author: PER CURIAM. MAKAR, J.,

text:
    DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Division of Forestry, State of Florida, and the Board of Trustees of the Internal Improvement Trust Fund, State of Florida, Appellants, v. SHULER LIMITED PARTNERSHIP, a Florida Partnership, Appellee.
    No. 1D13-0592.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Rehearing Denied June 13, 2014.

      Pamela Jo Bondi, Attorney General, Diane G. DeWolf, Deputy Solicitor General, Britt Thomas, Chief Assistant Attorney General, and Joey Dingess, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellants.
    D. Kent Safriet and Miguel “Mike” Col-lazo, III, of Hopping, Green & Sams, P.A., Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from a judgment based on a jury verdict. The Division of Forestry conducted a controlled burn of state property in Franklin County but before the fire was completely extinguished an ember from the smoldering fire drifted onto the appellee’s property destroying 835 acres of trees. The jury based its verdict for the appellees on negligence, negligence per se, gross negligence and a violation of section 590.13, Florida Statutes.

One of the arguments on appeal is that the evidence was insufficient to support the jury’s finding of gross negligence. We conclude that a jury could reasonably find the appellants were grossly negligent, based on expert testimony and other evidence presented by the appel-lees at trial. Whether negligence is ordinary or gross is a question to be resolved by the jury. See Courtney v. Florida Transformer, Inc., 549 So.2d 1061 (Fla. 1st DCA 1989). If there is some evidence from which a jury could make a finding of gross negligence, and in this case there is, the appellate court must affirm. Our resolution of this issue makes it unnecessary to consider the other principal arguments for reversal discussed in the dissent.

For these reasons, we conclude that the appellants have failed to demonstrate the existence of reversible error.

Affirmed.

PADOVANO and MARSTILLER, JJ., concur.

MAKAR, J., dissents with opinion.

MAKAR, J.,

dissenting.

Florida’s susceptibility to wildfires, and the State’s role in preventing them, play central roles in this case, which involves a jury verdict of $741,496.00 for damages to privately-owned timberland arising from a certified prescribed burn on state-owned lands within Tate’s Hell State Forest. Due to highly prejudicial legal errors in the interpretation of the open burn statute, the trial was unfair and a new one warranted.

I.

A.

In the summer of 1998, the State of Florida suffered catastrophic wildfires, culminating in over half a million acres of land being burned, costing the state over $130 million. Governor Chiles declared a statewide emergency due to the “extraordinary fire conditions, recent and continuing fires, and the potential for more fires.” Fla. Exec. Order No. 98-165 (Jun. 25, 1998). At its next session, the legislature — based upon its legislative findings and purposes — made broad statutory changes including the adoption of an open burn statute — entitled “Open burning authorized by the Florida Forest Service”— that allowed for noncertified and certified prescribed burns, the latter’s use to be encouraged on a more widespread and frequent basis to reduce wildfire risks. See Ch. 99-292, Laws of Fla.; see also Fla. H.R. Comm, on Agrie., HB 1535 (1999) Staff Analysis 1 (Jun. 15, 1999). In doing so, the legislature exhorted the state forestry service to “maximize the opportunities for prescribed burning” via the new protocols and standards the new law established. It empowered the Florida Division of Forestry to conduct burns on any area within the state that was “reasonably determined to be in danger of wildfire.” § 590.125(4), Fla. Stat. Due to the threat of fire-related lawsuits, the legislature modified liability for damages or injuries resulting from prescribed burns “unless gross negligence is proven.” See § 590.125(3)(b)-(c), Fla. Stat. (“Neither a property owner nor his or her agent is liable ... for damage or injury caused by the fire or resulting smoke ... for burns conducted in accordance with this subsection unless gross negligence is proven.”). With this backdrop in mind, we turn now to the prescribed burn at issue.

B.

Tate’s Hell State Forest is a single parcel of state-owned land in Florida’s panhandle comprising over 202,000 acres. It is called Tate’s Hell for a reason: portions of it are desolate and perilous swamplands. The tract known as Tate’s Hell Swamp has longstanding lore for its namesake, attributed to the travails of Mr. Tate who barely survived a week-long foray into the mire’s perils. Portions of the area in and around Tate’s Hell were altered to allow for pine forestation in the 1960-70s, which continues to this day.

The Division of Forestry is responsible for managing Tate’s Hell State Forest, which includes property owned by the Board of Trustees of the Internal Improvement Trust Fund. In 2008, the Division’s annual remedial goal was to burn about 40,000-50,000 acres of the Forest’s acreage. To do so, the Division obtained the necessary approvals to conduct a two-day certified prescribed burn of 3,267 acres in the Forest, the designated area termed the “prescribed burn area.” Prior to the initiation of the burn, the Division created a burn plan prescription describing the targeted burn area, documenting what would be burned and why, specifying how to conduct the burn, identifying the authorization date and time period for the burn, and describing how the area would look afterwards. The Division also surveyed the area to ensure adequate firebreaks existed around the burn site.

On the first day of the scheduled two-day burn, the Division’s burn dispatch determined that conditions were favorable for the burn, which involved consideration of the burn’s location, existing weather conditions, the amount of acreage, and other factors. After receiving authorization from dispatch, Certified Prescribed Burn Manager (CPBM) Joseph Taranto lit a test fire and determined it was ready to go. The burn crew then lit a thirty-foot baseline around the entire burn area, and used a helicopter to drop small spheres, known as “ping-pong balls,” containing chemicals • designed to create small fires upon impact with the ground. All went well the first day. After stopping the flames and determining they were not spreading, Taranto released his crew for the day. The second day of the burn was a repeat of the first; all went according to plan. Taranto again evaluated the weather and wind, called dispatch for authorization, and followed the same procedure as day one, ensuring that the flames were stopped and not spreading before releasing the crew.

After the two-day certified burn was complete, the Division’s crews thereafter checked the burn area once or twice daily, ensuring no more smoke, heat, or fires existed. It used monitoring and “mopping up” activities designed to encircle the perimeter of the fire using different tools such as water, shovels, or rakes along the edges of the burn area. Mopping up increases the buffer area and is usually accomplished by a predetermined distance. The Division continued its twice-daily regimen until May 23, 2008, when a heavy rainstorm “fully extinguished” whatever remaining smoldering embers existed.

During the forty-five day period while the burn smoldered, three “spotovers” occurred. In contrast to flames spreading within a certified burn area, a spotover occurs when a live ember from the prescribed burn area is picked up by winds and cast onto adjoining property, causing a separate fire, usually due to unexpected changes in weather or wind direction. The first two spotovers, dubbed “High Bluff’ and “High Bluff 2,” occurred on April 21st and May 6th, both crossing over the twenty-five to fifty feet of pavement of Highway 65 that formed the eastern edge of the prescribed burn area. In each case, the spotover went onto another part of the Division’s own property and was contained.

The third spotover, which spawned this lawsuit, occurred on May 13th — a month after the initial two-day burn period — on the far west side of the prescribed burn area. On that day, cinders apparently were elevated and blown westward across a continuous water body at the headwaters of Apalachicola Bay known as Cash Creek, igniting on a portion of the 2,182 acres of timberland owned by Shuler Limited Partnership (Shuler LP), also known as Shu-ler’s Pasture. To cross Cash Creek, this spotover had to jump between 800 to 1300 feet across the headwaters, which had been designated as a natural firebreak between the Shuler’s Pasture on the west and the certified burn area on the east (see Appendix).

Once Division officials verified that smoke was coming from Shuler’s Pasture, they initiated a response. Division officials and firefighters determined the fire was fast-moving and that the affected area was thick with old-growth timber including a marshy bog that had not been burned in “several years.” Because the Shuler LP property had only small trails meant for four-wheelers, attempts were made to cut several new roads to access the fire. These efforts proved fruitless, the crew ultimately concluding they could not stop the fire. The fire ultimately destroyed timber on 835 acres of Shuler’s Pasture; no injury or other damage occurred.

C.

In its ensuing complaint against the Department, the Division, and the Board (which will be called the Division unless a distinction is necessary), Shuler LP originally alleged claims based on negligence, violations of section 590.13, Florida Statutes, negligence per se, and strict liability. The Division moved to dismiss, in part, because claims other than gross negligence were impermissible based upon the 1999 amendments, which sought to encourage certified burns by raising the standard for liability to gross negligence. Shuler LP countered that the gross negligence standard did not apply unless a certified prescribed burn was “conducted in accordance with” the statutory criteria, which it interpreted to create jury questions as to whether the Division adequately complied with the criteria during the course of the entire burn period; if so, a gross negligence standard applied; if not, other negligence-based claims were permissible. Without elaboration, the trial court denied the motion to dismiss as to the negligence, statutory violations, and negligence per se claims, but granted it as to the strict liability count. Shuler LP subsequently filed an amended complaint that replaced the strict liability claim with one for gross negligence.

Concurrently, the Division unsuccessfully sought rulings on the meaning of statutory terminology defined or used in the burn statute, section 590.125. It sought relief from a portion of a stipulation, and to amend its answer to correct an inaccuracy regarding the use of the term “extinguished” as statutorily defined; it was denied by the trial court. The Division also sought a ruling that the statutory requirement that a CPBM be present at the site “from ignition of the burn to its completion”, meant that the manager had to be present until the ignition phase was complete and the fire was statutorily “extinguished” (i.e., no spreading flames exist); the trial court denied this request as well. As to both statutory interpretation issues, the trial court prohibited any testimony inconsistent with her rulings and prevented the testimony of Division officials who interpreted and applied the statute differently in the course of their duties. The result was that, over the Division’s objections, the jury was read a stipulation saying the Division agreed that it failed to “extinguish” the fire for forty-five days and failed to have a CPBM on site as the statute required. These rulings on the statutory meanings of key phrases became central to the jury’s understanding of the case.

After presentation of the evidence at a seven-day trial, the jury was instructed that its determination of the Division’s liability was based on whether the Division had failed to comply with one or more of the following provisions of Chapter 590.125(3)(b), Florida Statutes:

• a written prescription be prepared before receiving authorization to burn from the Division of Forestry;

• that a CPBM be present on-site with a copy of the prescription from ignition of the burn to completion of the burn;

• that there are adequate firebreaks at the burn site; and

• that there are sufficient personnel and firefighting equipment for the control of the fire.

The jury concluded that the Division violated at least one of these four provisions at some point in the forty-five days prior to smoldering being fully complete, thereby making it potentially liable under the negligence, statutory violation, and negligence per se theories; the jury concluded that the Division was liable under each of these theories and was also liable for gross negligence. It awarded damages and the Division now appeals.

II.

The Division claims a number of interrelated legal rulings interpreting the open burn statute resulted in an unfair trial in which the jury was misled about what legal standards applied as well as what evidence it could consider and what inferences it could draw; it also claims that whatever negligence was shown did not arise to “gross negligence” on this record and that the Cash Creek spotover was unforeseeable thereby justifying reversal.

A.

Before considering these issues, the narrow factual context of this case bears emphasis. Shorn to its core, Shuler LP’s theory was that the Division should have foreseen the Cash Creek spotover and taken actions to have prevented it from the outset of the certified prescribed burn. They do not dispute that controlled burns are necessary, that the Tate Forest certified burn was handled correctly through the two-day ignition phase (discussed below), or that certain types of spotovers, such as those crossing the adjacent highway, are expected to happen. Instead, their legal theories focused on the time period after the two-day prescribed burn was complete, the burn site was smoldering, and monitoring and mop up efforts were ongoing. It is during this timeframe that they claim the Division acted wrongfully and should be subject to liability. With this important distinction in mind, we turn to legal errors the Division claims were prejudicial and what effect they had individually and cumulatively on the fairness of the trial.

B. The Open Bum Statute (Circa 2008)

The Division contends the trial court erred by misinterpreting the open burn statute to allow claims other than gross negligence; to preclude it from arguing that CPBMs were not legally required to be on-site beyond the initial burn period; and to disallow it from using the statutory definition of “extinguished” in its defense.

1. Whether Section 590.125 Allows Claims other than “Gross Negligence” for Certified Bums Done in Accordance with the Statute.

On the first issue, the Division claims it was error for the trial court to deny its motion to dismiss Shuler LP’s allegations of negligence, statutory violations, and negligence per se. The statute at issue states that “[njeither a property owner nor his or her agent is liable ... for damage or injury caused by the fire or resulting smoke ... for burns conducted in accordance with this subsection unless gross negligence is proven.” § 590.125(3)(b)-(c), Fla. Stat. Shuler LP claims the “in accordance with” language means a property owner must first have complied in all respects for conducting a certified prescribed burn from the start of a burn until it is fully extinguished (the forty-five days). The Division argues that the gross negligence standard applies if the certified prescribed burn is conducted via the method specified in the statute; it points out that the legislature considered but rejected a lesser negligence standard; and it also argues that the legislative purpose of shielding property owners from liability would be thwarted under Shuler LP’s approach.

Though no Florida appellate court has interpreted this portion of the open burn statute since its enactment in 1999, guidance is not entirely lacking. Our northern neighbor, Georgia, has a similar burn statute. See OCGA § 12-6-148. It provides that a landowner who conducts a prescribed burn in compliance with the statute, cannot be held liable for damages or injuries caused by fire or smoke or for creating a nuisance unless it is proven that he was grossly negligent in starting, controlling, or completing the burn. Id.

As is the case with its Florida counterpart, the history of section 12-6-148 reveals that the Georgia legislature, recognizing that prescribed burning was decreasing due to liability concerns and nuisance complaints, sought to make prescribed burns more attractive as means of managing fuels, reducing the threat of wildfires, and lessening the threat of loss of life and property to the state’s increasing human population. See OCGA § 12 — 6—146(a)(1)—(5). In 2000 it did so by elevating the liability standard to gross negligence. See OCGA §§ 12-6-146, 12 — 6—148(b). Two Georgia cases recently interpreted the statute.

In the first, Morgan v. Horton, 308 Ga.App. 192, 707 S.E.2d 144 (2011), a Georgia appellate addressed the following question, which was one of first impression:

If the undisputed evidence shows that a landowner obtained a permit from the Forestry Commission to conduct a prescribed burn[ ] on his property, followed the directions of the ranger in charge of supervising the burn, arranged for the ranger to be onsite to monitor the burn, and, according to the ranger, properly conducted the prescribed burn, is the landowner entitled as a matter of law to the protections of OCGA § 12-6-148,[] which provides that a landowner who conducts a prescribed burn in compliance with the statute cannot be held liable for damages or injuries caused by fire or smoke, or for creating a nuisance, unless it is proven that he was grossly negligent in starting, controlling or completing the burn?

Id. at 147. Answering the question in the affirmative, the court held that a landowner was entitled to the protection of the statute unless he exhibited gross negligence in starting, controlling, or completing the burn. Id. at 149. The facts were that the plaintiffs alleged the defendant improperly conducted a prescribed burn on his property, where smoke from the burn, combined with heavy fog, severely limited visibility on an adjacent highway, resulting in the decedent’s fatal collision with a tractor-trailer. Id. at 147-48. But the undisputed evidence showed that the landowner had obtained a permit from the Forestry Commission to conduct the prescribed burn on his property, followed the directions of the ranger in charge of supervising the burn, and according to the ranger, properly conducted the prescribed burn. Id. In other words, the landowner complied with the requirements of the burn statute. The court rejected the plaintiffs claim that section 12-6-148 required the ranger to be on site without leaving, finding that the statute did not require the ranger to be “continually present” at the site or prohibit him from leaving the site when the burn was under control. Id. at 149. Under the circumstances, the appellate court concluded, the landowner was entitled, as a matter of law, to the protections of section 12-6-148. Id.

A year later, in a similar case, Wolfe v. Carter, 314 Ga.App. 854, 726 S.E.2d 122 (2012), the Georgia appellate court, relying on Morgan, held that the appellant was required to prove gross negligence to establish liability. 726 S.E.2d at 126-27. Wolfe was injured in a three-car collision on a smoke-filled highway and claimed that the prescribed burner did not comply with the statute’s requirement that he remain present on site until the fire was adequately confined. Id. at 126. The court rejected the argument, further holding that there was no evidence from which a jury could infer gross negligence, reasoning that “[e]ven if we were to assume, without deciding, that the evidence raised a jury issue as to whether [the prescribed burn manager’s] actions were negligent, we find no evidence from which a jury could reasonably conclude that [he] failed to exercise even slight care and was therefore grossly negligent.” Id.

Though only persuasive, the rationales of the Georgia courts support the conclusion that it was error to subject a Florida property owner or its agent, here the Division, to a standard of liability other than gross negligence where the evidence shows the certified burn was done “in accordance with” section 590.125. The record establishes that the Division fully complied with all statutory requirements for the prescribed burn as outlined in the prescription plan, which set forth the criteria for “starting, controlling, and extinguishing a prescribed burn.” The fire was ignited, contained, and statutorily “extinguished” by the second day, followed thereafter by monitoring and mop up activities. Shuler LP does not take issue with the Division’s handling of the burn in the two-day prescribed burn period; instead, it takes issue with what happened after the burn had been initially contained/controiled when the Cash Creek spotover occurred. Much like the private property owners in the Georgia cases, the Division complied with the requirements of the prescription as written and approved.

That atmospheric conditions subsequently intervened (reduced wind in the Georgia cases, resulting in lost visibility and highway accidents or, as in this case, increased winds, resulting in the trans-inlet spot-over) does not lessen the legislative intent that burns conducted “in accordance with” the subsection of the certified burn statute at issue were to be adjudged under a gross negligence standard. Any other interpretation renders the gross negligence standard illusory. For example, a prescription plan that is prepared, approved and then implemented in accordance with pre-ignition standards and protocols would provide little or no shield against liability if a jury can adjudge them as inadequate for failing to foresee weather-related events occurring post-ignition. Modern weather forecasting has become less art and more science, but it has its limitations, particularly in Florida, where Mark Twain’s adage “if you don’t like the weather, wait a minute” holds sway. As such, the “adequacy” of a prescription plan’s designation of “firebreaks at the burn site” must be according to pre-ignition predictions and guideposts; the “sufficiency” of a prescription plan’s designation of “personnel and firefighting equipment for the control of the fire” is to be adjudged likewise. To impose a lesser standard of tort liability after-the-fact based on unpredicted weather events, even though a property owner or agent has complied with the terms of a prescription plan, thwarts the legislative purpose of the certified burn statute.

This point is made in recent commentary, noting that the legislative purpose underlying the gross negligence standard in the certified burn statute hinges on whether requirements such as “adequate” firebreaks and “sufficient” personnel are adjudged on “pre-ignition predicted weather conditions and fire behavior” or those arising post-ignition. Stephen McCullers, A Dangerous Servant and A Fearful Master: Why Florida’s Prescribed Fire Statute Should Be Amended, 65 Fla. L. Rev. 587, 611 (2013) (“This prescription will include a description of the predicted fire behavior, how the fire will be ignited and controlled, and what personnel and equipment will be available.”). The commentator notes that this portion of the statute “can be interpreted to mean that any fire escape or smoke damage is per se evidence that the practitioner did not follow the statutory requirements of having sufficient personnel, fire breaks, and equipment to control the fire.” Id. at 593 (noting lack of statutory definitions that might provide greater clarity). “Fire practitioners are afraid that any accident will be per se proof that” they violated these requirements, a concern borne out in this litigation. Further, because prescription plans account for such factors based on a detailed pre-ignition basis, uncertainty and ambiguity are created if liability standards are based on unpredicted weather or fire events post-ignition. The legislature could not have intended the certified burn statute to be self-defeating in these many ways.

That the Division complied with the prescription plan, as written, means that a gross negligence standard applied to its post-ignition conduct. Shuler LP says that even under a gross negligence standard, affirmance is required because the jury ruled for them on this count. But that argument assumes that the jury was properly instructed and informed as to not only the pre-/post-ignition distinction just discussed, but also as to what evidence it could consider in light of the statutory definitions at play in this type of case. Even if the jury was properly instructed on this former distinction (it was not), erroneous legal rulings by the trial judge severely limited the Division’s ability to defend its actions, constituting grounds for reversal, even under a gross negligence standard. The next sections address two such errors, both of which formed the primary focus of the jury instructions and Shuler LP’s closing argument to the jury.

2. Prohibiting the Use of the Statutory Definition of “Extinguished” Was Erroneous And Prejudicial.

A critical aspect at trial was understanding when the fire was deemed to be “extinguished,” a term that has a specific definition in the open burn statute but also has a number of non-statutory meanings. The Division had initially admitted to a paragraph in the second amended complaint, which stated:

On May 28, 2008, a day when the Prescribed Burn Area received approximately three inches of rainfall, the Prescribed Burn was finally extinguished. The prescribed Burn had smoldered for approximately six weeks and caused several wildfires after it was ignited by Defendant Division of Forestry and its employees on April 9, 2008.

(Emphasis added). As discovery progressed, however, the evidence demonstrated that, although the burn may not have been “finally extinguished” until May 23, 2008 in the layman’s meaning of that phrase, it was “extinguished” within the meaning of section § 590.125(1)(d), which defines “extinguished” for certified prescribed burns as “no spreading flame.”

As a result, the Division moved to amend its answer to the corresponding portion of Shuler LP’s amended complaint to state as follows:

Denied as phrased, admitted that the prescribed burn area received approximately three inches of rain on May 23, 2008 and that parts of the prescribed burn area had smoldered for approximately six weeks.

It also sought to withdraw a portion of the stipulated facts that related to the “finally extinguished” portion. Absent the requested amendment, and a change to the corresponding stipulated facts, the Division’s defense would be laboring under a legally incorrect interpretation of the statute and a stipulation. That is what happened here, when the erroneous stipulation — that the Division failed to “extinguish” the fire for over six weeks until heavy rainfall finally put it out — was read to the jury, despite the evidence that showed the Division had extinguished the prescription after the second day of the burn.

Rather than allowing amendment, the trial court rejected the Division’s request, saying it was too close to trial to allow the requested changes. And while Shuler LP claimed that it would have been prejudiced, the record does not support this claim. It was prepared to show that the fire smoldered for six weeks and stopped doing so after a heavy May 23rd rainfall; and having to present one’s case using legally correct statutory definitions is not prejudicial under these circumstances. Moreover, the trial court allowed Shuler LP to modify its pleadings, but concurrently denied the Division’s request to amend its papers to conform to the statutory definition and the discovery obtained.

While Shuler was not prejudiced, the same could not be said of the Division, which was stymied by the trial judge’s ruling, preventing the Division from arguing what the statute requires. For example, at the trial a fire fighter attempted to testify on behalf of the Division that “no spreading flames” existed, which meant the fire was “extinguished” for statutory purposes — even though smoldering may have continued within the monitored confines of the prescribed burn area. Use of the statutory definition would have allowed the Division to show the certified prescribed burn was conducted in accordance with the statute, undercutting claims it was negligent or grossly so.

Indeed, the evidence showed, and Shuler LP conceded, that the Division had “extinguished” the fire at the end of the two-day initial burn period in the prescription, April 9th and 10th. In closing argument, Shuler LP repeatedly said it was “not contending” that the Division had inadequate personnel, fire breaks, equipment, or “otherwise” on these two days. Instead, Shuler LP’s theory was that the Division “didn’t do anything” to “extinguish” the smoldering in the forty-three day monitor/mop up period except “pray for rain,” which was inaccurate, but capitalized on the erroneous legal rulings by saying the Division committed a number of “statutory violations” because it (a) “didn’t have a plan” in the prescription for “extinguishing the fire” arising from the Cash Creek spot-over; (b) burned more acreage than allowed in the prescription (due to the spot-over), (c) exceeded the authorized “two day” certified burn plan by allowing smoldering for forty-five days before the fire was fully “extinguished” (“Forty-three days they did not have an authorization to burn”), and (d) failed to have a CPBM on site for the forty-five days) (discussed in the next section). Because of the trial court’s incorrect ruling, the jury was erroneously told and led to believe that the Division continually violated the statute by failing to have “extinguished” the fire during the forty-five day period, when in fact the certified prescribed burn was deemed extinguished because its flames were not spreading with monitoring and “mopping up” ongoing. Under any theory of liability, this erroneous legal ruling was highly prejudicial to the Division, and contributed, in part, to the next statutory interpretation error as well.

3. When CPBMs Must Be Present.

In a related issue, the Division claims error in the trial court’s pre-trial ruling that the open burn statute required the Division to have a CPBM continually on-site from April 9th until the burn was “finally extinguished.” If incorrect, this ruling was extremely prejudicial to the Division because it allowed the jury to be instructed that the Division’s failure to have CPBMs on-site at all times was an ongoing violation of the open burn statute, providing the Division with no defense whatsoever for not having done so.- The statute at issue states:

[certified prescribed burning m]ay be accomplished only when a certified- prescribed burn manager is present on site with a copy of the prescription from ignition of the bum to its completion.

Id. § 590.125(3)(b)1., Fla. Stat. (emphasis supplied). The interpretative dispute focused on whether the word “completion” refers to “ignition” or to the “burn.” Shu-ler LP argued the term “completion” referred to the “burn” and thereby required CPBMs to be onsite until “completion” of the “burn” — i.e., CPBMs had to be present each and every day until the prescribed burn was completely and totally out, not merely extinguished (which statutorily meant that no spreading flames were present).

The Division argued that the word “completion” referred to the “ignition,” meaning that CPBMs need only be present at the burn site with a copy of the prescription during the two-day initial ignition period when the fire was activated but then extinguished (i.e., no spreading flames). Consistent with its interpretation, the Division agreed pre-trial that a CPBM was onsite for only the two-day initial ignition period.

In support of its position, the Division presented two experts. The first, James Karels, was the Director of the Florida Forest Service, responsible for the oversight of the entire state forest system, including prescribed burns. He also chairs the Fire Committee representing all fifty states for fire management, sits on a number of national fire councils, had been a CPBM in Florida for over twenty-five years, and had participated in hundreds of certified prescription burns. Beyond his knowledge of and experience in applying the open burn statute in conducting certified burns, he was involved in drafting the extensive rewrite of the statute in 1999 and its subsequent amendments. The second expert was Kenneth Weber, a twenty-five year CPBM, who has supervised “several hundred” burns each year and is the district manager of field operation of the Florida Forest Service in six counties, including Franklin County, where the burn at issue took place.

Mr. Karels testified that the phrase “to its completion” meant that the “burn manager [must be] on site with a plan [until] completion of the ignition, completion of their burn plan during that authorization period.” In his view, a CPBM need not be on site until all smoldering embers were completely out. Instead, once the ignition period is complete and the fire contained within the prescribed burn area (i.e., no spreading flames), smoldering and smoke continues, which is monitored and “mopped up” on an ongoing daily basis by crew members. These activities during the monitoring and mop-up period do not need authorization; a CPBM may be actively involved in them, but is not required to be “on site with a copy of the prescription.” In his professional view, the “[c]om-pletion of the burn is completion of the ignition and completion of [the] prescription” not the completion of the burn overall. On this point, Mr. Weber testified that during prescribed burns, the CPBM periodically calls in to report progress during the two-day ignition phase (as happened here). For example, CPBM Taran-to informed the dispatcher at various times during ignition that the process was “20 percent complete”, “40 percent complete”, “75 percent complete,” and so on. Taran-to’s reports on how close the team was to “completion” of the prescription plan in this initial phase is entirely consistent with the statutory meaning of “completion” the Division advocated.

Shuler LP put on no expert testimony. Instead, over objection, it was allowed to call Mr. Michael Shuler, the party-plaintiff, who testified he was an attorney and opined that “it is very clearly the intention of the Legislature that the word [i.e., “completion”] would mean that you’d have to have ... a certified burn manager on site with the prescription.”

The trial court ultimately excluded the Division’s experts’ testimony, allowed Mr. Shuler’s testimony, and ruled consistently with Shuler LP’s interpretation of the statute. It prohibited the Division’s witness from testifying at trial “that the statute means anything different” than what she had ruled (i.e., that a CPBM had to be on-site until the burn “completion” on May 23rd). This ruling went to the heart of the Division’s case, precluding testimony the jury would deem highly relevant in deciding whether the Division complied with the statute or acted neglectfully. Perhaps most damaging, it allowed the jury to be told the Division had “stipulated” that it violated the statute daily by not having a CPBM onsite after the burn was initially contained. Shuler LP, again capitalizing on the legal error, read the Division’s stipulation that a CPBM was on site “on April 9th and 10th only, but not between April 11th and May 23rd.... That’s a clear violation of [section 590.125(3)(b)l., Fla. Stat. (b)(1) ].”

The trial court erred in rejecting the Division’s interpretation of its own statute, and allowing the jury to hear only the testimony of Mr. Shuler. The only competent evidence on the topic was from the Division. Rather than hearing from the trained officials who understand, implement and had involvement in drafting the statute, the jury heard only from the property owner, who — although a lawyer — had no background or expertise in the burn statute or its applicability whatsoever.

Simply because this is a tort case does not nullify the Division’s expertise on the topic nor negate deference to the Division’s interpretation of a statute related to the Division’s regulatory functions. See, e.g., Health Options, Inc. v. Agency for Health Care Admin., 889 So.2d 849, 851 n. 2 (Fla. 1st DCA 2004) (deference to agency’s construction of a statute is not required if the statute is “unrelated to the regulatory functions of the agency.”) (citing Chiles v. Dep’t of State, Div. of Elec., 711 So.2d 151, 155 (Fla. 1st DCA 1998) (“[Cjourts are not required to defer to an agency’s interpretation of a statute if the statute is unrelated to the functions of the agency.”) (emphasis added)). Here, the entire case centered on the Division’s regulatory functions, requiring deference to the Division’s interpretation.

And the Division’s interpretation is fully consistent with the 1999 amendments— when “extinguished” was defined for the first time — which indicates the Legislature intended for CPBMs to remain on site only until “completion” of the ignition of burns. See § 590.125(1)(d); Fla. H.R. Comm, on Agrie., HB 1535 (1999) Staff Analysis 3 (June 15, 1999). Moreover, the legislature used that term to make clear that in the cases of non certified, burns — which are not at issue here — there must be “[s]ome-one present at the burn site until the fire is extinguished.” §§ 590.125(1)(d), 590.125(2)(a)5., Fla. Stat. In contrast, there is no such requirement for certified burns. Rather, the statute relating to certified burns states only that the CPBM must be present on site with a copy of the prescription from ignition of the burn to its completion, a term that is not statutorily defined. Instead, it is an industry term used to refer to the prescribed fire’s ignition as the Division’s expert testimony revealed. That the legislature defined one term in one section and did not define another in the next section, is something this Court must presume was done intentionally. See State v. Bodden, 877 So.2d 680, 685 (Fla.2004) (“[t]he legislature is presumed to know the meaning of words and the rules of grammar.”). Had the legislature intended that a CPBM remain on site until a fire is completely out, it would have said so.

As such, it was error for the trial court not to defer to the Division’s interpretation of its own statute and to prohibit the testimony of its experts in this regard, which went to the heart of the case against it, particularly where the Division’s opinion testimony came from persons with such specialized knowledge of industry practice. See, e.g., State v. Sercey, 825 So.2d 959, 977 (Fla. 1st DCA 2002) (reasoning that expert testimony of those with specialized knowledge in a particular field is admissible if applicable to the evidence at trial).

Disallowing the Division’s testimony on this issue was error, which was highly prejudicial. This misinterpretation of the statute was directly related to whether the Division violated the statute and was negligent as a result. See Witham v. Sheehan Pipeline Const. Co., 45 So.3d 105, 109 (Fla. 1st DCA 2010). As the record reflects, the jury was told the Division violated the statute by not having a CPBM on site, an error akin to saying a defendant-surgeon summarily left the operating room without suturing the wound and merely “prayed” for it to heal.

III.

In sum, the cumulative effect of three statutory interpretation errors resulted in the Division being denied a fair opportunity to defend itself under the correct legal standards, thereby warranting reversal and a new trial.

APPENDIX

      . Its legislative findings and purpose for certified prescribed burning stated:
      (a) The application of prescribed burning is a land management tool that benefits the safety of the public, the environment, and the economy of the state. The Legislature finds that:
      1. Prescribed burning reduces vegetative fuels within wild land areas. Reduction of the fuel load reduces the risk and severity of wildfire, thereby reducing the threat of loss of life and property, particularly in urban areas.
      2. Most of Florida’s natural communities require periodic fire for maintenance of their ecological integrity. Prescribed burning is essential to the perpetuation, restoration, and management of many plant and animal communities. Significant loss of the state’s biological diversity will occur if fire is excluded from fire-dependent systems.
      3. Forestland and rangeland constitute significant economic, biological, and aesthetic resources of statewide importance. Prescribed burning on forestland prepares sites for reforestation, removes undesirable competing vegetation, expedites nutrient cycling, and controls or eliminates certain forest pathogens. On rangeland, prescribed burning improves the quality and quantity of herbaceous vegetation necessary for livestock production.
      4. The state purchased hundreds of thousands of acres of land for parks, preserves, wildlife management areas, forests, and other public purposes. The use of prescribed burning for management of public lands is essential to maintain the specific resource values for which these lands were acquired.
      5. A public education program is necessary to make citizens and visitors aware of the public safety, resource, and economic benefits of prescribed burning.
      6. Proper training in the use of prescribed burning is necessary to ensure maximum benefits and protection for the public.
      7. As Florida’s population continues to grow, pressures from liability issues and nuisance complaints inhibit the use of prescribed burning. Therefore, the Florida Forest Service is urged to maximize the opportunities for prescribed burning conducted during its daytime and nighttime authorization process.
      Ch. 99-292, Laws of Fla. § 9 (codified in newly-established § 590.125, Fla. Stat. (1999)).

      . Earlier drafts of the proposed amendments allowed for liability when a lesser degree of negligence was proven, but only gross negligence appears in the final version of the bill.

      . The Department's website recounts the story:
      Local legend has it that a farmer by the name of Cebe Tate, armed with only a shotgun and accompanied by his hunting dogs, journeyed into the swamp in search of a panther that was killing his livestock. Although there are several versions of this story, the most common describes Tate as being lost in the swamp for seven days and nights, bitten by a snake, and drinking from the murky waters to curb his thirst. Finally he came to a clearing near Carrabelle, living only long enough to murmur the words, ‘My name is Cebe Tate, and I just came from Hell!' Cebe Tate’s adventure took place in 1875 and ever since, the area has been known as Tate’s Hell, the legendary and forbidden swamp.
      Fla. Dep’t of Agrie. & Consumer Servs., The Legend of TATE’S HELL..., http://www.fresh fromflorida.com/Divisions-Offices/Florida-ForestService/Our-Forests/State-Forests/Tate-s-Hell-State-Forest.

        .Id. 590.125(l)(c) ("‘Prescription’ means a written plan establishing the criteria necessary for. starting, controlling, and extinguishing a prescribed burn."); 51-2.006, Fla. Admin Code (2005).

      . Dispatch is based in Tallahassee and issues authorization to conduct the bum. After all the relevant information is provided to the dispatcher, he or she enters it into a computer program, which helps to determine whether the conditions are favorable for a bum.

      . § 590.125(l)(b), Fla. Stat. (2008) ("‘Certified prescribed burn manager’ means an individual who successfully completes the certification program of the division and possesses a valid certification number.").

      . § 590.13, Fla. Stat. (2007) (“Any person violating any of the provisions of this chapter shall be liable for all damages caused by such violation, which damages shall be recoverable in any court of competent jurisdiction. The civil liability attaches whether or not there is criminal prosecution and conviction.”).

      . See § 590.125(1)(d), Fla. Stat. (" ‘Extinguished’ means no spreading flame for ... certified prescribed burning ... existfs]”) (emphasis added).

      . Id. § 590.125(3)(b)(1) ("[certified prescribed burning m]ay be accomplished only when a certified prescribed burn manager is present on site with a copy of the prescription from ignition of the hum to its completion.”) (Emphasis added)

      . In full, the statute provided:
      (b) Certified prescribed burning pertains only to broadcast burning. It must be conducted in accordance with this subsection and:
      1.May be accomplished only when a certified prescribed burn manager is present on site with a copy of the prescription from ignition of the burn to its completion.
      2. Requires that a written prescription be prepared before receiving authorization to burn from the division.
      3. Requires that the specific consent of the landowner or his or her designee be obtained before requesting an authorization.
      4. Requires that an authorization to burn be obtained from the division before igniting the burn.
      5. Requires that there be adequate firebreaks at the burn site and sufficient personnel and firefighting equipment for the control of the fire.
      6. Is considered to be in the public interest and does not constitute a public or private nuisance when conducted under applicable state air pollution statutes and rules.
      7. Is considered to be a property right of the property owner if vegetative fuels are burned as required in this subsection.

      . Although Shuler LP argues on appeal that the way the Division conducted the burn during the two-day ignition period was negligent, they specifically contended die opposite below, saying everything the Division did was "appropriate.” They emphasized this point, saying "we’re not contending they did anything insufficient with personnel or firebreaks or anything else.” (emphasis added).

      . The Division also raised issues of sovereign immunity and foreseeability, which need not be addressed.

      . This section provides:
      § 12-6-148. Requirements for burning; liability for damages
      (a) Prescribed burning conducted under the requirements of this part shall:
      (1) Be accomplished only when an individual with previous prescribed burning experience or training is in charge of the burn and is present on site until the fire is adequately confined to reasonably prevent escape of the fire from the area intended to be burned;
      (2) Be considered in the public interest and shall not create a public or private nuisance;
      (3) Be considered a property right of the landowner; and
      (4) Be conducted in accordance with a permit issued under Part 3 of this article.
      (b) No property owner or owner’s agent conducting an authorized prescribed bum under this part shall be liable for damages or injury caused by fire or resulting smoke unless it is proven that there was gross negligence in starting, controlling, or completing the burn.
      OCGA § 12-6-148.

      . The open bum statute applies a general civil liability standard for non-certified bums, § 590.13, further supporting the conclusion that certified prescribed burns are subject to another standard, i.e., gross negligence.

      . § 590.125(1)(d), Fla. Stat. (2008) (" ‘Extinguished’ means that no spreading flame for wild land burning or certified prescribed burning, and no visible flame, smoke, or emissions for vegetative land-clearing debris burning, exist.”). The statute was amended in 2001 to provide essentially the same definition. Id. § 590.125(1)(c) (2011) ("'Extinguished1 means that for: ... 1. Wildland burning or certified prescribed burning, no spreading flames exist.”).

      . Overlooked by the parties is that when a "bum” may occur is specifically limited to "Open Burning Hours” defined as daytime hours — beginning at 9:00 am ET after which "the fire must discontinue spreading one hour after sunset” — or to nighttime hours under even more limited conditions. See Rule 51-2.006(2)(b), Fla. Admin. Code (2005). Thus, "burning” must begin and conclude on each day, the fire not "spreading” thereafter. "Burn” and "burning” thereby have technical and temporal meanings that limit the burn period to those days specified in the prescription, which is consistent with the Division’s interpretation of the open burn statute.


source: Caselaw Access Project

author: FORST, J.

license: Public Domain

text:
    Catherine Abbott HOROWITZ, Petitioner, v. David HOROWITZ, Respondent.
    No. 4D14-9.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.
    William J. Berger and David K. Friedman of Weiss, Handler & Cornwell, P.A., Boca Raton, for petitioner.
    Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for respondent.
   FORST, J.

The former wife and the former husband are presently involved in litigation with respect to the trial court’s award of support for the former wife. At issue is the trial court’s jurisdiction to entertain the former husband’s post-dissolution of marriage petition for modification of alimony and child support while the former wife’s appeal of the final judgment of dissolution is pending. The former wife filed a. petition for writ of prohibition seeking to prevent the trial court from proceeding with the trial set to address the former husband’s petition.

We deny the petition, concluding that, consistent with Florida Rule of Appellate Procedure 9.600(c), the trial court has jurisdiction of certain family law matters while an appeal is pending. See McPherson v. McPherson, 775 So.2d 973 (Fla. 4th DCA 2000). Specifically, the trial court may conduct a hearing on the modification petition and issue orders consistent with Rule 9.600(c). It may not, however, enter a final judgment disposing of the modification petition until the appeal is final and our mandate issues. Thompson v. Stewart, 569 So.2d 1372 (Fla. 4th DCA 1990); Campbell v. Campbell, 436 So.2d 374 (Fla. 5th DCA 1983); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974).

Background

The parties stipulated pretrial to equitable distribution of their property. Key trial issues concerned the amount of the former husband’s income and the consequent amount of support to be awarded. The trial court entered a final judgment of dissolution in December, 2012. The former wife appealed the alimony award, arguing that she should have been awarded permanent, rather than durational, alimony.

In May 2013, with the appeal pending, the former husband petitioned to modify the alimony and child support awards. See § 61.14(1)(a), Fla. Stat. (2013). He alleged a substantial change in circumstances with respect to his income.

After the trial court set the modification petition for trial, the former wife petitioned this court for a writ of prohibition, and argued that the pending appeal deprived the trial court of jurisdiction to consider the modification petition. She relies upon Thompson, 569 So.2d at 1372 (granting prohibition relief and quashing the order setting the modification petition for trial while the final judgment was on appeal in the Florida Supreme Court), and Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977) (where appeal was pending from order awarding alimony and child support, trial court correctly concluded that it was without jurisdiction to modify). The former husband responded that his petition seeks to modify the support awards prospectively; and, therefore, the modification proceedings will not interfere with the subject matter of the pending appeal. For support, he cites to Joseph v. Joseph, 881 So.2d 66 (Fla. 1st DCA 2004), and Cooper v. Cooper, 69 So.3d 977 (Fla. 2d DCA 2011).

Analysis

Harmonizing the cases, we conclude that the trial court may consider the modification petition incident to its jurisdiction under Rule 9.600(c); however, it may not enter a final judgment disposing of that petition until jurisdiction returns to the circuit court upon conclusion of the former wife’s appeal. We begin with the principle stated by this court in Kalmutz:

[Wjhen the jurisdiction of the appellate court attaches it is exclusive as to the subject covered by the appeal; so that modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is.

Kalmutz, 299 So.2d at 32 n. 1. We then turn to Florida Rule of Appellate Procedure 9.600 which addresses jurisdiction of the lower tribunal pending review. Specifically, subsection (c)(1) speaks to family law matters.

The lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, attorneys’ fees and costs for services rendered in the lower tribunal, temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.

Fla. R. App. P. 9.600(c)(1). Considering the above, this court has consistently recognized the limitation on the trial court’s jurisdiction pending a direct appeal of the final judgment of dissolution. Thompson, 569 So.2d at 1372; Buckley, 343 So.2d at 891. Similarly, the Fifth District reversed the trial court’s permanent modification of support awards associated with a judgment of dissolution because the direct appeal of that judgment was pending. Campbell, 436 So.2d at 377 (citing Kalmutz, Buckley, and Rule 9.600(c)).

Campbell recognized that alimony and child support awards are never “permanent” because they are always subject to modification. Nonetheless, they are permanent until modified or until the event which terminates the award occurs. 436 So.2d at 377. Any modification of the judgment while the appeal is in progress “cannot do anything other than interfere with this court’s jurisdiction and thus impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal.” Id. (internal citations omitted). Though it set aside the permanent modification order, the Fifth District commented that once jurisdiction returned to the trial court, it could enter the modification order retroactive to the date on which it was filed. Id.

Citing Rule 9.600(c), we have noted “[wjhen the trial court temporarily alters the provisions in the final judgment for the purpose of protecting the welfare or rights of a party pending appeal, the terms of the judgment are not affected.” Goodman v. Goodman, 664 So.2d 975, 975 (Fla. 4th DCA 1995) (emphasis added); see also McPherson, 775 So.2d at 974 (holding that the trial court has the power to award “temporary alimony” pending appeal “if it finds that it is ‘necessary to protect the welfare and rights’ ” of the movant in that timeframe”) (emphasis added).

Conclusion

We note Judge Cowart’s cogent dissent in Campbell which posits that courts unwilling to entertain modification to support orders pending appellate review fail to appreciate the “facts of life” and

a later “modification” of a prior adjudication of support upon a changed factual circumstance does not modify or change the prior adjudication in the retroactive and ab initio manner of an appellate court reversal which determines that the prior adjudication was erroneous from its entry on the facts upon which it was based.

Campbell, 436 So.2d at 378 (Cowart, J., dissenting). The dissent further noted that

[ajppellate review of the original adjudication, or any prior adjudication of support is not concerned with, nor affected by, any subsequent trial court adjudication of support based on another subsequent and different set of facts. Nor is any subsequent “modification” proceeding based on the theory that the prior adjudication was incorrect, which is the question involved in any appeal of a prior adjudication. To the contrary, the subsequent modification proceeding is neutral and indifferent as to the legal correctness of the prior adjudication and correctly proceeds on the theory that, whether or not the prior adjudication was correct on the facts then found and adjudicated, those facts have now changed and the present factual circumstances differ so substantially and materially from those underlying the prior adjudication that a different level of support is warranted as to the future.

Id. at 379.

Judge Cowart’s reasoning is consistent with the former husband’s argument that he is not seeking to modify the past alimony award currently on appeal, but rather only future sums. Notwithstanding, we conclude that Rule 9.600(c) controls this issue. The trial court’s jurisdiction is limited pending appeal of the judgment that is the subject of the modification petition.

As the former wife has not demonstrated that the trial court will exceed its jurisdiction under Rule 9.600(c) in considering the former husband’s claim of a substantial change in circumstances, we deny her petition for writ of prohibition. As outlined, the trial court can consider the former husband’s petition and, if appropriate, fashion a temporary order which may be revisited or reduced to permanent rulings once the pending direct appeal has been disposed of by this court.

Petition denied.

MAY and CONNER, JJ., concur.

      . A 1994 amendment to subdivision (c) authorized the lower tribunal to award temporary appellate attorneys' fees, suit money, and costs.

      . The court concluded that the former husband demonstrated a substantial change of circumstances in that he had been partially unemployed subsequent to the final judgment and had later become employed at a substantially reduced salary.

      . We note former husband's reliance on Cooper, but view the court's jurisdictional comments as dicta and its references to Atlas v. Atlas, 708 So.2d 296, 298 (Fla. 4th DCA 1998) and Merian v. Merhige, 690 So.2d 678, 681 (Fla. 3d DCA 1997), curious as those cases were not similarly postured. They addressed pending appeals of post-judgment contempt orders.


author: PER CURIAM.

text:
    Doris RUIZ a/k/a Doris Ruiz-Swanson, Appellant, v. STATE of Florida, Appellee.
    No. 14-644.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.
    Rehearing Denied July 2, 2014.
    Doris Ruiz a/k/a Doris Ruiz-Swanson, Elk River, MN, pro se.
    No appearance filed for appellee.
   PER CURIAM.

We affirm the order summarily denying the appellant’s motion for postconviction relief. The motion attempted to go behind a plea which the appellant entered in 1999. No valid exception to the time limitation of Florida Rule of Critninal Procedure 3.850(b) was alleged in the motion. The appellant’s claim of newly discovered evidence lacks merit.

Affirmed.

STEVENSON, CIKLIN and GERBER, JJ., concur.


author: KELLY, Judge.

text:
    Robert L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2101.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.

      Robert L. Davis, pro se.
   KELLY, Judge.

Robert L. Davis appeals the postconviction court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of relief with respect to grounds two and three of the motion without further comment. However, we reverse the postconviction court’s finding that the record conclusively refutes Mr. Davis’s claim that his plea was involuntarily entered and remand for an evi-dentiary hearing.

In ground one, Mr. Davis alleged that his guilty plea was not entered with a full understanding of the consequences because he was under the influence of a heavy dose of psychotropic medication at the time he entered it. Such a claim is cognizable under rule 3.850 and can constitute grounds to withdraw the plea. See Mungen v. State, 932 So.2d 1229, 1230 (Fla. 2d DCA 2006); Campbell v. State, 488 So.2d 592, 592 (Fla. 2d DCA 1986).

In summarily denying relief on ■ this ground, the postconviction court attached the transcript of Mr. Davis’s plea hearing to refute his allegations. At the start of the hearing, the trial court noted that the court-appointed psychologist recently issued a report indicating Mr. Davis was competent to proceed. As the formal plea colloquy began, the State informed the court that it needed to make a finding as to Mr. Davis’s competency. Without addressing Mr. Davis personally, the court found that based on the psychologist’s competency evaluation Mr. Davis was competent to proceed; Mr. Davis’s counsel approved this finding without comment from Mr. Davis. The court never asked Mr. Davis if he was on any medication at that time and did not inquire “whether the medication was affecting his ability to understand the proceeding and to voluntarily plead.” Mungen, 932 So.2d at 1230 (citing Fla. R. Crim. P. 3.172(c)).

Although the transcript reflects Mr. Davis responded in the affirmative when asked if he understood the rights he was giving up, “[t]his court has previously held that an affirmative answer during the plea colloquy to these types of questions is insufficient to refute a defendant’s claim for relief.” Rivera v. State, 746 So.2d 542, 542 (Fla. 2d DCA 1999). This is particularly the case when a defendant alleges that he did not understand the proceedings because he was under the influence of a heavy dose of psychotropic medication. Because the record does not conclusively refute Mr. Davis’s claim, we reverse and remand for the postconviction court to conduct an evidentiary hearing as to this claim. See Mungen, 932 So.2d at 1230; Bayer v. State, 902 So.2d 353, 355 (Fla. 2d DCA 2005); Szeremi v. State, 862 So.2d 935, 937 (Fla. 2d DCA 2004).

Affirmed in part, reversed in part, and remanded.

BRACK and SLEET, JJ., Concur.


author: WARNER, J.

text:
    Joseph McGOWAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2311.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Rehearing Denied July 2, 2014.
    Michael E. Dutko, Sr. and Ashley Dutko of Bogenschutz, Dutko & Kroll P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was charged, tried, and convicted of the crime of leaving the scene of a crash involving injury to or death of a person. He claims that the trial court erred in denying his motion for judgment of acquittal because the state failed to prove that he knew or should have known that he hit a pedestrian. Based upon the totality of the circumstances and the unusual facts of this case, we agree and reverse.

At trial the following evidence was presented. Around 8:20 a.m. on the morning of November 3, 2010, a road ranger patrolled 1-595 east of 1-95 in Broward County. He described the night as very dark. He noticed a couple of cars swerve around something in the middle of the westbound lanes of the highway. When he got close to the object, he realized that a person was standing in the middle lane of traffic. The person, a woman, appeared to be bending down to pick up something.

It was later learned that the woman, who was disabled with dementia, had been reported missing from her home the day before. Somehow she had wandered onto 1-595 in the early morning hours. She was African-American with a dark complexion, and she was wearing camouflage pants and a green shirt.

The road ranger immediately pulled off the road onto the shoulder just beyond where he saw the woman. He turned on his flashers and started screaming at her to get her attention. As he did so, he saw a car approaching in his rearview mirrors, coming from 1-95 southbound onto 1-595 westbound. Just as he made eye contact with her, she was hit by the vehicle and flew into the air. The road ranger could see the vehicle, which he described as a white sedan, leaving the scene and moving from the middle lane, where it had struck the woman, to the far left lane.

The road ranger did not see any other vehicles hit the woman, because he stated that he went into shock and did not see anything else. He testified, “I just went in shock, I could not believe that I seen [sic] a person flying in the air the way that person fly.” The road ranger did not see an eighteen-wheel tractor trailer rig run over the woman, although the driver stopped. When later questioned by the investigating highway patrol officer, the tractor-trailer driver said that he thought he had hit an animal. The road ranger eventually maneuvered his truck into the roadway to try to protect the woman’s body from further oncoming traffic.

At about the same time, appellant was driving west on 1-595. He had finished his shift at work, stopped by his girlfriend’s apartment to watch a movie, and was driving to his home in Plantation. He was driving a grey Dodge minivan. Around 3:40 a.m. he texted his girlfriend: “On 95 a truck fell off the back of a truck and wrecked the front passenger side of my car and went through the windshield. It didnt stop, so neither did i. Im shaken up as shit.” Later, his girlfriend testified that he told her that he thought a “piece of wood or something” had fallen off the back of a truck and hit his car.

It is significant that, at trial, the road ranger identified a picture of a white sedan as the type of vehicle that he saw strike the victim. He was also shown pictures of appellant’s grey Dodge minivan and testified that it was not the vehicle that he saw hit the victim.

Corporal Victor Luquis, a Florida Highway Patrol traffic homicide investigator, arrived on the scene of the accident around 4 a.m. He interviewed the road ranger and learned that the vehicle which had struck the woman had left the scene. The officer saw debris in the road and observed the eighteen-wheel tractor trailer parked on the right shoulder of westbound 1-595. There was no front-end damage to the eighteen-wheeler, and Corporal Luquis did not see blood splatter on it. He determined that the woman was on the ground when the eighteen-wheeler ran over her and that her body had been dragged.

As he was investigating, he received a call from his communications center relaying an anonymous 911 call. The caller reported seeing a white Lexus hit a person on 1-595 and exit on University Boulevard, where the caller saw the driver remove his license tag. The call had been inadvertently dropped by the 911 dispatcher, so no further information was available. Nevertheless, the corporal did put out a BOLO (a “be on the lookout” alert) for such a vehicle. He did not make any investigation of the debris at the scene to determine whether it came from a Lexus or similar white sedan.

The on-scene investigation continued for over three hours. Around the time Corporal Luquis was wrapping up at the scene, he received a call that appellant’s father, a captain with the City of Plantation Police, had reported that his son’s vehicle may have been in an accident involving a pedestrian on 1-595. Corporal Luquis went to appellant’s residence and observed his Dodge minivan. Visually, he thought that the glass debris he had gathered from the scene looked like it was from the same headlight as appellant’s vehicle. The passenger side of the windshield had a gaping hole in it with spider fractures covering the entire passenger side. The right headlamp was destroyed. By this time it was daylight, and the corporal could see strands of hair and dried blood in the window of the van. He took photos of the minivan, took samples of the blood and hair, and had the vehicle transported as evidence. DNA tests confirmed that the blood and hair were that of the female victim. No further examination or inspection was made of appellant’s car or the debris found at the scene.

The corporal did make some investigation of the 911 caller who reported seeing the white Lexus hit the pedestrian. This information fit the description of the vehicle provided by the road ranger at the scene. The corporal examined the evidence of that call but was unable to locate that caller. He admitted he did not include the 911 call about the Lexus in his report. He ruled out the Lexus being involved in this incident because he could not find it, and because the caller had reported seeing a white male when the victim was an African-American female. Furthermore, the DNA match of the victim’s blood on appellant’s vehicle and damage to it convinced him that it was the “primary vehicle” in the incident. He admitted, however, that it would be possible for a small car going 71 miles an hour to hit a person and have the person clear the smaller car and land on the car behind it.

The corporal decided on his own not to pursue the investigation of the Lexus, without disclosing the information in his report or in the probable cause affidavit. The state was unaware of this information at the time appellant was arrested ten months after the accident. It was not until two weeks before trial was set that Corporal Luquis disclosed the evidence about the Lexus to the state and defense.

The medical examiner determined that the cause of the victim’s death was “multiple blunt force trauma.” This included the severance of some of her limbs. The examiner could not tell, however, which impact killed the victim.

After the state rested, the defense moved for a judgment of acquittal on the grounds that the state had failed to prove both that the crash involving appellant’s vehicle resulted in injury or death to the victim and that the defendant knew or should have known that he hit a person. The court denied the motion.

The defense called appellant’s father as a witness. He testified that, the morning after the accident, appellant told his father that he had hit something coming home and the car was damaged. They went outside to look at the vehicle. Based upon the father’s law enforcement training and experience, he noticed what appeared to be hair on the windshield and, on the right front lower portion of the passenger side fender, a smear of blood. When he told his son that he may have hit a pedestrian, appellant nearly fainted. The father immediately called the Florida Highway Patrol, which resulted in Corporal Luquis arriving at the house to examine the vehicle.

The defense also presented a physicist who prepared a computer animation of the crash. Using all of the information gathered by the investigation and giving credit to the road ranger’s observation of the victim being hit by a sedan-type vehicle, the computer animation showed the victim being hit first by the sedan, being flipped up over the vehicle, hitting appellant’s vehicle, and then sliding down to the pavement. As such, the victim’s body, when airborne, was above the headlights so that appellant could not see her in the darkness. Notably, the physicist found it significant that appellant’s airbag did not deploy, which he says should have occurred had the victim been struck first by appellant’s headlight.

At the close of all the evidence, appellant renewed his motion for judgment of acquittal, which was again denied. After closing argument, the jury convicted appellant as charged, and appellant appeals his conviction.

Appellant argues that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence to convict him of willfully leaving the scene of a crash resulting in death. A motion for judgment of acquittal is reviewed using the de novo standard. Pagan v. State, 830 So.2d 792, 808 (Fla.2002). If, after viewing the evidence in the light most favorable to the state, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id. Where, however, the evidence is entirely circumstantial, the evidence must be sufficient to prove each element of the crime but must also exclude the defendant’s reasonable hypothesis of innocence. Id. This heightened standard does not apply where the evidence is both direct and circumstantial, as it is in this case. Id.; see also Reynolds v. State, 934 So.2d 1128, 1147 (Fla.2006) (“[T]his Court need not apply the special standard of review applicable to circumstantial evidence cases because the State presented direct evidence in the form of DNA evidence and eyewitness testimony.”) (quoting Fitzpatrick v. State, 900 So.2d 495, 506 (Fla.2005)). Nevertheless, we conclude that the state failed to offer evidence sufficient to support an essential element of the crime, i.e., that appellant knew or should have known that he hit a person, thus necessitating his duty to stop.

The crime of leaving the scene of a crash involving injuries or death, section 816.027, Florida Statutes (2010), requires proof of four elements:

(1) That the defendant was the driver of a vehicle involved in a crash resulting in injury to or death of any person;
(2) That the defendant knew or should have known that he was involved in a crash;
(3) That the defendant knew or should have known of the injury to or death of the person;
(4) That the defendant willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until he had given identifying information to the injured person, driver, occupant or person attending the vehicle and to any police officer investigating the crash.

See Fla. Std. Jury Instr. (Crim.) 28.4. In Booker v. State, 103 So.3d 1035, 1037 (Fla. 2d DCA 2012), the court explained the state’s burden in proving a violation of section 316.027 as follows:

To meet the intent requirement of the statute as written, it is not enough for the State to prove that the defendant was involved in a crash that resulted in injury or death, that the defendant knew or should have known that he was involved in a crash, and that the defendant willfully failed to stop at the scene. See State v. Mancuso, 652 So.2d 370, 371-72 (Fla.1995). Instead, the State must also “establish that the driver ‘either knew of the resulting injury or death or reasonably should have known from the nature of the accident.’ ” K.W. v. State, 78 So.3d 74, 75 (Fla. 2d DCA 2012) (quoting Mancuso, 652 So.2d at 372). Further, when there are multiple impacts, the driver must know of the specific impact that actually resulted in the injury. Id. at 76.

Appellant contends that the evidence never proved that he was involved in a crash resulting in the injury or death of a person because the state could not prove which impact caused injury or death. If the victim was killed on impact in the first crash and the first crash involved the white sedan, then the second crash with appellant’s vehicle would not have resulted in injury or death to a person, because the person was already dead. However, where there are multiple crashes, each might be a contributing cause to the injury or death of the victim. “[W]hen there are multiple impacts, the driver must know of the specific impact that actually resulted in the injury.” Booker, 103 So.3d at 1037; see also K.W., 78 So.3d at 76 (in reversing the conviction of a driver involved in a three vehicle accident, the court found that “[wjithout evidence regarding how the three vehicles impacted to cause the rollover, a jury could not determine from the nature of the impact that [the defendant] was aware that the crash caused injury.”).

We need not decide this issue, however, because we conclude that, even assuming that the crash in which appellant was involved resulted in the victim’s death, the evidence presented by the state simply failed to prove another element of the crime: that appellant knew or should have known that the accident involved a person.

The state’s evidence showed that the only eyewitness to the incident, the road ranger, identified a white sedan as hitting the victim, and the victim flew up into the air. He specifically noted that the Dodge minivan driven by appellant was not the vehicle that he saw hit the victim. The road ranger also mentioned how dark it was on the morning of the accident. He could not ascertain that a person was in the road at first. She was dressed in dark clothing. A tractor trailer rig also ran over the victim, and the driver did not know that he hit a person.

No one saw appellant’s vehicle at the scene, and therefore no one saw appellant leave the scene. Appellant did text message his girlfriend and indicated that he had hit something on 1-595, the experience of which scared him. He thought it was a piece of lumber or other debris that had fallen off the back of a truck. He did not stop because the other vehicle did not stop.

There is no evidence in the state’s case establishing that appellant knew or should have known that he struck a person. No one would reasonably expect that a person would be in the middle lane of 1-595 in the early morning hours. There was no evidence that the victim should have been seen by the light of the vehicles or overhead lighting. If, as the state’s eyewitness described, the victim’s body flew up in the air, it would not have been illuminated in the light of oncoming vehicles, including appellant’s. This was also the finding of the defense’s expert physicist.

The state did not offer any accident reconstruction. The investigating officer found debris at the scene which appeared to be similar to the headlight of appellant’s vehicle. He did not look for evidence of any other vehicle. In his testimony at trial, he determined that, to explain the damage to appellant’s vehicle, appellant must have been travelling at a speed between 45 to 60 miles an hour, the lower end of which would be very slow for an interstate highway. Thus, he was starting with the premise that appellant’s vehicle was the first to strike the victim. This premise ignored the actual facts as reported by the eyewitness who saw the victim’s body fly through the air, as well as the consistent evidence from appellant himself through the text message to his girlfriend. At trial, the state placed emphasis on the hole in the windshield, which had the victim’s hair embedded in the glass, as evidence that appellant reasonably should have known that he had hit a person. Yet, there was no evidence as to whether the lighting conditions would have allowed appellant to see the victim’s head on the windshield. Nor was there any evidence as to how long the time period was in which appellant had an opportunity to see what hit his vehicle.

This case is similar to Booker, in which the court reversed a conviction for leaving the scene of an accident involving injuries because the state presented no evidence that the defendant knew or should have known that injury was a consequence of the crash. 103 So.3d at 1036. There, the defendant had crashed into a patrol car on the side of the road, where an officer had stopped to help a woman in a disabled vehicle. Id. Given the nature of the accident, where the defendant’s vehicle struck the patrol car and spun around, the court found no evidence that he could have known of any injuries to the woman in the disabled vehicle, which he struck with the back of his car as he spun. Id. at 1037-38. “[Ejven assuming that [the defendant] Booker should have been aware of the impact to [the victim] Alvarado’s car, nothing about the nature of that impact would establish that Booker either knew or should have known that the car was occupied or that Alvarado was injured. In the absence of such evidence, the trial court should have granted Booker’s motion for judgment of acquittal on this charge.” Id. at 1038.

Where the state has failed to prove each element of a crime beyond a reasonable doubt, the case should not be submitted to the jury. See Baugh v. State, 961 So.2d 198, 204 (Fla.2007). “There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Id. Here, the state’s evidence fell considerably short of this mark. We conclude that it did not prove with any competent evidence that appellant knew or should have known that he struck a person on 1-595 in the early morning hours in the dark, let alone that “the crash” resulted in death or injury to a person. Without proof of all the elements of the crime, the trial court should have granted a judgment of acquittal.

Reversed with directions to discharge the defendant.

FORST and KLINGENSMITH, JJ., concur.

      . He was sentenced to two years of community control followed by eight years of probation. His driver's license was also permanently revoked.

      . Road rangers are employed to assist persons involved in accidents or who have car trouble on the state highways, to allow the roadways to stay clear of obstructions.

      . Appellant also raised a Brady violation as an issue on appeal, claiming that he should have been entitled to dismissal of the charge because of the corporal’s failure to disclose the evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court found that a Brady violation had occurred but denied dismissal of the charge. We need not determine whether the trial court erred in not dismissing the charge for this violation because of our determination that the state failed to prove its case.


text:
    Karl Alan FINLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4168.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Rehearing Denied July 2, 2014.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Karl Alan Finley appeals the judgment and sentence imposed after a jury found him guilty of being a felon in possession of a firearm or ammunition. He argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to provide sufficient evidence to deny the motion. We agree.

Police responded to Finley’s apartment in response to a reported burglary. Finley’s downstairs neighbor called the police when he heard someone walking in Finley’s apartment, and then saw a man, whom he did not recognize, carrying items and dropping change in the parking lot.

Officer M. responded to the call. While on his way to Finley’s apartment, Officer M. saw the suspect’s vehicle and pulled him over. Officer M. left the suspect with other responding officers and proceeded to Finley’s apartment. Finley’s neighbor identified the suspect as the person he saw leaving Finley’s apartment.

Once Officer M. arrived at Finley’s apartment, he was immediately hit with the strong odor of bleach. Finley’s apartment had been “ransacked,” and bleach had been poured all over the apartment. While investigating Finley’s home, Officer M. found a handgun lying on a box spring left exposed by an overturned mattress.

Investigators dusted and swabbed the handgun, and the magazine contained within the handgun, for fingerprints and DNA. No fingerprints were found. However, the DNA taken from the handgun and magazine matched Finley’s DNA.

At trial, the investigator who collected Finley’s DNA testified that when she was collecting the DNA from the handgun and magazine, she used two cotton swabs to swab multiple portions of the handgun and the magazine.

A member of the West Palm Beach Police Department’s forensic biology unit also testified. She stated that Finley’s DNA was the only sample she tested against the DNA found on the handgun and weapon (she did not test the sample against the burglary suspect’s DNA), but that there was the presence of a second individual’s DNA found on the handgun. Most notably, when questioned on cross-examination, the forensic witness testified that “secondary transfer” is possible, whereby DNA can be transferred from one object to another, so that a person’s DNA can be detected on both objects without the DNA contributor ever having touched the second object.

At the end of the State’s case-in-chief, Finley moved for a judgment of acquittal, which the trial court denied. The jury found Finley guilty of being a felon in possession of a firearm or ammunition as charged in the information. On appeal, Finley argues that the trial court should have granted his motion for judgment of acquittal because the State did not meet its burden to survive sucli a motion. We agree.

“Appellate review of the denial of a motion for judgment of acquittal is de novo.” Burkell v. State, 992 So.2d 848, 851 (Fla. 4th DCA 2008) (citations omitted). Additionally, when determining whether the State provided enough evidence to survive a motion for judgment of acquittal, the standards are different when the State’s case against a defendant is based on wholly circumstantial evidence, and when the State’s case is based on direct evidence or a mixture of direct and circumstantial evidence. See Boyd v. State, 910 So.2d 167, 180 (Fla.2005) (“[A] special standard of review applies when a case is based wholly on circumstantial evidence.”) (citation omitted). Therefore, we first determine whether the State’s case against Finley was wholly circumstantial.

“Circumstantial evidence is proof of certain facts and circumstances from which the [jury] may infer that the ultimate facts in dispute existed or did not exist.” Horne v. State, 997 So.2d 1262, 1265 (Fla. 4th DCA 2009) (citation omitted) (internal quotation marks omitted). In other words, “[c]ircumstantial evidence is evidence which involves an additional inference to prove a material fact; e.g, ‘I saw A flee the scene.’ ” Charles W. Ehrh-hardt, Florida Evidence (2012 ed.), S. 401.1 at 137. On the other hand, “[d]irect evidence is evidence which requires only the inference that what the witness said is true to prove a material fact; e.g., T saw A shootB.’” Id.

We determine that the State’s case against Finley was wholly circumstantial. The evidence that the State provided was that a handgun was found in Finley’s apartment and that Finley’s DNA was on the handgun and magazine. As for the DNA evidence, the State cites to Van Poyck v. State, 908 So.2d 326, 328 (Fla.2005), and argues that the Florida Supreme Court has classified DNA evidence as direct evidence. Although our supreme court did refer to DNA evidence as direct evidence in Van Poyck, based on other cases handed down by our supreme court, this is not necessarily a bright line rule, and instead, depends on what the DNA testing and evidence is being used to prove. Id.

For example, in Ballard v. State, 923 So.2d 475, 476 (Fla.2006), a Florida Supreme Court case decided one year after Van Poyck, the Court reversed the defendant’s convictions for two counts of first-degree murder and robbery. In Ballard, the only evidence the State presented in support of the defendant’s guilt was the defendant’s fingerprint on a bed frame at the crime scene, and a hair that allegedly matched the DNA profile of the defendant on one of the victims. Id. at 479-80. The Court stated that “this [wa]s a case based upon purely circumstantial evidence.” Id. at 482. This was partially based on the fact “that the State presented no direct evidence of when the hair and fingerprint were left or how they came to be left in their locations.” Id. at 483.

Additionally, in the recent case of Miller v. State, 107 So.3d 498, 499 (Fla. 2d DCA 2013), the Second District reversed a trial court’s denial of the defendant’s motion for judgment of acquittal on the charge of felon in possession of a firearm. The facts in Miller were similar to the facts in the instant case, where a gun was found in the defendant’s apartment underneath a mattress on a box spring. Id. The Second District classified the DNA evidence from the defendant on the gun as “circumstantial” because “the State’s only ordinance of when Miller possessed the gun... is entirely circumstantial.” Id. at 501.

Here, the DNA evidence was used to prove that Finley “possessed” the weapon, either actually or constructively. Similar to Ballard, in the instant case, the State’s witness testified that she could not determine when the DNA was put on the gun. Even more significantly, she testified that secondary DNA transfer was possible; where one object, containing Finley’s DNA, could have rubbed against the handgun, and without Finley ever having touched the handgun, his DNA could still be present. Since the handgun was found on Finley’s box spring, DNA present on the box spring, or the mattress, before it was overturned, could have transferred onto the handgun and magazine. Therefore, since there are additional inferences needed, that Finley’s DNA was put on the gun by him, and that it was put under the mattress by him, in order to believe that Finley possessed the handgun, the DNA evidence as presented in this case was circumstantial.

“In cases in which the evidence of guilt is wholly circumstantial, it is the trial judge’s task to review the evidence in the light most favorable to the State to determine the presence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Ballard, 923 So.2d at 482 (citation omitted) (internal quotation marks omitted). Therefore “[t]he state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the Defendant’s theory of events.” Kocaker v. State, 119 So.3d 1214, 1225 (Fla.2013) (citation omitted) (internal quotation marks omitted).

Finley’s theory was that it was the burglar, who put the handgun in Finley’s apartment. The State did not present any evidence inconsistent with this theory. It is undisputed that the burglar was in Finley’s home, and was the last person to be in the apartment before Officer M. discovered the handgun. Although there was evidence that Finley’s DNA was on the gun, and the jury was free to reject the DNA transfer theory, in order to survive a motion for judgment of acquittal, the State must present evidence inconsistent with Finley’s reasonable hypothesis of innocence. Since Finley’s reasonable hypothesis involved an explanation for the presence of his DNA on the gun, the State had to provide evidence inconsistent with this theory, something it failed to do. The State did not put the burglar on the stand to deny possession of the gun, and even more, the investigators never even tested the burglar’s DNA to compare to the handgun and magazine, which could have provided evidence that was inconsistent with the burglar ever having touched the handgun. To the contrary, the testimony at trial was that there was the presence of a second contributor of DNA on the handgun; evidence arguably in support of the defense’s theory. The State also did not provide any evidence inconsistent with the theory of secondary transfer of DNA. In fact, the State’s own forensic witness testified in the affirmative, that secondary transfer could have occurred. Additionally, the investigator who took the DNA sample from the handgun and magazine, testified that she used the cotton swabs to rub different portions of the handgun and magazine. Therefore, she could not testify as to the portion of the handgun, and more importantly the magazine, on which the DNA was found. It was therefore consistent with Finley’s theory of innocence that the portion of the magazine that was exposed could have been the portion of the magazine which contained Finley’s DNA because of secondary transfer. There was also no evidence provided as to when or how the DNA evidence became present on the handgun.

Since the State did not provide enough evidence at trial to survive Finley’s motion for judgment of acquittal, we reverse the judgment and sentence and remand with instructions that the trial court enter an order granting Finley’s motion for judgment of acquittal.

Reversed, and Remanded.

STEVENSON, TAYLOR and CONNER, JJ., concur.

      . Officer M.'s exact description of where he found the gun was: "[TJhen in the bedroom was a silver and black handgun. I believe it was a Taurus handgun laying on the box springs. The mattress had been flipped over on its side, laying up against the wall and the box springs, the handgun was exposed on the box springs.” (Vol. 5, page 248, lines 5-10).


text:
    A.V.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4001.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

A.V.S., a child, appeals from the trial court’s order of disposition which included special conditions of probation alleged to be improper. However, on July 10, 2013, the trial court terminated A.V.S.’s probation and supervision by the Florida Department of Juvenile Justice. As such, the instant appeal is now moot and must be dismissed.

Appeal Dismissed.

DAMOORGIAN, C.J., WARNER and KLINGENSMITH, JJ., concur.