text:
    STATE of Florida, Appellant, v. Delton HOLLIS, Appellee.
    No. 4D11-886.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellee.
   On Appellant’s Motion for Rehearing

GERBER, J.

We grant appellant’s motion for rehearing as to the proper disposition upon remand, withdraw our opinion dated September 27, 2012, and substitute this opinion in its place.

The state appeals from the circuit court’s order granting the defendant’s motion for discharge based on the expiration of the speedy trial period. The state argues there was insufficient proof that the defendant served the notice of expiration on the state and, therefore, the court erred in granting the motion for discharge. We agree with the state and reverse.

The state charged the defendant with various felonies. After the speedy trial period expired, the defendant, acting pro se, filed a motion for discharge based on the expiration. At a hearing on the motion, the state indicated that it had not received the defendant’s notice of expiration of the speedy trial period which would have preceded the motion for discharge. The defendant, now represented by counsel, responded that he sent the notice to the clerk, the state, and the court on a certain date before filing the motion for discharge. The court reviewed the clerk of court’s computer docket. The computer docket indicated that the defendant filed a demand for speedy trial on the date which the defendant indicated. The court then reviewed the file and could not find any document which the defendant filed on or around the date which the defendant indicated. The court and the state then both indicated that they did not receive the notice which the defendant claimed to have sent. Based on the foregoing, the court entered an order denying the motion for discharge.

At a hearing two days later, the defendant’s counsel represented that, after the previous hearing, he located the original notice of expiration in the clerk’s office. The notice was recorded as having been filed on the date which the defendant indicated at the previous hearing.

Based on the notice having been located, the court immediately held an evidentiary hearing. The defendant, the circuit court clerk supervisor, and the prosecutor’s assistant testified. The defendant testified that he sent the notice to the clerk, the state, and the court. The clerk supervisor testified that the clerk’s office misdocketed the notice as a demand for speedy trial. The prosecutor’s assistant testified that he did not receive the notice.

The court found that both the defendant and the prosecutor’s assistant were credible. The court then stated:

[The defendant] did file his notice of expiration of speedy ... [I]t’s clocked in with the clerk ... and it should have been set down by the clerk’s office within five days ... And, it wasn’t ... I did take testimony with regards to the fact that [the defendant] filed it, and there’s three envelopes ... I have no reason to be disbelieve the state’s witness either ... [G]iven the circumstances, I find that [the defendant] has carried his burden, beyond a reasonable doubt. And, based on that, I am going to reverse my decision and grant the motion for discharge.

Following the hearing, the court entered a written order granting the defendant’s motion for discharge.

This appeal followed. The state argues that there was insufficient proof that the defendant served the notice of expiration on the state. The defendant argues that the circuit court found he served the notice on the state, and that the record does not contradict the court’s finding.

Based on these arguments, we employ a mixed standard of review. See State v. Baynham, 72 So.3d 796, 797-98 (Fla. 4th DCA 2011) (on the state’s appeal of an order granting a defendant’s motion for discharge on speedy trial grounds, an appellate court will defer to the trial court’s factual findings if supported by competent, substantial evidence; however, the interpretation of the rules and procedures regarding the right to a speedy trial is subject to de novo review) (citations omitted).

We agree with the state’s argument. Florida Rule of Criminal Procedure 3.191(p)(2) (2011) states: “At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled ‘Notice of Expiration of Speedy Trial Time,’ and serve a copy on the prosecuting authority.” Fla. R.Crim. P. 3.191(p)(2) (2011) (emphasis added). We interpret the word “serve” in this context to include the state’s receipt or awareness of the notice. If we were to interpret the word “serve” in this context to require only that the defendant send the notice, then the state would bear the risk of losing the recapture period, through no fault of its own, where the state did not receive or otherwise become aware of the notice. Cf. State v. Montgomery, 68 So.3d 342, 346 (Fla. 4th DCA 2011) (“[T]he state should not bear the risk of losing the recapture period if prison authorities do not timely forward the defendant’s notice of expiration of speedy trial to the court for filing.”).

The circuit court’s legal error here was that, after finding both the defendant and the prosecutor’s assistant to be credible, the court based the discharge only on the defendant’s testimony that he sent the notice. However, by finding both the defendant and the prosecutor’s assistant to be credible, the court necessarily found that the defendant sent the notice and the state did not receive it. Because the court found that the state did not receive the notice, and because no competent, substantial evidence existed that the state otherwise became aware of the notice, the court erred as a matter of law in granting the motion for discharge. Such a result is particularly justified here because the clerk’s office misfiled the notice as a demand for speedy trial and thé court did not receive the notice either.

By this opinion, we do not mean to suggest that the state may avoid the expiration of the speedy trial period in every case by claiming that it did not receive or otherwise become aware of the notice. If a ease like this were to recur, that is, with the defendant claiming that he sent the notice, and with the state claiming that it did not receive or otherwise become aware of the notice, the proper procedure by which to resolve that factual issue is for the court to conduct an evidentiary hearing, just as the court did in this case. In such a hearing, the defendant would have the initial burden to prove that he or she sent the notice. If the defendant meets that burden of proof, then a rebuttable presumption would arise that the state received the notice, and the burden would shift to the state to prove that it did not receive or otherwise become aware of the notice. Cf Fla. R.Crim. P. 8.080(e) (2011) (a certificate of service “shall be taken as prima facie proof of service in compliance with all rules of court and law.”); Thompson v. State, 761 So.2d 324, 326 (Fla.2000) (“[W]e will presume that a legal document submitted by an inmate is timely filed if it contains a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date, if that the pleading would be timely filed if it had been received and file-stamped by the Court on that particular date. This presumption will shift the burden to the State to prove that the document was not timely placed in prison officials’ hands for mailing.”).

We distinguish this case from those cases where the issue is whether the court became “aware” that the defendant filed the notice. In the latter situation, strict compliance with rule 3.191(p) is necessary. As we held on a related speedy trial issue in State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003):

Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court’s attention. ... Strict compliance with the rule is a practical necessity.
... We fear that we would be inviting a multitude of disputes as to exactly when a trial judge became “aware” that a motion for discharge constituted an assertion that the speedy trial time had expired. The rule is specific and easy for defense counsel to follow. We see no need to complicate the process by permitting other means of compliance.

Id. at 439 (emphasis added).

Based on the foregoing, we reverse the circuit court’s order granting the defendant’s motion for discharge. Consistent with rule 3.191(m), we direct that the defendant shall be brought to trial within 90 days from the date of receipt by the trial court of our mandate. If the defendant is not brought to trial within the prescribed time period, then the defendant shall be entitled to the appropriate remedy as set forth in rule 3.191(p).

Reversed and remanded for further proceedings consistent with this opinion.

STEVENSON and HAZOURI, JJ., concur.

      . Rule 3.191(m) provides:
      A person ... whose trial has been delayed by an appeal by the state ... shall be brought to trial within 90 days from ... the date of receipt by the trial court of a mandate, order, or notice of whatever form from a reviewing court that makes possible a new trial for the defendant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p).
      Fla. R.Crim. P. 3.191(m) (2011). See also State v. Rohm, 645 So.2d 968, 968 (Fla.1994) ("[T]he 90-day speedy trial period provided in Florida Rule of Criminal Procedure 3.191(m) applies whenever a trial has been delayed by appeal.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie A. LANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4634.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2013.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GERBER and LEVINE, JJ., concur.


author: BLACK, Judge.

text:
    Erwin S. SHARTZ, M.D.; and Healthpoint Medical Group, Inc., a Florida corporation, Appellants, v. Kathleen Ann MIULLI, as personal representative of the Estate of Matthew Michael Miulli, deceased, Appellee.
    No. 2D11-6024.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Rehearing Denied Oct. 21, 2013.

      Roland J. Lamb and Lisa L. Cullaro of Morgan, Lamb, Goldman & Valles, P.A., Tampa, for Appellants.
    Stuart C. Markman, Robert W. Ritsch, and Kristin A. Norse of Kynes, Markman & Felman, P.A., Tampa, for Appellee.
   BLACK, Judge.

Kathleen A. Miulli, as personal representative of the Estate of Matthew Michael Miulli, sued Dr. Erwin S. Shartz and HealthPoint Medical Group, Inc., for medical negligence. Mrs. Miulli alleged that Dr. Shartz’s and HealthPoint’s actions and inactions regarding a sports medical release authorizing her son to play high school baseball proximately caused Matthew Miulli’s death. Because we conclude that Dr. Shartz and HealthPoint were entitled to a directed verdict based on Mrs. Miulli’s failure to sufficiently prove causation, we reverse. Our reversal on this point is determinative and renders the remaining issues on appeal moot.

I. Facts

Matthew Miulli’s death was a tragedy. On January 19, 2005, seventeen-year-old Matthew collapsed during a preseason baseball workout. Despite resuscitative efforts, Matthew died from cardiac arrest due to congenital aortic valve stenosis.

Matthew was born with a heart condition called patent ductus arteriosus and was diagnosed with aortic stenosis shortly after his birth. Aortic stenosis is a progressive heart condition in which the aortic valve “narrows,” inhibiting the heart’s ability to pump blood through the body. This condition put Matthew at risk for sudden, premature cardiac arrest. And because of the aortic stenosis, Matthew was regularly examined by primary physicians and cardiologists throughout his childhood, adolescence, and teen years.

For ten years prior to his death, Matthew was under the care of pediatric cardiologist Dr. Thomas Edwards. Between 1995 and 2001, Matthew saw Dr. Edwards annually for his aortic stenosis. During this time frame Matthew underwent several exercise stress tests and echocardio-grams. Beginning around the time Matthew became a patient of Dr. Edwards’, he also started to play baseball; prior to 2002, Dr. Edwards authorized Matthew to play baseball but not contact sports.

In 2001, Dr. Edwards saw Matthew, noted that he continued to play baseball, and ordered an echocardiogram. The echocar-diogram revealed no new findings, and Dr. Edwards indicated that Matthew would need a stress test before participating in the 2002 baseball season, beginning in January. That stress test was not performed until August 2002. Nonetheless, following that test and an additional test ordered by Dr. Elsa Suh, a pediatric cardiologist and colleague of Dr. Edwards’, on September 10, 2002, Dr. Edwards signed a sports medical authorization form indicating Matthew could participate in all sports except football, with no other restrictions.

Dr. Edwards did not testify during trial; however, according to his records, Dr. Edwards discussed the risks and benefits of Matthew’s participation in sports with Mrs. Miulli and Matthew. Dr. Edwards’ records also indicated that Matthew was to return for a cardiology follow-up in six months and that this information was relayed to Matthew’s father prior to providing the Miullis with the sports authorization form. Mrs. Miulli testified that following the 2002 cardiac examinations, she was under the impression that Matthew did not need to see the cardiologist again for a year and a half or two years. Regardless, it is undisputed that Matthew did not see Dr. Edwards, Dr. Suh, or any other cardiologist between August 2002 and his death in January 2005. It is also undisputed that during that time Matthew continued to play baseball.

In addition to seeing cardiologists, Matthew was treated by primary care physicians at HealthPoint. He was first seen at HealthPoint in 2000, while still a patient of Dr. Edwards’. Between 2000 and 2004, Matthew saw at least two pediatricians employed by HealthPoint, one of which was Dr. Shartz. On July 31, 2003, Matthew saw Dr. Shartz for a physical examination. Dr. Shartz found Matthew to be in good health but also noted that Matthew was overdue for his cardiology exam. According to Dr. Shartz’s records, he advised Matthew’s father to make an appointment for a cardiology follow-up. Matthew did not see a cardiologist in 2003 or 2004.

On August 2, 2004, Mrs. Miulli took Matthew to Dr. Shartz for a physical and completion of a sports medical release, which Mrs. Miulli had obtained from the internet. Dr. Shartz conducted a physical examination and inquired as to when Matthew had last seen a cardiologist. The response to Dr. Shartz’s inquiry was a contested issue at trial. Dr. Shartz testified that Mrs. Miulli told him that Matthew had been to see a cardiologist within the last year and that his cardiac evaluations were current. Mrs. Miulli, however, testified that she told Dr. Shartz it had been “at least a year” since Matthew had seen a cardiologist. In fact, it had been two years. Because Matthew’s records did not include a recent cardiology update, Dr. Shartz noted he would call Dr. Edwards. However, based on his physical examination of Matthew and his conversation with Mrs. Miulli, Dr. Shartz signed the release authorizing Matthew to play sports. The record indicates that prior to 2002 only Dr. Edwards had authorized Matthew’s participation in baseball.

On August 3, 2004, the day after Dr. Shartz signed the sports medical release, he called Dr. Edwards to confirm that Matthew had been cleared to play baseball. During that phone call, Dr. Shartz learned that Matthew had not been to a cardiologist since August 2002. Further, Dr. Edwards advised Dr. Shartz that Matthew was not to play any sports before having a repeat stress test and echocardio-gram. Dr. Shartz testified that after this conversation with Dr. Edwards, he made multiple attempts to contact the Miullis to revoke the authorization to participate in sports. He testified that he repeatedly called and left two voice messages on the family’s answering machine on August 3, two more messages on August 4, another on August 5, and a final message on August 6. He also left a message on Mr. Miulli’s cell phone on August 5. At trial, the Miullis denied receiving the phone messages, despite confirming that the numbers Dr. Shartz called were correct.

In addition to the phone calls, on August 10, 2004, Dr. Shartz mailed letters to the Miullis advising them that Matthew was not to participate in any sports until he saw Dr. Edwards. One letter was sent via regular mail and one was sent via certified mail. At trial, the Miullis denied receiving the letters and denied any knowledge that Dr. Shartz no longer believed Matthew should participate in sports. The Miullis confirmed that the address to which Dr. Shartz mailed the letters was their home address. The letter mailed via regular post was not returned; however, the certified letter was returned to HealthPoint as unclaimed, a fact unknown to Dr. Shartz until much later.

It is undisputed that the medical release obtained by the Miullis in 2004 was unnecessary for Matthew’s participation in preseason baseball workouts and was not used by the Florida High School Athletics Association (FHSAA) or Matthew’s high school for any purpose. The Miullis testified that they did not intend to use the release signed by Dr. Shartz for Matthew’s participation in varsity baseball in January 2005. Both admitted they knew Matthew would need an echocardiogram and stress test before he would be permitted to participate in baseball in January, and both testified that they intended to have Matthew seen by the cardiologist for those tests before the start of the regular season. However, as of the date of his death, Matthew had not been to a cardiologist and did not have a scheduled appointment with a cardiologist or any other doctor.

Prior to trial, Mrs. Miulli retained Dr. Randy Wertheimer as an expert on standard of care. Because Dr. Wertheimer could not be present at trial, her video testimony was introduced and played for the jury. Dr. Wertheimer is a family medicine physician with over thirty years of experience; she is also chair of family medicine at both Tufts University and Cambridge Health Alliance. She is not, however, a cardiologist. In her testimony, Dr. Wertheimer was critical of Dr. Shartz for failing to “close the loop” by confirming that the Miullis understood Matthew was not to participate in sports before seeing his cardiologist. She also criticized Dr. Shartz for signing the sports medical release without first speaking with Matthew’s cardiologist. As a result, she testified that the care provided by Dr. Shartz fell below the prevailing professional standard of care of a reasonably careful physician. Dr. Wertheimer’s conclusion was that Dr. Shartz’s care substantially contributed to Matthew’s death because in his parents’ minds, Matthew had been cleared to play baseball. Dr. Wertheimer also criticized HealthPoint based on its handling of the unclaimed certified letter, specifically its failure to bring to Dr. Shartz’s attention that the letter had been returned. She concluded that HealthPoint’s inaction also substantially contributed to Matthew’s death.

Mrs. Miulli also presented video testimony from Dr. Suh. Dr. Suh testified about her limited treatment of Matthew and about aortic stenosis generally, including that people with the condition are at risk of sudden cardiac arrest. Because Dr. Suh had not seen Matthew between 2002 and the date of his death, she could not provide an opinion as to the specifics of Matthew’s heart condition either at the time of Matthew’s death or five months earlier when Dr. Shartz signed the sports medical release. Dr. Suh did testify, however, that had Matthew returned to her practice for cardiac testing after 2002, she would have ordered an echocardiogram and if there were indicia that Matthew’s aortic stenosis was progressing, she would have done more invasive testing.

Mrs. Miulli’s final physician witness was Dr. Lestek Chrostowski, the Hillsborough County Medical Examiner who performed Matthew’s autopsy. Dr. Chrostowski testified only to the findings made in his report, including that the cause of Matthew’s death was congenital aortic valve stenosis. Dr. Chrostowski, having not been listed as an expert witness, was not permitted to give standard-of-care testimony or opinion testimony related to the cause of Matthew’s death.

During trial, Mrs. Miulli testified that if she had received the letter from Dr. Shartz advising her that Matthew was not to participate in sports until seeing his cardiologist, she would have “immediately made a call.” She did not specify to whom she would have made the call. She also did not testify that she would have taken Matthew to a cardiologist or another physician for immediate testing. She did not testify that she would not have permitted Matthew to participate in baseball conditioning in January 2005; but she did testify that she knew Matthew would need to see a cardiologist before his participation in the 2005 varsity baseball season, beginning in January. Mr. Miulli testified that had he known the information contained in Dr. Shartz’s letter he would have acted on it; however, he provided no specifics on what he would have done. Mr. Miulli did not testify that he would not have permitted Matthew to participate in the January 2005 baseball conditioning.

Following the presentation of Mrs. Miul-li’s evidence and again at the close of all evidence, Dr. Shartz and HealthPoint moved for a directed verdict on causation, arguing that Mrs. Miulli had failed to present sufficient evidence that Dr. Shartz’s and HealthPoint’s actions and inactions proximately caused Matthew’s death. Specifically, they argued that the failure to “close the loop,” as testified to by Dr. Wertheimer, was not the proximate cause of Matthew’s death and that Dr. Wer-theimer’s conclusion was unsupported. They also argued that Mrs. Miulli’s evidence was legally insufficient to prove that HealthPoint’s failure to properly advise Dr. Shartz of the returned letter caused Matthew’s death. The trial court initially reserved ruling on the motion and ultimately denied it.

The jury returned a total verdict in favor of Mrs. Miulli, as representative of Matthew’s estate, in the amount of $2,025,000, assigning 5% liability to the School Board of Hillsborough County, 20% liability to Dr. Shartz, 15% liability to HealthPoint, and 60% liability to the Miul-lis, collectively. Following the verdict, Dr. Shartz and HealthPoint filed a motion to set aside the verdict and to enter judgment in accordance with the prior motion for directed verdict. That motion was denied, and the trial court entered a final judgment against Dr. Shartz and Health-Point totaling $717,728.85.

II. Analysis

The determinative issue on appeal is whether the trial court correctly denied Dr. Shartz and HealthPoint’s motion for directed verdict based on the legal sufficiency of Mrs. Miulli’s expert testimony on causation. That is, whether Dr. Wer-theimer’s testimony was legally sufficient to establish that more likely than not Dr. Shartz’s and HealthPoint’s actions and in-actions proximately caused Matthew Miul-li’s death. Our review of the denial of a motion for directed verdict is de novo. Tarpon Springs Hosp. Found., Inc. v. Reth, 40 So.3d 823, 826 (Fla. 2d DCA 2010).

“To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). With regard to proximate cause, “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.” Id. Stated another way, “a plaintiff in a medical malpractice action must show more than a decreased chance of survival because of a defendant’s conduct.... [T]he plaintiff must show that what was done or failed to be done probably would have affected the outcome.” Id. at 1020. Encompassed within this standard is another: that the plaintiff must establish causation without an impermissible stacking of inferences. See Castillo v. E.I. DuPont De Nemours & Co., Inc., 854 So.2d 1264, 1281 (Fla.2003) (Pariente, J., concurring) (citing Voelker v. Combined Ins. Co. of Am., 73 So.2d 403, 407 (Fla.1954)).

In this case, multiple facts needed to be established in order to create a jury question as to whether Dr. Shartz’s and HealthPoint’s actions and inactions proximately caused Matthew’s death: (1) that had Dr. Shartz “closed the loop” Matthew would not have participated in baseball conditioning; and (2) that had Dr. Shartz “closed the loop” the Miullis would have taken Matthew to a cardiologist, the cardiologist would not have signed a sports medical release, and Matthew would not have participated in baseball conditioning. None of these facts were established at trial.

Dr. Wertheimer was the only retained medical expert witness called by Mrs. Mi-ulli. Dr. Wertheimer testified that Dr. Shartz’s actions and inactions fell below the acceptable standard of care because upon learning that Matthew had not seen Dr. Edwards in more than two years, he did not do enough to “close the loop” and confirm that the Miullis were aware Matthew should not participate in sports until he had been cleared by a cardiologist. For purposes of this appeal, Dr. Shartz has accepted this premise. The problem is that Dr. Wertheimer’s opinion, while arguably accurate as far as it goes, falls short of creating a jury question on causation. Dr. Wertheimer did not testify that had Dr. Shartz spoken with the Miullis or otherwise confirmed with them that he was revoking his medical authorization, Matthew more likely than not would not have participated in baseball conditioning, would not have suffered a cardiac event, and would not have died. She did not and could not testify to these conclusions because there are no facts supporting them. No one testified that Matthew would not have participated in baseball conditioning had Dr. Shartz “closed the loop.” And no one testified that had HealthPoint advised Dr. Shartz of the returned letter, Matthew would not have participated in baseball conditioning. Without that testimony, Dr. Wertheimer’s opinions that Dr. Shartz’s and HealthPoint’s actions and inactions contributed to Matthew’s death are conclu-sory, speculative, and not based on facts presented at trial, requiring an impermissible stacking of inferences. In fact, Dr. Wertheimer’s conclusion that Dr. Shartz’s actions contributed to Matthew’s death because the Miullis believed their son had been cleared to play baseball is directly contradicted by the testimony upon which she relied. The Miullis knew Matthew would need to be evaluated by his cardiologist before the 2005 baseball season began. Here, the causation “testimony was not only well beyond the witness’s ... expertise but totally ‘conclusory in nature ... unsupported by any discernable, factually-based chain of underlying reasoning.’ ” Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Gonzalez, 98 So.3d 1198, 1202 (Fla. 3d DCA 2012) (quoting Div. of Admin. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981)); see also Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957) (“[T]he basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.”).

Dr. Wertheimer did not and — because she is not a cardiologist — could not opine as to whether Dr. Shartz’s actions contributed to or caused Matthew’s death with any degree of medical probability. Cf. Cox v. St. Josephs Hosp., 71 So.3d 795, 797 (Fla.2011). She did not base her causation conclusion on medical experience or medical literature. Cf. id. She provided no testimony as to Matthew’s heart condition in 2003, 2004, or January 2005. Dr. Wer-theimer acknowledged that the Miullis had a history of failing to follow-up with Matthew’s cardiologist; she testified that she believed the Miullis were in denial about their son’s condition. She also acknowledged that Mrs. Miulli knew Matthew was overdue for a cardiology exam and would need one prior to the 2005 baseball season. In effect, Dr. Wertheimer acknowledged that the Miullis knew the general content of Dr. Shartz’s letter in late 2004 and January 2005, regardless of whether they received the letter. The Miullis’ testimony, as relied upon by Dr. Wertheimer, established that this knowledge had no impact on whether Matthew participated in baseball conditioning.

“The opinion of an expert is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion.” Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561, 562 (Fla.1960). Here, contrary to the testimony and records with which she was presented, Dr. Wertheimer assumed that had the Miullis received Dr. Shartz’s letter or phone calls, they would have taken Matthew to a cardiologist, that the cardiologist would have prohibited Matthew from participating in baseball or baseball conditioning, and that the Miullis would have followed that prohibition when a medical authorization was unnecessary for baseball conditioning. See Posner v. Walker, 930 So.2d 659, 665 (Fla. 3d DCA 2006).

As a pediatric cardiologist, Dr. Suh was the only expert called by Mrs. Miulli who was arguably qualified to address Matthew’s heart condition. However, because she had not seen Matthew in over two years prior to his death, Dr. Suh could not testify regarding Matthew’s condition in August 2004 or January 2005. Further, she was not asked to opine whether Matthew might have been medically released to play baseball in 2004 only to have his condition worsen by January 2005. Dr. Suh’s testimony is best described as general information about aortic stenosis without specific application to Matthew’s case. She offered no opinion whatsoever on causation.

The record is devoid of testimony from either side on the state of Matthew’s cardiac health either in August 2004 when Dr. Shartz signed the sports medical release or in January 2005 when Matthew passed away. There was no evidence that had the Miullis been aware of Dr. Shartz’s revocation that they would have (1) kept Matthew from participating in baseball conditioning or (2) taken Matthew to see a cardiologist who would have found Matthew unfit to play baseball. Further, no physician testified whether, assuming Matthew was seen by a cardiologist in August 2004, he might have been cleared to participate in baseball, only to have his condition progressively worsen by the time of his death so as to create the risk that led to his passing.

In sum, there is no record evidence as to what the Miullis would have done had Dr. Shartz “closed the loop,” and none about Matthew’s heart condition beyond August 2002. The jury was necessarily left to speculate and make inferences about these critical issues, requiring entry of a directed verdict in favor of Dr. Shartz and Health-Point. See ERP Operating Ltd. P’ship v. Sanders, 96 So.3d 929, 933 (Fla. 4th DCA 2012) (reversing for entry of directed verdict where plaintiff failed to establish how assailants gained entry to apartment and therefore failed to prove causation); Hollywood Med. Ctr., Inc. v. Alfred, 82 So.3d 122, 126 (Fla. 4th DCA 2012) (concluding that plaintiff presented no evidence on causation with respect to nurses’ negligence where no testimony established that had the nurses monitored the patient earlier and more carefully the patient would have survived).

We are conscious of the admonition in Cox v. St. Josephs Hospital against substituting our evaluation of conflicting evidence for that of the jury. See 71 So.3d at 800. We are not reweighing the evidence. There is no disagreement about Matthew’s heart condition beyond 2002 and no conflict about what may have happened had Matthew seen a cardiologist in the two years preceding his death because there is a glaring lack of testimony about it, leaving nothing for the jury to weigh in the first instance. Cf. Hughes v. Slomka, 807 So.2d 98, 100 (Fla. 2d DCA 2002) (stating that motions for directed verdict must be denied when evidence is conflicting or contradictory).

The facts of this case are those warned of in Gooding, wherein the supreme court disapproved relaxing the causation requirement. The court warned of the injustices created when health care providers are forced to defend cases “where serious disease processes are not arrested because another course of action could possibly bring a better result.” 445 So.2d at 1019-20. Here, Matthew possibly could have lived had Dr. Shartz refused to sign the sports medical release or had he confirmed that the Miullis understood he had revoked his authorization. But possibly is not the standard. And here, even those possibilities hinged more upon the actions of the Miullis than on Dr. Shartz or HealthPoint. Matthew possibly could have lived had Dr. Shartz not signed the release five months prior to Matthew’s death and had Matthew’s parents not allowed him to participate in baseball conditioning, for which the release was unnecessary. Matthew possibly could have lived had the Miullis known that Dr. Shartz revoked the release and not allowed him to participate in baseball conditioning until he was cleared by a cardiologist.

This case falls directly within the holding of Gooding: “a plaintiff in a medical malpractice action must show more than a decreased chance of survival because of a defendant’s conduct.” 445 So.2d at 1020. “ ‘A mere possibility of ... causation is not enough; and when the matter remains one of pure speculation or conjecture ... it becomes the duty of the court to direct a verdict for the defendant.’” Id. at 1018 (quoting W. Prosser, Law of Torts § 41 (4th ed. 1971)). We reverse the final judgment and remand with instructions that judgment be entered in favor of Dr. Shartz and HealthPoint.

Reversed and remanded with instructions.

KELLY and KHOUZAM, JJ., Concur.

      . In 2002, another pediatrician at Health-Point signed a Florida High School Athletic Association preparticipation physical evaluation conditionally clearing Matthew for participation in baseball upon the completion of the scheduled stress test and per Matthew’s cardiologist. In 2003, and within one year of Matthew's last cardiology examination, Dr. Shartz signed a participation form. It is unclear whether that authorization was conditioned upon Matthew completing additional cardiology testing; however, Dr. Shartz's records indicate that the Miullis were reminded that Matthew needed to follow-up with his cardiologist.

      . It is the failure of HealthPoint to inform Dr. Shartz of the returned certified letter that forms the basis of Mrs. Miulli's claims against it.

      . In a separate action, Mrs. Miulli sued the School Board of Hillsborough County (School Board) and the FHSAA. The FHSAA was dismissed from the lawsuit, see Miulli v. Fla. High Sch. Athletic Ass'n, 998 So.2d 1155 (Fla. 2d DCA 2008), and the action against the School Board was consolidated with the action against Dr. Shartz and HealthPoint for trial. Following the verdict, the case against the School Board was resolved and those claims were dismissed.

      . We were not asked to consider whether Dr. Shartz’s "failure to close the loop” is a breach of the standard of care or otherwise negligent. And nothing in this opinion should be construed as a ruling or comment on that issue.

      . This testimony is the result of cross-examination. Mrs. Miulli relies heavily on the Fourth District’s opinion in Myron v. South Broward Hospital District, 703 So.2d 527 (Fla. 4th DCA 1997), in arguing that Dr. Shartz and HealthPoint’s failure to challenge the factual basis for Dr. Wertheimer’s opinion pre-eludes them from raising the adequacy of her opinion in this appeal. Mrs. Miulli’s reliance on Myron is inapposite. In our case, Dr. Wertheimer was cross examined and challenged on a number of facts underlying the basis of her opinion.


text:
    Charlain ST. CHARLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2299.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.

      Garlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., SUAREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the judgment entered below, but remand for the trial court to enter a nunc pro tunc written order to reflect the oral finding of competency at the June 8, 2011, hearing. See Francis v. State, 65 So.3d 103 (Fla. 5th DCA 2011).


author: TAYLOR, J. MAY, J.,

text:
    Larry Douglas JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3582.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Rehearing and Rehearing En Banc Denied Jan. 3, 2014.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

TAYLOR, J.

We grant the state’s motion for rehearing, withdraw our previous opinion issued on May 1, 2018, and substitute the following written opinion in its place.

The defendant, Larry Douglas Jones, initiated online contact with the sixteen-year old victim through MySpace. After exchanging messages through MySpace, the defendant and the victim eventually met in person. The defendant took the victim back to his apartment, where they engaged in sexual intercourse. They continued to communicate online and engaged in sexual relations on two other occasions. When the victim’s mother found out about their relationship, she contacted the police. The police investigated and arrested the defendant after determining from his driver’s license that he was thirty-seven years old. The defendant was charged with three counts of unlawful sexual activity with a minor by a person 24 years of age or older, in violation of section 794.05(1), Florida Statutes (2008).

At trial, the state sought to prove the defendant’s age through the testimony of the arresting officer, who gathered the information from the defendant’s driver’s license. During direct examination of the officer, the state elicited the following testimony:

STATE: Now, Detective, you were actually the person who arrested [the Defendant] in regards to this particular case, is that right?
DETECTIVE: Yes, sir.
STATE: All right. When [the Defendant] was arrested, did you, for purposes of arresting him, take down his name, date of birth, address, social security number, things like that?
DETECTIVE: Yes, sir.
STATE: And did he, in fact, give you [his name]?
DETECTIVE: Yes, sir.
STATE: And did he give you his date of birth?
DETECTIVE: I believe we go[t] that off his driver’s license that [was] on his person.
STATE: Was that handed to you for purposes of the arrest?
DETECTIVE: At the arrest, yes.
STATE: Okay. And what was his date of birth, please?

At this point, the defendant objected. He argued that the officer’s testimony regarding the defendant’s age was inadmissible hearsay. The state responded that the defendant’s act of handing over his driver’s license to the officer, as well as his possession and use of a driver’s license containing his date of birth, was an admissible adoptive admission by a party opponent. The trial court agreed and overruled the defendant’s objection. The state then asked the arresting officer, “the defendant handed you his driver’s license?” The officer responded, “[w]e procured his driver’s license from the wallet that was on his person.” The officer then testified as to the date of birth on the defendant’s driver’s license.

The jury found the defendant not guilty on the first two counts and guilty as charged on the third count. The score-sheet included 80 points for penetration. The trial court sentenced the defendant to twelve years in prison. The defendant now appeals his conviction and sentence.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion, but the court’s interpretation of the evidence code is reviewed de novo. Barcomb v. State, 68 So.3d 412, 414 (Fla. 4th DCA 2011).

A statement is admissible as an adoptive admission if it is offered against a party and if that party “has manifested an adoption or belief in its truth.” § 90.803(18)(b), Fla. Stat. (2011). Stated another way, “[w]hen an adverse party manifests a belief in or adopts the statement of another person as his or her own, the statement is treated as an adoptive admission under section 90.803(18)(b).” 1 Charles W. Eh-rhardt, Florida Evidence § 803.18b (2012 ed.). An adoptive admission occurs either when there is- a direct expression by the adverse party assenting to the statement of another or when the conduct of the adverse party circumstantially indicates the party’s assent to the truth of the statement. Id.

Although there do not appear to be any cases in Florida that directly address whether the information obtained from a party’s driver’s license may be admissible against the party as an adoptive admission, there are federal cases and cases from other states that provide useful guidance on this issue.

In applying the rule on adoptive admissions, “courts frequently have construed possession of a written statement as an adoption of what its contents reveal.” United States v. Paulino, 13 F.3d 20, 24 (1st Cir.1994). “[S]o long as the surrounding circumstances tie the possessor and the document together in some meaningful way, the possessor may be found to have adopted the writing and embraced its contents.” Id. Accordingly, writings in a defendant’s possession are admissible as adoptive admissions where the surrounding circumstances indicate that the defendant manifested an adoption of them. See United States v. Ospina, 739 F.2d 448, 451 (9th Cir.1984) (holding that business cards and a hotel receipt in the defendant’s possession were admissible as adoptive admissions where the defendant acted on the information therein); United States v. Marino, 658 F.2d 1120, 1124-25 (6th Cir.1981) (finding in a prosecution for conspiracy to import cocaine that airline tickets, hotel bill receipts, and other documents found in the defendant’s possession were admissible as adoptive admissions); State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57, 79-81 (2008) (finding that an airline ticket stub was admissible as an adoptive admission based on its location in the defendant’s pocket and the fact that it bore his name).

Recently, the Court of Appeals of Maryland held that a trial court did not err in finding that a defendant, who presented his driver’s license to a detective, manifested an adoption or belief in the truth of the information listed on the license, including the defendant’s date of birth. See Gordon v. State, 431 Md. 527, 66 A.3d 647 (2013). Similarly, the trial court in the instant case did not err in admitting the testimony of the police officer, who had the opportunity to examine the defendant’s driver’s license and saw the defendant’s date of birth.

We note that in Gordon there was no dispute that the defendant voluntarily handed over his driver’s license to the police. Here, by contrast, it is not clear from the arresting officer’s testimony how the officer came into possession of the defendant’s license. His testimony was vague on this point. He initially responded that the defendant handed him his driver’s license during the arrest, but he later testified that “[w]e procured his driver’s license from the wallet that was on his person.”

Nonetheless, even if the defendant did not voluntarily hand over his license to the officer, the information on the license may still be considered an adoptive admission. A driver’s license is not passively carried; it is carried for identification purposes and to prove authorization to operate a motor vehicle. Thus, a defendant’s possession of his driver’s license should constitute an adoption of what its contents reveal.

The cases relied upon by the defendant are distinguishable. In Holborough v. State, 103 So.3d 221, 222-23 (Fla. 4th DCA 2012), we held that the trial court erred in allowing an arresting officer to testify as to the victim’s identity, which he learned after viewing her Florida identification. However, in that case, the victim was not a party, so the information on the victim’s identification card could not be admitted as an adoptive admission.

Likewise, the defendant’s reliance upon Riggins v. State, 67 So.3d 244, 248 (Fla. 2d DCA 2010), is misplaced. There, the Second District held that an officer’s testimony about the date written on a defendant’s temporary license tag was inadmissible hearsay, reasoning that “the date written on the [defendant’s] temporary tag was an out-of-court written assertion from an unknown person regarding the date the temporary tag was to expire.” However, in Riggins, the assertion on the temporary tag was by an “unknown person.” Moreover, the expiration date on a temporary tag is not necessarily information that the defendant would know offhand, so a defendant’s mere possession of a temporary tag does not establish an adoption of the information in the tag. Here, by contrast, a driver’s license is a government document issued pursuant to the applicant’s request, and the information contained on the license does not come from an “unknown person.” Instead, an applicant for a driver’s license must swear to the truth of the statements made in the application and must provide independent proof of his or her date of birth. § 322.08(1), (2), Fla. Stat. (2008). Thus, a party’s act of carrying a driver’s license provides a much stronger tie to the contents of the information contained therein.

Because the date of birth on the defendant’s driver’s license was admissible as an adoptive admission of the defendant, we conclude that the trial court did not abuse its discretion in allowing the police officer to testify concerning the defendant’s date of birth as it appeared on his driver’s license.

The defendant also argues that the trial court erred in adding 80 points for penetration to his scoresheet when the verdict form did not allow the jury to distinguish between “penetration” and “union with” as charged. This argument lacks merit. We have previously held that “[w]hen sentencing for a sexual offense, these are the types of facts judges have traditionally taken into consideration, even though they might come from observations at a trial or from a presentence investigation.” Neira v. State, 847 So.2d 1134, 1136 (Fla. 4th DCA 2003).

For the reasons stated above, we affirm the defendant’s conviction and sentence in this case.

Affirmed.

CONNER, J., concurs.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. The defendant’s age was an element of the crime charged. The State proved that element by having a law enforcement officer testify to the date of birth shown on the defendant’s driver’s license at the time of arrest. I agree with the defendant that the trial court erred in allowing the State to rely on this hearsay testimony to establish his age as an element of the crime.

The State charged the defendant with three counts of unlawful sexual activity with a minor by a person twenty-four years of age or older. During direct examination of the arresting officer, and over a defense hearsay objection, the State elicited that the officer had obtained the defendant’s date of birth from his driver’s license. The driver’s license was not introduced into evidence. The State maintained the defendant’s date of birth on his driver’s license was not hearsay because it became an admission by the defendant when he gave his license to the officer. The trial court agreed with the State and allowed the testimony.

At the close of the State’s case, the defendant moved for judgment of acquittal, arguing that — absent the officer’s hearsay testimony concerning the defendant’s driver’s license — the State failed to prove the defendant’s age. The trial court denied the motion. The jury found the defendant not guilty on the first two counts and guilty as charged on the third count.

Our evidence code defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2008). Hearsay also includes “written assertion[s]” that are “offered in evidence to prove the truth of the matter asserted.” §§ 90.801(l)(a)l, 90.801(l)(c), Fla. Stat. (2008). Here, it is the officer’s testimony that constituted inadmissible hearsay.

In Holborough v. State, 103 So.3d 221 (Fla. 4th DCA 2012), we held that the trial court abused its discretion in allowing an arresting officer to testify as to the victim’s identity, which he learned after viewing her Florida ID. Holborough, 103 So.3d at 223. In so holding, we explained:

The identification of the victim in this case was based on inadmissible hearsay. First, the State did not show that the officer had “personal knowledge” of the victim’s identity apart from her display of a “Florida ID” to him.... The victim’s “Florida ID” was an out-of-court statement. Even if the ID qualified as a public record for the purpose of the section 90.803(8) exception to the hearsay rule for public records, the officer’s in-court testimony about what the ID said was hearsay falling under no exception.

Id. (citations omitted).

In a similar context, the Second District found error in the admission of an officer’s testimony about the date written on a defendant’s temporary license tag. Riggins v. State, 67 So.3d 244, 248 (Fla. 2d DCA 2010). The court explained that such testimony was inadmissible hearsay and did not fall within any recognized exception, because “the date written on the [defendant’s] temporary tag was an out-of-court written assertion from an unknown person regarding the date the temporary tag was to expire.” Id.

Here, the driver’s license was an out-of-court statement. The officer did not show that he had “personal knowledge” of the defendant’s age apart from having read the defendant’s driver’s license. And his testimony did not fall within a recognized exception to thé hearsay rule.

Yet, the State suggests, and the majority agrees, that the defendant’s act of handing his license to law enforcement when ordered was an adopted admission of his age. An adopted admission is “[a] statement of which the party [against whom the statement is offered] has manifested an adoption or belief in its truth.” § 90.803(18)(b), Fla. Stat. (2008). An adopted admission can “occur when the conduct of an adverse party circumstantially indicates the party’s assent to the truth of a statement made by another person.” 1 Charles W. Ehrhardt, Florida Evidence § 803.18b (2012 ed.).

The majority believes the defendant’s conduct of handing his license to the officer upon request indicated his assent to the truth. But the majority must rely on federal and out-of-state cases to support this premise. See, e.g., Gordon v. State, 431 Md. 527, 66 A.3d 647 (2013); State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008); United States v. Ospina, 739 F.2d 448 (9th Cir.1984). No Florida case has gone that far. In fact, as noted above, Florida has been consistent in not converting documents found on the possession of the defendant into adoptive admissions. For that reason, I disagree with the majority, find no admission here, and would reverse.

      . The state did not have a certified copy of the driver’s license.


text:
    Norberto SANCHEZ, Appellant, v. RENDA BROADCASTING CORPORATION, et al., Appellees.
    No. 5D13-2489.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2013.
    Rehearing and Rehearing En Banc Denied Dec. 18, 2013.

      D. Brad Hughes of Lindell & Farson, P.A., Jacksonville, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Norberto Sanchez appeals from the trial court’s non-final order granting Renda Broadcasting Corporation’s (“Renda”) amended motion for proceedings supplementary and impleading Sanchez as a defendant in Renda’s suit against Norsan Group, Inc. (“Norsan”). On appeal, Sanchez argues that the use of proceedings supplementary pursuant to section 56.29, Florida Statutes (2012), is not permitted unless the judgment creditor alleges that the judgment debtor fraudulently transferred assets to a third party. We disagree and affirm.

In 2006, Norsan entered into a lease with Renda. Subsequently, Renda sued Norsan alleging non-payment of rent, and Renda ultimately obtained a judgment against Norsan. Norsan failed to satisfy that judgment, prompting Renda to file a motion for proceedings supplementary seeking to implead Sanchez as a defendant. The motion alleged that Sanchez was the sole shareholder, director, and officer of Norsan. It further alleged that during a deposition, Sanchez testified that Norsan had no assets at the time it entered into the lease with Renda; that Nor-san has never had a bank account; that Norsan “had no business” and did not file tax returns; and that “[tjhere was no purpose for Norsan.” Lastly, the motion alleged that Sanchez had engaged in improper conduct by allowing Norsan, an undercapitalized shell corporation, to enter into the lease with Renda. Accordingly, Renda sought to pierce the corporate veil so that it could hold Sanchez personally liable for Norsan’s debt to Renda. The trial court granted Renda’s motion and impleaded Sanchez as a defendant. This timely appeal followed.

On appeal, Sanchez argues that the trial court erred in granting Renda’s motion for proceedings supplementary because Renda failed to allege that Norsan fraudulently transferred assets to Sanchez in an attempt to defraud its creditors. We review an order granting a motion for proceedings supplementary de novo. See Mejia v. Ruiz, 985 So.2d 1109, 1112 (Fla. 3d DCA 2008).

Proceedings supplementary under section 56.29 are special statutory “proceedings subsequent to judgment to aid a judgment creditor in collecting his judgment against the judgment debtor.” Rosenfeld v. TPI Intl. Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993). In order to initiate proceedings supplementary, section 56.29 requires that the judgment creditor have an unsatisfied judgment and file an affidavit averring that the judgment is valid and outstanding. § 56.29(1), Fla. Stat. (2012). Once these requirements are met, the statute must be liberally construed so as to afford the judgment creditor with the most complete relief possible. Mejia, 985 So.2d at 1112; see also Amjad Munim, M.D., P.A. v. Azar, 648 So.2d 145, 151 (Fla. 4th DCA 1994) (“Proceedings supplementary are equitable in nature and should be liberally construed.”). Although proceedings supplementary may be used to implead a third party in cases where the judgment debtor has made a fraudulent transfer to the third party, see § 56.29(6), Fla. Stat., the statute does not require a judgment creditor to allege a fraudulent transfer in order to use proceedings supplementary to aid in the execution of its judgment.

Contrary to Sanchez’s argument on appeal, there is authority to support the use of proceedings supplementary to pierce the corporate veil absent an allegation of a fraudulent transfer. See Ocala Breeders’ Sales Co. v. Hialeah, Inc., 735 So.2d 542, 543-44 (Fla. 3d DCA 1999) (reversing order denying judgment creditor’s request to use proceedings supplementary to implead parent corporation and pierce corporate veil where judgment debtor was subsidiary corporation that had no assets or bank account and had never been capitalized; holding that judgment debtor was “mere instrumentality” of parent corporation and that judgment debtor fraudulently misled judgment creditor by entering into lease even though it had no ability to fulfill its obligations under that contract); see also Rashdan v. Sheikh, 706 So.2d 357, 357 (Fla. 4th DCA 1998) (reversing judgment entered against impleaded defendant due to “absence of any allegations or evidence of fraud, fraudulent transfer or other improper conduct on the part of either [the impleaded defendant] or his professional association, [the judgment debtor]” (emphasis added)). Just as in Ocala Breeders’ Sales Co., Renda alleged improper conduct by the judgment debtor and a third party: it stated that Norsan entered into the lease although it had no assets to pay rent and that Sanchez “us[ed] an undercapital-ized shell company [for his] personal benefit .... ” Accordingly, we affirm the trial court’s order impleading Sanchez as a defendant.

AFFIRMED.

PALMER, COHEN and WALLIS, JJ., concur.


author: LAGOA, J.

text:
    Jon W.F. KUIKEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2020.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 2013.

      Jon W.F. Kuiken, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   ON CONFESSION OF ERROR

LAGOA, J.

Appellant, Jon W.F. Kuiken (“Kuiken”), appeals the trial court’s order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion as successive. Based on the State’s proper confession of error with which we agree, we reverse the trial court’s order.

On September 19, 2011, Kuiken filed his Rule 3.850 motion seeking to vacate his judgment and sentence based on juror misconduct and ineffective assistance of counsel in rejecting a favorable plea offer of ten years state prison. The trial court denied Kuiken’s motion as successive and found that his claims constituted an abuse of procedure under Rule 3.850 and Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994).

As the State concedes, Ragan is not applicable in this instance. In Ragan, the defendant sought review of the trial court’s order denying his Rule 3.850 motion for post-conviction relief alleging ineffective assistance of counsel. The defendant in Ragan, however, had previously filed a Rule 3.850 motion, which also alleged that he was denied effective assistance of counsel.

Here, unlike Ragan, Kuiken filed a single Rule 3.850 motion. The other two motions filed by Kuiken were motions seeking relief pursuant to Florida Rules of Criminal Procedure 3.800(c) and 3.800(a), which challenged the legality of his sentence. See Schlabach v. State, 37 So.3d 230, 237 (Fla.2010) (“Rule 3.800(c) is a narrow rule that provides a limited opportunity for the trial court to reconsider a previously imposed sentence and, within its discretion, reduce or modify the sentence. This provision permits a trial judge to reconsider matters that were not addressed during sentencing and to ensure that the sentence is appropriate and fair in light of all of the relevant circumstances.”) (footnote omitted); Carter v. State, 786 So.2d 1173, 1181 (Fla.2001) (A Rule 3.800(a) motion challenges the “kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” (quoting Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999))).

Because neither a claim of juror misconduct nor a claim of ineffective assistance of counsel is cognizable under Rule 3.800(a) or Rule 3.800(c), the trial court erred in finding that Kuiken’s Rule 3.850 motion was successive. See Rivas v. State, 906 So.2d 1193 (Fla. 8d DCA 2005) (finding that Rule 3.850 motion was not successive as previous motions either sought relief pursuant to Rule 3.800 or sought an extension of time to file a Rule 3.850 motion); Ramirez v. State, 822 So.2d 593, 594 (Fla. 2d DCA 2002) (finding that the second motion was not a successive post-conviction motion since Ramirez’s original motion only raised claims that his sentence was illegal); Osborne v. State, 798 So.2d 39, 39 (Fla. 1st DCA 2001) (finding that the court erred because Appellant’s prior post-conviction motion was properly filed as a rule 3.800(a) motion).

Accordingly, we reverse the trial court’s order denying the Rule 3.850 motion and remand for reconsideration of Kuiken’s September 19, 2011 Rule 3.850 motion.

REVERSED AND REMANDED with instructions.

      . On November 17, 2009, Kuiken filed his first post-conviction motion — a Motion to Mitigate and Reduce Sentence. On February 8, 2011, Kuiken filed his second post-conviction motion' — a Motion to Correct Illegal Sentence.


author: ROTHENBERG, J.

text:
    Alejo Angel CARMENATES, Petitioner, v. Annia HERNANDEZ, Respondent.
    No. 3D13-2623.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 2013.

      Richard J. Diaz, P.A., and Richard J. Diaz, for petitioner.
    Alba Varela, P.A., and Alba Varela, Miami, for respondent.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, J.

We treat the petition filed by Alejo Angel Carmenates (“Mr. Carmenates”) as a petition for writ of certiorari, as it requests this Court “to exercise its certiorari jurisdiction.” Because the trial court’s order departs from the essential requirements of law, we quash portions of the order under review.

Annia Hernandez (“Ms.Hernandez”) and Mr. Carmenates cohabitated for approximately sixteen years, during which period Ms. Hernandez gave birth to children in 2004 and 2008. In January 2013, Mr. Car-menates moved out of the home he shared with Ms. Hernandez and the two children. Subsequently, in early August 2013, Ms. Hernandez filed a petition to determine the paternity of her minor children under chapter 742 of the Florida Statutes, asserting that Mr. Carmenates is the children’s natural father and seeking a determination as to parental responsibility, time-sharing, and child support.

In the paternity action, Ms. Hernandez filed an emergency motion seeking the return of a Toyota 4Runner that she had been using previously. Although the 4Runner has been titled in the name of Camaguey Auto Sales (“Camaguey Auto”) since October 2010, Ms. Hernandez drove the 4Runner until Camaguey Auto towed it from her home a few weeks after she filed the petition to determine paternity in 2013. The record indicates that Mr. Carmenates was Camaguey Auto’s registered agent until August 20, 2013.

Without any notice to Camaguey Auto, the trial court granted Ms. Hernandez’s motion for return of the 4Runner, ordering Mr. Carmenates — who does not own the 4Runner — to return the 4Runner “or a vehicle of like and similar quality” by 5:00 p.m. that evening. The following day, Ms. Hernandez filed a motion for contempt against Mr. Carmenates, asserting that he failed to comply with the trial court’s order.

Later that month, Ms. Hernandez sought leave of court to file an “Amended Petition to Determine Paternity, Complaint for Conversion, Replevin and for Related Relief.” As the title of this pleading indicates, Ms. Hernandez not only petitioned for a determination of paternity under chapter 742, but also filed a complaint asserting two counts that are completely unrelated to the paternity petition. Count II of the amended pleading asserts a claim for conversion against Mr. Carmenates, Camaguey Auto, and Liset Porrero (“Por-rero”), who became the president of Cama-guey Auto a few months after Mr. Car-menates moved out of Ms. Hernandez’s home. This count asserts that Porrero and Mr. Carmenates converted both the vehicle and Ms. Hernandez’s interest in Camaguey Auto, and sought judgment against Mr. Carmenates, Camaguey Auto, and Porrero. Count III of the amended pleading asserts a claim for replevin against Mr. Carmenates, Porrero, and Camaguey Auto, and seeks to recover possession of the 4Runner.

Following a hearing, the trial court: (1) granted Ms. Hernandez’s motion for contempt, providing that Mr. Carmenates could purge the contempt by returning the 4Runner to Ms. Hernandez before 2:00 p.m. that day, and if he failed to purge the contempt, he was to turn himself in the following day at 9:00 a.m.; (2) granted Ms. Hernandez’s motion to amend her pleading; and (3) ordered Mr. Carmenates to pay Ms. Hernandez’s attorney $1100 within two days of the hearing, which represents payment for the four hours expended by Ms. Hernandez’s attorney “for this issue.” Thereafter, Camaguey Auto returned the 4Runner to Ms. Hernandez to avoid Mr. Carmenates’ incarceration. This petition followed.

I. Whether the trial court departed from the essential requirements of law in issuing the contempt order.

We first address whether the trial court departed from the essential requirements of law by ordering Mr. Car-menates to either return the 4Runner, which is not titled in his name, or face incarceration for contempt. See Knorr v. Knorr, 751 So.2d 64, 65 (Fla. 2d DCA 1999) (noting that “prejudgment civil contempt orders are more properly reviewed by certiorari”); Blades v. State, Dep’t of Revenue ex. Rel. Stewart, 943 So.2d 300 (Fla. 3d DCA 2006). As we conclude that the trial court departed from the essential requirements of law, we quash the portion of the order under review holding Mr. Carmenates in contempt.

“The key safeguard in civil contempt proceedings is the ability of the contemnor to purge the contempt. A civil contempt order must contain a specific purge provision that adequately informs the contemnor what he or she must do to purge the contempt.” Lanza v. Lanza, 804 So.2d 408, 408 (Fla. 4th DCA 2001) (citations omitted).

The instant contempt order does contain a specific purge provision that adequately informs Mr. Carmenates what he needs to do to purge the contempt. However, as the purge provision wrongfully requires Mr. Carmenates to take control over the 4Runner, which is not titled in his name, and the record does not demonstrate that he is in complete control of the entity that does own the 4Runner, Camaguey Auto, we find that Mr. Carmenates did not have the ability to purge the contempt, and therefore, he did not “carr[y] the keys of his prison in his own pocket.” Parisi v. Broward Cnty., 769 So.2d 359, 365 (Fla.2000) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)). Accordingly, we grant the petition, and quash the portion of the order holding Mr. Carmenates in contempt.

Although we have quashed the contempt order, Ms. Hernandez is not left without a meaningful remedy to her inability to transport her children to school or herself to different locations as a home healthcare nurse so that she may support her children. Upon a proper motion, the trial court may award temporary child support to Ms. Hernandez under section 742.031(1) of the Florida Statutes, which provides, in part: “The court shall issue, upon motion by a party, a temporary order requiring child support pursuant to s. 61.30 pending an administrative or judicial determination of parentage, if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence.” Therefore, upon Ms. Hernandez’s motion, the trial court may order Mr. Car-menates to pay temporary child support under section 61.30, if appropriate.

II. Whether the trial court departed from the essential requirements of law in allowing amendments to the paternity petition to include new allegations, counts, and defendants.

The trial court also departed from the essential requirements of law by granting Ms. Hernandez’s motion to amend her paternity petition filed under chapter 742 to add claims relating to the possession or ownership of property, and to add two additional defendants that are unrelated to the paternity of the two minor children. In a paternity action, “[t]he court shall determine the issues of paternity of the child and the ability of the parents to support the child.” § 742.031(1), Fla. Stat. (2013). A paternity action filed under chapter 742 is not to be utilized by formerly cohabiting individuals to determine issues relating to the division or ownership of property. See also Int’l Patrol & Detective Agency, Inc. v. Aetna Cas. & Sur. Co., 396 So.2d 774, 776 (Fla. 1st DCA 1981) (“Although generally leave to amend should be liberally granted so that matters may be tried on the merits, such amendments are not allowable if they would change the issue, introduce new issues, or materially vary the grounds for relief.”). Accordingly, we quash the portion of the order granting Ms. Hernandez’s motion to amend her paternity petition without prejudice to assert these claims in a separate action.

Accordingly, we grant the petition for writ of certiorari and quash the portions of the order under review as indicated in this opinion, and remand to the trial court for a reconsideration of its award of attorney’s fees to Ms. Hernandez in light of this opinion and section 742.045, Florida Statutes (2013), which permits an award of attorney’s fees in a paternity action.

Petition granted; order quashed in part; and remanded for further proceedings.

      . Although Camaguey Auto returned the 4Runner to Ms. Hernandez to avoid Mr. Car-menates’ incarceration, the contempt issues is not rendered moot. See Marconi v. Walther, 819 So.2d 936, 938 (Fla. 2d DCA 2002) ("[T]he husband’s payment of insurance premiums to purge himself from jail did not render the contempt issue moot.... [I]t would be unfair to allow an order in the court file to continue to show that the husband has been found in contempt_”) (citation omitted).

      . The trial court is directed to enter an order facilitating the return of the 4Runner directly to Camaguey Auto, not Mr. Carmenates.

      . Ms. Hernandez argues that the return of the 4Runner was ordered as a form of temporary child support. However, this contention is not supported by the record because: (1) the portions of the record provided by the parties do not contain a transcript of the hearings held before the trial court; (2) the orders entered by the trial court do not refer to temporary child support; and (3) the trial court could not have completely addressed the child support guideline factors as required in section 61.30, Florida Statutes (2013), because the lower tribunal docket indicates that only one financial affidavit has been filed in the paternity action. Thus, assuming that the trial court ordered Mr. Carmenates to return the vehicle as a form of temporary child support, based on the record before this Court, we conclude that the trial court departed from the essential requirements of law.


author: CIKLIN, J.

text:
    Victor Salastier Diaz ESTEVEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-1865, 4D11-1367.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Jan. 3, 2014.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Victor Salastier Diaz Estevez (“Diaz”) appeals his conviction and sentence for first-degree felony murder. Diaz was tried with a codefendant, Roger Rodriguez (“Rodriguez”), in a trial with separate juries. Diaz contends that the state was collaterally estopped from prosecuting the first-degree felony murder charge because a previous jury acquitted him of actually murdering the victim and of the attempted felony murder of a different person. We disagree because a rational jury could have acquitted Diaz of the actual murder of the victim and the attempted felony murder of another individual but still find Diaz guilty of first-degree felony murder because the previous acquittals did not foreclose the factual predicate necessary for the felony murder conviction.

Diaz also contends that the trial court reversibly erred when it allowed his jury to be present for the testimony of Rodriguez because Rodriguez accused Diaz of committing crimes for which Diaz had already been acquitted in the earlier trial. We agree with this argument and reverse and remand the case for a new trial.

Facts

By indictment, the state charged Diaz and five codefendants, including Rodriguez, with thirteen counts arising from a robbery and the attempted escape from the robbery: first-degree murder of Samuel Salomon with a firearm (count I), attempted first-degree murder of Sian Koh with a firearm (count II), attempted felony murder of Sian Koh with a firearm (count III), burglary with an assault or battery with a firearm (count IV), four counts of robbery with a firearm (counts V, VI, VII, and VIII), two counts of kidnapping with a firearm (counts IX and X), shooting into a building (count XI), shooting into an occupied vehicle (count XII), and discharging a firearm from a vehicle (count XIII). The court granted Diaz’s motion for severance and ordered, among other things, that Diaz and Rodriguez have separate trials, although the court did not preclude a “joint trial” with dual juries.

The First Trial

The case against Diaz proceeded to a first jury trial. In the first trial, Diaz was tried with a codefendant, Luis Alfonso Reyes Castillo, with separate juries. The state presented evidence that Diaz, Castillo, Rodriguez, and other codefendants robbed a convenience and check-cashing store in Boynton Beach. After the code-fendants left the store in a car, the store’s manager, Sian Koh, followed the codefen-dants in his own car. Koh called 911 on his cell phone, reported the robbery, and relayed the codefendants’ movements to the 911 operator. Koh followed the code-fendants on Boynton Beach Boulevard and followed the codefendants’ car onto the southbound lanes of the Florida Turnpike.

The codefendants exited the turnpike at Atlantic Avenue. One of the codefendants then fired a gun at Koh. One bullet struck Koh’s car, but not Koh himself. Another bullet entered an occupied home, but fortunately that bullet also did not strike anyone. Tragically, another bullet struck Samuel Salomon who was driving on Atlantic Avenue. Mr. Salomon’s wife was sitting in the passenger seat when the stray bullet tore through her husband’s chest. Samuel Salomon died as a result of the gunshot wound.

The codefendants then re-entered the turnpike and continued south, and Koh continued to follow them. The codefen-dants exited the turnpike again at Glades Road, at which point Diaz, Castillo, and Rodriguez were apprehended.

After the state rested its case, the court granted Diaz’s motion for judgment of acquittal on the premeditated murder theory for count I, the first-degree murder of Samuel Salomon. The state then proceeded with a charge of first-degree felony murder for count I. Among other defenses, Diaz argued that he was not guilty on the grounds that the murder did not occur during his escape from the scene of the robbery.

At the conclusion of the trial, the jury found Diaz not guilty for counts II and III (attempted murder and attempted felony murder of Sian Koh), count XI (shooting into a building), count XII (shooting into an occupied vehicle), and count XIII (discharging a firearm from a vehicle). The jury found Diaz guilty of burglary with assault or battery while armed (count IV), three counts of robbery with a firearm (counts V, VI, and VII), and two counts of false imprisonment (lesser included offenses of counts IX and X).

As to count I, the first-degree felony murder of Samuel Salomon, the jury deadlocked. The court declared a mistrial as to that count. The court adjudicated Diaz guilty on the counts resulting in convictions and sentenced Diaz to a combined total of fifty-three years in prison.

Castillo’s jury found him guilty of all thirteen counts as charged in the indictment. During the penalty phase, the state argued that Castillo was “the defendant who was sitting in the shooter’s seat, who was sitting in the seat that the shots were fired from.” The state’s argument clearly suggested that it was Castillo who fired the shot that killed Mr. Salomon — and not Diaz or Rodriguez. The court sentenced Castillo to life in prison.

The Second Trial

After the jury rendered its verdict following the first trial, Diaz moved to dismiss the first-degree felony murder count, arguing that the jury’s verdicts in the first trial showed that the jury necessarily concluded the murder did not occur during the escape from the robbery scene. The court denied the motion, and the case proceeded to a second jury trial. In the second trial, Diaz was tried with another codefendant, Rodriguez, again with separate juries for each codefendant.

In the second trial, Diaz conceded that he was involved in the underlying robbery and that Samuel Salomon was dead. Diaz’s defense was that there was a “break in the chain of circumstances” between the robbery and the murder of Mr. Salo-mon and further that Diaz did not actually murder Salomon; thus Diaz, argued, he could not be guilty of felony murder.

In addition to the evidence adduced at the first trial, the state elicited the testimony of an off-duty police officer who saw the codefendants driving recklessly on Boynton Beach Boulevard and the Turnpike. Outside the presence of the Diaz jury, the state presented a video recording of Rodriguez’s interview -with the police following his capture. Rodriguez admitted his involvement in the crime and claimed that Diaz actually fired the shots that killed Salomon, hit Koh’s vehicle, and hit the occupied home.

After the state rested its case against Diaz, Diaz moved for a judgment of acquittal on the collateral estoppel issue, which the court again denied. Diaz chose not to testify and rested without presenting any witnesses or evidence.

At the close of trial for the day, Rodriguez announced his intention to testify. The state argued that both Diaz’s jury and Rodriguez’s jury should be present for the testimony. Diaz objected on several grounds. Most importantly, Diaz argued that Rodriguez would undoubtedly testify that it was Diaz who actually fired the shots that killed Mr. Salomon which would be improper because the jury in the first trial had acquitted Diaz of those precise charges. The state conceded that it was barred from eliciting testimony that Diaz was the actual shooter, but argued that Diaz’s jury should nevertheless be allowed to hear Rodriguez accuse him of the crime. Diaz argued it was “fundamentally unfair” to allow his jury to hear testimonial evidence from a codefendant that the state itself was barred from introducing. Diaz filed a written motion arguing that allowing the Diaz jury to be present during Rodriguez’s testimony would, in effect, improperly revoke the severance order in the middle of trial because it would allow the Diaz jury to hear evidence that was only admissible against Rodriguez. Diaz also argued that it was improper for a “third party,” Rodriguez, to testify against Diaz.

After a lengthy discussion of the issue, the court ultimately overruled Diaz’s objections and both the Diaz and Rodriguez juries were present in the courtroom for Rodriguez’s testimony. The court also denied Diaz’s motions to preclude Rodriguez from testifying that Diaz was the actual shooter.

During his direct examination, Rodriguez did in fact testify that Diaz fired the shots that killed Mr. Salomon. Before the state cross-examined Rodriguez, the attorneys went sidebar and the prosecutor inquired of the court as to whether the state was allowed to impeach Rodriguez with prior inconsistent statements made in his pretrial statement to the police. Diaz’s counsel again objected, arguing that allowing the Diaz jury to be present would result in the jurors “hearing] all sorts of stuff that they wouldn’t hear if these trials were separate.” The court overruled Diaz’s objection.

Thereupon, the state questioned Rodriguez regarding the attempted escape from the robbery scene. Rodriguez initially stated that the codefendants believed they had escaped from the crime scene until they noticed Koh’s vehicle pursuing them on the Turnpike. Upon further questioning, Rodriguez admitted that he had earlier stated the codefendants knew Koh was following them before they entered the Turnpike. Rodriguez then stated that he did not know when the group in the getaway vehicle noticed Koh’s car following them. The state elicited testimony about the shooting, but the state did not ask Rodriguez to identify the shooter. Diaz’s counsel also cross-examined Rodriguez.

In closing arguments before Diaz’s jury, the state focused primarily on the testimony of Koh and the off-duty police officer to argue that Diaz’s escape had not concluded before Mr. Salomon was murdered. The state conceded that there was a “reasonable doubt” regarding the identity of the actual shooter, but the state argued that “it does not matter who pulled that trigger” for the purpose of finding Diaz guilty of felony murder.

The jury found Diaz guilty of first-degree felony murder. The court adjudicated Diaz guilty and sentenced him to life in prison. Diaz appeals his judgment and sentence.

Collateral Estoppel

Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). “The principle precludes the government from relitigating certain facts in order to establish the fact of the crime, which includes a redetermination of evi-dentiary facts as well as ultimate facts.” Jones v. State, 120 So.3d 135, 138 (Fla. 4th DCA 2013) (citations omitted). The collateral estoppel principle may preclude argumentation of facts “necessarily established” in a prior proceeding, and “[a] necessarily established fact has been held to be one which has been resolved in favor of the defendant at the prior trial and was essential to the conviction in said case.” Id. (citation omitted).

Diaz argues that the state was collaterally estopped from prosecuting the first-degree felony murder count after he was acquitted of the attempted felony murder of Koh in the first trial. Diaz argues that, under the facts of this case, the state was required to prove that Mr. Salomon’s murder occurred during the escape from the robbery to support a first-degree felony murder conviction. Diaz contends that by acquitting Diaz of the attempted felony murder of Koh, the jury necessarily determined that Diaz and the others had reached a temporary place of safety, and thus were no longer escaping the scene of the robbery, before the attempted murder of Koh occurred. The shots that were aimed at Koh actually killed Mr. Salomon, and Diaz argues that the state was foreclosed from arguing his murder occurred during the perpetration of the robbery in the second trial because the escape issue had already been decided in Diaz’s favor by the jury in the first trial.

After reviewing the record of the first trial, we disagree with Diaz. A rational jury could have determined that Diaz was not guilty of the attempted felony murder of Koh without deciding the escape issue, because attempted felony murder requires an intentional act in addition to the underlying felony. The crime of attempted felony murder is defined by statute: “Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree .... ” § 782.051(1), Fla. Stat. (2007). Therefore, unlike felony murder, attempted felony murder requires that the defendant commit, aid, or abet in “an intentional act that is not an essential element of the [underlying] felony.” Id.

In the first trial, while the jury convicted Diaz of the underlying robbery charges, the jury acquitted Diaz of actually firing the shots that killed Mr. Salomon, either as the actual shooter or under a theory of principals. The verdict indicates that the jury concluded the state had not proven beyond a reasonable doubt that Diaz committed, aided, or abetted in the actual firing of the shots aimed at Koh that killed Salomon. Nonetheless, the jury could have rationally based its acquittal on the attempted felony murder charge on the grounds that Diaz did not “commit, aid, or abet” in the actual shooting — not on the issue of whether the murder occurred during the escape from the robbery scene.

The jury’s verdicts in the first trial indicate the jury deadlocked on the precise issue Diaz claims the jury necessarily decided: whether the murder occurred during the escape from the robbery. First-degree felony murder is the unlawful killing of a human being when committed by a person engaged in the perpetration or attempted perpetration of enumerated crimes, including robbery. See § 782.04(l)(a)2„ Fla. Stat. (2007). Crucially, a defendant can properly be found guilty of felony murder because the defendant participated in the underlying felony and the murder occurred during the commission or escape from the underlying felony, even if the defendant did not commit the actual murder. See Hodge v. State, 970 So.2d 923, 927 (Fla. 4th DCA 2008) (“The focus in a felony murder charge is not on the accused’s participation in the murder but in the underlying felony. Because the victim was killed during the robbery in which [the defendant] participated, it matters not whether [the defendant] was the perpetrator of the shooting or merely participated in the robbery.” (citations omitted)); see also Ray v. State, 755 So.2d 604, 609 (Fla.2000) (“As we have previously held, the term ‘during the course of a robbery’ encompasses the period of time when the felons are in flight from the scene of the crime.” (citation omitted)).

In the first trial, the jury found Diaz guilty of participating in the underlying felony, thus the only disputed issue of the felony murder charge was whether the murder of Mr. Salomon occurred during the commission of the felony. Because the jury deadlocked on the felony murder charge but reached a verdict on the attempted felony murder charge, we conclude the logical explanation of the jury’s verdict is that the jury could not decide whether the murder occurred during the escape from the robbery, but the jury did decide that Diaz did not commit, aid, or abet in the intentional act of shooting at Koh. Accordingly, the trial court properly concluded that Diaz could not foreclose the escape issue from the jury’s consideration in the second trial. See Ferguson v. State, 946 So.2d 553, 554 (Fla. 4th DCA 2006) (“[Collateral estoppel does not apply if the verdict could be grounded upon an issue other than that which the defendant seeks to foreclose from consideration.” (citation and quotation marks omitted)).

Codefendant’s Testimony

We turn now to the second issue of this appeal: whether the trial court reversibly erred by allowing Diaz’s codefendant, Rodriguez, to testify in the presence of the Diaz jury. We begin with a discussion of the use of multiple juries.

Florida law allows for multiple juries as “a useful exercise in judicial economy.” Velez v. State, 596 So.2d 1197, 1199 (Fla. 3d DCA 1992). “The multiple jury procedure was designed to avoid Bruton problems and other general problems of prejudice that arise from joint trials.” Id. (citation and footnote omitted).

To the extent possible, we seek to avoid interfering in a trial court’s exercise of discretion regarding the procedural aspects of trials. See id. at 1200 (“A trial judge has very broad discretion in the procedural conduct of trials. In the absence of demonstrated prejudice, we are loathe to disapprove the novel procedure [dual juries] employed sub judice.” (citation omitted)). We do not wish to impede the development of innovative trial procedures that could potentially conserve judicial resources and lessen the personal burden for everyone connected to the process. See id. (“[T]he law is, and must be, dynamic and not static. Procedural law is no exception. Experience comes about as a result of experiment.” (citation omitted)).

Nevertheless, we must caution trial courts that “the use of dual juries is rife with the potential for error or prejudice.” Id. (citation omitted and emphasis removed). “Cases approving the use of multiple juries have commended the system for furthering judicial economy but have cautioned that a trial judge must take great care to insure that each jury hears evidence relevant only to its defendant.” Watson v. State, 633 So.2d 525, 525 (Fla. 2d DCA 1994) (citations omitted). As a New Mexico court analyzing the multiple juries procedure noted:

[W]e caution trial courts to bear in mind that the dual-jury procedure has the potential for engendering error, especially in complex cases, and requires great diligence on the part of the trial judge and cooperation of the attorneys to take the precautions necessary to ensure due process throughout the joint trial.

State v. Padilla, 125 N.M. 665, 964 P.2d 829, 834 (Ct.App.1998) (citations omitted).

Turning to the facts of this case, we hold that the trial court erred by allowing the Diaz jury to hear Rodriguez testify because Rodriguez gave testimony which would have not been admissible if Diaz and Rodriguez had completely severed trials. See People v. Cummings, 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1, 34-36 (1993) (stating that a defendant’s right to due process may be violated when use of separate juries allows otherwise inadmissible evidence to be introduced against a defendant, if such evidence results in “identifiable prejudice or gross unfairness” to the defendant) (citations and quotation marks omitted); cf. Minor v. State, 763 So.2d 1169, 1170 (Fla. 4th DCA 2000) (“While appellant argues that [the dual jury procedure] was error because of the antagonistic defenses, he fails to point to any place in the record where he objected to evidence or testimony that was heard by his jury as a result of the dual jury process which he now claims should not have been admitted in his case.”). To its credit, the state conceded that it could not argue that Diaz actually fired the shots that killed Mr. Salomon, but Rodriguez, in fact, gave this exact testimony. In effect, permitting the Diaz jury to hear Rodriguez’s testimony allowed Diaz to be directly and prejudi-cially accused of crimes for which he had already been acquitted.

Indeed, the Second District determined that it was error to allow a defendant’s jury to be present during the codefen-dant’s presentation of witness testimony when the witness testified against the defendant. Watson, 633 So.2d at 525-26. In that case, Watson and his codefendant were tried together with separate juries. Id. at 525. After the state rested its case against Watson, the codefendant presented a witness who testified that Watson was responsible for the crime and that the codefendant was not. Id. at 526. On appeal, the Second District concluded, with little discussion, that “it was error to allow Watson’s jury to remain in the courtroom during the taking of testimony in [the co-defendant’s] case,” and that the witness’s testimony was “extremely prejudicial” to Watson. Id. at 525-26. Similarly, we conclude that it was error to allow Diaz’s jury to be present during the testimony of Rodriguez when Rodriguez presented a defense adverse to Diaz.

The state contends that even if the trial court erred by allowing the Diaz jury to hear Rodriguez testify, the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). To show that the error was harmless, the state must prove “that there is no reasonable possibility that the error contributed to the conviction.” Id.

We cannot find the error to be harmless. Rodriguez accused Diaz of actually murdering Samuel Salomon when the state was barred from eliciting the same evidence. Rodriguez’s testimony likely affected the jury’s determination that Diaz was guilty of the felony murder of Mr. Salomon. Additionally, the jury could have reasonably construed Rodriguez’s testimony as weakening Diaz’s defense in which he argued that the codefendants had fully escaped from the robbery scene before the victim was murdered.

Diaz raises two additional issues, which we affirm without comment.

Affirmed in part; reversed in part; and remanded for new trial.

WARNER and GERBER, JJ., concur.

      . Florida Rule of Criminal Procedure 3.152(b) outlines the procedure for severance of defendants.

      .Certain principles of felony murder are relevant to this case, and we briefly outline them here:
      Section 782.04(2)d, Florida Statutes, [currently section 782.04(l)(a), Florida Statutes,] states that the killing of a human being, which occurs while a defendant is ‘‘engaged in the perpetration of” a robbery is murder in the first degree, or felony murder. The term "in the perpetration of” includes the period of time when a robber is attempting to escape from the scene of the crime. Absent some definitive break in the chain of circumstances beginning with the felony and ending with the killing, the felony, although technically complete, is said to continue to the time of the killing. The State must prove that there was no break in the chain of circumstances beginning with the felony and ending with the murder.
      Factors such as the relationship between the underlying felony and the homicide in point of time, place and causal relationship are important in determining whether there was a break in the chain of circumstances. In the case of flight, an important consideration is whether the fleeing felon has reached a place of temporary safety. If the killing is a predictable result of the felonious transaction, neither the passage of time nor separation in space from the felonious act to the killing precludes a felony murder conviction.

        Wagner v. State, 921 So.2d 38, 40-41 (Fla. 4th DCA 2006) (citations, quotation marks, and alteration omitted).

      . The state abandoned prosecution of count VIII, robbery with a firearm, before the first trial.

      . Wagner, 921 So.2d at 41 (citation omitted).

      . Rodriguez’s counsel informed the court that Rodriguez intended to testify. During a colloquy with the trial court, Rodriguez confirmed that it was his intent and decision to testify.

      . The prosecutor acknowledged that the state had argued Castillo was the actual shooter during the first trial. In some cases, it is "fundamentally unfair” for the state to “argue inconsistent theories of guilt against two co-defendants to the same crime.” State v. Gates, 826 So.2d 1064, 1069 (Fla. 2d DCA 2002).

      . In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the U.S. Supreme Court found that the introduction of the statement of a non-testifying codefendant that inculpates the defendant violates the defendant's Confrontation Clause rights, even if the defendant and codefendant were jointly tried. See id. at 127-28, 88 S.Ct. 1620. We note that the holding of Bruton does not itself require a reversal in the instant case because the trial court allowed Diaz to cross-examine Rodriguez.

      . In Watson, the Second District ultimately affirmed because Watson’s trial counsel failed to object to the Watson jury hearing the code-fendant’s witness testify, and the court concluded the error was not fundamental. Id. at 526-27. The court noted that Watson "might be able to prove that his counsel was ineffective in failing to request removal of Watson’s jury during [the codefendant’s] case.” Id. at 526.