author: ALTENBERND, Judge.

text:
    Michael T. DERY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3869.
    District Court of Appeal of Florida, Second District.
    July 21, 2010.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Michael T. Dery, Jr., appeals his conviction for first-degree murder and the resulting sentence of life imprisonment. The evidence against him was primarily, if not exclusively, circumstantial. The forensic science skills of the lead detective, a medical examiner, and a DNA expert were a major feature of the State’s case. A juror, who did not reveal that she had any background in forensic sciences during voir dire, and who appeared simply to be a bus driver in her mid-fifties, admitted during the second day of trial that she had taken a seventeen-week course in forensic science over the internet and that her instructor had been the detective who was the lead detective in this case. The trial court refused Mr. Dery’s request that one of two alternate jurors replace this juror and denied a motion for new trial on this same basis after the jury returned a verdict of guilty as charged. We conclude that the trial court was required to exercise its discretion in a manner that would have prevented this juror from participating in the deliberations and conclude that Mr. Dery is entitled to a new trial in light of these circumstances. Accordingly, we reverse the judgment and sentence and remand for a new trial.

At approximately 6 a.m. on October 4, 2002, someone strangled Tamara Lank with an automobile radio installation cord and dumped her naked body in a field at the end of a dead-end street in Pinellas County, Florida. Ms. Lank was a prostitute who was addicted to crack cocaine and lived in a hotel with another prostitute and two men. At 2 a.m. that morning, she had earned enough money to buy crack cocaine and had returned to the hotel. By 5 a.m., she apparently needed more and returned to the street. Thereafter, she was never seen alive by any witness. A jogger found her body at approximately 7 a.m.

The Pinellas County Sheriffs Office thoroughly investigated the crime scene, and a medical examiner performed an autopsy on Ms. Lank’s body. DNA samples were obtained from scrapings under her fingernails, as well as from her private areas. The samples revealed unknown male DNA. No suspect was identified at the time of this investigation.

In 2005, the Sheriffs Office obtained information that Mr. Dery’s DNA was a high probability match for the DNA obtained from the samples. A detective interviewed him, claiming to be investigating a “murder theft ring.” Mr. Dery denied knowing Ms. Lank, could not identify her photograph, and denied having sex with her. Further investigation indicated that he had access to a roommate’s tool box near the time of the murder and that the box contained an automobile radio installation cord. He also lived in the general vicinity of the crime. Mr. Dery was indicted by a grand jury and charged with the first-degree murder of Ms. Lank.

At trial, the State maintained that Mr. Dery had had sexual intercourse with Ms. Lank at an unknown location and then had immediately strangled her and dumped her body, where it was found by the jogger. Mr. Dery did not testify, but his counsel’s theory was that Mr. Dery was merely Ms. Lank’s last customer and that she must have been killed by someone else after Mr. Dery left. The State’s evidence that Mr. Dery was the person who had murdered Ms. Lank was obviously very circumstantial. It depended extensively on the investigation of the lead detective and on other forensic evidence provided by the medical examiner, a DNA expert, and other witnesses. On appeal, Mr. Dery has argued that he was entitled to a judgment of acquittal. We reject that argument, but the circumstantial nature of the evidence in this case creates a context in which the error on which we reverse is much more likely to constitute an abuse of discretion.

During voir dire, the State questioned the prospective jurors about their knowledge of DNA, engaging in a discussion with the panel about their knowledge of the various uses of DNA. The State asked, “I guess the question is this: Anybody feel or anybody have specific knowledge about DNA? Because you’re interested, you read an article about it, or you have a particular interest in it.” One prospective juror responded that he knew about DNA “just through education.” Juror # 8 said nothing. As far as the parties knew, this juror was a female bus driver in her mid-fifties. Both sides left her on the jury.

After the lead detective testified, juror # 8 indicated that she recognized the witness. The court interviewed the juror. In the process of determining her connection to the detective, the court established that she had taken a seventeen-week course in forensic science several years earlier. It was an internet course provided by a community college. Juror # 8 emphasized that she had had no direct contact with the detective and had not appreciated that the detective was her former instructor until he took the stand.

Mr. Dery did not move for a mistrial. He merely moved to have juror # 8 removed from the jury with either of the two available alternate jurors substituted in her place. The trial court denied this motion, focusing primarily on the limited personal contact between the juror and the detective. For purposes of this opinion, we assume that the juror had no reason to disclose that she knew the detective during voir dire and that her limited connection to this witness would not be a basis that required the trial court to remove her from the panel prior to deliberations.

The primary concern in this case is that juror #8 did not disclose that she had taken a course in forensic science, including the subject of DNA, when the State’s questions during voir dire clearly required her to disclose this training. A juror, who appeared from voir dire to have no training or interests that would affect her service, suddenly revealed mid-trial that she had a sufficiently serious interest in forensic science to take a course on the subject when she was approximately fifty years old. Given that most of the State’s evidence was based on forensic sciences, Mr. Dery’s attorney was entirely credible when he represented that he would, if necessary, have used a peremptory challenge to remove this juror if she had properly revealed this training during voir dire.

It is well established that a trial court has the discretion to remove a juror and use an acceptable alternate juror when the court determines mid-trial that the juror was not candid during voir dire. See, e.g., Wilson v. State, 608 So.2d 842, 843 (Fla. 3d DCA 1992) (removing juror who failed to disclose her ill feelings toward the state attorney’s office during voir dire); State v. Tresvant, 359 So.2d 524, 526 (Fla. 3d DCA 1978) (removing juror who was not candid about the number of times she had been arrested). The closer question is identifying the circumstances under which a trial court abuses its discretion by refusing to remove a juror. We can look to De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), for guidance in answering this question. In De La Rosa, the Florida Supreme Court outlined a three-part test to use in determining when a juror’s failure to disclose information during voir dire warrants a new trial. Id. at 241. “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Id.

Relying on De La Rosa, the Fifth District in Lebron v. State held that the defendant was entitled to a new trial when a juror failed to disclose that the victim of the crime was his friend. 724 So.2d 1208 (Fla. 5th DCA 1998). During voir dire the trial court had asked the potential jurors if they knew anything about the case and if they knew the defendant. Id. at 1209. None of the jurors indicated they knew the defendant, although some had indicated they knew about the case. The juror at issue, however, did not admit knowing anything about the case. Id. The Fifth District concluded that his failure to disclose his knowledge “constituted prejudicial juror misconduct requiring reversal.” Id. at 1210.

This case is in line with De La Rosa and Lebron. Because the State’s case heavily relied on forensic science, a juror’s education and knowledge about it was relevant and material to his or her service on the jury. Here, juror # 8 had specialized knowledge about DNA stemming from the course she took in forensic science. Instead of admitting that she had taken a course on the subject, the juror concealed her knowledge. Her failure to disclose this knowledge cannot be attributed to a lack of diligence on Mr. Der/s part because the State expressly asked the jury panel whether any of them had any specific knowledge about DNA and Mr. Dery had no reason to inquire further after the juror failed to indicate her training in the subject. As a result, Mr. Dery was prevented from exercising a peremptory or for-cause challenge to strike her from the jury during voir dire and, thus, was prejudiced by her nondisclosure.

When Mr. Dery did discover the juror’s specialized knowledge about DNA, he promptly sought to replace her with an alternate juror. There were two alternate jurors on the panel. These alternate jurors were still available when the jury was sent to deliberate. The trial court released these alternate jurors when there was little or no reason why either one of them could not have deliberated in the place of juror # 8. Therefore, we conclude that the trial court abused its discretion when it refused to replace the juror with an alternate. As such, we reverse Mr. Dery’s conviction and sentence and remand for a new trial.

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.

      . Time estimates at trial varied considerably, but these discrepancies are not important for our opinion.

      . Mr. Dery had several prior convictions for the sale and possession of cocaine in Pinellas County. Shortly before this murder, he had been incarcerated. Presumably his DNA was available due to his criminal record.


source: Caselaw Access Project

author: GERBER, J.

license: Public Domain

text:
    Denise HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3607.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2010.

      Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant was convicted of five counts of unlawful sexual activity by a person 24 years of age or older with a person 16 or 17 years of age. § 794.05(1), Fla. Stat. (2006). She raises six arguments on appeal. We affirm on all arguments and comment briefly on one of the arguments.

We hold the trial court did not err in excluding evidence that, on a separate occasion, the victim allegedly falsely claimed he had sexual intercourse with an adult woman other than the defendant. We find this case is on point with Pantoja v. State, 990 So.2d 626 (Fla. 1st DCA 2008). In Pantoja, the first district held that the trial court properly excluded a molestation victim’s allegedly false prior accusation of molestation against her uncle, who was not the defendant in the case. Id. at 628-29. The first district reasoned that the evidence code does not provide for impeachment of a witness by evidence of prior acts of misconduct not resulting in conviction for a crime punishable by more than one year in prison or a crime that involves dishonesty or a false statement. Id. at 629-30. The first district certified conflict with Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988), where the second district reached a contrary holding. Pantoja, 990 So.2d at 628. Our supreme court has granted review of Pantoja. Pantoja v. State, 13 So.3d 468 (Fla.2009). Because we follow Pantoja, we also certify conflict with Joggers.

Ajfirmed.

POLEN and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Fabian LEFLER, Appellant, v. Cindy Lorene LEFLER, Appellee.
    No. 4D10-1332.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2010.

      Troy W. Klein of the Law Office of Troy W. Klein, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The husband appeals a final judgment of dissolution of marriage. We find competent substantial evidence supporting the trial court’s award of custody and child support to the wife. The trial court also properly awarded the wife exclusive use and possession of the marital home. Although the wife did not include a specific request for the marital home in her pleadings, the grant of exclusive use and possession of the marital home was incident to child custody. See Dorsett v. Dorsett, 902 So.2d 947, 953 (Fla. 4th DCA 2005).

Affirmed.

WARNER, POLEN and LEVINE, JJ., concur.


author: HAZOURI, J.

text:
    Steven B. PHILLIPS, Appellant, v. Pamela A. FORD f/k/a Pamela A. Phillips, Appellee.
    No. 4D09-3978.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.

      Steven B. Phillips, Juno Beach, pro se.
    No brief filed for appellee.
   HAZOURI, J.

Steven B. Phillips (“Husband”) appeals the trial court’s order granting attorney’s fees to Pamela A. Ford (“Wife”) in their modification proceeding. We reverse the award of attorney’s fees to Wife.

On August 7, 2008, the trial court held a final hearing on Husband’s Amended Supplemental Petition for Modification of Child Support and Wife’s Motion for Contempt. Both parties were represented by counsel and moved for attorney’s fees. The trial court denied both Husband’s motion for modification and Wife’s motion for contempt. However, the trial court directed Husband to pay Wife’s fees and costs, finding that “Former Husband is in a financially superior position to contribute to Former Wife’s attorney[’s] fees.”

Husband then moved to vacate the order denying his petition for modification. The trial court denied Husband’s motion to vacate and again found “competent and substantial evidence in the record establishing that Former Husband is in a financially superior position to contribute to the Former Wife’s attorney’s fees.” On April 21, 2009, the trial court awarded Wife attorney’s fees and costs in the amount of $8,250.00.

The standard of review for the award or denial of attorney’s fees in a dissolution proceeding is abuse of discretion. Lord v. Lord, 993 So.2d 562, 564 (Fla. 4th DCA 2008) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1202-03 (Fla.1980)). Section 61.16(1), Florida Statutes, provides that a trial court “may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.” § 61.16(1), Fla. Stat. (2010). “The standard for awarding attorney’s fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay.” Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (citations omitted).

The instant case is factually similar to Baime v. Baime, 850 So.2d 606 (Fla. 4th DCA 2003), where we reversed an award of attorney’s fees after the trial court failed to make appropriate findings. In Baime, the trial court entered an order denying the former husband’s petition for modification, granting the former wife’s motion for fees, and reserving jurisdiction to establish the amount. Id. at 606. We determined that it was not apparent from either order that the trial court considered the financial resources of the parties. Id.

Similarly, in the instant case, both orders state that “Former Husband is in a financially superior position to contribute to Former Wife’s attorney[’s] fees” and do not reference Wife’s need for attorney’s fees. “The trial court is required to make findings regarding the parties’ respective financial needs and abilities to pay.” Id. (citing Sumlar v. Sumlar, 827 So.2d 1079, 1084 (Fla. 1st DCA 2002)) (emphasis added). “Failure to do so requires reversal.” Id.

Following the hearing on Husband’s modification petition, the trial court determined that “Former Husband is in a financially superior position to contribute to Former Wife’s attorney[ s] fees and directed him to pay Wife’s fees and costs. However, “[i]t is not enough for a party to demonstrate the adverse party’s ability to pay; the party seeking payment of fees must also show a need.” Zahringer v. Zahringer, 813 So.2d 181, 182 (Fla. 4th DCA 2002). In the instant case, Wife’s monthly gross income is $6,879.50 and her salary is approximately $74,000 annually. Wife receives $3,000 a month in child support from Husband. Wife was also awarded the marital home in the divorce, valued at $900,000, with a $750,000 mortgage. Testimony at the hearing demonstrated that Wife was able to retain and compensate previous attorneys without assistance from Husband.

Thus, “the trial court did not make any factual findings concerning the former wife’s need and did not state any reason why the former husband should be responsible for her attorney’s fees.” Bohner v. Bohner, 997 So.2d 454, 457 (Fla. 4th DCA 2008). Accordingly, we reverse the award of attorney’s fees and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

CIKLIN and LEVINE, JJ., concur.


author: SILBERMAN, Judge. ALTENBERND, Judge,

text:
    William K. BISHOP, Petitioner, v. George SHELDON, Secretary, Department of Children and Family Services, Respondent.
    No. 2D09-1347
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Tampa for Respondent.
   SILBERMAN, Judge.

William Bishop, a committed person under the Involuntary Civil Commitment of Sexually Violent Predators Act (the Act), filed a petition for writ of habeas corpus seeking his immediate release from the Florida Civil Commitment Center. He asserts that the circuit court did not have jurisdiction to adjudicate the commitment petition filed under the Act because he was not in lawful custody at the time that proceedings under the Act were commenced. We conclude that factual issues preclude us from determining whether Bishop was in lawful custody when the State commenced proceedings under the Act, and we transfer the petition to the circuit court to conduct an evidentiary hearing to resolve this issue.

On February 16, 1998, Bishop was sentenced under the 1995 sentencing guidelines to fifty-four months in prison for the offense of committing a lewd act upon a child. In 2000 he filed a postconviction motion claiming that he was entitled to be resentenced under the 1994 sentencing guidelines pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), in which the supreme court struck the 1995 sentencing guidelines as unconstitutional. The postconviction court granted relief on Bishop’s claim, and on September 7, 2000, the court resen-tenced Bishop to 31.75 months in prison followed by six years’ probation. The court granted Bishop credit for 143 days’ time served and imposed the sentence nunc pro tunc to February 16,1998.

On the date of resentencing, the State filed its petition to have Bishop committed under the Act. Bishop later filed a motion to dismiss and an amended motion to dismiss, arguing that he was not in lawful custody when the State filed its commitment petition. He asserted that he had fully served his corrected sentence on either January 5, 2000, or May 19, 2000, depending upon whether he was awarded the maximum amount of gain time or required to serve one hundred percent of his corrected sentence. The circuit court denied Bishop’s amended motion to dismiss and proceeded with the commitment proceeding, ultimately entering a commitment order. Bishop appealed the commitment order to the Fifth District Court of Appeal, which affirmed. See Bishop v. State, 944 So.2d 374 (Fla. 5th DCA 2006) (table decision).

In the habeas petition, Bishop argues that he is entitled to relief based on Larimore v. State, 2 So.3d 101 (Fla.2008), in which the supreme court recently held that the Act does not apply to persons who are not in lawful custody when commitment proceedings are initiated. Bishop renews his contention that because of his resentencing, he was not in lawful custody when the State commenced commitment proceedings. He submits that he had fully served his sentence and should have been released from prison before the State filed its commitment petition.

Preliminarily, we note that the legality of Bishop’s continued detention under the Act is cognizable in a petition for writ of habeas corpus. See Murray v. Regier, 872 So.2d 217, 223 (Fla.2002) (determining that the appellate court should have considered the merits of Murray’s petition for writ of habeas corpus, which asserted that the civil commitment order was illegal because it violated his constitutional due process rights). On the merits, we conclude that Bishop may be entitled to relief under Larimore if his sentence had indeed expired before the State initiated commitment proceedings under the Act.

Larimore involved a guilty plea to lewd and lascivious acts on a child in two separate cases in 1991. 2 So.3d at 104. Lari-more was sentenced to fifteen years in prison in one case followed by five years of probation in the second case. He was released from prison in 1998 due to a gain time award, and he began serving his probation. The court revoked Larimore’s probation in February 2000 and sentenced him to five years in prison.

In August 2002, the First District Court of Appeal determined that Larimore was entitled, pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), to credit against the five-year prison sentence for the time served on the fifteen-year sentence imposed in the first case, including actual prison time and gain time. Larimore, 2 So.3d at 104. The award of credit would have effectively erased the five-year sentence imposed for the violation of probation, but the Department of Corrections (DOC) forfeited 2830 days of gain time Larimore had earned on his fifteen-year prison sentence. Id.

In November 2004, while Larimore was in prison, the State filed a petition for involuntary civil commitment pursuant to the Act. Less than one month later, the First District held that Larimore was entitled to immediate release from custody because the DOC’s forfeiture of his gain time was unauthorized. Id. (citing Larimore v. Fla. Dep’t of Corr., 910 So.2d 847 (Fla. 1st DCA 2004)). Larimore then filed a motion to dismiss the commitment petition on the ground that he was not in lawful custody on the effective date of the Act. After the circuit court denied his motion, he filed a petition for writ of prohibition in the First District to prevent further proceedings against him under the Act. The First District denied the petition. 2 So.3d at 104 (citing Larimore v. State, 917 So.2d 354, 355 (Fla. 1st DCA 2005)).

On review of the denial of Larimore’s petition for writ of prohibition, the supreme court held that Larimore was entitled to release because he “was not in legal custody when initial steps were taken to initiate civil commitment proceedings against him.” Id. at 117. The court noted that it had previously construed the term “custody” to mean “lawful custody” in State v. Atkinson, 831 So.2d 172, 174 (Fla.2002), in which it held that the Act was not applicable to individuals who were not in lawful custody on its effective date. Larimore, 2 So.3d at 115. The court explained that

interpreting the Jimmy Ryce Act as not requiring lawful custody for individuals who had been incarcerated at some point after the effective date of the Act but are not in lawful custody when commitment proceedings are initiated would be contrary not only to the overall intent of the Act but “would be contrary to the basic tenets of fairness and due process.”

Id. (quoting Atkinson, 831 So.2d at 174).

Under Larimore and Atkinson, Bishop could not be committed pursuant to the Act if he was not in lawful custody when the State initiated commitment proceedings. However, this does not necessarily mean that Bishop is entitled to be released from the Florida Civil Commitment Center. Commitment proceedings are initiated by either giving “written notice” to the multidisciplinary team and the state attorney as provided in section 394.913(1), Florida Statutes (1999), or by transferring the person to the custody of the Department of Children and Family Services (DCF) when the person is immediately released for some reason as provided in section 394.9135(1). While Bishop argues that the State initiated commitment proceedings in this case by filing the commitment petition, it appears that the State actually provided an earlier written notice to the multidisciplinary team and state attorney. The State’s commitment petition and Bishop’s motion and amended motions to dismiss refer to evaluations by members of the multidisciplinary team that were performed prior to the State’s filing of its commitment petition. However, none of the documents that have been provided to this court reflect the exact date when written notice was given to the multidisciplinary team and the state attorney pursuant to section 394.913(1).

Thus, even if Bishop was not in lawful custody at the time the commitment petition was filed, the question remains whether he was in lawful custody when the State provided written notice to the multidisciplinary team pursuant to section 394.913(1). Further, Bishop has raised an issue as to alternative dates by which he should have been released from prison based on whether he was awarded gain time. We are unable to make factual determinations regarding all of these dates; thus, we must transfer Bishop’s habeas petition to the circuit court for an eviden-tiary hearing. See Madison v. State, 27 So.3d 61, 63 (Fla. 1st DCA 2009) (noting in a direct appeal from a commitment order that the circuit court had subject matter jurisdiction to adjudicate the commitment petition only if Madison was in lawful custody when the commitment process was initiated and remanding for an evidentiary hearing to resolve the lawful custody issue).

In its response to Bishop’s habeas petition, the State argues that Bishop’s reliance on Larimore and Atkinson is misplaced. The State relies on a footnote in Larimore in which the court stated as follows:

In this case, Larimore’s entire resen-tencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason. That issue is not before us.

2 So.3d at 117 n. 8. The State contends that Larimore does not apply because Bishop was in lawful custody when he was resentenced pursuant to Heggs. The State submits that Atkinson does not apply because that case involved the question of lawful custody on the date the Act became effective. Because the resentencing here would have resulted in Bishop’s immediate release, the State contends that it properly filed its commitment petition on that same date and was entitled to proceed against Bishop pursuant to section 394.9135.

In the present case, Bishop, like Lari-more, is claiming that he was not in lawful custody when commitment proceedings were commenced. While Larimore and Bishop were not resentenced for the same reason, Bishop was resentenced for the same reason as Atkinson, who had also been resentenced under the 1994 sentencing guidelines under Heggs. See Atkinson, 831 So.2d at 173. We conclude that if the effect of the Heggs resentencing in Atkinson was that Atkinson was not in lawful custody at the time the Act was enacted, then the effect of the Heggs re-sentencing in this case was that Bishop was not in lawful custody at the time the commitment petition was filed. Because Larimore requires that a person be in lawful custody when commitment proceedings are commenced, the circuit court may not have had jurisdiction to adjudicate the commitment petition.

In conclusion, an evidentiary hearing is necessary to determine whether Bishop was, in fact, in lawful custody when the State commenced proceedings under the Act. Thus, upon issuance of the mandate in this case, the habeas petition shall be transferred to the Circuit Court for the Twelfth Judicial Circuit in DeSoto County to make a factual determination regarding Bishop’s custodial status. The circuit court shall determine whether, with the award of gain time, commitment proceedings were commenced prior to the date of the expiration of Bishop’s sentence following the Heggs resentencing. If commitment proceedings were not commenced prior to that date, the court should grant Bishop’s petition and release him from the Florida Civil Commitment Center.

Petition transferred.

CRENSHAW, J., Concurs.

ALTENBERND, J., Dissents with opinion.

ALTENBERND, Judge,

Dissenting.

Although I concurred in this case on initial release, for reasons more fully explained in my special opinion in Phillips v. State, 69 So.3d 951, 2010 WL 4861458 (Fla. 2d DCA 2010), I now dissent. This is another case in which I appreciate the court’s effort to remain obedient to the supreme court’s precedent in Lañmore and Atkinson. Nevertheless, Mr. Bishop should not be allowed to deprive the Department of Children and Family Services of jurisdiction over him by his own decision to delay a postconviction motion so that, on recalculation, his sentence expired before the unpreserved error was corrected.

      .The Involuntary Civil Commitment of Sexually Violent Predators Act, section 394.910-.931, Florida Statutes (1999), is also known as the Jimmy Ryce Act. It provides for the involuntary civil commitment of persons found to be sexually violent predators upon their release from prison or other confinement.

      . Contrary to the dissent's suggestion, there is no indication Bishop delayed filing his post-conviction motion challenging his illegal sentence.

      . See § 944.275(4)(b)(3), Fla. Stat. (1999) (providing that no gain time award may result in a prisoner’s serving less than eighty-five percent of the sentence imposed).

      . Although Bishop’s criminal and commitment proceedings took place in the Circuit Court for the Ninth Judicial Circuit, he is presently committed within the territorial jurisdiction of this court and the Circuit Court for the Twelfth Judicial Circuit. Thus, his challenge to the legality of his detention is properly considered within the territorial jurisdiction where he is detained. See Stovall v. Cooper, 860 So.2d 5, 8 (Fla. 2d DCA 2003); Morris v. State, 978 So.2d 259, 261 (Fla. 5th DCA 2008).

      . We note that in Atkinson the supreme court concluded that the corrected sentence under Heggs, imposed nunc pro tunc, would have expired prior to the effective date of the Act "even without the award of any gain time." 831 So.2d at 173. Thus, Atkinson did not address the effect of gain time in determining whether a person was in lawful custody at the time commitment proceedings were commenced. However, the First District in Madison remanded to the circuit court to consider gain time or other credits in making a factual determination of Madison’s custodial status. 27 So.3d at 63. In the present case, the circuit court shall consider the application of basic gain time required by the statutes in effect at the time of the commission of Bishop’s offense to the nunc pro tunc 31.75 months’ prison sentence in determining his lawful custodial status. It shall also consider incentive gain time, or any other such credits actually awarded by the DOC until the commencement of commitment proceedings.


text:
    James Richard COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1981.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.

      . Judge Wallace has been substituted for Judge Fulmer, who was on the original Cooper panel.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

James Richard Cooper appeals his convictions for two counts of lewd molestation and four counts of sexual battery on a person in familial custody, raising three issues for review. This case is back before this court on the limited issue of whether the trial court’s error in allowing the State to introduce testimony of uncharged incidents of sexual activity was harmless. Because our renewed review of the full record confirms our prior conclusion that the error was harmless in this case, we affirm.

The State charged Cooper with two counts of lewd molestation and four counts of sexual battery on a person in familial custody for acts that occurred between him and the victim over the course of approximately four years. Each count charged Cooper with engaging in a specific type of improper act, and each count alleged a range of dates during when the improper conduct occurred. However, despite the range of dates alleged in the information, each count alleged only a single improper act.

On appeal, Cooper raised three grounds for reversal. In ground one, Cooper argued that the trial court had erred by permitting the State to present evidence of numerous instances of uncharged sexual conduct between Cooper and the victim. In the original appeal, we agreed that the admission of this evidence was erroneous. See Cooper v. State, 13 So.3d 147, 149 (Fla. 2d DCA 2009). Nevertheless, we affirmed Cooper’s convictions, finding that the error in admitting this evidence was harmless. Id. In doing so, we stated:

As to whether the error of allowing the State to present evidence of extensive abuse did or did not contribute to the verdict, we note that if the case had been presented as six distinct acts as charged, the State’s presentation of its case would have necessarily been different. On the other hand, the jury heard a taped statement where Cooper admitted engaging in sexual acts with the victim. Because the taped statement is strong evidence of Cooper’s guilt, we conclude that the error of allowing the State to present evidence of multiple sexual acts did not affect the verdict and was harmless in this case. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Id.

Cooper appealed to the supreme court, asserting that this court had properly cited but not properly applied the harmless error test set forth in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The supreme court agreed, stating:

Although the Second District cited DiGuilio, it failed to follow the DiGuilio standard when it relied on what it deemed the “strong evidence of Cooper’s guilt.” Id. As we have explained, the applicable 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.” DiGuilio, 491 So.2d at 1139. Likewise, it is not a strong evidence test. Rather, the test is “whether there is a reasonable possibility that the error affected the verdict.” Id.; see also Ventura v. State, 29 So.3d 1086, 1091 (Fla.2010) (quashing and remanding a district court’s decision when the harmless error analysis focused on overwhelming evidence of guilt because it “does not address a proper [DiGuilio ] analysis and does not discuss whether there is a reasonable possibility that the ... error affected the verdict”).

Cooper v. State, 43 So.3d 42, 43 (Fla.2010). The supreme court then remanded the case to this court for us to reconsider whether the trial court’s error in admitting the State’s evidence of uncharged acts is harmless under the standard enunciated in DiGuilio.

In DiGuilio, the supreme court explained the harmless error test as follows:

The harmless error test, as set forth in Chapman and progeny, 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 error contributed to the conviction. See Chapman [v. California], 386 U.S. [18] at 24, 87 S.Ct. [824] at 828, 17 L.Ed.2d 705 [ (1967) ]. 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.

DiGuilio, 491 So.2d at 1138. Moreover, “[t]he focus [of the test] 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.” Id. at 1139. Following this explanation of the harmless error test, the court examined the admissible evidence of DiGuilio’s guilt and the nature of the inadmissible evidence. It found that the admissible evidence was “not clearly conclusive,” in large part because there were plausible explanations for DiGuilio’s conduct that were equally consistent with his innocence. Id. at 1138. It also found that the inadmissible evidence constituted a de facto comment on DiGuilio’s right to remain silent because it simply highlighted for the jury the fact that DiGuilio was not testifying at trial and had not previously offered any plausible explanation for his presence in the midst of a drug deal. Id. Thus, because the admissible evidence was not conclusive and the inadmissible evidence constituted an improper reference to DiGuilio’s constitutional right to remain silent, the court found that the error was not harmless.

Turning to this case, we find that, unlike in DiGuilio, the admissible evidence against Cooper was conclusive. The victim clearly testified that he and Cooper had engaged in at least one act of each type charged by the State during the period of time covered by the information. More important, the State introduced Cooper’s taped statement, in which he specifically admitted to engaging in at least one act of each type charged by the State with the victim. While there were some discrepancies between the victim’s testimony and Cooper’s statement, those discrepancies went to issues such as the time the acts had started and who initiated the contact — not to whether the acts had occurred at all. And while Cooper did introduce evidence to show that the victim had once denied that any sexual acts had occurred to an investigator from the Department of Children and Family Services, this evidence conflicted with Cooper’s own taped admission. Therefore, the admissible evidence against Cooper was extremely strong.

As to the inadmissible evidence, the State did introduce evidence that Cooper had repeatedly engaged in this conduct with the victim during a period of about four years even though the information charged only six discrete instances of improper conduct. However, while the State elicited testimony from the victim that these acts had happened “once or twice a week” from the time he was thirteen until he was seventeen, the State’s focus remained primarily on proving the individual acts. In closing, the State argued that the question for the jury was not whether each act happened more than once, but rather whether each of the different acts alleged in the information had occurred at least once. And while the State did, later in its initial closing argument, make reference to the multiple incidents, it made no reference to the repeated nature of the abuse in its rebuttal closing, and it did not make the repeated nature of the abuse a theme in any part of its case.

Considering this evidence in light of the DiGuilio standard, while the State did elicit improper testimony concerning the frequency of the acts by Cooper, we conclude that there is no reasonable possibility that this inadmissible evidence contributed to the verdict. The State charged Cooper with six separate counts of sexual activity. Thus, regardless of the time frame involved or the repeated nature of the abuse, the jury was going to hear evidence of six separate sexual incidents between Cooper and the victim. The victim’s testimony was clear and unequivocal, and Cooper himself admitted to these acts in a taped statement that was played for the jury. Therefore, because on this record there is no reasonable possibility that the erroneously admitted evidence contributed to the jury’s verdict, we find the error harmless and affirm Cooper’s convictions.

Affirmed.

VILLANTI and WALLACE, JJ., and CASE, JAMES R., Associate Senior Judge, Concur.

      . Grounds two and three were affirmed by this court without discussion and are not at issue in this proceeding. See Cooper v. State, 13 So.3d 147, 148 (Fla. 2d DCA 2009).

      . Our renewed review of the record leads us to believe that the previous panel understood and applied the proper harmless error test but did not properly articulate its analysis in the opinion.


text:
    Ernest O’Neil GAMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-651.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Ernest O’Neil Gamble, Doral, pro se.
    No appearance required for appellee.
   PER CURIAM.

We summarily affirm the circuit court’s denial of Gamble’s untimely motion to withdraw his plea, without prejudice to his right to seek timely postconviction relief in a rule 3.850 motion.

Affirmed.

WARNER, DAMOORGIAN and GERBER, JJ., concur.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Michael KING and Phyllis King, Appellees.
    No. 2D09-4742.
    District Court of Appeal of Florida, Second District.
    May 6, 2011.

      Dorothy Venable DiFiore and Sarah M. Sorgie of Haas, Lewis, DiFiore & Amos, P.A., Tampa, for Appellant.
    Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola; Lefferts L. Mabie, III, of Lefferts L. Mabie, III, P.A., Tampa; and Joseph R. Bryant of Joseph R. Bryant, P.A., Tampa, for Appellees.
   ON MOTION FOR REHEARING OF UNPUBLISHED ORDER DENYING MOTION FOR ATTORNEYS’ FEES

EN BANC

ALTENBERND, Judge.

This appeal arises from a judgment in favor of Michael and Phyllis King against Government Employees Insurance Company (“GEICO”) on their claim for underin-sured motorist benefits. We have previously affirmed that judgment without a written opinion. Gov’t Emps. Ins. Co. v. King, No. 2D09-4742, 2010 WL 5113033 (Fla. 2d DCA Dec. 8, 2010) (table decision). Mr. King filed this motion for rehearing challenging only the court’s unpublished order denying his motion for attorneys’ fees. We grant the motion for rehearing but do not alter the disposition. Rather, by en banc opinion, we recede from a portion of our earlier decision in Allstate Insurance Co. v. Sutton, 707 So.2d 760 (Fla. 2d DCA 1998), and deny Mr. King’s motion for attorneys’ fees.

Mr. King was driving a car when it was struck from behind by another vehicle. The liability insurance company for the other vehicle settled the claims of Mr. and Ms. King for its policy limits. The car Mr. King was driving was owned by another person who had underinsured motorist insurance on that vehicle with GEICO. Mr. King and his wife filed claims as class II insureds with GEICO. The GEICO policy provided underinsured motorist coverage with limits of only $25,000 per person. After this lawsuit commenced, Mr. and Ms. King each made a proposal for settlement in the amount of $100,000. GEICO did not settle the claims, and ultimately a jury returned a verdict in favor of Mr. King for $1,588,171 and in favor of Ms. King for $50,000.

Because the trial involved only a claim for underinsured motorist benefits under the insurance contract, the judgment on appeal was not a judgment for the full amount of the jury’s verdict but rather a judgment based on the $25,000 in insurance coverage. See Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So.2d 239, 241-42 (Fla. 2d DCA 2008) (holding that judgment against insurer in an action for breach of contract for underinsured motorist benefits was to be limited to the policy limits). After oral argument in this appeal, the three-judge panel determined that there was no reversible error in that judgment and affirmed without a written opinion. The panel denied Mr. King’s motion for attorneys’ fees because the judgment did not involve a denial of coverage and his proposal of settlement before trial had been in the amount of $100,000, which was an amount in excess of the judgment on appeal. See §§ 627.428, .727(8), 768.79(6)(b), Fla. Stat. (2005); Fla. R. Civ. P. 1.442.

Mr. King’s motion for rehearing correctly notes that this court allowed for a conditional judgment of attorneys’ fees for work at the trial court level in Sutton, which is a very similar case. He argues that logically he should be entitled to a conditional judgment of attorneys’ fees for the work in this case at the appellate level.

In Sutton, the trial court first entered a judgment for the limits of the insurance coverage, reserving jurisdiction to determine attorneys’ fees and costs at a later time. 707 So.2d at 761. Allstate appealed that judgment to this court, and we affirmed. Id. On remand, Allstate satisfied the judgment, but the trial court proceeded to conduct a hearing on attorneys’ fees, entering a judgment in excess of $200,000 even though there had been no determination that Allstate had committed bad faith and there was no legal basis at the time of the judgment for an award of fees. Id. The opinion reflects that a bad faith action was pending in federal court when the trial court entered the judgment. Id.

According to this court’s opinion, Allstate argued that the judgment was “premature,” and the Suttons conceded this point. Id. Although this court reversed the judgment, we authorized the trial court to enter a so-called “contingent judgment” that we apparently assumed could be transformed into a real judgment in the event that the Suttons prevailed in federal court and the federal judgment exceeded 125 percent of the proposal for settlement made in the earlier circuit court action. Id. The opinion does not reveal whether we granted any motion for appellate attorneys’ fees on an equally contingent basis, but this court is aware that we have since issued such orders.

In the twelve years that have passed since Sutton, the practice of entering contingent judgments does not appear to have gained any general acceptance. Courts have criticized the opinion in Sutton at least in part. See, e.g., State Farm Mut. Auto. Ins. Co. v. Kujawa, 782 So.2d 1003, 1004-05 (Fla. 4th DCA 2001). Although the concept of a contingent judgment may have seemed like a good idea in Sutton, it presents many difficulties.

A contingent judgment is not an appealable order. See Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010). Moreover, in Sutton for example, there is no reason to believe that the federal court would have concluded that it was bound by the state court’s premature determination of fees in the subsequent bad faith action. Obviously, if the insurance company prevails in the bad faith action, the contingent judgment becomes moot or is a nullity. In other words, such a contingent judgment is actually a factual determination on an issue that is not yet in controversy at the time of the determination.

These difficulties arise because Sutton failed to draw a proper distinction between: (1) attorneys’ fees awardable in the first action for underinsured motorists benefits under the rules governing awards of attorneys’ fees, and (2) damages award-able in the bad faith action that are measured by attorneys’ fees in the first action. At the end of the first action in Sutton and after the entry of the small judgment in this case, the plaintiffs had not received judgments that permitted awards of fees under section 768.79 or under any other legal basis. See Sutton, 707 So.2d at 761. The fact that the verdict in each of these cases might be introduced into evidence in a subsequent lawsuit alleging bad faith presents no legal basis for the trial courts in these cases to make any determination of fees that might be awardable as damages in the subsequent lawsuit. Likewise, Mr. King is not entitled to an award of attorneys’ fees in this appeal at this time, and there is no legal basis for this court to order the trial court to determine a contingent award of appellate attorneys’ fees for use in any subsequent lawsuit.

An action for bad faith usually is filed as a separate proceeding after the initial case is finished. Jenkins, 32 So.3d at 165 (noting that “[t]he bad faith action is a separate and distinct cause of action, which [does] not accrue until completion of the initial action”). The damages in a bad faith action involving underinsured motorist coverage are specified in section 627.727(10), Florida Statutes (2009). If attorneys’ fees for this appeal are an element of damages under the language of that statute, an issue we do not decide today, those damages are awardable under section 627.727(10), not under section 768.79. It is the finder of fact in the subsequent lawsuit that is entitled to determine the amount of those fees. We are aware of no legal authority granted to this court or the trial court to predetermine those fees for the trier of fact in the subsequent lawsuit.

It is also noteworthy that such a bad faith action is often brought pursuant to section 624.155, Florida Statutes (2009). The attorneys’ fees generated by that action can be awarded at the end of the case under section 624.155(4). The proposal for settlement served in the earlier breach of contract lawsuit will have no bearing on either the entitlement or the amount of that award because the newly accrued bad faith action cannot “revive” the unsuccessful proposal served in the earlier action.

This court frequently enters an order authorizing the trial court to award appellate attorneys’ fees “contingent upon prevailing in the trial court” when the case has not yet proceeded to a final judgment and the right to fees is dependent on prevailing in the trial court. We do not enter such an order when a final judgment has been entered and it is clear that one party or the other has already prevailed on the claims presented to the trial court.

We appreciate that a party such as Mr. King may fear that without an order from this court granting attorneys’ fees on a contingent basis, he may be unable to obtain fees as an element of damage in the bad faith action. To avoid any confusion, we explain that if, in a subsequent bad faith action, the trial court determines that such earlier appellate attorneys’ fees are an element of damages or are otherwise awardable in such a case, then that award does not require, as a condition precedent, any order from this court awarding fees on a contingent basis.

Accordingly, we grant the motion for rehearing in order to recede from that portion of our opinion in Sutton that authorized the procedure of entering conditional judgments and deny Mr. King’s motion for attorneys’ fees.

CASANUEVA, C.J., and WHATLEY, NORTHCUTT, DAVIS, SILBERMAN, KELLY, VILLANTI, WALLACE, LaROSE, KHOUZAM, CRENSHAW, MORRIS, and BLACK, JJ., Concur.

      . We assume that the Kings made presuit offers to settle within the coverage limits.

      . Ms. King did not receive a verdict in excess of her $100,000 offer, and she is not seeking attorneys’ fees at this time.

      . In this case, the trial court reserved jurisdiction to allow the action to be amended to add a claim for bad faith. Although the propriety of bringing a bad faith claim by amending the original complaint is not at issue in this case, and Sutton apparently involved such an amendment, we agree with the Fifth District that this practice "creates an abundance of problems.” Jenkins, 32 So.3d at 165. A bad faith claim "is more appropriately brought as a separate cause of action.” Id. At best, such an amendment in an action that has already reached final judgment on all of the claims pending at the time of the final judgment is a device that merely saves filing fees and service costs.

      . Section 627.727(10) provides:
      The damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall include the total amount of the claimant's damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney's fees and costs, and any damages caused by a violation of law in this state. The total amount of the claimant’s damages is recoverable whether caused by an insurer or by a third-party tortfeasor.


author: POLEN, J.

text:
    George C. DURSE, Appellant, v. Janice E. HENN, Appellee.
    No. 4D09-1659.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Rehearing Denied Sept. 21, 2011.

      Andrew A. Harris of Burlington & Rockenbach, P.A., and William W. Price of William W. Price, P.A., West Palm Beach, for appellant.
    Jacqueline G. Emanuel of Knoerr & Emanuel, P.A., Fort Lauderdale, for ap-pellee.
   POLEN, J.

George Durse appeals the final judgment in favor of the appellee, Janice Henn, after the jury found Henn not liable for injuries Durse sustained following a car accident. Durse argues two points on appeal: (1) that the trial court erred in admitting testimony regarding causation from the investigating officer, Officer Car-mack; and (2) that the trial court erred when it refused to allow Durse to present the full amount of his past medical bills to the jury. We agree with Durse on both points and reverse.

Durse was a passenger in a vehicle driven by Cushman (the Durse vehicle). While the Durse vehicle was stopped, it was struck by Henn’s vehicle. At trial, the main dispute regarding liability was whether a vehicle driven by Keay hit Henn, causing Henn to hit Durse, or whether Henn first hit Durse and was then hit by Keay. Both Durse and Henn called accident reconstructionists to testify: Durse’s expert testified that Henn first ran into the Durse vehicle and that subsequently, the Keay vehicle struck the rear of Henn’s vehicle; Henn’s expert testified that the first event was Kea/s vehicle rear-ending Henn’s vehicle, which caused Henn’s vehicle to strike the Durse vehicle. Thus, there was conflicting testimony as to the issue of causation.

At trial, Henn asked Carmack if he determined, as part of his investigation, what the first impact was; Carmack said “yes.” Durse then objected based on the accident report privilege, arguing that Carmack’s pre-trial deposition testimony made clear that his conclusion was reached from statements made by drivers at the scene. Henn stated she was not asking about statements made, but only for part of Car-mack’s investigation that allowed him to make that determination. The trial judge responded: “If he knows, he’s entitled to say. Isn’t he sort of a semi-expert?” The trial judge then sustained the objection in part and overruled it in part. Henn then asked Carmack:

[Without telling me any statements that were made to you in the course of your investigation, based on your experience, training, your investigation of the crash, and your physical observations that you made while you were at the scene of the crash, did you determine what the first impact was?

Carmack responded: “Yes. The Keay vehicle hitting the Henn vehicle.” When questioned by Durse, Carmack testified that he did not conduct an accident reconstruction or a crush analysis, nor did he measure the property damage to the vehicles or try to determine what force with which each vehicle hit the other. Instead, Carmack testified that he basically took statements.

In closing argument, Henn emphasized Carmack’s causation testimony:

Who saw all the physical evidence? Not [the two accident reconstructionists], but Officer Carmack did, the police officer who went to the scene to investigate this crash. He had the opportunity to be out at the scene while the vehicles were there. He had the opportunity to observe the property damage which you have never seen, because we have no photographs of Mr. Durse’s vehicle. But the only person who did is Officer Carmack.
And what did Officer Carmack tell us? What did he take the stand and tell you folks? I asked him, what was the first impact based on your experience, your training and your physical observations at the scene and of these vehicles? And without hesitation, Officer Carmack told you that my client was rear-ended by Mrs. Keay and pushed into the plaintiff. That’s the evidence. And there is no one who said they saw anything but that.

In deliberations, the jury asked: “Where is the Palm Beach Gardens Police Report by Carmack? We can’t find it.” The trial court informed the jury that “it’s not part of the evidence.” The jury then found that Henn was not negligent.

Durse argues that Carmack’s conclusion on who caused the first impact violated Florida’s accident report privilege because the source of his knowledge, as he admitted, was exclusively based on the statements he took at the scene; he admitted he did not conduct an accident reconstruction, a crush analysis, measure the property damage to the vehicles, or determine the forces involved in the collision. Henn argues that since Durse’s objection was sustained in part, he had an obligation to renew the objection or to move for a mistrial in order to preserve this issue for review, and because Durse did neither, he waived any objection to Carmack’s testimony. Henn further argues that Durse did not ask Carmack if his opinions were based solely upon the statements, but only whether he took statements; therefore, Henn contends that Durse failed to establish that Carmack’s testimony violated the accident report privilege.

Rulings on the admission of evidence are reviewed for abuse of discretion. Hudson v. State, 992 So.2d 96, 107 (Fla.2008) (citing Johnston v. State, 863 So.2d 271, 278 (Fla.2003)). “Generally, when a court sustains a party’s objection, that party must seek a curative instruction and/or move for a mistrial to preserve appellate review of that objection.” Grau v. Branham, 761 So.2d 375, 378 (Fla. 4th DCA 2000) (citing Ed Ricke & Sons, Inc. v. Green By and Through Swan, 468 So.2d 908, 910 (Fla.1985)).

We hold that Durse did not waive this issue for appeal. The trial judge sustained Durse’s objection as to Carmack testifying to the actual statements given to him by drivers at the scene of the accident (which he did not subsequently testify to) and overruled Durse’s objection to prevent Carmack from testifying as to his opinion of who caused the first impact (which he did subsequently testify to). Thus, Durse did not have to move for a mistrial in order to preserve; the issue was preserved because part of Durse’s objection was overruled.

Regarding Florida’s accident report privilege, section 316.066(7), Florida Statutes (2007), provides in pertinent part:

Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.

In Hammond v. Jim Hinton Oil Co., 530 So.2d 995 (Fla. 1st DCA 1988), Officer Merritt testified that he prepared diagrams as part of the homicide report he filed in connection with a motor vehicle accident. Id. at 996-97. The diagrams were based not only on Merritt’s personal observations but also on those of another investigating officer and on statements given to Merritt by witnesses, including the driver of one of the vehicles in the accident. Id. at 997. “Because some of the information used to construct the diagrams was not based on first-hand knowledge and was based in part on the testimony of a driver of one of the vehicles involved in the accident,” the First District held that “the diagrams were privileged under § 316.066 and it was error to admit them into evidence.” Id. (emphasis added). The appel-lees in Hammond argued that any error in admitting the documents was harmless because the information was testified to by other witnesses. Id. However, relying on Dinowitz v. Weinrub, 493 So.2d 29 (Fla. 4th DCA 1986), the court held the error harmful because the diagrams could be interpreted by the jury as contradicting the testimony presented by appellants’ witnesses and being consistent with appellees’ version of the accident. Id.

In Dinowitz, the plaintiff called the investigating officer as a witness; on cross examination, the officer stated that his conclusion in his report that the defendant’s vehicle was entirely within the eastbound lane was not from his independent investigation but instead from what the defendant told him. Dinowitz, 493 So.2d at 30-31. On appeal, this court held that the plaintiffs objections to this testimony should have been sustained and reversed the trial court, finding harmful error:

Our concern lies with the effect of the officer’s parroting what the defendant told him as to the accident having occurred on the roadway, thus potentially giving the defendant an edge with the jury in the swearing match between the parties. Had the evidence — testimonial or otherwise — been, apart from that of the defendant, to the effect that the impact occurred on the roadway, we might be more convinced as to the harmless effect of the officer’s testimony. The officer’s appearance — boots and belt — coupled with twenty-two years as an officer in Florida and New York could have easily influenced one or more jurors in a favorable manner.

Id. at 31. This court added: “The statute has a very important purpose; namely, to enable an investigating officer to learn the truth about the occurrence of an accident without the party so revealing it incriminating himself. To whittle away at the statute is contrary to public policy.” Id.

We hold that the trial court abused its discretion in allowing Carmack to testify as to which car caused the first impact. The transcript makes clear that Carmack did not perform any kind of test to determine first impact, and instead, he only took statements. This testimony contravenes Florida’s accident privilege. Further, the error was not harmless. The record reflects that there was conflicting testimony presented as to which impact was the first impact, most notably between the two accident reconstructionists. As was held in Hammond and Dinowitz, Car-mack’s testimony, based primarily on statements made to him, cannot be said to have not influenced the jury’s verdict.

Durse next argues that the trial court erred when it refused to allow Durse to present the full amount of his past medical bills to the jury. Henn filed a motion in limine to preclude Durse from presenting evidence of the full amount of his medical bills, arguing that Durse could introduce only the amount of medical bills which his provider accepted as final satisfaction of outstanding medical bills. After a hearing, the trial court granted Henn’s motion. Durse argues that the trial court’s ruling prejudices his ability to establish the value of future medical expenses and non-economic damages and contends that this is an issue that should be resolved post-verdict. Henn argues that under this court’s decision in Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547 (Fla. 4th DCA 2003), the trial court properly limited introduction of the amount of medical bills to the amounts actually paid by Durse and accepted by his healthcare providers, rather than the original face value of the bills.

“The collateral source rule functions as both a rule of damages and a rule of evidence. As a rule of damages, ‘the collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor.’ As a rule of evidence, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources, upon proper objection.” In Florida, the damages portion of the rule has been superseded by legislative action. However, the eviden-tiary portion of the rule remains alive and well in Florida.

Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So.3d 1084, 1086 (Fla. 1st DCA 2010) (quoting Gormley v. GTE Prods. Corp., 587 So.2d 455, 457 (Fla.1991) (plurality opinion)) (internal citations omitted).

In Thyssenlcrupp, the defendant sought a reduction in the award of medical expenses equal to the amount by which a provider’s charges were reduced upon acceptance from Medicare. Thyssenkrupp, 868 So.2d at 549. This court held:

Allowing the admission of evidence of the excess discharged by Medicare payment has the effect of providing an undeserved and unnecessary windfall to the plaintiff. It would also be contrary to the public purpose of reducing health care costs to allow inflated damage recoveries to stand without reduction. We therefore conclude that defendant is entitled to have the past medical expenses awarded by the jury reduced — to the extent such amounts are actually included in the past medical expenses awarded — by the difference between the amounts charged by a provider and the amounts actually paid that provider by Medicare. On remand the trial court is authorized to receive such evidence as may be necessary to fix the precise amount of the reduction required by our decision today.

Id. at 550 (internal citations omitted). In Nationwide, the appellant argued that the trial court abused its discretion when it permitted the appellee to introduce into evidence the gross amount of her medical bills, rather than the lesser amount paid by the appellee’s private health insurer in full settlement of the medical bills, because it misled the jury as to the true amount of the appellee’s damages. Nationwide, 53 So.3d at 1085. In support, the appellant relied on a number of cases, including Thyssenlcrupp, which hold that it is reversible error to permit evidence of the gross amount of medical bills, rather than the amount actually paid in full settlement of those bills. Id. However, the First District noted that all of the appellant’s cases involved payments made on the plaintiffs behalf by Medicare, rather than a private insurance provider; as such, the First District concluded that these cases were distinguishable because, in Nationwide, the payments were made by appellee’s private health insurer. Id. at 1085-86.

The Nationwide court relied on the reasoning set forth in Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984). In Stanley, the Florida Supreme Court held that evidence of governmental or charitable benefits available to all citizens should not be precluded by the evidentiary portion of the collateral source rule:

We believe that the common-law collateral source rule should be limited to those benefits earned in some way by the plaintiff. Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care.... We find persuasive the following reasoning advanced by the Supreme Court of Illinois in refusing to allow a plaintiff a windfall recovery for the value of free medical services received in a charitable hospital:
[T]he policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. This is further made apparent upon comparison ... with a situation in which the collateral-source rule is frequently applied, that of the defendant who seeks a reduction in damages because the plaintiff has received insurance benefits. “It is a well-settled rule of damages that the amount recoverable for tortious personal injuries is not decreased by the fact that the injured party has been wholly or partly indemnified for the loss by proceeds from accident insurance where the tortfeasor did not contribute to the payment of the premiums of such insurance. This rule is usually justified on the basis that the wrongdoer should not benefit from the expenditures made by the injured party in procuring the insurance coverage.”

Id. at 515-16 (quoting Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 29 Ill.Dec. 444, 392 N.E.2d 1, 5 (1979), overruled by Wills v. Foster, 229 Ill.2d 393, 323 Ill.Dec. 26, 892 N.E.2d 1018 (2008)) (emphasis in original). Thus, based on the foregoing, the Nationwide court held:

[I]t is relatively clear that our supreme court intended to limit abrogation of the evidentiary portion of the collateral source rule to cases where the benefits received to reduce the cost of medical care were not earned (or paid for) in some way by the plaintiff. Here, there is no dispute that appellee paid the premiums for her health insurance. Accordingly, pursuant to the evidentiary portion of the collateral source rule as it currently exists in Florida, we hold that the trial court correctly ruled that appel-lee was entitled to introduce into evidence (and to request from the jury) the gross amount of her medical bills, rather than the lesser amount paid by appel-lee’s private health insurer in full settlement of the medical bills. In fact, the only Florida appellate decision we have been able to find that is directly on point reaches that result. Goble v. Frohman, 848 So.2d 406, 410 (Fla. 2d DCA 2003) (relying on Gormley v. GTE Prods. Corp.), approved on other grounds, 901 So.2d 830 (Fla.2005).

Nationwide, 53 So.3d at 1087 (emphasis added).

Here, Durse’s medical bills were reduced by the medical providers Durse received treatment from as a result of the injuries he sustained in the accident. Unlike the appellees in Thyssenkrupp and Nationwide, Durse did not have health insurance. Although Durse did not pay the premiums for his health insurance, like the appellee in Nationwide (because he had no health insurance), by negotiating a lower amount, Durse “earned in some way,” within the meaning of Nationwide, the lowered final amount of his medical bills. The trial court erred by excluding the medical bills showing the full amount of the charges.

Reversed and Remanded for a New Trial.

WARNER and CONNER, JJ., concur.

      . § 316.066(7), Fla. Stat. (2007).


text:
    Sherman Michael THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3038.
    District Court of Appeal of Florida, First District.
    July 15, 2011.
    Rehearing Denied Sept. 12, 2011.

      Sherman Michael Thomas, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    John O. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3386.
    District Court of Appeal of Florida, First District.
    July 15, 2011.
    John 0. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Michael BUTLER, Appellant, v. CITY OF HALLANDALE BEACH, a Florida Municipality, Appellee.
    No. 4D10-197.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Rehearing Denied Sept. 21, 2011.

      Edward F. Holodak of Edward F. Holo-dak, P.A., and Louis C. Arslanian, Hollywood, for appellant.
    Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Amicus Curiae First Amendment Foundation, Inc., a not-for-profit corporation.
    Daniel L. Abbott and Jamie A. Cole of Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.L., Fort Lauderdale, for appel-lee.
   HAZOURI, J.

Michael Butler appeals from a final judgment in a declaratory action filed by The City of Hallandale Beach (the City), which sought a declaration that a list of recipients of a personal email sent by Hal-landale Beach Mayor, Joy Cooper, was not sent in connection with the discharge of any municipal duty and, therefore, is not a public record under Florida’s Public Records Law, Chapter 119, Florida Statutes (2009).

The email in question was sent by Cooper from her personal email account, using her personal computer, and was blind carbon copied to friends and supporters. The email itself was very brief, and contained three articles that Cooper wrote as a contributor to the South Florida Sun Times (Times) as an attachment. Cooper has been a weekly columnist for the Times for more than four years. The three articles included as an attachment to the email were: (1) a transcript of the 2009 State of the City Address; (2) a transcript of Part Two of the State of the City Address; and (3) an article about tax questions raised at prior commission meetings.

The trial court found that Cooper was under no obligation pursuant to the statute or ordinance to notify her friends and supporters that a column had been published, and further that the City played no role in Cooper’s decision to send the email to friends. Therefore, Butler was not entitled to the names and email addresses of the recipients of the email. We agree and affirm.

Public access to records and meetings of public officials is established by Article I, section 24(a) of the Florida Constitution, which states, “[ejvery' person has the right to inspect or copy any public record made or received in connection with the official business of any ... officer, or employee of the state ... except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.” Section 24(c) provides that the state legislature, by a two-thirds vote of each house of the legislature, has the power to enact exemptions to section 24(a)’s disclosure requirements. Art. I, § 24(c), Fla. Const.

Section 119.011(12) defines a “public record” as:

[A]ll documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data pi'oeessing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by an agency.

§ 119.011(12), Fla. Stat. (2009). And section 119.011(2) defines “agency” as:

[A]ny state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

§ 119.011(2), Fla. Stat. (2009). Cooper qualifies as an “agency” as set forth in section 119.011(2), since the Mayor is a municipal officer acting on behalf of the municipality and is thus subject to the directives of this section.

“The determination of what constitutes a public record is a question of law entitled to de novo review.” State v. City of Clearwater, 863 So.2d 149, 151 (Fla.2008) (quoting Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So.2d 1008, 1013 (Fla.2003)).

In City of Clea'i’water, the Florida Supreme Court analyzed the issue of whether e-mails are considered public records. In that case, a reporter requested that the city provide copies of all e-mails either sent from or received by two city employees over the city’s computer network. Id. at 150. At issue was whether the e-mails, by virtue of the city’s possession on their network, were public records. Id. at 151. The court concluded that the definition of public records is limited to public information related to records, and further defined the term “records” as those materials that have been prepared with the intent of perpetuating or formalizing knowledge. Id. at 154 (quoting Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633, 640 (Fla.1980)). The court emphasized that the mere placement of an e-mail on a government network is not controlling in determining whether it is public record, but rather, whether the e-mail is prepared in connection with the official business of an agency and is “intended to perpetuate, communicate, or formalize knowledge of some type.” Id. (quoting Shevin, 379 So.2d at 640).

The court in City of Clearwater also emphasized that a common sense approach should be used in determining whether a communication is public record, and further emphasized that “[t]he determining factor is the nature of the record, not its physical location.” Id. Just as the supreme court concluded that the mere fact that the email was a product of the City’s computer network did not automatically make it a public record, the City concedes that the mere fact that Cooper’s email was sent from her private email on her own personal computer is not the determining factor as to whether the email was a public record. Once again, it is whether the email was prepared in connection with official agency business and intended to perpetuate, communicate, and formalize knowledge of some kind. See id.

The City played no role in Cooper’s decision to write articles for the Times. The City played no role in identifying the topics about which Cooper chose to write and exercised no control over the content of the articles. The City played no role in Cooper’s decision to distribute or not to distribute her Times articles, or the means by which she chose to do so. The City played no role in deciding to whom Cooper chose to distribute the copies of her articles; Cooper herself decided to distribute the articles to select personal friends and supporters at her own discretion. The email that Cooper sent was not intended to perpetuate, communicate, or formalize the City’s business; it was simply to provide a copy of the articles to Cooper’s friends and supporters. The email was not made pursuant to law or in connection with the transaction of official business by the City, or Cooper in her capacity as Mayor.

As previously noted, Chapter 119 is a legislative clarification of Article I, section 24(a) of the Florida Constitution, which provides that “[ejvery person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf.” The articles had been previously published where anyone could inspect or copy them and the email forwarding copies of the articles was not prepared in connection with the official business of the Mayor or the City.

We, therefore, affirm the trial court’s determination that these articles, the email, email addresses, and names of its recipients were not public records under Chapter 119.

Affirmed.

WARNER, J., and MONACO, TOBY S., Associate Judge, concur.