author: WETHERELL, J.

text:
    Jeffrey Joel SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6060.
    District Court of Appeal of Florida, First District.
    March 24, 2014.
    Rehearing Denied May 12, 2014.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant raises two issues in this direct appeal of his judgment and sentence for aggravated battery. We affirm the first issue without further comment, and for the reasons that follow, we also affirm Appellant’s claim that the trial court fundamentally erred in giving the standard jury instruction on the affirmative defense of justifiable use of non-deadly force.

The State charged Appellant with aggravated battery for a fight that occurred at William Perkins’ house in April 2012. Although there was conflicting evidence as to how Appellant came to be at Perkins’ house, it was undisputed that Appellant refused to leave even though Perkins repeatedly asked him to do so. Perkins called the Sheriffs Office for assistance, and on the recording of the call presented at trial, Appellant can be heard accusing Perkins of sleeping with Appellant’s wife and yelling threats and obscenities at Perkins, including “I am going to beat your fucking ass until the cops get here.” The fight started at the end of the call.

Perkins testified that Appellant was the initial aggressor and that Appellant poked him in the eye, hit him in the head with his fist, and kicked him multiple times with steel-toe boots after knocking him to the ground. Perkins testified that he suffered a closed head injury and multiple facial fractures as a result of the fight. Photographs showing Perkins’ injuries were introduced into evidence.

The State also presented the testimony of a neighbor who witnessed part of the fight. The neighbor testified that he saw Appellant and Perkins yelling at each other and that he also saw Appellant strike Perkins in the head, knocking him to the ground at which point Perkins curled up in a defensive position and Appellant began kicking him in the head.

Appellant testified on his own behalf. He claimed that Perkins was the initial aggressor and that he only punched Perkins to defend himself after Perkins punched him in the chin and kept coming at him as he was trying to leave Perkins’ property. Appellant admitted pushing Perkins down, but he categorically denied kicking Perkins while he was on the ground. Appellant admitted that he did not have any injuries as a result of the fight.

Appellant’s primary theory of defense was that he acted in self-defense when he punched Perkins. Appellant requested an instruction on the issue of justifiable use of non-deadly force and, without objection, the trial judge gave the standard jury instruction on the issue. See Fla. Std. Jury. Instr. (Crim.) 3.6(g). In pertinent part, the jury was instructed:

Now an issue in this case is whether [Appellant] acted in self-defense. It is a defense to the offense with which [Appellant] is charged if the injury to [Perkins] resulted from the justifiable use of non-deadly force.
Non-deadly force means force not likely to cause death or great bodily harm. [Appellant] would be justified in using non-deadly force against [Perkins] if the following two facts are proved:
First. [Appellant] must have reasonably believed that such conduct was necessary to defend himself against [Perkins’] imminent use of unlawful force against [Appellant].
Second. The use of unlawful force by [Perkins] must have appeared to [Appellant] to be ready to take place.
Now, if [Appellant] was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.
As used with regards to self-defense, a person does not have a duty to retreat if the person is in a place where he has a right to be.
* * * []
Now in considering the issue of self-defense, you may take into account the relative physical abilities and capacities of [Appellant] and [Perkins].
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether [Appellant] was justified in the use of non-deadly force, you should find [Appellant] not guilty.
However, if from the evidence you are convinced that [Appellant] was not justified in the use of non-deadly force, you should find him guilty if all the elements of the charge have been proved,

(emphasis added).

The jury found Appellant guilty of aggravated battery, a “lesser included offense” of aggravated battery with great bodily harm and with a weapon as charged in the information. The trial court sentenced Appellant to five years in prison. Appellant timely appealed.

Appellant argues that the trial court committed fundamental error in giving the standard jury instruction on justifiable use of non-deadly force because the portion of the instruction emphasized above effectively told the jury that Appellant was precluded from using any force in self-defense unless he was confronted with deadly force. We review this claim under the de novo standard of review. See Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010).

It is well-settled that the “doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Ray v. State, 403 So.2d 956, 960 (Fla.1981); see also State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (explaining that fundamental error is error that “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error”) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). An erroneous instruction on an affirmative defense constitutes fundamental error only when the instruction is “so flawed as to deprive defendants claiming the defense ... of a fair trial.” Martinez v. State, 981 So.2d 449, 455 (Fla.2008). However, when an error occurs in the instruction on the defendant’s sole defense, “it is more likely that the error should be regarded as fundamental.” Bradley v. State, 127 So.3d 806, 808 (Fla. 2d DCA 2013).

To determine whether a jury instruction deprived the defendant of a fair trial, this court conducts a “totality of the circumstances” analysis. See Croom v. State, 36 So.3d 707, 708 (Fla. 1st DCA 2010). If the totality of the circumstances indicate there is no reasonable possibility the alleged jury instruction error contributed to the verdict, the error is not fundamental. Id. In considering the effect of an erroneous instruction under the fundamental error analysis, the court reviews the instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel. See Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011).

In support of his claim of fundamental error, Appellant relies primarily on Talley v. State, 106 So.3d 1015 (Fla. 2d DCA 2013). In that case, the court held that the portion of the standard jury instruction emphasized above was flawed because, even though the instruction tracks the language in section 776.013(3), Florida Statutes, word-for-word, the instruction includes a comma after the phrase “including deadly force” that is not in the statute. Id, at 1017. The court explained that the effect of this additional comma was to improperly narrow the scope of the defense by suggesting that the defendant could only use non-deadly force in self-defense if he or she reasonably believed that such force was necessary to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony. Id. The court held that the error in the instruction was fundamental error in that case because the error “eliminated” the defendant’s only defense and was highlighted by the prosecutor in closing argument. Id. at 1017-18 (quoting Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985), for the proposition that an erroneous jury instruction is fundamental error and is highly prejudicial to the defendant when its effect is to “negate the defendant’s only defense”).

We agree with Talley (and its progeny) that the standard jury instruction for justifiable use of non-deadly force is grammatically flawed and that the extra comma erroneously narrows the scope of the defense. However, for the reasons that follow, we do not find the error to be fundamental error in this case.

First, when viewed as a whole, the jury instructions properly advised the jury on the issue of self-defense. The instructions clearly explained that the justifiable use of non-deadly force was a defense to the crime with which Appellant was charged and the instructions properly defined the term “non-deadly force.” The instructions then explained the elements of the defense, as provided in sections 776.012 and 776.013(3). The portion of the instruction challenged by Appellant concerns section 776.013(3), but under the circumstances of this ease, Appellant was not even entitled to assert the defense provided in that statute.

Section 776.013(3) only applies when a person “is not engaged in an unlawful activity” and “is attacked in any [] place where he or she has a right to be.” Here, it was undisputed that the fight started after Appellant refused to leave Perkins’ property despite having been repeatedly asked to do so. Accordingly, at the time he used force to defend himself against Perkins’ alleged unprovoked attack, Appellant was no longer in a place he was entitled to be and was engaged in unlawful activity (i.e., trespassing), so he was not entitled to the defense in section 776.013(3). Instead, Appellant’s claim of self-defense was governed solely by section 776.012, which authorizes “[a] person”— without the prerequisites in section 776.013(3) — to use non-deadly force “when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself ... against the other’s imminent use of unlawful force.”

The instructions given in this case correctly explained to the jury that, consistent with section 776.012, justifiable use of non-deadly force required proof of only two facts: (1) that Appellant reasonably believed that the use of force was necessary to defend himself against Perkins’ use of force, and (2) that Perkins’ use of force appeared to Appellant to be imminent. Appellant’s counsel emphasized this portion of the self-defense instruction in his closing argument. Accordingly, the fact that there was a grammatical error in the portion of the instruction related to section 776.013(3) is harmless in this case because the record establishes that Appellant’s self-defense claim was governed by section 776.012, not section 776.013(3).

Second, unlike Talley, the prosecutor in this case did not rely on the erroneous instruction in closing argument. The prosecutor merely argued the facts in evidence and encouraged the jury to find Appellant’s testimony unreliable. Cf Talley, 106 So.3d at 1017 (suggesting that the error in the instructions “may have been harmless” if the prosecutor had not highlighted the error in closing argument); see also Ran-gel, supra (rejecting claim of fundamental error based upon the same extra comma in the standard instruction for the justifiable use of deadly force and noting that the prosecutor’s closing argument on the issue was merely a comment on the evidence); Bradley, supra (distinguishing Talley where the prosecutor provided a correct explanation of the law of self-defense in closing arguments).

Third, Appellant agreed to the standard instruction on the justifiable use of non-deadly force as read to the jury. Although that does not necessarily foreclose a claim of fundamental error, see Moore v. State, 114 So.3d 486, 493 (Fla. 1st DCA 2013), this court has explained that:

where defense counsel agrees to a standard jury instruction and then challenges the conviction based upon fundamental error in that instruction, reversal would have the unintended consequence of encouraging defense counsel to ‘stand mute and, if necessary, agree to an erroneous instruction’ or sacrifice his client’s opportunity for a second trial.

Joyner v. State, 41 So.3d 306, 307 (Fla. 1st DCA 2010) (quoting Calloway v. State 37 So.3d 891 (Fla. 1st DCA 2010)). This principle applies with greater force in this case because, in Joyner, the error in the instruction concerned the critical element of a lesser offense, whereas in this case, the error was a punctuation error in a portion of the instruction on an affirmative defense that did not even fit the circumstances of this case. See Calloway, 37 So.3d at 895 (finding no fundamental error in jury instruction based, in part, on the fact that the instruction did not involve an issue in dispute). Moreover, as the Second District observed in Bradley “the jury would have had to read the written instruction very closely to discover the additional comma.”

Finally, although not implausible, Appellant’s claim of self-defense was inconsistent with the physical evidence and the testimony of the neighbor who witnessed part of the fight. This factor is not sufficient in and of itself to justify affirmance because the weight of the evidence supporting Appellant’s self-defense claim is a matter for the jury, but the strength or weakness of the defense is properly considered as part of the “totality of the circumstances” analysis in determining whether the error in the self-defense instruction deprived Appellant of a fair trial. See Bradley, supra (distinguishing Talley and finding the error in the jury instruction resulting from the additional comma not to be fundamental error because the evidence supporting the defense was “extremely limited”); see also Martinez, 981 So.2d at 456 (finding no fundamental error in self-defense jury instruction because self-defense was not the only strategy pursued by the defendant and his claim of self-defense was “extremely weak”).

In sum, for the reasons stated above, although we agree with Appellant that a portion of the instruction on justifiable use of non-deadly force given in this case was grammatically flawed, we are not persuaded that the error in the instruction negated Appellant’s claim of self-defense or was so flawed that it deprived Appellant of a fair trial. Rather, as was the case in Bradley, the record reflects that Appellant “had a fair opportunity to present his defense and the jury simply accepted the conflicting testimony presented by the state.” Accordingly, we reject Appellant’s claim of fundamental error and affirm his judgment and sentence.

AFFIRMED.

CLARK and RAY, JJ., concur.

      . This statement was not evident from the court reporter’s transcription of the recorded call, and the recording itself was not provided to this court as part of the record on appeal. However, there does not appear to be any dispute that Appellant made this statement because his counsel referred to the statement in opening argument and, during closing argument, the prosecutor replayed the call for the jury and quoted this statement from the recording without any objection from Appellant.

      . This was Appellant’s "sole defense” in the sense that rejection of the defense would necessarily result in a conviction because it was undisputed that Appellant punched Perkins and that Perkins suffered great bodily harm; however, acceptance of Appellant’s version of events related to the defense would not necessarily result in an acquittal because the jury could have convicted Appellant of aggravated battery even if it accepted his testimony that he only punched Perkins in self-defense. This is so because even if the jury believed Appellant's testimony about the punching, it could still have convicted him of aggravated battery if it rejected his testimony that he did not kick Perkins after pushing him down. This would not have required the jury to accept the State’s theory that the steel-toe boots were a deadly weapon because even if the jury was not persuaded that Appellant was guilty of aggravated battery under section 784.045(l)(a)2., Florida Statutes, it could have convicted him under section 784.045(l)(a)i. if it determined that the great bodily harm undisputedly suffered by Perkins resulted from the kicking (which Appellant denied) rather than the punching (which Appellant admitted).

      . The portion of the instruction omitted from this block-quote contains the same language that this court recently found to be fundamentally erroneous in the standard jury instruction for justifiable use of deadly force. See Floyd v. State,- So.3d -, 2014 WL 30573 (Fla. 1st DCA Jan. 3, 2014) (observing that the trial court "instructed the jurors that Floyd both did and did not have a duty to retreat”) (emphasis in original). Appellant does not challenge this portion of the instruction on appeal, and under the circumstances of this case, no error — fundamental or otherwise- — • resulted from this instruction because there was a factual dispute as to who was the initial aggressor and Appellant’s legal duty to retreat or not depended on the jury's resolution of that dispute. Accordingly, in this case, it was necessary and proper for the court to inform the jury that Appellant both did (if he was the found to be the initial aggressor) and did not (if Perkins was found to be the initial aggressor) have a duty to retreat. Compare § 776.041(2)(a), Fla. Stat. with §§ 776.012, 776.013(3), Fla. Stat.

      . See § 784.045(l)(a), Florida Statutes (2011) ("A person commits aggravated battery who, in committing battery: 1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or 2. Uses a deadly weapon.”).

      . The statute provides:
      A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
      § 776.013(3), Fla. Stat.

      . See Rangel v. State, 2013 WL 6510898 (Fla. 2d DCA Dec.13, 2013) (noting that the standard jury instruction on the justifiable use of deadly force is identical to the instruction considered in Talley, but holding that the erroneous instruction did not constitute fundamental error in that case); Bradley, supra (finding no fundamental error even though jury received the same erroneous instruction that was given in Talley).

      .The problem with the instruction is not as much with the extra comma as it is with the inclusion of the language after the first comma, which pertains only to the use of deadly force and has no place in the instruction on justifiable use of non-deadly force. Where, as here, the defendant is only asserting the defense of justifiable use of non-deadly force, the instruction might be better stated by substituting a period for the first comma and omitting the remainder of the language: "A person who is not engaged in an unlawful activity and who is in a place where he or she has a right to be has no duty to retreat and has the right to meet force with force.”

      . See, e.g., Mosansky v. State, 33 So.3d 756 (Fla. 1st DCA 2010) (rejecting claim of fundamental error where jury instructions "taken as a whole” correctly instructed the jury); Bolin v. State, 297 So.2d 317, 319 (Fla. 3d DCA 1974) ("A conviction will not be reversed because a particular jury instruction has not been given where, on the whole, the charges as given are clear, comprehensive, and correct.”).

      . See Little v. State, 111 So.3d 214, 221 (Fla. 2d DCA 2013) (explaining that the requirements of sections 776.012 and 776.013(3) are not identical and that a person who does not meet the prerequisites in section 776.013(3)— not engaged in unlawful activity and attacked in any place outside the home where he or she has a right to be — would have to look to section 776.012 to determine whether the use of force was justified).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Antoine SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0765.
    District Court of Appeal of Florida, First District.
    April 9, 2014.
    Rehearing Denied July 3, 2014.
    Antoine Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R.App. P. 9.141(c)(5)(A).

BENTON, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Patricia J. BARTRAM etc., et al., Appellee.
    No. 5D12-3823.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2014.
    Rehearing and Rehearing En Banc Denied June 2, 2014.

      Jeffrey C. Sirolly and Michael D. Starks, of Baker, Donelson, Bearman, Caldwell, & Berkowitz, PC, Orlando, for Appellant.
    Michael Alex Wasylik, of Ricardo & Wa-sylik, PL, Dade City, and Dineen Pashou-kos Wasylik, of Dineen Pashoukos Wasy-lik, P.A., Tampa, and Thomas R. Pyeraft, Jr., of Pyeraft Legal Services, LLC, St. Augustine, for Appellee, Lewis Brooke Bartram.
    T. Geoffrey Heekin, Catherine Remler Michaud, S. Hunter Malin, of Heekin, Ma-lm & Wenzel, P.A., Jacksonville, for Appel-lee, The Plantation at Ponte Vedra, Inc.
    No Appearance for Appellee Patricia J. Bartram.
   PER CURIAM.

The appellant, U.S. Bank National Association (the Bank), appeals a summary final judgment rendered in a mortgage foreclosure case that cancels the note and mortgage executed by the appellee, Lewis Bartram (Bartram). The trial court ruled in the summary final judgment that the note and mortgage should be cancelled based on a failed attempt to foreclose the same note and mortgage in a prior foreclosure action filed by the Bank against Bar-tram. The issue we must resolve is whether acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, triggers application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to dismissal of the first foreclosure suit. We conclude that the statute of limitations does not bar the subsequent foreclosure action and therefore reverse the judgment under review.

In 2005, Bartram borrowed $650,000 from the Bank’s predecessor. The loan was secured by a mortgage on real property owned by Bartram and his wife, Patricia, in Ponte Vedra Beach. After entering into the note and mortgage, Bartram and his wife divorced. In the divorce, Bartram was required to buy Patricia’s interest in the real property and accordingly executed a note (for approximately $156,000) and mortgage to Patricia. Thus, Patricia ended up with a recorded interest in the same real property as the Bank, which had taken assignment of the $650,000 note and mortgage in the intervening period. Additionally, the governing homeowners’ association, The Plantation at Ponte Vedra, Inc. (the HOA), placed liens on the property for the nonpayment of various fees. Bartram stopped making payments to the Bank in January 2006 and has not made any payments to Patricia.

In May 2006, the Bank filed a foreclosure suit against Bartram. The Bank alleged it had fulfilled all conditions precedent to acceleration of the note, and it accelerated all payments due. At no time during the pendency of the 2006 case did Bartram ever deny that he had defaulted and neither did he ever challenge the acceleration of the debt.

In April 2011, while the Bank’s 2006 case was still pending (the record does not reveal what was occurring in the Bank’s foreclosure case for the intervening almost five years), Patricia Bartram filed a separate suit to foreclose her mortgage. She named Bartram, the Bank, and the HOA as defendants.

On May 5, 2011, the trial court dismissed the Bank’s 2006 foreclosure case because the Bank failed to appear at a noticed case management conference and because the case was almost five years old, which was four years beyond time standards. The Bank did not appeal the involuntary dismissal rendered pursuant to Florida Rule of Civil Procedure 1.420(b).

A year after Patricia’s suit was filed, Bartram filed a crossclaim against the Bank in Patricia’s action, seeking declaratory judgment against the Bank. Bartram contended he was unsure of his rights and responsibilities under the note and mortgage and asserted that the Bank no longer had any interest in the real property because of the 2011 involuntary dismissal of its foreclosure action. He argued that because more than five years had passed since he had defaulted on the accelerated note and mortgage, the statute of limitations barred the Bank from now enforcing its rights under the note and mortgage. In a second count, Bartram sought to quiet his title in the real property.

Bartram filed a motion for summary judgment on his crossclaim, contending that acceleration of the payments in the prior foreclosure action triggered application of the statute of limitations and the Bank was therefore barred from foreclosing its mortgage and attempting to collect the unpaid portion of the note. The Bank argued that although the statute of limitations prevents the Bank from collecting some payments, it did not bar the collection of payments that were missed within the most recent five-year period.

The trial court signed the Summary Final Judgment Against Defendant U.S. Bank on Crossclaim. In the summary judgment, the court quieted title in Bar-tram, found the Bank had no further ability to enforce its rights under the note and mortgage that were the subject matter of the Bank’s dismissed 2006 foreclosure action, and cancelled the note and mortgage. The court released the Bank’s lien on the property. On August 7, 2012, the Bank filed a Motion for Rehearing. The court denied rehearing and the Bank appeals.

We begin by noting that there is no question of the Bank’s successful acceleration of the entire indebtedness on May 15, 2006. The Bank contends that the dismissal of its foreclosure suit nullified its acceleration of future payments; accordingly, the cause of action on the accelerated payments did not accrue and the statute of limitations did not begin to run on those payments, at least until default occurred on each installment. The Bank relies heavily on Singleton v. Greymar Associates, 882 So.2d 1004 (Fla.2004) (holding that dismissal with prejudice in a mortgage foreclosure action does not necessarily bar, on res judicata grounds, a subsequent foreclosure action on the same mortgage even if the mortgagee accelerated the note in the first suit) to support its position.

The HOA and Bartram, on the other hand, assert that the cause of action for default of future installment payments accrued upon acceleration, thus triggering the statute of limitations clock to run, and because the Bank did not revoke its acceleration at any time after the dismissal, the five-year statute of limitations period eventually expired, barring the Bank from bringing another suit. See Greene v. Bursey, 733 So.2d 1111, 1114-15 (Fla. 4th DCA 1999) (“Ordinarily, the statute of limitations under an installment contract starts to run on the date each payment becomes due. As such, the statute of limitations may run on some installments and not others. Where the installment contract contains an optional acceleration clause, the statute of limitations may commence running earlier on payments not yet due if the holder exercises his right to accelerate the total debt because of a default. In other words, the entire debt does not become due on the mere default of payment; rather, it become due when the creditor takes affirmative action to alert the debtor that he has exercised his option to accelerate.” (citations omitted)); Reed v. Lincoln, 731 So.2d 104 (Fla. 5th DCA 1999) (holding that in the absence of acceleration clause, default did not result in entire remaining debt becoming due immediately and thus remand for a determination as to which monthly installments were barred by the statute of limitations was necessary); Monte v. Tipton, 612 So.2d 714, 716 (Fla. 2d DCA 1993) (“The statute of limitations on a mortgage foreclosure action does not begin to run until the last payment is due unless the mortgage contains an acceleration clause.”; holding that because cause of action did not accrue until the acceleration clause was triggered, the statute of limitations did not bar the suit); Locke v. State Farm, Fire & Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987) (holding that because lender had not exercised its optional right to accelerate until it filed its foreclosure complaint, the statute of limitations had not yet run); Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977) (rejecting argument that statute of limitations barred foreclosure action where suit was filed within five years of the maturity date of the final installment; noting there was no acceleration clause). The Bank admits that dicta in the cases states that attempted acceleration of a debt “may” cause the entire debt to become due for purposes of future adjudication of the debt, but points out that all cases cited to the trial court predated Singleton and, furthermore, the root of the holdings in these cases stems from “pure” dicta in Conner.

We agree with the Bank and conclude that Singleton is applicable to the instant case and that the cases cited by Bartram and the HOA pre-date Singleton and, therefore, are not controlling. In Singleton, the mortgagee filed a foreclosure action based on the mortgagor’s failure to make payments due from September 1, 1999, to February 1, 2000. In a footnote, the supreme court noted the mortgagor’s unchallenged representation that the foreclosure action sought to accelerate the entire indebtedness. This first action was dismissed with prejudice when the mortgagee failed to appear at a case management conference. The mortgagee thereafter filed a second foreclosure action seeking to recover on alleged defaults occurring from April 1, 2000, forward. The circuit court, rejecting the argument that the prior dismissal barred relief in the second action, entered summary judgment in favor of the mortgagee in the second suit. The Fourth District Court in Singleton v. Greymar Associates, 840 So.2d 356 (Fla. 4th DCA 2003), agreed that res judi-cata did not bar the second suit because the second suit was brought for a new and different breach. The mortgagor petitioned the supreme court to review the holding, as the holding conflicted with the decision from the Second District Court in Stadler v. Cherry Hill Developers, Inc., 150 So.2d 468 (Fla. 2d DCA 1963) (holding that res judicata barred the bringing of a second foreclosure suit that was identical to the first suit other than the period of defaults alleged were different; observing that the acceleration of payments in the first action put the entire balance of the loan at issue at that time, resulting in the second suit being identical to the first).

The supreme court rejected the “stricter and more technical view of mortgage acceleration elections” taken in Stadler and agreed with the Fourth District Court “that when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily barred by res judicata.” Singleton, 882 So.2d at 1006. The supreme court explained:

While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue. See Olympia Mortgage Corp [v. Pugh], 774 So.2d [863] at 866 [ (Fla. 4th DCA 200) ] (“We disagree that the election to accelerate placed future installments at issue.”); see also Greene v. Boyette, 587 So.2d 629, 630 (Fla. 1st DCA 1991) (holding that a mortgagee can successfully recover twice on one mortgage for multiple periods of default because the payments were different “installments”). For example, a mortgagor may prevail in a foreclosure action by demonstrating that she was not in default on the payments alleged to be in default, or that the mortgagee had waived reliance on the defaults. In those instances, the mortgagor and mortgagee are simply placed back in the same contractual relationship with the same continuing obligations. Hence, an adjudication denying acceleration and foreclosure under those circumstances should not bar a subsequent action a year later if the mortgagor ignores her obligations on the mortgage and a valid default can be proven.
This seeming variance from the traditional law of res judicata rests upon a recognition of the unique nature of the mortgage obligation and the continuing obligations of the parties in that relationship. For example, we can envision many instances in which the application of the Stadler decision would result in unjust enrichment or other inequitable results. If res judicata prevented a mortgagee from acting on a subsequent default even after an earlier claimed default could not be established, the mortgagor would have no incentive to make future timely payments on the note. The adjudication of the earlier default would essentially insulate her from future foreclosure actions on the note— merely because she prevailed in the first action. Clearly, justice would not be served if the mortgagee was barred from challenging the subsequent default payment solely because he failed to prove the earlier alleged default.
We must also remember that foreclosure is an equitable remedy and there may be some tension between a court’s authority to adjudicate the equities and the legal doctrine of res judicata. The ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage. See deCancino v. Eastern Airlines, Inc., 283 So.2d 97, 98 (Fla. 1973) (“[T]he doctrine [of res judicata] will not be invoked where it will work an injustice.... ”). We can find no valid basis for barring mortgagees from challenging subsequent defaults on a mortgage and note solely because they did not prevail in a previous attempted foreclosure based upon a separate alleged default.
We conclude that the doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit. In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action. Thus, we approve the Fourth District’s decision in Singleton, and disapprove of the Second District’s holding in Stadler.

Id. at 1007-08.

Singleton was subsequently applied in Star Funding Solutions, LLC v. Krondes, 101 So.3d 403 (Fla. 4th DCA 2012), wherein the court wrote:

Star Funding Solutions, LLC, appeals the trial court’s order denying its motion to vacate the order dismissing with prejudice its foreclosure action against John and Florence Krondes, and others. We affirm and write only to address the impact of the dismissal with prejudice on any subsequent act of default of the terms of the mortgage between Star Funding and the Krondes. A new default, based on a different act or date of default not alleged in the dismissed action, creates a new cause of action. Singleton v. Greymar Assocs., 882 So.2d 1004, 1005 (Fla.2004). Thus, the trial court’s dismissal with prejudice of Star Funding’s first foreclosure action does not preclude Star Funding from instituting a new foreclosure action. Id. at 1006. (“[R]es judicata does not prevent mortgagees from foreclosing on a mortgage in successive foreclosure cases when the alleged dates of default are different.”).

Id. at 403 (emphasis added); see also PNC Bank, N.A. v. Neal, — So.3d —,—, 2013 WL 5779048, 38 Fla. L. Weekly D2249, D2249 (Fla. 1st DCA Oct. 25, 2013) (affirming order granting mortgagor’s motion to dismiss foreclosure action with prejudice; noting, however, that “the dismissal with prejudice of PNC Bank’s foreclosure action against the Neals does not preclude PNC Bank from instituting a new foreclosure action based on a different act or a new date of default not alleged in the dismissed action”). While neither Star Funding nor PNC Bank mentions a statute of limitations issue, their language suggests that the First and Fourth District Courts would apply Singleton to a statute of limitations analysis because, given their conclusion that each new default creates a new cause of action, the statute of limitations would only begin to run when the new cause of action accrued.

This application of Singleton has found approval in the federal courts. In Kaan v. Wells Fargo Bank, N.A., No. 13-80828-CIV, 981 F.Supp.2d 1271, the mortgagee had voluntarily dismissed a prior foreclosure action without prejudice (it appears from a footnote that the mortgagee had accelerated the full amount due). Subsequently, the mortgagor sought to quiet title on the grounds that any recovery on the note was thereafter barred by the five-year statute of limitations. It contended that the prior dismissal invalidated the note and thus barred any foreclosure suits for defaults on subsequent payments. The federal district court read Singleton as applying to the statute of limitations issue:

The foreclosure action at issue here alleged a default of Plaintiffs July 1, 2007 through February 1, 2008 Note and Mortgage payments. While any claims relating to individual payment defaults that are now more than five years old may be subject to the statute of limitations, each payment default that is less than five years old, i.e., since October, 2008, created a basis for a subsequent foreclosure and/or acceleration action. Singleton, 882 So.2d at 1008. See also Fl[a], Stat. § 95.11(2)(c) (setting a five year statute of limitation for actions to foreclose on a mortgage).

Id. at 1007. Because the note and mortgage were valid and enforceable, they were not a cloud on the mortgagor’s title and the court dismissed the quiet title suit.

Kaan ⅛ analysis was embraced in Dorta v. Wilmington Trust National Ass’n, No. 5:13-cv-185-Oc-10PRL, 2014 WL 1152917 (M.D.Fla. Mar. 24, 2014). In Dorta, the court discussed both Singleton and Kaan and concluded that the mortgagee had not lost its right to enforce the note and mortgage merely because its first foreclosure action, in which acceleration had been invoked, had been dismissed without prejudice. The only limitation on a subsequent attempt at enforcement of a note and mortgage, following an unsuccessful first attempt in which the right of acceleration was invoked, is that defaults more than five years old are outside the reach of the subsequent action due to application of the statute of limitations; a mortgagee “is not barred from seeking foreclosure or from invoking its right to accelerate the entire indebtedness based on more recent defaults,” the court held. Id. at *7. In so holding, the court observed that the discussion in Singleton was limited to the application of the doctrine of res judicata, but concluded, as do we, that Singleton ⅛ analysis is equally applicable to the statute of limitations issue. Id. at *6.

The court in Singleton reasoned that that a subsequent, separate default creates a new and independent right to accelerate payment in a second foreclosure action even where the lender triggered acceleration of the debt in the prior, unsuccessful action that had been dismissed with prejudice. The court was clear that, regardless of the fact that acceleration was invoked in the first suit, the doctrine of res judicata does not necessarily bar subsequent foreclosure actions where the subsequent suit alleged defaults other than those sued for in the first suit, because the subsequent and separate alleged default “created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.” Singleton, 882 So.2d at 1008. If a “new and independent right to accelerate” exists in a res judicata analysis, there is no reason it would not also exist vis-á-vis a statute of limitations issue. A “new and independent right to accelerate” would have to mean that the new defaults presented new causes of action, regardless of the fact their due dates had been accelerated in the prior suit.

Based on Singleton, a default occurring after a failed foreclosure attempt creates a new cause of action for statute of limitations purposes, even where acceleration had been triggered and the first case was dismissed on its merits. Therefore, we conclude that a foreclosure action for default in payments occurring after the order of dismissal in the first foreclosure action is not barred by the statute of limitations found in section 95.11(2)(c), Florida Statutes, provided the subsequent foreclosure action on the subsequent defaults is brought within the limitations period. We therefore reverse the judgment under review and remand this case to the trial court for further proceedings consistent with this opinion.

Because we believe the issue we resolve is a matter of great public importance, we certify the following question to the Florida Supreme Court:

Does acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on all payment defaults occurring subsequent to dismissal of the first foreclosure suit?

REVERSED; REMANDED; QUESTION CERTIFIED.

SAWAYA, ORFINGER, and EVANDER, JJ., concur.

      . We acknowledge that the Bank suffered a dismissal with prejudice of its earlier foreclosure action, unlike the dismissal in Dorta, but conclude that the distinction is not material for purposes of the issue at hand.


text:
    Augustino HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5076.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
   PER CURIAM.

Affirmed. See Adaway v. State, 902 So.2d 746 (Fla.2005); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Henry v. State, 933 So.2d 28 (Fla. 2d DCA 2006); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Sheppard v. State, 907 So.2d 1259 (Fla. 2d DCA 2005); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Michael Carl GAMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5212.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Williams v. State, 734 So.2d 1113 (Fla. 2d DCA 1999).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Mark James MASON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5271.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
    Mark James Mason, pro se.
   PER CURIAM.

Affirmed. See State v. LaFave, 113 So.3d 31 (Fla. 2d DCA 2012); State v. Brooks, 890 So.2d 503 (Fla. 2d DCA 2005).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Giles ORCUTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5423.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
    Giles Orcutt, pro se.
   PER CURIAM.

Affirmed. See Betancourt v. State, 804 So.2d 313 (Fla.2001); Bolender v. State, 658 So.2d 82 (Fla.1995); Burdick v. State, 594 So.2d 267 (Fla.1992); Harmon v. State, 438 So.2d 369 (Fla.1983); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Darius M. JONES, a/k/a Maurice T. Williams, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5564.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.

      Darius M. Jones, a/k/a Maurice T. Williams, pro se.
   PER CURIAM.

Affirmed. See Leeman v. State, 357 So.2d 703 (Fla.1978); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Mosely v. State, 688 So.2d 999 (Fla. 2d DCA 1997); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So.2d 52 (Fla. 2d DCA 1985); Foss v. State, 834 So.2d 404 (Fla. 5th DCA 2003); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Jonathan E. DOUGHTIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1763.
    District Court of Appeal of Florida, First District.
    May 13, 2014.
    Rehearing Denied June 19, 2014.
    Jonathan E. Doughtie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, SWANSON, and MAKAR, JJ., concur.


author: PADOVANO, J. ROWE, J.,

text:
    Jermey Gene HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 1D 13-0698.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    Rehearing Denied June 19, 2014.

      Nancy A. Daniels, Public Defender, Tallahassee, and Kevin Steiger, Assistant Public Defender, Apalachicola, for Appellant.
    Pamela Jo Bondi, Attorney General, Giselle Denise Lylen, Assistant Attorney General, Trish Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
   PADOVANO, J.

The defendant appeals his conviction for unlawful possession of Methadone. We conclude that the trial court erred in admitting information from a computer database offered by the state to show that there was no record of a medical prescription for the drug. For the reasons that follow, we reject the state’s argument that the database qualified for admission under the hearsay exception for market reports and commercial publications. Because the database directly refuted defense testimony that the drug had been prescribed, and was therefore lawful, we are unable to conclude that the error was harmless.

As a result of a traffic stop on May 19, 2012, the defendant was charged with five criminal offenses: unlawful possession of Xanax (Count 1); unlawful possession of Methadone (Count 2); resisting an officer without violence (Count 3); driving with a suspended license (Count 4); and driving with an improper vehicle tag (Count 5). The officers found the Xanax and Methadone pills in a small bottle attached to the key ring for the vehicle. The defendant told the officers that the Xanax and Methadone pills belonged to his girlfriend, Chelsea Edwards, and that she had prescriptions for them.

The defendant argued at trial that his possession of the drugs was lawful because they had been prescribed by a doctor. The parties agreed that this would be a valid affirmative defense to the drug charges, but the state disputed the existence of Ms. Edwards’ prescription, at least for the Methadone pills. Prior to trial, the state moved to exclude any reference to the Methadone prescription on the ground that it was not provided in discovery and on the ground that it would be hearsay. The trial court ruled Ms. Edwards could testify that she had been given a prescription for Methadone and that it would be up to the jury to decide whether to believe her testimony if the prescription could not be produced.

Chelsea Edwards was the sole witness for the defense. The state and defense stipulated that Ms. Edwards had three prior felony convictions, and that fact was disclosed to the jury. Ms. Edwards testified that she and the defendant lived together and shared the use of a car. They also shared the use of a single set of car keys on which she kept a small pill bottle containing a few doses of her medications, Xanax and Methadone. Ms. Edwards stated that she had taken both drugs daily until she switched to a new physician, Doctor Laski. She testified that the pills found in the defendant’s possession belonged to her and that she allowed the defendant to use the car keys with the pill bottle attached.

Ms. Edwards identified her prescription for Xanax, and it was introduced as a defense exhibit. However, she could not produce the prescription for Methadone. She testified that she got the Methadone prescription from Dr. Findley and that her last prescription had been filled about two months before the defendant’s arrest. The Methadone was not supplied by Wal-greens, as her Xanax had been, but rather by a pharmacy on 8th Street that had since closed.

On rebuttal, the state proffered the testimony of Lorrina Hall Abramowitz, a detective with the Jacksonville Sheriffs Office and a specialist in prescription drug fraud investigations. Detective Abramow-itz stated that she had examined a data compilation known as the Electronic-Florida Online Reporting of Controlled Substance Evaluation Program. This database, more commonly identified by the acronym E-FORCSE, is maintained by the Florida Department of Health. Licensed pharmacies in Florida are required to report prescriptions filled for certain controlled substances for inclusion in the database and if they fail to report them, they are subject to disciplinary action.

The state moved to admit the information in the E-FORCSE database, to show that there were no entries of a prescription for Methadone by Dr. Findley for Chelsea Edwards. The prosecutor explained that the absence of this record would refute Ms. Edwards’ assertion that she had received a prescription for Methadone one to two months before the defendant’s arrest.

The defense objected to admission of the database on the ground that it was hearsay, and the argument that followed focused on various exceptions to the hearsay rule. Defense counsel argued that the database could not be admitted under the public records exception and that it did not qualify as a business record because Detective Abramowitz was not the custodian. The trial court agreed with these arguments but ultimately decided to admit the database under the exception in section 90.803(17), Florida Statutes (2012), for market reports and commercial publications. The defense objected to the application of this exception as well.

Detective Abramowitz testified that there was no record of a prescription for Methadone for Chelsea Edwards, and the state used this evidence in its closing argument to refute Ms. Edwards’ testimony that she had a prescription. The jury found the defendant not guilty of possession of Xanax but guilty as charged of the remaining four counts. He then appealed to this court, challenging only his conviction for possession of Methadone.

The Florida Evidence Code provides that hearsay evidence is not admissible, except as provided by statute. See § 90.802, Fla. Stat. (2012). Among the exceptions listed in the Code is a provision that allows the admission of market reports and commercial publications. This exception is set out in section 90.803(17), which states:

Section 90.803 Hearsay Exceptions; Availability of Declarant immaterial.
The provision of section 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness.
(17) MARKET REPORTS, COMMERCIAL PUBLICATIONS — Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission.

The justification for this exception is that public acceptance depends on the reliability of the information provided in the report or compilation, and thus the motivation for accuracy is high. See Kenneth S. Broun, 2 McCormick on Evidence § 321 at 395 (6th ed. 2006). As Professor Ehrhardt has explained, this evidence is reliable “because those who publish the compilations know that if the publications are inaccurate they will no longer be consulted and because they generally have no motive to falsify.” See Charles W. Ehrhardt, Florida Evidence § 803.17, at 977 (2013 ed.).

In this appeal, we must decide whether the exception set out in section 90.803(17) was properly applied. Trial judges have discretion to rule on some kinds of evidence issues, but whether a statement falls within the statutory definition of hearsay is a question of law. See Powell v. State, 99 So.3d 570 (Fla. 1st DCA 2012); Burkey v. State, 922 So.2d 1033 (Fla. 4th DCA 2006). Likewise, whether evidence is admissible under an exception to the hearsay rule is a question of law. See Chavez v. State, 25 So.3d 49 (Fla. 1st DCA 2009). Assuming the evidence falls within the trade reports exception, the trial court has discretion under section 90.803(17) to decide whether “the information and method of preparation were such as to justify [its] admission.” See Health Options, Inc. v. Palmetto Pathology Servs., P.A., 983 So.2d 608, 616 (Fla. 3d DCA 2008). However, the method of compiling and maintaining the database is not at issue here. The controversy in this case pertains to the scope of the statutory exception in section 90.803(17), and that is an issue of law. Thus, we review the trial court’s decision by the de novo standard of review.

We conclude that the E-FORCSE database does not qualify as a “market report” or “commercial publication” under section 90.803(17) for several reasons, not the least of which is that it does not fall within the definition in the text of the statute. Section 90.803(17) includes “market quotations, tabulations, lists, directories, or other published compilations.” This language plainly requires that the evidence be published to qualify under the exception. Black’s Law Dictionary defines “publish” as “[t]o distribute copies (of a work) to the public.” Black’s Law Dictionary 1268 (8th ed. 2004). The E-FORCSE database is not “published” in the ordinary sense of the term because it is not available to the public. Access to the database is limited to authorized employees of the Department of Health and certain law enforcement officers who have been expressly authorized by the Department to use it.

It would be difficult to conclude that the E-FORCSE database falls within the scope of section 90.803(17), even if it did meet the publication requirements of the statute. We could say in the most technical sense that the database is a “list” and we could also say in the most general sense that Detective Abramowitz is a “person” who is engaged in a “particular occupation.” But if we interpret these words and phrases in the context in which they were used, they cannot be interpreted to include a database such as this within the class of materials identified in the statute.

The title of the statute expressly states that the exception applies to market reports and commercial publications. We acknowledge that the text of the statute contains the general phrase “or other published compilations” but we do not construe this phrase to authorize the admission of the E-FORCSE database. The canon of statutory interpretation known as ejusdem generis holds that “when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type.” State v. Hearns, 961 So.2d 211, 219 (Fla.2007); see also Graham v. Haridopolos, 108 So.3d 597 (Fla.2013); Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082 (Fla.2005). Applying this canon, we conclude that the phrase “or other published compilations” refers to other reports of a like kind; that is, reports that are similar in nature to market reports or commercial compilations. It does not refer to a report of any kind merely because it could be characterized as a compilation. The E-FORCSE database is not a market report or commercial compilation and, unlike all of the other items specifically identified in the statute, it is not used in trade or commerce.

We have no doubt that Detective Abra-mowitz relied on the information in the database, but it is important to note that she used the database not as proof of the facts it revealed, but rather as an investigative tool. She testified that she did not rely solely on the information in the database but that she used it as “part of an investigation.” In this respect the database is unlike a book that compiles used car values or a newspaper that lists stock quotations. The information contained in those kinds of reports is relied on for the accuracy of the matter reported. In contrast, law enforcement officers rely on the E-FORCSE database not for the accuracy of the matters reported, but rather as a justification for further inquiry.

Perhaps the information in the database would have some value in explaining why a law enforcement officer investigated one suspect rather than another, but it does not have the kind of independent eviden-tiary value that could justify its admission under the trade reports exception. It is one thing to say that the information in the database creates a founded suspicion that justifies an investigation, but quite another to say that it is proof of a fact. It is not intended as proof of a fact and law enforcement officers do not rely on it in that way. Yet that is how it was used in this case. The admission of the database effectively elevated investigative information to the status of established fact.

We are unable to characterize the erroneous admission of the database as harmless error. The defendant’s sole contention was that his possession of the drugs was lawful because they had been prescribed by a doctor. He produced a prescription for the Xanax pills and the jury acquitted him of that offense. Obviously, the jury understood the argument. Ms. Edwards testified that she also had a prescription for the Methadone pills, but she could not produce it. The state then presented the database showing that there was no record of the prescription. We have no way of knowing what the verdict might have been had Ms. Edwards’ defense testimony not been impeached in this way.

For these reasons, we conclude that the trial court erred in allowing the state to introduce on rebuttal the E-FORCSE database records. Because the error was not harmless, we reverse the judgment and remand the case for a new trial. Our disposition of the case on this point makes it unnecessary to consider any of the other arguments the defendant raised in the appeal.

Reversed and remanded.

VAN NORTWICK, J., concurs.

ROWE, J., dissents with opinion.

ROWE, J.,

dissenting.

Because I would find the evidence from the E-FORCSE database admissible pursuant to section 90.803(17), Florida Statutes, I dissent.

In 2009, the Florida Legislature established the Prescription Drug Monitoring Program (“PDMP”) as a means to encourage the safe prescription of controlled substances and to reduce the diversion of drugs and drug abuse within the state. Ch. 2009-198, § 1, at 1978-95, Laws of Fla. In creating the PDMP, the Legislature authorized the Florida Department of Health to “design and establish a comprehensive electrqinic database system that has controlled substance prescriptions provided to it and that provides prescription information to a patient’s health care practitioner and pharmacist .... ” § 893.055(2)(a), Fla. Stat. (2009). The law authorizing the electronic database, known as the E-FORCSE database, requires all Florida pharmacies and any prescriber who directly dispenses a controlled substance to submit a report to the E-FORCSE database each time a controlled substance is dispensed and to provide the specific information listed in section 893.055(3), Florida Statutes.

In its prosecution of Hardy, the State sought the admission of records from the E-FORCSE database to refute Hardy’s assertion that the Methadone pills in his possession belonged to his girlfriend, who had obtained them pursuant to a prescription from her physician. Because pharmacies are required by section 893.055 to report the dispensing of controlled substances, the database search results returning no record of a prescription for Methadone to Hardy’s girlfriend, refuted her trial testimony to the contrary. The State sought to admit the E-FORCSE database records into evidence pursuant to section 90.803(17), which provides for the admissibility of published compilations.

By narrowly construing section 90.803(17), the majority holds that the records in the E-FORCSE database do not qualify for the exception because they are not “published.” The majority applies a very restrictive meaning of the term “published,” reasoning that because the E-FORCSE database is not available to the general public, it is not “published” as required by the statute. I would find as a matter of law that the term “published” as it applies to the evidence sought to be admitted in this case has a broader meaning. When applying section 90.803(17), the court’s focus should be the purpose for which the information was disseminated rather than how widespread the information was disseminated. See Kisling v. Rothschild, 388 So.2d 1310 (Fla. 5th DCA 1980) (holding that it was the purpose of a publication that determined whether the term “general publication” or “limited publication” should apply); Fla. Real Estate Comm’n v. Indian Lake Estates, Inc., 143 So.2d 667, 669 (Fla. 2d DCA 1962) (holding that when determining whether certain real estate information was published, the court should focus on the purpose for which the information was disseminated). Although, as acknowledged by the majority, the E-FORCSE database is not. “published in the ordinary sense of the term,” it is, nevertheless, published to authorized employees of the Department of Health and to certain law enforcement officers for the limited purpose specified in section 893.055, Florida Statutes.

The majority holds that even if the E-FORCSE database met the publication requirement under its analysis, it would not fall within the scope of section 90.803(17) because the database is not similar in nature to market reports or commercial compilations. On the contrary, the database certainly falls within the category of “other publications” in the same ilk as a tabulation or list as set forth in the statute.

Moreover, the admissibility of the E~ FORCSE records, as with evidence admitted under other hearsay exceptions, is predicated on reliability and necessity. See Francis v. State, 308 So.2d 174 (Fla. 1st DCA 1975). As cited by the majority, Professor Ehrhardt has explained that the evidence admissible under the exception is reliable “because those who publish the compilations know that if the publications are inaccurate they will no longer be consulted and because they generally have no motive to falsify.” See Charles W. Ehrhardt, Florida Evidence, § 803.17, at 977 (2013 ed.). Reliability is assured in this case because pharmacists and pharmacies know that their failure to properly enter prescription records into the database is subject to review by the Department of Health in licensure and disciplinary proceedings, by the Attorney General in Medicaid Fraud prosecutions, and by state law enforcement agencies in criminal prosecutions. Further, one of the primary purposes of the database is to encourage safer prescribing practices, alerting pharmacists not only to potential drug diversion or drug abuse by patients, but also to possible harmful interactions between drugs prescribed to the patient. Pharmacies, pharmacists, and other prescribers have an ethical and professional obligation to accurately report prescriptions in addition to their legal obligation. Thus, the reliability of the records from the E-FORCSE database strongly supports admissibility of the records under the hearsay exception.

Necessity also supports the admissibility of E-FORCSE database records. Necessity in this case lies in the fact that the database provides law enforcement with the only reasonable means of determining whether a prescription for a controlled substance has in fact been dispensed by a pharmacy to the witness. The alternative, locating every pharmacist, physician, or other prescriber who may have written or filled a prescription for a potential witness (or defendant), presents a Sisyphean task. In this case, the witness did not (or could not) produce a copy of the alleged prescription and testified that the prescription was dispensed by a pharmacy, which had closed and which existence could not be verified by law enforcement. Thus, the database provided the sole means for law enforcement to determine whether a prescription for the controlled substance had in fact been dispensed by any pharmacy to the witness.

Because the E-FORCSE database records are relied on by law enforcement and industry officials and because the records at issue in this case were necessary as the only practical means by which law enforcement could verify the witness’ prescription for a controlled substance, the trial court properly admitted the database records as a published compilation under the hearsay exception set forth in section 90.803(17). I respectfully dissent.

      . We note that section 90.803(17), Florida Statutes, is more narrow in scope than its federal counterpart, rule 803(17) of the Federal Rules of Evidence. The federal rule does not require the report or compilation to be published.