdiction exception of ERISA because:

[the] claim can fairly be characterized either as a claim “to recover benefits due to him under the terms of his plan” or as a claim “to enforce his rights under the terms of the plan.” As it stands, Arana’s benefits are under something of a cloud, for OHP is asserting a right to be reimbursed for the benefits it has paid for his account. It could be said, then, that although the benefits have already been paid, Arana has not fully “recovered” them because he has not obtained the benefits free and clear of OHP’s claims. Alternatively, one could say that Arana seeks to enforce his rights under the terms of the plan, for he seeks to determine his entitlement to retain the benefits based on the terms of the plan.

(Footnote omitted). We agree with the reasoning of the Fifth Circuit and find the trial court erred in dismissing the declaratory action based on 29 U.S.C. § 1132(e)(1).

29 U.S.C. § 1144(b)

In addition to the foregoing, ERISA contains a preemption provision which reads in pertinent part:

(a) Supersedure; effective date
Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subehapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....
(b) Construction and application
(2)(A) Except as provided in subpara-graph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. [Otherwise known as the savings clause ].
(B) Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. [Otherwise known as the deemer clause ].

29 U.S.C. § 1144(a)-(b) (2009). In considering how to apply this express preemption language, Justice O’Connor in Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), summarized:

If a state law “relate[s] to ... employee benefit plan[s],” it is pre-empted. The saving clause excepts from the pre-emption clause laws that “regulat[e] insurance.” The deemer clause makes clear that a state law that “purports] to regulate insurance” cannot deem an employee benefit plan to be an insurance company.

(citations omitted). Thus, in determining if the underlying action is preempted by this provision of ERISA, this court must apply the three-part test. First, we must determine if the state law is related to employee benefit plans. Next, we must decide if the state law supporting the' action is a law “regulating insurance” so as to exempt the action from preemption. If so, this court then must ensure the law does not apply to self-insured employee benefit plans, thereby triggering the ERISA preemption once again as to those plans.

In conducting our analysis, we remain cognizant of the apparent purpose of the deemer and savings clauses which is to allow the state to regulate insurance practices but to reserve regulatory jurisdiction over self-insurance plans.

A Related to an Employee Benefit Plan

First, both parties concede the first prong has been met because the underlying state statute, subsections 768.76(7) and .(9), Florida Statutes (2009), creates subro-gation notice requirements that relate to ERISA benefit plans. However, the inquiry does not end there.

B. Savings Clause

Once it is determined that the state law applies to employee benefit plans, it must next be decided if the state law is excluded from preemption, or saved, because it “regulates” insurance. In Pilot, the Supreme Court provided guidance on this prong, noting the “savings clause” must be given its common-sense meaning. 481 U.S. at 48, 107 S.Ct. 1549.' Second, the court in Pilot looked to case law interpreting the phrase “business of insurance” under the McCarran-Ferguson Act. Id. This law, taken as a whole, provided three criteria for determining whether a practice would fall under the “business of insurance.” Id. Namely:

“[F]irst, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 3009, 73 L.Ed.2d 647 (1982) (emphasis in original).

Id. at 48^9,107 S.Ct. 1549.

However, more recently, in Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341-42, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003), the Supreme Court receded from the McCarran-Ferguson factors, stating:

Today we make a clean break from the McCarran-Ferguson factors and hold that for a state law to be deemed a “law ... which regulates insurance” under § 1144(b)(2)(A), it must satisfy two requirements. First, the state law must be specifically directed toward entities engaged in insurance. See Pilot Life, supra, at 50, 107 S.Ct. 1549, UNUM [Life Ins. Co. of America v. Ward, 526 U.S. 358] supra, at 368, 119 S.Ct. 1380 [143 L.Ed.2d 462 (1999) ]; Rush Prudential [HMO, Inc. v. Moran, 536 U.S. 355], supra, at 366, 122 S.Ct. 2151 [153 L.Ed.2d 375 (2002) ]. Second ... the state law must substantially affect the risk pooling arrangement between the insurer and the insured. Kentucky’s law satisfies each of these requirements.

The majority of cases addressing state subrogation and collateral source statutes have determined that they are laws regulating insurance. In FMC Corp. v. Holliday, 498 U.S. 52, 60-61, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990), the Supreme Court considered whether a Pennsylvania anti-subrogation statute was a law “regulating insurance” and held:

There is no dispute that the Pennsylvania law falls within ERISA’s insurance saving clause.... Section 1720 directly controls the terms of insurance contracts by invalidating any subrogation provisions that they contain. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S., at 740-741, 105 S.Ct., at 2389-2390. It does not merely have an impact on the insurance industry; it is aimed at it. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50, 107 S.Ct. 1549, 1554, 95 L.Ed.2d 39 (1987). This returns the matter of subrogation to state law.

See also Singh v. Prudential Health Care Plan, Inc., 335 F.3d 278, 286 (4th Cir.2003) (holding a subrogation prohibition in Maryland’s HMO Act was a state law regulating insurance pursuant to Miller and was, thus, “saved” from preemption); Medical Mutual of Ohio v. deSoto, 245 F.3d 561 (6th Cir.2001) (holding California’s anti-subrogation statute regulated insurance and was, thus, saved from preemption).

Appellee relies on Levine v. United Healthcare Corp., 402 F.3d 156 (3d Cir.2005), which held that New Jersey’s anti-subrogation statute was not a statute “regulating insurance” because it did not explicitly regulate only insurance but applied to other collateral sources. We can find no other case that draws such a narrow distinction, nor do we believe such an interpretation is warranted. While the Florida law also affects other collateral source providers, it does not negate its intent to regulate insurance providers. Any potential effect on other entities intended to be exempt from state regulation by ERISA is covered by the “deemer clause” discussed more fully below. Thus, we believe that a more reasonable interpretation is that the statute must be primarily related to the insurance industry. The Florida statute meets this interpretation.

Florida’s collateral sources statute has the practical effect of regulating the insurance industry’s right to subrogation through its procedural notice requirements. Specifically, section 768.76(2)(a) defines “collateral sources” as:

... any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:
1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.
2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.
3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

§ 768.76(2)(a)(l)-(4), Fla. Stat. (footnotes omitted). In addition to the foregoing, the statute requires collateral source providers respond within 30 days of notification from a claimant of his or her intent to file suit against a tortfeasor, and failure to promptly comply waives the right of subrogation. § 768.76(6)-(7), Fla. Stat.

Thus, the law substantially affects the risk pooling arrangement between the insurer and the insured by imposing notice limitations on the right to subrogation which, if not followed, effectively alter “the scope of permissible bargains between insurers and insureds.” Kentucky Ass’n of Health Plans, Inc., 538 U.S. at 338-39, 123 S.Ct. 1471. In explaining what was meant by affecting “the risk pooling arrangement” the court explained:

We emphasize that conditions on the right to engage in the business of insurance must also substantially affect the risk pooling arrangement between the insurer and the insured to be covered by ERISA’s saving clause. Otherwise, any state law aimed at insurance companies could be deemed a law that “regulates insurance,” contrary to our interpretation of § 1144(b)(2)(A) in Rush Prudential, 536 U.S., at 364, 122 S.Ct. 2151, 153 L.Ed.2d 375. A state law requiring all insurance companies to pay their janitors twice the minimum wage would not “regulate insurance,” even though it would be a prerequisite to engaging in the business of insurance, because it does not substantially affect the risk pooling arrangement undertaken by insurer and insured.... We have never held that state laws must alter or control the actual terms of insurance policies to be deemed “laws ... which regulate] insurance” under § 1144(b)(2)(A); it suffices that they substantially affect the risk pooling arrangement between insurer and insured. By expanding the number of providers from whom an insured may receive health services, AWP laws alter the scope of permissible bargains between insurers and insureds ....

Id. The regulation at issue is directly related to insurance practices and procedures. The fact that it relates to notice provisions rather than constituting a total bar to subrogation does not change its character as an insurance regulation. Accordingly, the savings clause of ERISA exempts section 768.76, Florida Statutes, from express preemption.

C. Deemer Clause

The last necessary step in a 29 U.S.C. § 1144(b) ERISA preemption analysis involves the interpretation and application of the deemer clause. Specifically, even where the state law is “saved” from preemption pursuant to 29 U.S.C. § 1144(b)(2)(A), the deemer clause may exclude the law from the reach of the savings clause if the plan effected is a self-insured employee benefit plan as opposed to an underwritten insurance plan. FMC Corp., 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356.

The deemer clause prohibits state laws from deeming employee benefit plans described in 29 U.S.C. § 1003(a) “to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies, insurance contracts,.... ” 29 U.S.C. § 1144(b)(2)(B).

29 U.S.C. § 1003 defines self-insured employee benefit plans and states:

(a) Except as provided in subsection (b) or (c) of this section and in sections 1051, 1081, and 1101 of this title, this subchapter shall apply to any employee benefit plan if it is established or maintained—
(1) by any employer engaged in commerce or in any industry or activity affecting commerce; or
(2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or
(3) by both.

Thus, the “deemer clause” will only apply to those insurance plans which are self-funded by either the employer or a union. Id.; FMC Corp., 498 U.S. at 61, 111 S.Ct. 403. In a self-funded insurance plan, the employer assumes the risk of providing medical benefits to employees with its own funds. 29 U.S.C. § 1003; FMC Corp., 498 U.S. at 61, 111 S.Ct. 403. The employer provides a plan, similar to insured plans, setting out the eligibility and coverage limits. These plans, similar to insured employee benefit plans, are covered by ERISA unless exempted. 29 U.S.C. § 1003.

In FMC Corp., the Supreme Court elucidated on the distinction between plans covered by the deemer clause, and those which are not, noting:

We read the deemer clause to exempt self-funded ERISA plans from state laws that “regulat[e] insurance” within the meaning of the saving clause. By forbidding States to deem employee benefit plans “to be an insurance company or other insurer ... or to be engaged in the business of insurance,” the deemer clause relieves plans from state laws “purporting to regulate insurance.” As a result, self-funded ERISA plans are exempt from state regulation insofar as that regulation “relatefs] to” the plans. State laws directed toward the plans are pre-empted because they relate to an employee benefit plan but are not “saved” because they do not regulate insurance. State laws that directly regulate insurance are “saved” but do not reach self-funded employee benefit plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such state laws. On the other hand, employee benefit plans that are insured are subject to indirect state insurance regulation. An insurance company that insures a plan remains an insurer for purposes of state laws “purporting to regulate insurance” after application of the deemer clause. The insurance company is therefore not relieved from state insurance regulation. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the plan’s insurer.

FMC Corp., 498 U.S. at 61, 111 S.Ct. 403. In reaching this holding, the Supreme Court acknowledged the decision “ ‘results in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not.’ ” Id. at 62, 111 S.Ct. 403 (quoting Metropolitan Life Ins. Co., 471 U.S. at 747, 105 S.Ct. 2380).

Thus, as discussed in FMC Corp. and Metropolitan Life, the crucial question in applying the deemer clause to a law otherwise saved from preemption is whether the action is directed toward a self-funded employee benefit plan. Recognizing the importance of such a distinction, appellee asserts the underlying plan is a self-funded employee benefit plan, citing language in the Plan Summary, and notes the plan purports to be self-insured; however, the trial court never made a finding as to this matter. Further, the record does not include the actual plan for benefits or any affidavits asserting the plan was self-funded. Under these circumstances, further proceedings concerning the nature of the plan are warranted. Accordingly, we reverse for factual findings on the matter.

REVERSED AND REMANDED.

DAVIS and WETHERELL, JJ„ concur.

      . We have reviewed appellant’s assertion that the trial court erred in setting aside the default judgment; however, we find no abuse of discretion. Wells Fargo Bank, N.A. v. Jidy, 44 So.3d 162 (Fla. 3d DCA 2010) (citing Lazcar Int'l, Inc. v. Caraballo, 957 So.2d 1191, 1192 (Fla. 3d DCA 2007)).

      . Here, the Plan Summary imposes a similar notice requirement on a claimant, but does not foreclose the right of subrogation in the event the collateral source provider fails to respond to claimant’s notice. Thus, we reject the notion that the statute does no more than enforce the provisions outlined in the plan.

      . We recognize this court previously interpreted the deemer clause in a different manner in Blue Cross & Blue Shield of Florida, Inc. v. Matthews, 473 So.2d 831 (Fla. 1st DCA 1985) (overruled on other grounds). In Matthews, this court considered the appellant's attempt to intervene in a personal injury action against Matthews based on its alleged right of subrogation. Id. at 835. At the time, section 627.736(3), Florida Statutes required the damage award be deducted by any amounts contributed from an insurer and foreclosed appellant's right to subrogation. Id. However, the Plan contained a subrogation clause allowing appellant to seek subro-gation for money spent on Matthews' care. Id. In an attempt to get around the statutory subrogation bar, appellant alleged ERISA preempted the state law banning subrogation. After considering ERISA’s express preemption language, the court stated the deemer clause did not apply to the self-funded employee benefit plan because the statute did not expressly, on its face, apply "directly to any purported benefit welfare plan.” Id. at 836. FMC Corp. was decided after Matthews, and thus, Matthews has been effectively overruled. Matthews is also distinguishable on two grounds. First, the court in Matthews quashed the lower court’s holding on other grounds and then considered the preemption issue, rendering the discussion on preemption dicta. Id. at 834. Second, die court in Matthews considered the preexisting subrogation statute which defined "collateral source” as "any health, sickness or income disability insurance,” whereas the definition under section 768.76 includes "any contract by any corporation to pay for medical services.” Thus, the current version of the statute expressly imposes limitations on self-funded employee benefit plans rather than "insurance.” Accordingly, the current version of the statute speaks more directly to the type of plan brought back under preemption by the deem-er clause and would render a different result than the one reached in Matthews.