source: Caselaw Access Project

author: PER CURIAM. CANADY, J.,

license: Public Domain

text:
    Javier Dejesus VENTURA, Petitioner, v. STATE of Florida, Respondent.
    No. SC08-483.
    Supreme Court of Florida.
    Feb. 18, 2010.

      Carlos J. Martinez, Public Defender, Roy A. Hiemlich and Andrew Stanton, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, Angel L. Fleming and Rolando A. Soler, Assistant Attorneys General, Miami, FL, for Respondent.
   PER CURIAM.

We have for review Ventura v. State, 973 So.2d 634 (Fla. 3d DCA 2008), in which the Third District Court of Appeal affirmed the admissibility of a Department of Corrections release-date letter as a permissible means of establishing the defendant’s status as a prison-releasee reoffen-der. See id. at 638. In the process, the Third District relied upon the reasoning and rule of law articulated in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc) (Yisrael I), disapproved in part, 993 So.2d 952 (Fla.2008). See Ventura, 973 So.2d at 638. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We stayed proceedings in this case pending our disposition of Yisrael, in which we (1) approved the decision of the First District in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So.2d 952, 960-61 (Fla.2008) (Yisrael II). We then accepted jurisdiction in this case to resolve the conflict between Ventura and the decisions of this Court in Yisrael II and State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

With regard to the Yisrael issue, the Third District relied upon the rule articulated in Yisrael I to erroneously state that a Department of Corrections (DOC) release-date letter standing alone is admissible under the public-records exception to the hearsay rule to establish a defendant’s criminal history for the purposes of imposition of a prison-releasee-reoffender sentence. This Court disapproved that rule in Yisrael II. However, upon review of the appellate record, it is clear that, although not reflected in the opinion of the Third District, the trial court was actually supplied with a signed release-date letter, written under seal, and an attached Crime and Time Report. In Yisrael II, we held that these DOC records can together be used to render the entire report admissible as a public record. See Yisrael II, 993 So.2d at 960-61 (approving usage of the signed release-date letter, written under seal, as authentication of an attached Crime and Time Report); see also §§ 90.803(6), 90.902(11), Fla. Stat (2003). Further, Ventura concedes that both documents (i.e., the signed release-date letter under seal and the Crime and Time Report) were provided to the trial court. Accordingly, as we did in Yisrael II, we approve the ultimate result reached by the Third District Court of Appeal below because the signed and under seal release-date letter provided in this case was used as a permissible means of authenticating an attached Crime and Time Report, but disapprove its reliance upon the rule expressed in Yisrael I. See Yisrael II, 993 So.2d at 960-61; see also Smith v. State, 990 So.2d 1162, 1164-65 (Fla. 3d DCA 2008); Parker v. State, 973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007), review denied, 1 So.3d 173, 2009 WL 427313 (Fla.2009).

Next, the district court improperly utilized an “overwhelming evidence” test when considering whether the impermissible testimony of a witness which clearly undermined and violated the Fifth Amendment right to remain silent constituted harmless error. Unlike some evi-dentiary errors, such as the admission of a cumulative or irrelevant photograph, a comment on the right to remain silent strikes at the heart of our criminal justice system. This Court has clearly stated that it is constitutional error to penalize an individual for exercising the Fifth Amendment privilege; therefore, the prosecution may not introduce during trial the fact that an individual has relied upon this protection in the face of accusation. See Simpson v. State, 418 So.2d 984, 984-85 (Fla.1982) (quoting Jones v. State, 200 So.2d 574, 576 (Fla. 3d DCA 1967)); see also DiGuilio, 491 So.2d at 1131. As we stated in DiGuilio:

It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict and that an appellate court, or even the trial court, is likely to find that the comment is harmful under Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)].

491 So.2d at 1136-37. Accordingly, commenting on the silence of an accused is not a viable strategy for obtaining convictions, and any comment — direct or indirect — by anyone at trial on this right is constitutional error that should be avoided. See DiGuilio, 491 So.2d at 1136, 1139.

During the trial proceedings below, a detective made two comments with regard to Ventura’s silence, as follows:

A. Along with the victims, the defendant’s [sic] wouldn’t give any statements.
A. Yes. The suspects were in custody and the defendant then declined to make statements.

(Emphasis supplied.) The Third District determined that the comments were improper and stated: “We fail to see how the detective’s comment, twice repeated, could have been anything other than an intentional cheap shot at Ventura’s constitutional rights.” Ventura, 973 So.2d at 637. The court clearly and correctly recognized the egregious conduct. However, the district court then held that the error was “harmless beyond a reasonable doubt given the overwhelming evidence of guilt.” Id.

Unfortunately, the Third District expressed an incorrect harmless error analysis. In DiGuilio, we fully explicated the application of the harmless error doctrine to a comment on a defendant’s right to remain silent. In doing so, we explicitly expressed that the harmless error analysis is not an “overwhelming-evidence test.” DiGuilio, 491 So.2d at 1139.

[Harmless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence. ...
Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution’s case may have played a substantial part in the jury’s deliberation and thus contributed to the actual verdict reached, for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result.
The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict ....
... The test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The test is not a suffí-cieney-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is ivhether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

DiGuilio, 491 So.2d at 1136, 1138-39 (citations omitted) (emphasis supplied) (quoting People v. Ross, 67 Cal.2d 64, 60 Cal.Rptr. 254, 429 P.2d 606, 621 (1967) (Traynor, C.J., dissenting), rev’d, 391 U.S. 470, 88 S.Ct. 1850, 20 L.Ed.2d 750 (1968)).

Since restating the test in DiGuilio, this Court has provided further guidance on the correct analysis of harmless error. For example, in Rigterink v. State, 2 So.3d 221 (Fla.2009), petition for cert, filed, No. 08-1229, 7 U.S.L.W. 3563 (Mar. 31, 2009), this Coui't discussed and applied the harmless error analysis in a circumstance where competent, substantial evidence supported the convictions, but the record did not demonstrate beyond a reasonable doubt that the error did not contribute to the verdict.

In sum, the evidence suggests that Rigterink has entangled himself in a web of deceit and these circumstances may indicate guilt. However, our harmless-error test is not guided by a sufficiency-of-the-evidence, correct-result, not-clearly-wrong, substantial-evidence, more-probable-than-not, clear-and-convincing, or overwhelming-evidence test. If any of these tvere the proper test, we might agree that the admission and publication of Rigterink’s videotaped interrogation constituted harmless error. The simple answer to the simple question of whether there is competent, substantial evidence to support the charges that Rigterink committed these mines is ‘Tes.” However, the actual question that we must ask — and the constitutional protection that we must address — are not so simple. We have specifically rejected sufficiency-of-the-evidence approaches through our decision in DiGuilio, and we will not recede from established precedent by, on the one hand, paying lip service to its requirements and then, on the other, employing reasoning that would be clearly contrary to the pertinent legal standard....
Under a proper analysis, we conclude that the jury most assuredly, and very seriously, considered and substantially included Rigterink’s videotaped interrogation in reaching its verdicts. Therefore, the erroneous publication and admission of this videotape during Rigterink’s capital trial “contributed to” his convictions.... [W]e reverse Rigterink’s convictions and sentences and remand for a new capital trial during which this videotape is excluded. This is not because Rigterink is innocent; rather, it is because the rules established to guard fundamental constitutional protections were not followed, and, under these facts, we camiot say that the videotape — which should have been suppressed based upon proper legal analysis — did not “contribute to” Ids convictions. The murders committed in this case were horrific, gruesome, and worthy of condemnation; moreover, there is evidence to support the verdicts returned by the juiy. However, the rule of law must prevail and we must not allow the ends of punishment to trump the means that our state and federal Constitutions require.
We are not nor do we consider ourselves a super-jury; rather, we are an appellate tribunal charged with the task of determining “whether there is a reasonable possibility that the error affected the verdict.” If such a possibility exists, it is our duty to remand for a new trial, which shall be free from the offending error. The test is not whether the jury reached rvhat rwe believe to be the cornet result but is, instead, whether a reasonable possibility exists that the constitutional violation contributed to the defendant’s convictions.

Id. at 255-57 (citations omitted) (some emphasis supplied) (quoting DiGuilio, 491 So.2d at 1189).

The district court noted only one factor in the harmless error analysis (i.e., permissible evidence of guilt), but that one factor is not the determinative test. We have explicitly rejected the overwhelming evidence test as a proper analysis of harmless error. Specifically, the decision of the Third District does not address a proper analysis and does not discuss whether there is a reasonable possibility that the constitutional error affected the verdict. Our colleague in dissent suggests that our decision is based on an erroneous assumption that the district court failed to give consideration to the correct harmless error analysis. We cannot assume that an analysis was conducted or review that which remains hidden behind the written opinion. In other words, the decision does not reflect any consideration by the appellate court of whether the impermissible comments contributed to the conviction, as required in an analysis of harmless error. Instead, as written, the appellate court appears to have “substitute[d] itself for the trier-of-faet by simply weighing the evidence” instead of focusing on the “effect of the error on the trier-of-fact.” DiGuilio, 491 So.2d at 1139 (emphasis supplied). It is important for the test to be “conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review.” Id.

The harmless error rule functions to conserve judicial labor while providing an “equal degree of protection for the constitutional right to a fair trial, free of harmful error.” Id. at 1135. The analysis of the impermissible comments in the decision below and the announced principle of law does not demonstrate this balance.

Accordingly, we quash and remand to the Third District Court of Appeal for reconsideration upon application of our decision in DiGuilio. In addition, we approve the ultimate result reached by the Third District on the Yisrael issue, but disapprove its analysis and reasoning based upon the rule expressed in Yisrael I.

It is so ordered.

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

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

dissenting.

I disagree with the majority’s decision to quash and remand the decision of the Third District Court of Appeal. On the Yisrael issue, the majority recognizes that the Third District reached the correct result. On that basis, I would discharge jurisdiction on the Yisrael issue. For the reasons I will explain, I would also discharge jurisdiction on the DiGuilio issue.

With respect to the DiGuilio issue, I disagree with the majority’s conclusion that “the district court improperly utilized an ‘overwhelming evidence test’ ” and therefore “expressed an incorrect harmless error analysis.” Majority op. at 1088-89. This is not a case in which the appellate court failed to acknowledge the DiGu-ilio standard. The Third District aecu-rately stated the DiGuilio standard: “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Ventura v. State, 973 So.2d 634, 637 (Fla. 3d DCA 2008) (emphasis added) (quoting DiGuilio, 491 So.2d at 1138).

Notwithstanding this express and correct acknowledgement of the DiGuilio standard by the Third District, the majority here concludes that the Third District’s decision “does not reflect any consideration by the appellate court of whether the impermissible comments contributed to the conviction.” Majority op. at 1091. For the majority to reach that conclusion, it must assume that the district court failed to give any consideration to the precise test which the district court stated as the governing test. Such an assumption is unwarranted.

In condemning the district court’s reference to “overwhelming evidence,” the majority condemns an element of harmless error analysis which this Court itself has repeatedly employed. In numerous cases, we have expressly relied on the existence of overwhelming evidence of guilt in reaching the conclusion that an error was harmless. See, e.g., Hojan v. State, 3 So.3d 1204, 1210 (Fla.2009) (“Based on this other extensive evidence, we conclude that even if admission of the statement was error, it was harmless error.”), cert. denied, — U.S. -, 130 S.Ct. 741, — L.Ed.2d -, 78 U.S.L.W. 3319 (2009) (No. 09-5780); Fitzpatrick v. State, 900 So.2d 495, 517 (Fla.2005) (stating in harmless error analysis that “[tjhere was overwhelming permissible evidence of Fitzpatrick’s guilt”); Hutchinson v. State, 882 So.2d 943, 952 (Fla.2004) (stating in harmless error analysis that imjDroperly admitted “testimony adds little, if anything, to the overwhelming evidence of guilt”); Walton v. State, 847 So.2d 438, 448 (Fla.2003) (“Clearly, taken in conjunction with the presence of the overwhelming evidence before the court supporting its conclusions as to Walton’s leadership role in the burglary planning, this mistaken statement by the trial court within its final order was harmless.”); Chavez v. State, 832 So.2d 730, 754, 762 (Fla.2002) (stating that “given the overwhelming evidence of Chavez’s guilt, the error in admitting his last confession would be harmless” and stating that “[g]iv-en the overwhelming evidence of Chavez’s guilt, on this record, there is no possibility that admission of the [bloody] mattress contributed to the outcome of the proceedings”); Henyard v. State, 689 So.2d 239, 248 (Fla.1996) (relying in harmless error analysis on conclusion that “the other evidence presented at trial of Henyard’s guilt was extensive and overwhelming”).

There is no question that “overwhelming evidence” cannot be the alpha and omega of harmless error analysis. Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) — which articulated the harmless error standard from which the DiGuilio standard was derived — itself questioned the California courts’ “emphasis, and perhaps overemphasis, upon the court’s view of ‘overwhelming evidence.’ ” Nonetheless, in Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the Court concluded that the erroneous admission of the confessions of codefendants who did not take the stand was harmless beyond a reasonable doubt under the Chapman standard because “apart from [those confessions] the case against Harrington was so overwhelming.” See also Schneble v. Florida, 405 U.S. 427, 431, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (referring in harmless error analysis to “overwhelming” “independent evidence of guilt”).

In determining whether beyond a reasonable doubt an error did not contribute to a guilty verdict, the weight of the properly admitted evidence must be evaluated. The United States Supreme Court has recognized that in harmless error analysis, an error must “be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (emphasis added). Likewise, in DiGuilio we acknowledged the required “analysis of the strength and nature of the permissible evidence of guilt and of the strength and nature of the impermissible” matters presented to the jury. 491 So.2d at 1137 (emphasis added). A conclusion that the properly considered evidence of guilt is overwhelming may naturally flow from such a quantitative assessment or analysis of the strength and nature of the evidence.

As the precedents mentioned above amply demonstrate, a reviewing court’s reference to overwhelming evidence of guilt does not establish that the court employed an incorrect test for harmless error. I therefore dissent from the majority’s application of a requirement which is inconsistent with the precedents of this Court.

POLSTON, J., concurs.

      . Yisrael v. State, 993 So.2d 952 (Fla.2008).

      . State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


text:
    Alwin C. TUMBLIN, Appellant, v. STATE of Florida, Appellee.
    No. SC07-2111.
    Supreme Court of Florida.
    Feb. 25, 2010.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, Lisa-Marie Lerner and Leslie Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Alwin C. Tumblin appeals from a judgment of conviction of first-degree murder and a sentence of death, as well as a conviction for robbery with a firearm. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we reverse the convictions, vacate the sentence of death, and remand for a new trial. We conclude that reversible error occurred in the guilt phase of the trial, which affected both the guilt phase and the penalty phase, when a police officer gave his opinion of the truthfulness of a key State witness.

FACTS AND PROCEDURAL HISTORY

Overview

This case involves the May 24, 2004, murder of Jimmy Johns, the owner of Jimmy’s Auto Clinic in Fort Pierce, Florida. Forensic Pathologist and District Medical Examiner Dr. Roger Mittleman testified that Jimmy Johns died as a result of a bullet that entered the left side of his head, traveled through his brain, and lodged in the right rear portion of his brain. Gun powder stippling on the left side of Johns’ head indicated a close but not contact gun shot.

On the day of the murder, Elizabeth Hobson, who worked at the Auto Zone store across from Jimmy’s Auto Clinic, heard a gunshot as she was leaving for lunch. She saw Johns lying on the floor of his shop, and then she saw a short, stocky black “kid” running from the shop with a white towel in his hand. A minute or so later, she saw another black man come out of the shop and leave in a yellow car that looked like a retired taxicab. Another witness, Susan Ooley, also saw a yellow taxicab-like car parked near the auto shop at the time of the murder. She saw someone running from the shop but did not see anything in his hand. Employees of the shop returned from lunch a little after 1 p.m. and found Johns’ body.

Alwin C. Tumblin, age twenty-five at the time, was ultimately indicted and convicted for the murder as well as the armed robbery of Johns. During the investigation, Tumblin’s friend, Anthony Mayes, was also considered to be a suspect. When finally located by Sheriffs Department Lieutenant Dennis Smith, Mayes was handcuffed and taken into custody. He immediately said he wanted to talk, but only to Lieutenant Smith, who had previously spoken with his grandmother. Mayes was taken to the Fort Pierce police station where he was advised of his Miranda rights. He was informally interviewed by Lieutenant Smith before giving a taped interview to Detective Joe Coleman and State Attorney Investigator Jeff Hamrick. Mayes’ statements to police implicated Tumblin as the planner of the crimes and as the person who shot Jimmy Johns. No DNA evidence linked Tumblin directly to the murder. The only eyewitness who testified that Tumblin shot Johns was Mayes, who entered a plea to second-degree murder and agreed to testify at trial in exchange for a maximum sentence of twenty years. We discuss the evidence in detail because an error occurred in the guilt phase, during Lieutenant Smith’s testimony concerning the statements made by Mayes, which deprived Tumblin of a fair trial.

Trial Testimony

Jimmy Johns was the owner and operator of Jimmy’s Auto Clinic. On the morning of May 24, 2004, Tumblin, his girlfriend Theresa York, and his friend Anthony Mayes, were at the home of Tumblin’s sister, Rhonda Tumblin. At the time, Tumblin and York were both staying in Rhonda’s home and sleeping in her bedroom. Mayes testified that Tum-blin began “boosting” him up that morning, or attempting to persuade him to participate in a robbery and that Tumblin said he would pay Mayes $300 to act as a lookout. Mayes testified that he heard Tumblin tell York to call Wal-Mart about some bullets and that Tumblin and York then left for a short time. Mayes testified that Tumblin and York later returned to Rhonda’s home and, sometime around noon on May 24, Tumblin and Mayes left in York’s yellow Grand Marquis automobile, which looked like a retired taxicab. Mayes testified that Tumblin took a gun from the waistband of his pants and placed it under the seat of the car, and that Tumblin commented during the ride that “he was gonna kill everybody that exists as if whoever is in there.” According to Mayes, they proceeded to Jimmy’s Auto Clinic with Tumblin driving and Mayes in the passenger seat, a trip that took about twenty to twenty-five minutes. On arrival, Tumblin parked the car in front and walked into the auto shop. Mayes testified that he followed Tumblin into the shop where they waited outside the shop office while Johns completed a telephone call.

Mayes testified that when Johns approached them, Tumblin first asked him about a car part but then asked, “Where is it at?” When Johns indicated that he did not understand, Tumblin asked, “Where is the money at?” Mayes testified that after Johns gave Tumblin money and a money clip from his pocket, Tumblin pulled the gun from the back of his pants waistband and held it to Johns’ head. Mayes reported that Tumblin asked Johns, “What you think about this?” According to Mayes, Tumblin then pulled the trigger, killing Johns, who was sixty-seven years old. Mayes said that as he started to run away, he saw Tumblin go toward Johns’ office, where it was later discovered that envelopes with checks to pay the shop’s bills were missing.

When Tumblin returned to his sister’s house, Jean Nicole Ruth, a friend of Mayes, heard Tumblin say, “The cracker dead and Head [Mayes’ nickname] ran.” Jean Nicole Ruth also testified that when Tumblin returned, she saw him with some papers and envelopes. She said York and Rhonda opened the envelopes and Rhonda took them outside, along with a pan. Although she did not see it, she concluded that Rhonda burned them in the backyard. No envelopes, checks or burnt remains were ever recovered. Later, Rhonda Tumblin borrowed Jean Nicole Ruth’s yellow Buick to go to Rhonda’s aunt’s house. On the way, Rhonda was hailed down by Tumblin, who was on foot next to the road, and by York, who was standing across the street. Rhonda picked up Tumblin and York in the Buick and they drove to Tum-blin’s aunt’s house. In the meantime, based on reports from witnesses at the scene, the police were looking for a yellow car that looked like a retired taxicab. When Tumblin, his sister, and York arrived at the aunt’s house, they found no one home but, while there, were approached by the police, who inquired about the names of the driver and passengers. Tumblin’s sister was then allowed to drive away with Tumblin and York, but about ten minutes later, when they drove into an Amoco station, the car was surrounded by police, who took them to the police station. This second stop was the result of a police helicopter spotting another yellow car, the cai’ that resembled a taxicab, parked behind Rhonda Tumblin’s house. Tumblin’s sister testified that as they were driving to the gas station, they saw the helicopter and Tumblin said, “The cracker must be dead.”

When the police went to Rhonda’s house to investigate, Officer Kathleen Murphy saw a black woman flee the home through a window. The woman was later identified as Jean Nicole Ruth. A search warrant was obtained to search the house, and the search revealed a .32 caliber revolver under some clothes on a chair in the room where Tumblin and York had been sleeping. Four Remington-Peters bullets were found under a pillow on a bed. Evidence at trial showed that at 9:53 a.m. on May 24, 2004, a person with a birth date of November 11, 1981, bought Remington-Peters ammunition at the Fort Pierce Wal-Mart. Theresa York’s birth date, according to her driver’s license, is November 11,1981.

Fort Pierce police officer Hall Soloman found an expended pistol cartridge lying outside the auto repair bay door at the crime scene and found an unfired Remington-Peters bullet inside the doorway of the bay. Mark Chapman, firearms expert with the Indian River Crime Laboratory, testified that the bullet removed from Johns’ brain and the cartridge casing found at the scene were fired from the same .32 caliber revolver found in the search of Tumblin’s sister’s home.

The Verdict and Sentence

On a special verdict form, the jury found Tumblin guilty of both premeditated and felony murder. The jury also found him guilty of robbery with a firearm. The case proceeded to the penalty phase on June 25, 2007, after which the jury unanimously recommended a sentence of death. In the sentencing order entered on September 25, 2007, the court found the following aggravators: (1) Tumblin had prior convictions for felonies involving the use or threat of violence (great weight); (2) the murder was committed while the defendant was engaged in commission, attempt to commit, or flight after commission of a robbery, merged with the aggravator that the murder was committed for pecuniary gain (great weight); and (3) the murder was committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification (CCP) (great weight). The trial court found no statutory mitigation but did find nonstatutory mitigation as follows: (1) poor family life— Tumblin grew up in a dysfunctional family characterized by abuse and neglect (impoverished abusive environment) (some weight); (2) poor mental state — below-average intelligence, behavioral disorders, antisocial impulsive conduct, adolescent brain injury, and suicidal behavior (little weight); (3) Tumblin loves his mother and sister and his children, and they love him in return (little weight); and (4) Tumblin was well-behaved during trial and the penalty hearing (very little weight). We turn now to the guilt phase issues raised by Tumblin.

ISSUES ON APPEAL

Tumblin raises three guilt phase issues in this appeal. We discuss two of these issues in detail — the admission of Anthony Mayes’ prior consistent statement through the testimony of Lieutenant Smith and Smith’s testimony that essentially vouched for Mayes’ truthfulness. While we reverse based on the second issue, we also discuss the first issue because both arose out of Smith’s testimony relating to Anthony Mayes. We do not reach the third guilt phase issue because it is not an issue that is likely to reoccur in the retinal of this case. First, however, pursuant to our mandatory duty, we must examine the sufficiency of the evidence.

Sufficiency of the Evidence

Before remanding for a new trial, we must analyze the sufficiency of the evidence because if there was insufficient evidence on which to convict Tumblin of this murder, it is our obligation to reverse the convictions with directions to grant judgments of acquittal. See McDuffie v. State, 970 So.2d 312, 329 (Fla.2007). Although Tumblin does not challenge the sufficiency of the evidence in this case, we have a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed, even if the issue is not raised on appeal. See Jones v. State, 963 So.2d 180, 184 (Fla.2007).

The evidence, the most incriminating of which was presented through the testimony of Anthony Mayes, was sufficient for the jury to find that he and Tumblin went to Jimmy’s Auto Clinic to perpetrate a robbery and that, once there, Tumblin demanded and received money from Johns. According to Mayes, Tumblin took a handgun with him in the car and that on the way to the auto shop, Tumblin announced that he planned to kill anyone there who either “existed” or “resisted”— Mayes was not sure which word was used. Mayes also testified that after Tumblin was given money by Johns, who did not resist, Tumblin put a gun close to Johns’ head and pulled the trigger. The medical examiner testified that Johns died from a single gunshot to his left temple and that gunpowder stippling around the entry wound showed the shot to have been fired from very close range. Thus, sufficient competent, substantial evidence supports the jury’s verdict and the judgment of conviction for first-degree murder. We turn now to examination of the testimony of Lieutenant Smith, which we conclude contained error that deprived Tumblin of a fair trial and which necessitates our reversal for a new trial.

The Testimony of Lieutenant Smith

Tumblin contends that the trial court abused its discretion in denying his motion for mistrial made during Lieutenant Dennis Smith’s testimony when Smith testified that he told Detective Coleman he thought that Mayes would tell him the truth. As explained below, we agree that a mistrial should have been granted. Tumblin also contends that the trial court abused its discretion in allowing Lieutenant Smith to tell the jury about Mayes’ prior statement that was consistent with his trial testimony. Although we do not find merit in this claim, we discuss it in some detail because the content and chronology of the testimony of Mayes and Smith are important to our discussion of this issue.

Mayes testified first and told the jury that Tumblin had convinced him to participate in the robbery and that once at Jimmy’s Auto Clinic, Tumblin robbed Johns and without provocation shot him in the head at close range. Later during that same day of trial, Lieutenant Smith, an officer with the St. Lucie County Sheriff s Department, testified that he arrested Anthony Mayes on July 9, 2004. Mayes was anxious to talk to Smith about the crimes and, even though Smith urged Mayes to wait for the other officers in charge of the investigation, Mayes did recount details of the crime first to Smith. Over objection, the trial court allowed Smith to tell the jury what Mayes told him about the robbery and murder prior to Mayes giving a formal recorded statement on the day he was arrested. Smith testified as follows:

Q. [prosecutor]: Lieutenant, go ahead, what did Mr. Mayes tell you?
A. [Smith]: He told me about being at a house, I believe, on 14th Street earlier in the day, the day of the homicide with the subject he referred to as Man. He told me that Man was — he used the term “boosting.” I understood that to mean encouraging, persuading him to go do a robbery with Man. That Man and his girlfriend went to Wal-Mart to get a box of ammunition, that they called there first. That Man promised him $300 from the proceeds of the robbery. That he told him that — that Man told him that if the victim bucked, meaning if he resists or bucked up, that he was gonna cap him.
Q. Go ahead.
A. And that they went to do the robbery. That he saw Man shoot the victim in the head, told us approximately how far away he was when that occurred.
Q. How far away who was?
A. Mayes. How far away — he told us approximately how far away Mayes was and how far away from the victim Man was when he fired the shot.
Q. How close did he say Man was to the victim when he shot him?
A. As I recall, he — he—very close. I think he may have even stuck the gun to his head.

This prior statement was consistent with the trial testimony Mayes had given earlier that day.

“Generally, prior consistent statements are inadmissible to corroborate or bolster a witness’s trial testimony” because they are usually hearsay, but a prior consistent statement may be admitted as non-hearsay if certain conditions are met. Taylor v. State, 855 So.2d 1, 22-23 (Fla.2003). The trial court found that Mayes’ prior consistent statement in this case was admissible under section 90.801(2)(b), Florida Statutes (2008). Section 90.801(2)(b), Florida Statutes, provides that prior statements that are “Consistent with the de-clarant’s testimony and are offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication” are not inadmissible hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement. § 90.801(2)(b), Fla. Stat. (2008).

In reviewing the trial court’s decision to admit Mayes’ prior consistent statement in this case, our standard of review is abuse of discretion. See Hudson v. State, 992 So.2d 96, 107 (Fla.2008) (stating that the standard of review of a trial court’s decision to admit evidence is abuse of discretion), cert. denied, — U.S. -, 129 S.Ct. 1360, 173 L.Ed.2d 621 (2009). We conclude that under the circumstances in this case, the trial court did not abuse its discretion when it allowed Smith to testify about Mayes’ prior statement, which was consistent with Mayes’ trial testimony. Defense counsel’s earlier cross-examination of Mayes first suggested that Mayes’ taped statement was only a regurgitation of what Smith had prompted him to say. Other portions of the cross-examination suggested that Mayes was testifying falsely against Tumblin in order to preserve a favorable plea agreement he reached with the State sometime after he gave his initial statements. Defense counsel cross-examined Mayes about the details of his plea agreement and implied that Mayes testified at trial as he did against Tumblin in order to preserve his favorable plea deal and twenty-year sentence.

The cross-examination of Mayes impliedly charged that Mayes testified as he did at trial due to improper influence and that his trial testimony was a recent fabrication intended to preserve his plea deal. Both-of these grounds are a basis for admission of prior consistent statements under section 90.801(2)(b), Florida Statutes. Thus, the admission of Mayes’ prior consistent statement was not an abuse of discretion. See Chamberlain v. State, 881 So.2d 1087 (Fla.2004) (holding prior consistent statement admissible where it was made after the codefendant was arrested but before plea negotiations with the State because defense counsel implied witness was testifying against the defendant to protect a favorable plea deal and sentence); Rodriguez v. State, 609 So.2d 493, 500 (Fla.1992) (holding prior consistent statements admissible because “[djefense counsel’s references to plea agreements with the state during cross-examination [of the witness] were sufficient to create an inference of improper motive to fabricate”); Jackson v. State, 599 So.2d 103, 107 (Fla.1992) (holding that a prior consistent statement was admissible to rebut the inference that the codefendant had a motive to fabricate in light of agreement to testify against Jackson). Although we find that the trial court did not abuse its discretion in allowing Lieutenant Smith to testify about Mayes’ prior consistent statement, that testimony plays a part in our separate determination that other testimony given by Smith, for which Tumblin sought a mistrial, requires a new trial.

During Lieutenant Smith’s direct examination testimony, immediately after Smith recounted Mayes’ prior consistent statement to the jury, the following colloquy occurred:

Q. [prosecutor to Lt. Smith] Did you then recount that or summarize that statement that he gave you to Detective Coleman and Investigator Hamrick when they returned?
A. [Lt. Smith] Yes.
Q. Did you — when you recounted this — when you recounted his version, did you add anything or suggest anything he should say in the future?
A. Only — no, nothing in particular that he should say. I did assure Detective Coleman in front of Mayes that I felt like Mayes would — would tell him the truth.

(Emphasis added.) Tumblin’s counsel objected to this comment on Mayes’ veracity, and the trial court struck the comment. The trial court agreed with Tumblin that Smith “was vouching to another officer that he felt like [Mayes] was going to tell him the truth.”

“[Allowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury to determine a witness’s credibility.” Seibert v. State, 923 So.2d 460, 472 (Fla.2006) (quoting Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993)). “It is clearly error for one witness to testify as to the credibility of another witness.” Acosta v. State, 798 So.2d 809, 810 (Fla. 4th DCA 2001). Moreover, “[i]t is especially harmful for a police witness to give his opinion of a witnesses’ [sic] credibility because of the great weight afforded an officer’s testimony.” Seibert, 923 So.2d at 472 (quoting Page v. State, 733 So.2d 1079, 1081 (Fla. 4th DCA 1999)); see also Acosta, 798 So.2d at 810. “Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions.... ” Bowles v. State, 381 So.2d 326, 328 (Fla. 5th DCA 1980); see also Lee v. State, 873 So.2d 582, 583 (Fla. 3d DCA 2004) (holding police officer’s comment that witness was credible and positive in her pretrial lineup identification was error requiring new trial); Olsen v. State, 778 So.2d 422, 423 (Fla. 5th DCA 2001) (“[I]t is considered especially harmful for a police officer to give his or her opinion of a witness’ credibility because of the great weight afforded an officer’s testimony.”); cf. Perez v. State, 595 So.2d 1096, 1097 (Fla. 3d DCA 1992) (stating that improper admission of police officer’s testimony to bolster the credibility of a witness cannot be deemed harmless).

The case of Acosta v. State is illustrative of the similar problem we face in this case. In Acosta, the district court reversed the conviction for uttering a forged instrument and grand theft because of a statement by a police officer witness that bolstered the credibility of a key state’s witness, Sarah Riley, who had been involved with Acosta in the crimes. 798 So.2d at 809. When the officer was asked why a handwriting sample was not taken from Riley, he responded, “Up until that point, everything Sarah Riley told me appeared to be truthful.” Id. Acosta’s motion for mistrial was denied but the court gave a curative instruction to the jury to disregard the comment. Id. The Fourth District held that it is clear error for one witness to offer his personal view on the credibility of a fellow witness, especially where the witness offering the view is a police officer, because of the great weight accorded an officer’s testimony. Id. at 810. In reversing, the district court held:

Riley was the key witness for the state, and the state’s case hinged primarily on her credibility. She was an admitted participant in the crime, but was not charged. She testified that she had not, but that the appellant had forged the check. The state’s handwriting expert could only corroborate her testimony to the extent he believed it was “probable” that it was appellant’s handwriting. He found significant similarities between the signature on the check and appellant’s handwriting, and dissimilarities which could not be accounted for. This expert has various classifications which he uses to explain the strength of his opinion, and this classification was third from the strongest.
Because Riley’s testimony was crucial and the defense’s main emphasis was on her lack of credibility, we cannot agree with the State that the error was harmless or that it was cured by the instruction. We therefore reverse and remand for a new trial.

Id. Similarly, in the instant case, the trial court sustained the objection, struck the comment, and later gave a curative instruction. Even so, as we explain below, we conclude that the curative measures did not erase the taint of the testimony and, as a result, the trial court abused its discretion in denying Tumblin’s motion for mistrial. “The giving of a curative instruction will often obviate the necessity of a mistrial. However, there are some instances in which the prejudice is so great that it is impossible To unring the bell’ ” Graham v. State, 479 So.2d 824, 825-26 (Fla. 2d DCA 1985) (citation omitted).

“[T]his Court reviews a trial court’s ruling on a motion for mistrial under an abuse of discretion standard.” Salazar v. State, 991 So.2d 364, 371 (Fla.2008), cert. denied, — U.S. -, 129 S.Ct. 1347, 173 L.Ed.2d 614 (2009); see also Perez v. State, 919 So.2d 347, 363 (Fla.2005); Floyd v. State, 913 So.2d 564, 576 (Fla.2005). The motion should be granted “only when 'it is necessary to ensure that the defendant receives a fair trial.” Salazar, 991 So.2d at 372 (quoting Cole v. State, 701 So.2d 845, 853 (Fla.1997)). In the present case, as the trial court noted:

Other than Anthony Mayes, is there any evidence that Alwin Tumblin shot Jimmy Johns? The answer is no, it’s all circumstantial and nobody puts him on the scene, nobody sees what happened, nobody saw him with a gun that day, nobody said he drove over there that day. Everything that places him at the scene and committing that murder comes from Anthony Mayes.

The trial court also questioned whether the State could prove premeditation without Mayes’ testimony. Smith’s testimony concerning Mayes’ truthfulness occurred after the jury heard Mayes’ version of events, which also matched Mayes’ prior consistent statement related by Smith to the jury. Because Mayes gave the same version of events to Lieutenant Smith informally that he testified to at trial, Smith’s vouching for his truthfulness could be reasonably inferred by the jury to extend to Mayes’ veracity at trial. Under these circumstances and the facts of this case, in which Mayes gave the only eyewitness testimony that Tumblin committed the murder and did so in a premeditated manner, we conclude that the trial court abused its discretion in denying the motion for mistrial.

We also find that Mayes’ critical eyewitness testimony in the guilt phase was an essential component of the evidence of aggravation relied upon by the State and the court in the penalty phase. The trial court found that the murder was committed in a cold, calculated, and premeditated manner (CCP) based in large part on Mayes’ testimony that Tumblin took a gun from the waistband of his pants and coldly aimed it at Johns, asking, “What you think about this?” This evidence came solely from Mayes. The trial court also relied on Mayes’ testimony that Tumblin convinced him to commit the robbery and be a lookout. Again, this fact came only from Mayes. In finding CCP, the trial court also relied on Mayes’ testimony that on the way to Jimmy’s Auto Clinic, Tumblin told Mayes he would kill everybody “that exists” there. The trial court noted evidence from Mayes that he did not know where the robbery would occur and Tumblin had chosen the target business in advance. The trial court also cited testimony that came only from Mayes that Johns did not resist in any way before being shot.

The heavy reliance by the trial court on testimony given by Mayes.in establishing CCP is summed up in the following excerpt from the sentencing order:

In the days, hours and minutes preceding this robbery and murder, the Defendant procured a firearm, obtained ammunition, secured an accomplice (Anthony Mayes), stayed at his sister’s house in Fort Pierce the night before, drove to Jimmy’s Auto Clinic with Anthony Mayes proclaiming that he would commit murder in the process, found Jimmy Johns alone at Jimmy’s Auto Clinic, robbed him without incident and then shot him in the head, execution-style. It is noteworthy that neither the Defendant nor Anthony Mayes attempted to disguise their identities. Further, the Defendant chose to drive to and flee from the murder scene in an emphatically distinct, yellow taxicab-looking car. Also, the Defendant engaged the victim in a conversation about a car part before asking Mr. Johns where the money is. In this otherwise well-planned and orchestrated “robbery” the Defendant took no precautions to prevent or minimize his identification by any would-be victim. To be sure, he had no intentions of leaving any survivors as further evidenced by his statement to Anthony Mayes before the robbery and murder [that he would kill anyone who exists there].

Thus, it can be seen that Anthony Mayes’ testimony — and his credibility before the jury and the court — was instrumental in the jury finding Tumblin guilty of first-degree premeditated and felony murder and in the trial court finding that the murder was cold, calculated, and premeditated. Because Lieutenant Smith improperly volunteered testimony that essentially vouched for Mayes’ credibility in a manner that tied his credibility both to the version of events Mayes gave to officers prior to trial and to the same version of events he gave the jury during trial, we conclude that Tumblin did not receive a fair trial. Although the trial court correctly recognized the error, struck the testimony, and later gave a curative instruction, these corrective measures could not erase the inescapable impression upon the jury that Lieutenant Smith believed the version of events testified to by Mayes was truthful.

Under the facts and circumstances present in this case, we find that Smith’s testimony that he believed Mayes would tell the truth deprived Tumblin of a fair trial. We are thus constrained to reverse and remand for a new trial. This reversal and remand for a new trial obviates the need for us to reach any of the penalty phase claims or the issue of proportionality in this case.

CONCLUSION

Accordingly, for the reasons explained above, we reverse Tumblin’s convictions and sentences, and we remand for a new trial.

It is so ordered.

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

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

dissenting.

I disagree with the majority’s conclusion that the trial court’s denial of Tumblin’s motion for mistrial constituted an abuse of discretion. I would affirm Tumblin’s convictions and sentences because I conclude that there is no basis for reversal.

Under the abuse of discretion standard that governs our review of the trial court’s denial of the mistrial motion, “the trial court’s ruling should be sustained unless no reasonable person would take the view adopted by the trial court.” Overton v. State, 801 So.2d 877, 896 (Fla.2001). A trial court should grant a motion for mistrial “only when the error committed was so prejudicial as to vitiate the entire trial.” Cobb v. State, 376 So.2d 230, 232 (Fla.1979). That is, declaring a mistrial is appropriate only when doing so “is necessary to ensure that the defendant receives a fair trial.” Cole v. State, 701 So.2d 845, 853 (Fla.1997). “In this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity.” Salvatore v. State, 366 So.2d 745, 750 (Fla.1978); see also England v. State, 940 So.2d 389, 402 (Fla.2006); Pagan v. State, 830 So.2d 792, 814 (Fla.2002); Thomas v. State, 748 So.2d 970, 980 (Fla.1999).

Given this rule, which governed the trial court’s consideration of the motion for mistrial, it is unwarranted to conclude that “no reasonable person would take the view adopted by the trial court” in denying the motion. Overton, 801 So.2d at 896.

I acknowledge that this Court has recognized that allowing “a police witness to give his opinion of a witnesses] credibility” is “especially harmful.” Seibert v. State, 923 So.2d 460, 472 (Fla.2006) (quoting Page v. State, 733 So.2d 1079, 1081 (Fla. 4th DCA 1999)). The special concern associated with such improper testimony does not, however, justify a categorical rule that such errors are remediable only by declaring a mistrial. The error should instead be assessed within the context of the trial to determine whether corrective action short of a mistrial is sufficient to avoid a prejudicial impact that vitiates the entire trial. As with other errors, such improper testimony justifies a mistrial “only in cases of absolute necessity.” Salvatore, 366 So.2d at 750.

Here, the context supports the conclusion that a reasonable trial judge could decide that striking the improper testimony and giving a curative instruction would be adequate “to ensure that the defendant receive[d] a fair trial”. Cole, 701 So.2d at 853. The single reference to Mayes’ credibility was indirect and apparently uncalcu-lated. We have previously held that where an improper reference “was isolated and appearfed] to have been inadvertent,” “[t]he trial court was well within its discretion to determine that the statement did not prevent [the defendant] from having a fair trial.” Merck v. State, 664 So.2d 939, 941 (Fla.1995).

Although Mayes’ testimony clearly was a significant part of the State’s case against Tumblin, it is unjustified to conclude that “the state’s case hinged primarily on [Mayes’] credibility.” Acosta v. State, 798 So.2d 809, 810 (Fla.App.2001) (emphasis added). Substantial evidence other than Mayes’ testimony was presented to show not only that Tumblin was involved in the robbery and murder but also that Tumblin — rather than Mayes— shot the victim. Jean Nicole Ruth testified that Tumblin made statements shortly after the crimes occurred implicating himself in the shooting. Tumblin’s sister Rhonda gave testimony establishing that Tumblin owned and possessed the murder weapon prior to the crimes. The evidence at trial also established that shortly after the crimes, the murder weapon was found in Tumblin’s bedroom in Rhonda’s house, a location to which Tumblin — and not Mayes — had returned after the murder. Accordingly, even if Acosta was correctly decided, the instant case is distinguishable.

The trial court did not abuse its discretion in determining that Tumblin was not entitled to a mistrial. The convictions and sentences should be affirmed.

POLSTON, J., concurs.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Lieutenant Smith was with the Sheriff's Department but was working with the Fort Pierce Police Department in a violent crimes unit.

      .Mayes explained that Tumblin said he would kill anyone who "existed" or "resisted" in the shop — Mayes could not recall which term was used. Mayes told Lieutenant Smith that Tumblin said he would kill anyone who "bucked.”

      . Although the murder weapon was a revolver, which normally retains the spent cartridges in the chambers, the evidence showed that the cylinder of this revolver was faulty and would fall open if not manually held closed.

      . The guilt phase issues raised by Tumblin are: (1) whether the trial court erred in letting Lieutenant Smith, a senior police officer, testify to Anthony Mayes' prior consistent statement; (2) whether the trial court abused its discretion in denying Tumblin’s motion for mistrial when Lieutenant Smith testified that he told another officer that Anthony Mayes would tell him the truth; and (3) whether the trial court reversibly erred in failing to conduct a proper hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), after the State failed to disclose that Jean Nicole Ruth had recently been shot in an unrelated incident and was taking hydrocodone medication at the time of her testimony.
      The penalty phase issues raised in this appeal, but not reached in this opinion are: (1) whether the court erred in instructing the jury and in finding that the homicide was committed in a cold, calculated, and premeditated manner; (2) whether the court failed to properly find and evaluate mental mitigation; (3) whether the death penalty is disproportionate; (4) whether the court erred in allowing Tum-blin to choose the penalty phase witnesses; (5) whether the court properly evaluated admissible hearsay evidence in the penalty phase; (6) whether the court erred in overruling Tumblin's objection to victim impact evidence that Johns’ wife suffered a stroke; (7) whether the court erred in allowing aggravation evidence of prior felonies that were not violent felonies; and (8) whether the court erred in denying Tumblin's special verdict form and instructions for aggravators.

      . During the testimony of Jean Nicole Ruth, it was disclosed before the jury that she had recently been shot in an incident unrelated to the case and was taking hydrocodone medication at the time of her testimony. Although we do not discuss the third guilt phase claim, we remind trial judges that in conducting a Richardson inquiry after a discovery violation has occurred, the court should make express findings concerning whether the discovery violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation. Richardson, 246 So.2d at 775. We also remind prosecutors and defense attorneys that any fact that can reasonably be found to bear on a witness’s ability or competency to testify clearly is relevant and subject to discovery. See, e.g., Edwards v. State, 548 So.2d 656, 658 (Fla.1989) (evidence of drug use for the purpose of impeachment is admissible if it can be shown that the witness is using drugs at or about the time of the testimony itself or it is expressly shown by other relevant evidence that prior drug use affects the witness’s ability to observe, remember, and recount); § 90.608(4), Fla. Stat. (2009) (any party may attack the credibility of a wilness by "[sjhowing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified").

      . The trial court took the motion for mistrial under advisement over the weekend and, after considering additional research and argument of counsel, denied the motion on the following Monday. Consequently, the curative instruction was given several days after Lieutenant Smith's actual testimony and made no specific reference to Smith’s testimony. It simply advised the jury, "You are hereby instructed that the believability or credibility of all witnesses testifying in this case is within the exclusive province of the jury'. Please disregard any suggestion to the contrary.”


author: LABARGA, J.

text:
    Christy AILLS, Petitioner, v. Luciano BOEMI, M.D., et al., Respondents.
    No. SC08-2087.
    Supreme Court of Florida.
    Feb. 25, 2010.

      Joel D. Eaton of Podhurst Orseck, P.A., Miami, FL, and Jeffrey R. Garvin of the Garvin Law Firm, Fort Myers, FL, for Petitioner.
    Arthur J. England, Jr. Brigid F. Cech Samóle and Kerri L. McNulty of Green-berg Traurig, P.A., Miami, FL, William R. Clayton of Greenberg Traurig, P.A., Fort Lauderdale, FL, and Richard B. Mangan of Rissman, Barrett, Hurt, Donahue, and McLain, P.A., Tampa, FL, for Respondent.
   LABARGA, J.

In the case before us, petitioner Christy Aills seeks review of the decision of the Second District Court of Appeal in Aills v. Boemi, 990 So.2d 540 (Fla. 2d DCA 2008). In that case, the Second District Court of Appeal reversed a judgment in favor of Aills, the patient, in a medical malpractice action against the defendant plastic surgeon, Dr. Luciano Boemi, arising out of negligence in connection with an elective surgical procedure for breast reconstruction. For reasons explained below, we find that the district court erred in reversing for a new trial on the basis of an improper argument by Aills’ counsel during closing argument. We therefore quash the decision of the Second District and remand for proceedings consistent with our decision herein.

I. FACTUAL AND PROCEDURAL HISTORY

Christy Aills (Aills) brought a medical malpractice action against Dr. Luciano Boemi, M.D., and Luciano Boemi, M.D., P.A. (collectively referred to as Dr. Boe-mi), after experiencing complications from elective breast surgery. Aills’ second amended complaint asserted four separate causes of action: medical negligence, battery, lack of informed consent, and fraud. The jury found Dr. Boemi liable for negligence, but found in favor of Dr. Boemi on the remaining counts. The jury’s award of compensatory damages to Aills was as follows: (1) $100,000 for past medical damages; (2) $150,000 for future medical damages; (3) $4,000,000 for past noneconomic damages; and (4) $4,000,000 for future noneconomic damages. The trial court subsequently entered a judgment on the verdict in favor of Aills and against Dr. Boemi in the amount of $8,250,000.

After the trial, Dr. Boemi filed a motion requesting the entry of judgment in his favor in accordance with his prior motion for directed verdict or, in the alternative, a new trial. The trial court denied both claims for relief. Dr. Boemi also moved for a remittitur of the various awards in the jury’s verdict. The trial court granted a remittitur of the jury’s award for past medical damages from $100,000 to $81,000. The court also granted a remittitur of the jury’s award for past noneconomic damages from $4,000,000 to $750,000, and for future noneconomic damages from $4,000,000 to $1,750,000. However, the court denied a remittitur of the jury’s award for future medical damages. Aills accepted the remittitur of the past medical damages, but rejected the remittitur of the awards for noneconomic damages. Consequently, the trial court ordered a new trial on the issue of damages only. Aills appealed the trial court’s order granting a new trial on damages, and Dr. Boemi cross-appealed.

In his cross-appeal, Dr. Boemi challenged the trial court’s nilings on four grounds: (1) the trial court erred in denying him a directed verdict on liability because Aills failed to establish the applicable standard of care and a subsequent breach of that standard; (2) the trial court erred in failing to grant a new trial based on remarks concerning postoperative negligence during Aills’ closing argument; (3) the trial court erred in denying him a new trial based on the admission of graphic photographic evidence depicting Aills’ condition after the initial surgery; and (4) the evidence proved insufficient to support the award of future medical expenses.

On appeal, the Second District held that “the trial court did not commit error in denying Dr. Boemi’s motion for a directed verdict on liability” for negligence. Aills, 990 So.2d at 546. It also held that the trial court did not abuse its discretion “in denying Dr. Boemi’s motion for new trial based on the admission of the photographs into evidence.” Id. We do not disturb the district court’s holdings in these respects. However, as we explain below, we conclude that the district court erred in reversing for a new trial on the basis of Dr. Boemi’s claim of improper closing argument by counsel for Aills. Because Dr. Boemi failed to advance the specific ground of objection relied upon by the district court for reversal, we conclude that it was not preserved for appellate review. We first examine the district court’s decision.

II. DISCUSSION

In Aills, the Second District reviewed Dr. Boemi’s claim that the trial court erred in denying his motion for new trial based on Aills’ closing argument regarding his asserted postoperative negligence. Id. at 546. The district court observed that during closing argument, Dr. Boemi’s counsel objected when Aills’ counsel began to argue that Dr. Boemi failed to provide Aills with appropriate postoperative care. Id. at 544. The district court summarized the parties’ arguments as follows:

At a sidebar conference, Dr. Boemi’s counsel explained that opposing counsel’s remarks were improper because of the absence of any basis in the record “that the postoperative care was negligent” and “that it would have made a difference.” Ms. Aills’ counsel responded that his remarks were “fair comment” because “we have already put on testimony ... that the entire thing that this doctor did caused her to have her harm.” The trial court overruled the objection.

Id. at 544.

The district court’s review of the pleadings, arguments, and witness testimony led it to conclude that the issue of postoperative negligence had neither been pled in the complaint nor tried by consent. Therefore, the district court concluded that Aills’ closing argument was improper and that the trial court abused its discretion in failing to grant Dr. Boemi a new trial on all issues. Id. at 547-48, 550.

The question before us is whether the district court erred in reversing the trial court’s judgment on a ground that we find from the record was not presented to the trial court and thus not preserved for appellate review. Because this is a question of law arising from undisputed facts, the standard of review is de novo. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008); see also D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo). To resolve this issue, we must consider the principles of error preservation, the objection at issue, and the basis for the district court’s reversal.

Proper preservation of error for appellate review generally requires three components. First, the party must make a timely, contemporaneous objection at the time of the alleged error. See Overton v. State, 976 So.2d 536, 547 (Fla.2007); Harrell v. State, 894 So.2d 935, 940 (Fla.2005). “Second, the party must state a legal ground for that objection. Third, ‘[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’ ” Harrell, 894 So.2d at 940 (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)); see also Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985))). While no magic words are required to make a proper objection, we reiterate here that the concern articulated in the objection must be sufficiently specific to inform the court of the perceived error. Williams v. State, 414 So.2d 509, 511-12 (Fla.1982); Castor v. State, 365 So.2d 701, 703 (Fla.1978) (“[A]n objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.”). We turn now to the question of whether Dr. Boemi’s articulated concern was sufficiently specific to inform the trial court of the perceived error, and to do so, we look to the undisputed facts found in the record.

During closing argument, Aills’ counsel began to argue that Dr. Boemi failed to provide appropriate postoperative care to Aills. Dr. Boemi’s counsel immediately objected to this line of argument. At a sidebar conference, Dr. Boemi’s counsel explained that the closing remarks made by Aills’ counsel were improper because “[t]o argue that the postoperative care was negligent and that there was evidence to support that it would have made a difference, there’s no basis in the record.” The trial court overruled Dr. Boemi’s objection and Aills’ counsel proceeded to describe the consequences of Dr. Boemi’s postoperative negligence.

Dr. Boemi argues that the district court correctly determined from the record that postoperative negligence had not been raised at the trial level, i.e., that the theory of postoperative negligence was neither pled in the complaint nor tried by consent, and, consequently, Aills’ closing argument concerning postoperative negligence was improper. The district court found the statement made by Dr. Boemi’s counsel during the sidebar conference “that opposing counsel’s remarks were improper because of the absence of any basis in the record ‘that postoperative care was negligent’ and ‘that it would have made a difference,’ ” 990 So.2d at 544, to have sufficiently asserted the legal grounds for his objection with the specificity required by law. We disagree.

“[T]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’ ” Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.2004) (quoting Spann v. State, 857 So.2d 845, 852 (Fla.2003)). Appellate review is therefore limited to the specific grounds for objection raised at trial. Lynx Transp. v. Atkinson, 720 So.2d 600, 600-01 (Fla. 5th DCA 1998); Clock v. Clock, 649 So.2d 312, 315 (Fla. 3d DCA 1995); Wilson v. Health Trust, Inc., 640 So.2d 93, 94 (Fla. 4th DCA 1994). Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court. See Steinhorst, 412 So.2d at 338; see also Smith v. State, 7 So.3d 473, 496 (Fla.2009) (holding that claims based on grounds not objected to at trial cannot be considered on appeal) (citing Steinhorst, 412 So.2d at 338); City of Orlando v. Birmingham, 539 So.2d 1133, 1135 (Fla.1989) (holding that an appellate court cannot consider an issue that was not preserved for appellate review).

Here, Dr. Boemi’s objection did not articulate his concern that postoperative negligence had not been pled or tried with the requisite specificity to inform the trial court of the perceived error. Rather, we find that his objection to the closing remarks was directed solely at the insufficiency of the evidence. Accordingly, we conclude that the district court erred in reversing for a new trial on the basis of grounds not presented before the trial court.

Based on the foregoing, we quash the decision of the district court and remand the case to the Second District for proceedings consistent herewith. On remand, the district court should address the following issues which were raised on appeal but not reached by the district court: (1) Aills’ challenge to the trial court order for a remittitur of the past and future noneco-nomic damages awards; and, (2) Dr. Boe-mf s objections to the award of future medical expenses.

It is so ordered.

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

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

      . The district court found that the theory of postoperative negligence was neither pled in Aills' second amended complaint nor tried by consent and held that the "two-issue” rule was inapplicable. Id. at 549-50. Because we find these grounds were not preserved for review, and are quashing the district court's ruling and remanding it for further proceedings, we need not address the question of the "two-issue” rule.


author: QUINCE, C.J.

text:
    In re CERTIFICATION OF NEED FOR ADDITIONAL JUDGES.
    No. SC10-320.
    Supreme Court of Florida.
    Feb. 25, 2010.
   QUINCE, C.J.

Pursuant to our constitutional obligation to determine the state’s need for additional judges in Fiscal Year 2010-2011 and to certify “our findings and recommendations about that need” to the Legislature, we hereby certify the need for additional judicial resources as follows.

Certification is “the sole mechanism established by our constitution for a systematic and uniform assessment of this need.” In re Certification of Need for Additional Judges, 889 So.2d 734, 735 (Fla.2004).

This Court acknowledges that Florida and our country remain in an economic recession. Like all sectors of our society, the judicial branch is coping with the impact these economic forces are having on the daily operations of our courts, which are faced with increased workloads, reduced resources, and ever-increasing demands on judges and staff. Together, these factors impede the proper administration of justice.

For our trial courts, fewer resources and no new judgeships for the last three fiscal years have slowed ease processing times and negatively impacted clearance rates. Justice in many instances is delayed. Moreover, the mortgage foreclosure crisis continues unabated with a second wave of foreclosures forecast. These foreclosures have implications for homeowners, lending institutions, neighborhoods, the courts, and Florida’s economy. Further, budget reductions and the resultant loss of supplemental judicial resources, such as case managers, magistrates, and staff attorneys, continue to impact the courts’ ability to respond effectively to the needs of children, families, the business sector, and the public. Although the central purpose of this opinion is to fulfill our constitutional obligation to discuss specifically the certification of judicial need, we must place the consideration of judicial need in a larger justice system context. Therefore, this Court first addresses recent developments in court system funding and the loss of non-judge resources before dii’ectly addressing the implications for judicial certification.

STATE COURTS REVENUE TRUST FUND

Because of the economic crisis and as part of its ongoing effort to seek stable funding for Florida’s State Courts System, the Supreme Court has worked with legislative leaders to identify a stable funding source for Florida’s courts. In response, during Special Session A 2009, the Legislature created the State Courts Revenue Trust Fund. The fund supports most court operations with the exception of some judicial salaries which remain general revenue funded.

The primary revenue stream supplying the trust fund became effective July 1, 2009. The Supreme Court is grateful to the Legislature for the establishment of this fund, which we believe will help stabilize Florida’s court system. The creation of the State Courts Revenue Trust Fund is also consistent with the Seven Principles of Court Funding advanced through the State Courts System’s Funding Justice initiative.

Nevertheless, while the new trust fund appears to promise greater long-term stability, it has not yet impacted the budgetary reductions experienced by the judicial branch over the last two fiscal years. The budget reductions, coupled with no new judgeships for the last three fiscal years, have combined to create an environment of increased judicial workload, caseload backlog, and court delay.

BUDGET REDUCTIONS

Since July 1, 2007, the State Courts System has experienced a ten percent budget reduction. These reductions have come from our operating budget, including expense dollars, contractual dollars, and the loss of positions throughout the state. Strict hiring and travel policies have also been in effect for the last two years. These restrictions were necessary to comply with overall reductions to our budget. Nonetheless, they come at a price. Court operations have been significantly hampered by the loss of positions that provide direct support to our judges.

In order to comply with the legislative request to reduce its budget, Florida’s court system over the last three budget years has lost or eliminated 103.25 case managers, 23.75 magistrates and associated administrative staff, 38.5 law clerks, 18.5 due process positions (i.e., court reporters, court interpreters, and expert witnesses), and 106.5 positions from court administration, appellate clerks’ offices, and appellate marshals’ offices. Of the 290.5 total positions lost in the judicial branch, 249 trial court positions have been eliminated throughout the state. Also substantially reduced were contractual dollars used to hire Civil Traffic Infraction Hearing Officers (CTIHO). As a result, much work previously performed by CTIHOs was absorbed by our county court judges.

LOST RESOURCES AND CASE PROCESSING TIMES

The budget reductions and loss of positions sustained by the State Courts System over the last two fiscal years continue to be felt in every judicial circuit. We cannot overstate the causal relationship between the loss of supplemental resources and the increases in case processing times. When judges must absorb the workload of case managers, staff attorneys, or hearing officers, case processing times inevitably worsen. The net result is court delay. Moreover, having judges perform the work of subordinate staff is not a prudent use of higher level judicial resources. Judicial time is best spent adjudicating cases, and the loss of supplemental resources has consequences for litigants across all case types. While Floridians continue to access their courts initially through filings, they are being forced to wait inordinate periods of time for final resolution of their cases while judges find it more and more difficult to advance their dockets and clear out backlogged matters.

CIRCUIT COURT IMPACT

Children and families are especially at risk when resources become scarce. In particular, the loss of case managers in our family divisions directly threatens the level of justice afforded to children and families. Case managers are acutely needed in matters involving custody, visitation, paternity, child support, dependency, delinquency, termination of parental rights, and domestic and repeat violence. Many families involved in such cases have limited means and represent themselves in court. Additionally, many of these families have multiple cases which require coordination to eliminate duplicate hearings and orders.

Typically, our family law case managers shepherd cases through the court system by performing intake, screening, evaluation, monitoring, coordinating, scheduling, and referral activities. These activities enable cases to proceed smoothly and timely through the court process. When these positions are eliminated, these tasks fall on the presiding judge. This scenario creates case processing delays, non-referrals, or the minimization of judicial time spent helping children and families.

In addition to losing our case management support, our court system has also lost magistrates and attendant administrative staff statewide during this period. Magistrates support the adjudicatory process in the trial courts by performing certain quasi-judicial functions that are routine, computational, or managerial in nature under the authority of the court. Frequently, they are assigned to family law divisions and assist judges by hearing matters related to paternity, dissolution, custody, child support and visitation. They frequently establish attorney fees and costs, submit recommended orders to a judge, and ensure the collection of fines. Them availability enables judges to focus their time on more contentious and complex issues requiring judicial expertise. This division of labor has proven to be both effective and economical. When magistrates are either reduced or eliminated from the ease processing equation, judges must then absorb their work. This inevitably contributes to case processing delays.

The loss of staff attorneys and law clerks similarly has affected judicial workload and impeded the movement of cases especially in post-conviction criminal cases. Law clerks provide basic legal research assistance to judges, including the preparation of legal memoranda and drafts of court orders. Their work enhances the adjudication of cases because they are able to identify and analyze relevant laws and cases before the court. Without this resource, a judge’s ability to process cases in a manner that ensures both quality and efficiency is diminished because the judge is retrieving materials and unable to delegate basic and routine legal research.

Other factors contributing to circuit court workload include the mortgage foreclosure crisis previously mentioned which continues to overwhelm Florida’s court system. Although the dramatic increase in mortgage foreclosure filings is expected to abate at some future date and therefore may not be a part of the long-term sustained net need, there is evidence that a second wave of foreclosures is now entering the court system and that this workload issue will persist. Various media reports note that many of these new foreclosures are fueled by double digit unemployment, declining housing prices, and the lingering recession. Over a 36-month period (Fiscal Year 2005-2006 to Fiscal Year 2007-2008), real property/mortgage foreclosure filings increased by 396 percent in our trial courts. During the same time period, the clearance rate for real property/mortgage foreclosure cases decreased by 52 percent, from 94 percent in Fiscal Year 2005-2006 to 42 percent in Fiscal Year 2007-2008. According to Realty Trac, Florida has the third highest rate of mortgage foreclosures in the country with one in every 158 housing units in foreclosure. Condominium foreclosures are contributing to the crisis.

COUNTY COURT IMPACT

As reflected in dropping clearance rates, no other resource has hindered the operations of county courts more than the loss of a substantial portion of the Civil Traffic Infraction Hearing Officer (CTIHO) monies. CTIHOs are members of The Florida Bar who contract with the courts to preside over civil traffic infraction hearings. They are an economical and effective resource dedicated to the disposition of civil traffic infractions. Their availability enables county court judges to adjudicate county criminal and civil matters in a timely manner. In several circuits, the availability of CTIHOs has also enabled county court judges to assist with judicial workload in circuit court. Therefore, the loss of this resource is two-fold: (1) county judges now provide diminished assistance in circuit court, and (2) county judges must now spend a far greater portion of their time presiding over traffic matters. The cascading effect is less time spent assisting circuit court judges, less time focused on more complex county court criminal and civil matters, and more time spent on traffic cases. The net result is case delay and backlog in circuit and county court.

Although this opinion is constitutionally required to discuss judicial need, this Court finds it important to advise the Legislature that the elimination of case managers, law clerks, magistrates, court reporters, and court interpreters, coupled with no new trial judges in three years, has long-term structural implications for the court system. If the Legislature is unable to provide new judgeships due to the economic crisis, we encourage it to consider all the more seriously restoring positions lost over the last two years, as has been requested in our annual legislative budget request.

STATE ATTORNEY, PUBLIC DEFENDER, REGIONAL COUNSEL, AND CAPITAL COLLATERAL REPRESENTATIVE STAFFING

This Court also remains concerned about the staffing levels of state attorney and public defender offices, the Offices of Regional Counsel, and the offices of the Capital Collateral Representatives. The need persists to reconcile the certification of new judgeships with sufficient staffing for these entities. This is a systemic issue and should be approached as such. We encourage the Legislature to consider the needs of the state attorneys, public defenders, Offices of Regional Counsel, and Capital Collateral Representatives if new judgeships are authorized for our criminal divisions, particularly in light of the staffing reductions they have experienced in recent years.

TRIAL COURT CERTIFICATION

For some time, this Court has used a case-weighting system based on accepted standards of measurement in determining the need for additional judges. The case weighting system distinguishes different types of cases and assigns different amounts of time that must be spent on cases of each type, producing a total judicial need for each circuit. Additionally, we adjust for differing jury trial rates in each circuit and county and consider the actual number of judges requested by the chief judge in each circuit. The resulting certification is an objective statement of what the trial courts need to meet their workload.

Over the last ten years, we have conducted a continuous evaluation of the certification process. As noted in last year’s opinion, we are now applying the use of sustained judicial need into our methodology. Sustained judicial need is the minimum of the calculated net need over a three-year period. Each year this three year “window” moves forward a year, considering the current year’s net need and the previous two years’ net need in the sustained need calculation. Any new judges received during the previous year’s session are factored into the current year’s net need.

From Fiscal Year 2006-2007 to Fiscal Year 2007-2008 total filings have increased by 21 percent in circuit court. Growth in civil filings by 85 percent is the main contributing factor to the statewide increase in circuit court. Real property and mortgage foreclosure case filings have more than doubled from the previous fiscal year, representing an increase of 171,426 filings. Product liability, condominium, and contract and indebtedness case filings have also risen considerably, by 267 percent, 117 percent, and 29 percent respectively.

Substantial growth in filings in felony case types also contributed to an overall rise in circuit court filings from Fiscal Year 2006-2007 to Fiscal Year 2007-2008. The largest felony case type in terms of number of filings, property crime (including burglary, theft, worthless checks, and other felonies) increased by five percent. Additionally, capital murder and robbery case filings also rose by a considerable percentage, six and 15 percent respectively-

County court filings experienced significant growth from Fiscal Year 2006-2007 to Fiscal Year 2007-2008 as well, with statewide filings increasing by five percent (excluding civil traffic infractions). Growth in civil filings was also the main contributing factor to the statewide increase in county court, with overall civil filings rising by 14 percent. Those cases involving small claims (up to $5,000), civil ($5,001 to $15,000), and evictions increased by 16 percent, 20 percent, and six percent, respectively.

Further, the overall statewide circuit court clearance rate from Fiscal Year 2006-2007 to Fiscal Year 2007-2008 has decreased by ten percent. Clearance rates in all divisions dropped in Fiscal Year 2007-2008, with the lone exception of the circuit criminal division. The chief judges of the trial courts are ensuring that all due process (e.g., speedy trials) and other constitutional requirements related to felony proceedings are being met. This often requires the redeployment of judicial resources from other court divisions. The circuit civil division experienced a significant clearance rate decline of nineteen percent, statewide. Similarly, the county court clearance rate decreased by four percent with the county civil division declining by five percent.

The sustained impact of the mortgage foreclosure crisis is even further compromising the clearance rates in circuit civil divisions for all circuits in Florida. In many jurisdictions, circuit civil judges cannot keep pace with the volume. As a result, homeowners and lending institutions are subject to increasingly long delays for resolution to their cases.

In view of the foregoing considerations, this Court certifies the need for 37 new circuit court judges for Fiscal Year 2010-2011, distributed as follows:

1. Five additional circuit court judges each for the First and Fifth circuits;
2. Three additional circuit court judges each for the Seventh, Nineteenth, and Twentieth circuits;
3. Two additional circuit court judges each for the Fourth, Sixth, Ninth, Tenth, Fourteenth, and Fifteenth circuits; and
4. One additional circuit court judge each for the Second, Eighth, Eleventh, Twelfth, Thirteenth, and Eighteenth circuits.

Further, we certify the need for 53 new county court judges for Fiscal Year 2010-2011, as follows:

1. Eight additional county court judges for Duval County;
2. Six additional county court judges each for Miami-Dade and Broward counties;
3. Five additional county court judges for Palm Beach County;
4. Three additional county court judges for Hillsborough County;
5. Two additional county court judges each for Pinellas, Volusia, Orange, Polk, and Lee counties; and
6. One additional county court judge each for Okaloosa, Columbia, Citrus, Lake, Marion, Alachua, Osceola, Highlands, Manatee, Sarasota, Bay, Brevard, Seminole, St. Lucie, and Collier counties.

In addition to the judges certified above, we also have reviewed the following requests, which we deny for the following reasons. We have specifically reviewed the requests from chief judges to certify three circuit court judges in the Ninth Judicial Circuit and Eleventh Judicial Circuit and note that the sustained judicial need is less than the judgeships requested. Accordingly, we deny those requests.

We have also reviewed the chief judge’s requests for an additional county court judge for Pasco County. We have determined that in the absence of special circumstances, we must also deny this request. We emphasize that in addition to mathematical calculations, our staff performs extensive analysis of each circuit’s request in order to analyze the availability of supplemental resources and any special circumstances justifying an exception.

DISTRICT COURTS OF APPEAL

Like the trial courts, the district courts have also experienced the loss of supplemental support staff due to the economic crisis. During Fiscal Year 2008-2009 a total of 25.5 FTE were lost due to reductions in the district courts’ collective budget. As with the circuit courts, the loss of staff attorneys and law clerks in the district courts has affected judicial workload and impeded the movement of cases. Staff attorneys provide legal research assistance, prepare legal memoranda, and assist in drafting opinions. The absence of staff attorneys and other court support staff that were lost has contributed to more lengthy case processing times and diminished clearance rates in the district courts.

Under the weighted caseload per judge threshold set forth in rule 2.240(b)(2)(B), Florida Rules of Judicial Administration, “[t]he court will presume that there is a need for an additional appellate court judgeship in any district for which a request is made and where the relative weight of the cases disposed on the merits per judge would have exceeded 280 after application of the proposed additional judge(s).”

Only the Second District requested a judgeship, citing numerous workload factors including increased filings, decreasing clearance rates, post-conviction appeals, reduced staffing complements, and limited judicial availability. Although qualified to receive a judgeship last year, they did not request one, citing the economic climate within the state. While we' are sympathetic to the workload in the Second District, using our certification methodology, they do not currently qualify for an additional judgeship after the methodology is applied. Therefore, their request is denied.

DISTRICT COURTS OF APPEAL CERTIFICATION

In keeping with our policy of not requesting judgeships unless qualified and requested by the chief judge of a district court, we do not certify the need for any additional district court judges.

CONCLUSION

Florida’s court system remains under duress. The state and national recession of the last two years and the resulting budget reductions for the courts are taking a sustained toll on Florida’s judges, court staff, and most importantly those who are accessing our courts. Case filings are up and clearance rates are down. Judicial dockets are full, scheduling is problematic, and ease processing times are delayed.

Florida’s court system has now gone three years without the authorization of any new judgeships despite a demonstrated and sustained need. The absence of new judgeships is now being felt by all sectors of our society who seek justice through the court system.

We submit this opinion recognizing that it is difficult for the Legislature to fund the many competing critical issues confronting our state given the fiscal crisis the state is enduring. If funds become available, we encourage the Legislature to authorize those judgeships certified in our circuit and county courts. Additionally, while we have identified our judicial need in this opinion, we are equally concerned with the allocation of adequate court support staff and supplemental resources in the statutorily defined court elements that will enable the courts to respond effectively to the needs of children, families, the business sector, and the public. Without these court support staff and supplemental resources, the administration of justice is undermined.

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ„ concur.

      . Article V, section 9 of the Florida Constitution provides in pertinent part:
      Determination of number of judges. — The supreme court shall establish by rule uniform criteria for the determination of the need for additional judges except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing or redefining appellate districts and judicial circuits. If the supreme court finds that a need exists for increasing or decreasing the number of judges or increasing, decreasing or redefining appellate districts and judicial circuits, it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.

      . See Office of the State Courts Administrator, Clearance Rate Dashboard, Quarter Ending September 30, 2009 (Data as of November 5, 2009), http://www.flcourts.org/gen_public/ slats/bin/ClearanceRateDashboard.pdf.

      . See Mortgage Bankers Ass'n, Delinquencies Continue to Climb in Latest MBA National Delinquency Survey, Nov. 19, 2009, http:// www.mbaa.org/NewsandMedia/PressCenter/ 71112.htm; Seeking AIpha.com, Seasonal Bump in Case-Shiller Home Price Index Abates, Nov. 29, 2009, http://seekingalpha. com/article/175233-seasonal-bump-in-case-shiller-homeprice-index-abates; Realty Trac, Job Losses Foreshadow More Foreclosures, Risk, hup://www.realtytrac.com/content management/realtytraclibrary.aspx? channelid=8&accnt=0&itemid=7727 (last visited February 23, 2010).

      . See Florida State Courts, Funding Justice, http://www.flcourts.org/gen_public/funding/ index.shml (last visited Feb. 23, 2010).

      . A 2008 study by the Washington Economics Group, Inc., has estimated delay in case processing mortgage foreclosure cases costs Florida's economy $17 billion a year. Washington Economics Group, The Economic Impacts of Inadequate Funding for Florida's Courts (2008).

      . Realty Trac is an online realtor website that tracks mortgage foreclosures by state and may be found at www.realtytrac.com.

      . In Fiscal Year 2007-2008, Civil Traffic Infraction Hearing Officers presided over approximately 489,162 cases in Florida.

      . This system was developed in response to the proviso language of the 1998 General Appropriations Act, in which the Legislature directed that the judicial branch employ a certification methodology that relies on case weights and calculations of available judge time to determine the need for additional trial court judges. See Ch. 98-422, § 7, at 3963, Laws of Fla. Pursuant to this direction, the judicial branch undertook an extensive project to design and implement a weighted caseload system, assisted by the National Center for State Courts and endorsed by the Office of Program Policy Analysis and Government Accountability.

      . In re Certification of Need for Additional Judges, 3 So.3d 1177, 1181-82 (Fla.2009).

      . The “clearance rate” is a calculation of the number of cases disposed of divided by the number of cases filed in the same year. The clearance rate has a reasonable ease of calculation, is a useful measure of the responsiveness of a court to the demand for services, and is nationally recognized as a measure of court performance.

        .See Florida Supreme Court Task Force on Residential Mortgage Foreclosure Cases, Final Report and Recommendations on Residential Mortgage Foreclosure Cases (2009), available at http://www.floridasupremecourt.org/ pub_info/foreclosure.shtml.

      . Total judicial need is the total number of judges required to complete all expected workload. Net judicial need is the difference between the total judicial need and the number of existing judges. Sustained net need is defined as constant need over time.

      . The number established in the rule, 280, does not represent the filings per judge but is a weighted threshold calculated according to the process described in the DCA Workload Report issued in 2005 by the Commission on District Court of Appeal Performance and Accountability. See Supreme Court of Florida Commission on District Court of Appeal Performance and Accountability, DCA Workload Report to the Supreme Court (2005), available at http://www.flcourls.org,gen_public/court-services/bin/2005DCAWorkloadReport.pdf.


author: PER CURIAM.

text:
    Leo TOBY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3638.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2009.
    Leo Toby, pro se, Petitioner.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner Leo Toby was convicted of second-degree murder as charged by a Duval County jury and sentenced to a term of imprisonment. He appealed and this court affirmed. Toby v. State, 7 So.3d 1102 (Fla. 1st DCA 2009). He now alleges that he received ineffective assistance of counsel in the direct appeal. We agree, reverse the conviction, and remand for a new trial.

Petitioner’s counsel filed the initial brief in the direct appeal on September 29, 2008, and the state’s answer brief was filed 25 days later. Our opinion issued on April 15, 2009. In the interim, however, we decided Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla. 2009), holding that giving of the standard jury instruction on manslaughter in a case such as petitioner’s was fundamental error. Petitioner argues that his appellate counsel was ineffective in failing to seek supplemental briefing in the direct appeal on the Montgomery issue. In Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005), the court found counsel was ineffective when he did not ask for supplemental briefing based on an appellate decision concerning a self-defense jury instruction in similar circumstances. We adopt the reasoning of Ortiz and conclude that petitioner is entitled to relief. Because the jury instruction here relates to elements of the crime rather than an affirmative defense, we find it unnecessary to order another appeal. The conviction is reversed and the cause is remanded to the tidal court for further proceedings. In so doing, we certify the same question of great public importance that we certified in Montgomery:

IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?

PETITION GRANTED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.