Florida Criminal Law Opinions

Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Diane Ward, Judge.

Not final until disposition of timely filed motion for rehearing.

Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

Opinion

SCHWARTZ, S J.

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No error has been demonstrated as to either of the issues presented by the defendant in this appeal from convictions of one count of carjacking, two counts of kidnapping, two counts of robbery, five counts of sexual battery, and one count of arson. See Conde v. State, 860 So. 2d 930 (Fla. 2003); Rolling v. State, 695 So. 2d 278 (Fla. 1997); New York v. Harris, 495 U.S. 14 (1990); U.S. v. Watson, 423 U.S. 411 (1976); Craig v. Singletary, 127 F.3d 1030 (11th Cir. 1997). Furthermore, considering the entire record, including but not limited to the fact that unchallenged evidence established to a moral certainty that Mora was guilty of the horrendous series of crimes involved in this case, none of the disputed rulings could have affected the result. See Ventura v. State, 29 So. 3d 1086 (Fla. 2010).

Affirmed.

James Marion Moorman, Public Defender, and C. Suzanne Bechard, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge.

DAVIS, Judge.

Astor Burpee Henry was convicted of one count of possession of cocaine with intent to deliver within 1000 feet of a church and was sentenced to twenty years in prison. He challenges his conviction by alleging entitlement to a new trial based on four

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trial court errors he claims occurred. We agree that the trial court committed reversible error by failing to conduct a Richardson¹ hearing and that Henry is entitled to a new trial as a result of this error.

Henry’s convictions resulted from an undercover drug operation using a confidential informant. The confidential informant called and asked Henry to deliver $950 of cocaine to her hotel room. The transaction involved a series of telephone calls with Henry, some of which were recorded and all of which were listened to by the officers present. Henry and two other men arrived at the hotel. Henry was driving a truck owned by one of the passengers. Once Henry was detained and the truck was searched, a large quantity of cocaine was found wedged between the bed of the truck and the bed liner.

The officers involved in the undercover operation testified at trial. Each officer was listed as a category A witness by the State. See Fla. R. Crim. P. 3.220(b)(1)(A)(i) (2005) (including as category A witnesses eye witnesses, investigating officers, and those present for recorded and unrecorded statements made by the defendant). Just prior to trial, the State sought to qualify Officer Tamboe as an expert witness based on his field experience as a member of a drug unit. Henry objected, arguing that Officer Tamboe was not listed as an expert during discovery. The trial court overruled the objection, determining that the State should have an opportunity to lay the foundation with regard to the officer’s qualifications as an expert. When Henry’s counsel tried to renew the objection to the testimony during trial, the trial court overruled the objection. Henry claims on appeal that the trial court erred when it failed to conduct

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a Richardson hearing where the State had not given the required notice that Officer Tamboe would be testifying as an expert.

Under the version of rule 3.220(b)(1)(A)(i) in effect at the time of Henry’s trial, designating a witness as an expert witness at trial required listing that witness as such in pretrial discovery. See Luis v. State, 851 So. 2d 773, 775 (Fla. 2d DCA 2003). Merely listing the witness as a category A witness did not satisfy the plain language of the rule. Id. Failure to include the expert designation in pretrial discovery constituted a discovery violation, ² requiring the trial court to conduct a Richardson hearing “to determine whether the… discovery violation was (1) inadvertent or willful, (2) trivial or substantial, and (3) prejudicial to… trial preparation.” Luis, 851 So. 2d at 776.

In the instant case, it is undisputed that Officer Tamboe was only listed as a category A witness. Once the State sought to qualify Officer Tamboe as an expert witness and the defense objected to the discovery violation, the trial court should have conducted a Richardson hearing.³ The trial court’s failure constitutes a reversible error unless the error can be shown to be harmless. See State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 1995) (“In determining whether a Richardson violation is harmless, the

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appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense.”). Absent a clear showing of lack of procedural prejudice, the State has not met the burden of proof required to deem this error harmless. See id Henry’s counsel was not allowed to complete his argument to the trial court, and we have no indication of whether he had planned another defense or trial strategy prior to the court’s ruling. “As we are bound to consider every conceivable course of action in assessing procedural prejudice, we cannot find the error harmless.” Flores v. State, 872 So. 2d 441, 443 (Fla. 4th DCA 2004) (citation omitted) (internal quotation marks omitted).

We reverse Henry’s judgment because the trial court erred by failing to conduct a Richardson hearing when the State sought to designate Officer Tamboe as an expert despite failing to list him as such in pretrial discovery. We remand the matter for a new trial because the record does not conclusively show that the error was harmless. Reversing on this basis renders Henry’s remaining claims moot, and so we need not address them.

Reversed and remanded.

KELLY and KHOUZAM, JJ., Concur.

——–

James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

BY ORDER OF THE COURT:

We grant the Appellant’s motion for rehearing and clarification and deny the motion for rehearing en banc. The opinion dated May 28, 2010, is hereby withdrawn and the attached opinion is substituted. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

JAMES BIRKHOLD, CLERK

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Appeal from the Circuit Court for Polk County; Ernest McClain Jones, Jr., Judge.

WHATLEY, Judge.

This is an appeal pursuant to Anders v. California, 386 U.S. 738 (1967), of G.D.’s adjudication of delinquency for possession of cannabis and paraphernalia. After careful review of the record, we find no error in G.D.’s adjudication of delinquency.

Appellate counsel has raised an issue of merit regarding the trial court’s assessment of a public defender fee against G.D. without notice and an opportunity to

object. G.D. preserved this issue for review by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). His motion was deemed denied when the trial court took no action on it within sixty days. We find merit in this issue and reverse the public defender fee.

Section 938.29, Florida Statutes (2008), authorizes the assessment of a public defender fee and grants the state a lien to secure its payment. Although imposition of the fee is mandatory, see Cook v. State, 896 So. 2d 870 (Fla. 2d DCA 2005), the statute requires the trial court to give the defendant notice and an opportunity to object to the amount. See § 938.29(5). In addition, Florida Rule of Criminal Procedure 3.720(d)(1) provides that at sentencing, a defendant must be given notice of the right to a hearing to contest the amount of the lien. Here, the trial court failed to provide G.D. notice and an opportunity to contest the public defender fee.

Accordingly, we reverse the public defender fee. On remand, the trial court may reimpose the fee once our mandate issues only if it provides G.D. notice of its intent to do so and an opportunity for a hearing on the matter. See Bruno v. State, 960 So. 2d 907 (Fla. 2d DCA 2007).

Affirmed in part, reversed in part, and remanded with directions.

SILBERMAN and CRENSHAW, JJ., Concur.

Charles J. Christ, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.

F. Wesley Blankner, Jr., Orlando, for Appellee.

Appeal from the Circuit Court for Orange County, A. Thomas Mihok, Judge.

PALMER, J.

The State timely appeals the downward departure sentence imposed by the trial court on appellee, Marcus Oneal Leverett. Concluding that the reasons given by the trial court for imposing a downward departure sentence are not supported by competent, substantial evidence, we reverse.

Leverett and Brandon Harris were tried together with separate juries. The record reflects that Leverett and Harris knocked on an apartment door and then pushed their way inside. Harris had a BB gun. The defendants made all seven occupants of the apartment get on the floor, face down. Harris struck one victim in the face with the gun

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and then Leverett struck the same victim in the face with his fist. The defendants robbed the victims of a small amount of money and then fled the scene.

The evidence during sentencing showed that Leverett chose the address of the targeted apartment because he thought that he knew the residents and thought there was a safe in the apartment. However, after Leverett and Harris broke in, they realized they had the wrong apartment.

The trial court did not impose a downward departure on Harris; he was sentenced to a term of 121.5 months’ in prison followed by 15 years’ of probation, which was the lowest permissible incarceration under the sentencing guidelines. The trial court indicated that it imposed this sentence because the evidence showed that Leverett was the planner or instigator of the crime, and because Harris did not have a prior criminal record.

As for Leverett, the lowest permissible sentence under the sentencing guidelines was 196.8 months’ imprisonment. The trial court imposed a downward departure sentence of 12 years’ imprisonment, finding that the offense was committed in an unsophisticated manner, was an isolated incident for which Leverett showed remorse; that Leverett was too young to appreciate the consequences of his actions; and, that the sentence was proportional to Harris’ 12-year sentence. At sentencing, the trial court explained:

Okay. The court is going to impose the following sentences with regard to the various counts. This is going to be a downward departure, for a couple of reasons. One of the offenses was committed in an unsophisticated manner and was an isolated incident for which this defendant has shown remorse. At the time of the offense, I believe Leverett was too young to appreciate the consequences of the offense.

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Third reason for downward departure is the motion of proportionality of Mr. Leverett and [Harris] were coperpetrators in this offense. [Harris] had the firearm–or the weapon, whichever version of the testimony one wants to believe–and utilized that firearm to assault one or more of the victims in this case.

[Harris'] jury, for whatever reason, found [co-defendant] guilty of some lesser offenses and Mr. Leverett’s jury took a second different look at the facts and came back with a different result on some of these counts. But it seems to me that these coperpetrators need to be treated, roughly, the same. And, in fact, given the fact that Harris had the firearm, many people could argue that his sentence should be much more than the sentence imposed on Mr. Leverett, even though there is also that Leverett was the prime mover of this. But for those reasons, the court is going to do a downward departure…

The State argues that the trial court erred when it departed downward in sentencing Leverett. We agree.

Appellate courts apply a mixed standard of review when analyzing a downward departure sentence. State v. Mann, 866 So.2d 179, 181 (Fla. 5th DCA 2004). First, the appellate court must determine whether the trial court applied the correct rule of law and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence. Id.; see also State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). In making this determination, the appellate court must assess the evidence for sufficiency, not weight. Mann, 866 So.2d at 181. Second, if the appellate court determines that the trial court’s reason for departure was in accord with the law and supported by competent, substantial evidence, the applicable court must then decide whether the trial court was correct in determining that the downward departure sentence was in the best interest of the defendant. Subido, 925 So.2d at 1057. The

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reviewing court should not disturb this determination absent a showing of an abuse of discretion. Id Accord State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002).

Section 921.0026(2) of the Florida Statutes (2007) sets forth a list of mitigating circumstances permitting the imposition of a downward departure from the lowest permissible guidance sentence. State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008). However, the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026, as long as the reason given is supported by competent, substantial evidence and not otherwise prohibited. Id.

Here, the trial court gave three reasons for imposing a downward departure sentence: (1) the offense was committed in an unsophisticated manner and was an isolated incident for which Leverett showed remorse; (2) Leverett was 21 years of age at the time of the offense; thus, he was too young to appreciate the consequences of his actions; and, (3) Leverett’s sentence was proportional to the sentence Harris received.

The first two reasons are permissive mitigating factors under section 921.0026(2)(j)-(k) of the Florida Statutes which provides:

921.0026 Mitigating Circumstances.

* * *

(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:

(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

(k) At the time of the offense, the defendant was too young to appreciate the consequences of the offense.

§ 921.0026(2), Fla. Stat. (2007).

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However, the trial court’s finding that the offense was committed in an unsophisticated manner and was an isolated incident for which Leverett has shown remorse is not supported by competent, substantial evidence. Leverett’s home invasion robbery was sophisticated as evidenced by the fact that he was actively involved in the robbery; he chose the location because he thought that he knew the residents and that the apartment contained a safe; he knocked on the door, asked the victim who opened the door what time it was, then pushed his way into the apartment, pushed one of the victims up against the wall, then struck another victim in the face; he then fled the scene in his vehicle and, after he was stopped by law enforcement, he fled on foot and later struggled with the arresting officer. See State v. Deleon, 867 So.2d 636 (Fla. 5th DCA 2004) (holding that transporting cocaine via bicycle was not unsophisticated); State v. Chestnut, 718 So.2d 312 (Fla. 5th DCA 1998) (holding incident was not unsophisticated when defendant threw an object to break the windshield of a vehicle in order to stop it and assault the driver); State v. Morales, 718 So.2d 272 (Fla. 5th DCA 1998) (holding incident was not unsophisticated when defendant gained entry to home by deceit, at a time when defendant knew the victim would be alone, in order to sexually batter the victim).

Additionally, the home invasion was not an isolated incident because Leverett had a prior record which included a felony conviction for possession of cocaine and misdemeanor convictions for possession of marijuana, possession of drug paraphernalia, and trespass. See State v. Stephenson, 973 So.2d 1259 (Fla. 5th DCA 2004) (holding incident was not isolated when there was a substantial prior criminal record); State v. Deleon, 867 So.2d 636 (Fla. 5th DCA 2004) (holding that offense could

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not be characterized as isolated when defendant had multiple prior convictions for felonies and misdemeanors).

The second reason that the trial court gave for imposing a downward departure sentence, that Leverett was too young to appreciate the consequences of his actions, also is not supported by competent, substantial evidence. Section 921.0026(2)(k), of the Florida Statutes (2007) requires that the defendant must be unable to appreciate the consequences of the offense in order to be eligible to receive a downward departure sentence. No evidence was presented to show that Leverett suffered from a mental defect which inhibited his ability to appreciate the consequences of his offenses. See State v. Salgado, 948 So.2d 12, 16 (Fla. 3d DCA 2006) (holding that no evidence to show that the 21-year-old defendant was unable to appreciate consequences; age and conclusion of immaturity alone are not sufficient).

The third reason that the trial court gave for imposing a downward departure sentence, that Leverett’s sentence was proportional to the sentence Harris received, is inappropriate in this case because each defendant was convicted of committing different offenses and the jury convicted Leverett of committing his offenses with a firearm. Also, Leverett had a prior criminal record, and therefore, his minimum guidelines sentence was higher than Harris’. See Thomas v. State, 461 So.2d 274 (5th DCA 1985) (holding that the trial court was not permitted to depart from the sentencing guidelines simply because the co-defendant received a longer sentence; the court explained that if the co-defendant had an extensive criminal history and the defendant did not, it would not be appropriate to give defendant a sentence outside the guidelines simply because it was indicated in the co-defendant’s case).

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Accordingly, we reverse Leverett’s sentence and remand for re-sentencing in accordance with the statutory sentencing guidelines.

REVERSED and REMANDED.

MONACO, C.J. and JACOBUS, J., concur.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Volusia County, Patrick Kennedy, Judge.

PER CURIAM.

The State appeals from an order granting Hill’s motion for discharge based upon an alleged violation of Hill’s right to a speedy trial. See Fla. R. Crim. P. 3.191. We reverse.

In response to Hill’s notice of expiration of trial date, the trial court scheduled trial for Monday, January 4, 2010. However, on December 31, 2009, the trial court

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erroneously determined that the recapture period had expired and entered an order of discharge. The State argues, and Hill acknowledges, that the scheduled trial date actually fell on the last day of the recapture period. See State v. McFarland, 747 So. 2d 481 (Fla. 5th DCA 2000); State v. Edwards, 528 So. 2d 120 (Fla. 5th DCA 1988). Because the scheduled trial date fell within the recapture period, it was improper to enter the order of discharge.

REVERSED and REMANDED.

MONACO, C.J., EVANDER and COHEN, JJ., concur.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellee.

Appeal from the Circuit Court for Volusia County, Patrick Kennedy, Judge.

PER CURIAM.

The State appeals from an order granting Hill’s motion for discharge based upon an alleged violation of Hill’s right to a speedy trial. See Fla. R. Crim. P. 3.191. We reverse.

In response to Hill’s notice of expiration of trial date, the trial court scheduled trial for Monday, January 4, 2010. However, on December 31, 2009, the trial court

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erroneously determined that the recapture period had expired and entered an order of discharge. The State argues, and Hill acknowledges, that the scheduled trial date actually fell on the last day of the recapture period. See State v. McFarland, 747 So. 2d 481 (Fla. 5th DCA 2000); State v. Edwards, 528 So. 2d 120 (Fla. 5th DCA 1988). Because the scheduled trial date fell within the recapture period, it was improper to enter the order of discharge.

REVERSED and REMANDED.

MONACO, C.J., EVANDER and COHEN, JJ., concur.

Donald C. Ashworth, Daytona Beach, pro se.

No appearance for Respondent

Petition for Belated Appeal, A Case of Original Jurisdiction.

PER CURIAM.

Petitioner Donald C. Ashworth entered into a negotiated plea and was sentenced on April 28, 2006. His petition for belated appeal, filed on July 9, 2010, is untimely because it was not filed within the two-year time period and does not meet the requirements of Florida Rule of Appellate Procedure 9.141(c)(4)(A). Therefore, Ashworth’s petition is dismissed. See Dickson v. State, 22 So. 3d 547 (Fla. 2d DCA 2009); Brown v. State, 826 So. 2d 1047 (Fla. 5th DCA 2002). While the untimeliness of his petition is dispositive, we note that, additionally, the petition is facially insufficient because it does not comply with Florida Rule of Appellate Procedure 9.141(c)(3), including the fact that it is missing a proper oath, sworn to under penalty of perjury.

DISMISSED.

MONACO, C.J., TORPY and EVANDER, JJ., concur.

David H. Abrams, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Lisa Raleigh, Special Counsel, Office of the Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Leon County. John C. Cooper, Judge.

Randall C. Marshall and Maria Kayanan, American Civil Liberties Union of Florida, Miami, and Diana Kasdan, American Civil Liberties Union Foundation, New York, N.Y., amici curiae.

CLARK, J.

This is an appeal of a circuit court order compelling a pregnant woman to submit to any medical treatment deemed necessary by the attending obstetrician, including detention in the hospital for enforcement of bed rest, administration of

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intra-venous medications, and anticipated surgical delivery of the fetus. The action was initiated in the circuit court by the State Attorney under the procedure described in In re Dubreuil, 629 So. 2d 819 (Fla. 1994). As provided in Dubreuil, after the State Attorney received notification from a health care provider that a patient refused medical treatment, the State Attorney exercised his discretion to determine that a sufficient state interest was at stake to justify legal action.

This appeal is moot with regard to Appellant because, as ordered, she submitted to the hospital confinement, medical treatment and surgical delivery. Two days after entry of the order, Appellant’s deceased fetus was delivered by Cesarean section. Thus, the justiciable controversy between these parties has expired. However, mootness does not preclude appellate jurisdiction if the issue is “capable of repetition yet evading review,” as in the case of medical issues which require immediate resolution. See Roe v. Wade, 410 U. S. 113 (1973); Matter of Dubreuil, 629 So. 2d 819(Fla. 1993); Holly v. Auld, 450 So. 2d 217, n. 1 (Fla. 1984); Philip Padovano, Florida Appellate Practice, § 1.4, p. 9 (2007-8 ed.).

The situation presented to the trial court in this case is capable of repetition yet evading review. Florida case precedent has addressed the right to privacy where a patient seeks to discontinue life-sustaining medical treatment, refuse a lifesaving medical procedure, and as applied to statutory regulation of a minor’s decision whether or not to continue her pregnancy. In re Guardianship of

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Browning, 568 So. 2d 4 (Fla. 1990); In re Dubreuil 629 So. 2d 819 (Fla. 1994); In re T.W., 551 So. 2d 1186 (Fla. 1989). However, case precedent governing the use of a Dubreuil proceeding to compel a pregnant woman to undergo medical confinement, treatment and procedures against her wishes for the benefit of her unborn fetus is not found in Florida’s jurisprudence. In an effort to assist trial courts and counsel involved in these expedited, if not emergency proceedings, we exercise our discretionary authority to address this appeal. See In re T. A. C. P., 609 So. 2d 588 (Fla. 1992); Harrell v. St. Mary’s Hospital, 678 So. 2d 455 (Fla.4th DCA 1996).

The trial court found that the appellant had failed to follow the doctor’s instructions and recommendations, rendering her pregnancy “high-risk,” and found a “substantial and unacceptable” risk of severe injury or death to the unborn child if the appellant continued to fail to follow the recommended course of treatment. The trial court stated the rule that “as between parent and child, the ultimate welfare of the child is the controlling factor,” and concluded that the State’s interests in the matter “override Ms. Burton’s privacy interests at this time.” The court ordered Samantha Burton to comply with the physician’s orders “including, but not limited to” bed rest, medication to postpone labor and prevent or treat infection, and eventual performance of a cesarean section delivery.

The law in Florida is clear: Every person has the right “to be let alone and

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free from government intrusion into the person’s private life.” Art. I, sec. 23, Fla. Const. This fundamental right to privacy encompasses a person’s “right to the sole control of his or her person” and the “right to determine what shall be done with his own body.” In re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990). The Florida Supreme Court has specifically recognized that “a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health.” Browning, 568 So. 2d at 11.

A patient’s fundamental constitutional right to refuse medical intervention “can only be overcome if the state has a compelling state interest great enough to override this constitutional right.” Singletary v. Costello, 665 So. 2d 1099, 1105 (Fla. 4th DCA 1996). Thus, the threshold issue in this situation is whether the state established a compelling state interest sufficient to trigger the court’s consideration and balance of that interest against the appellant’s right to refuse to submit to the medical intervention the obstetrician prescribed. The state’s interest in the potentiality of life of an unborn fetus becomes compelling “at the point in time when the fetus becomes viable,” defined as “the time at which the fetus becomes capable of meaningful life outside the womb, albeit with artificial aid.” Roe v. Wade, 410 U. S. 113, 163 (1973); In re T. W., 551 So. 2d 1186, 1193 (Fla. 1989). The Legislature has defined “viability” as “that stage of fetal development

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when the life of the unborn child may with a reasonable degree of medical probability be continued indefinitely outside the womb.” § 390.0111(4), Fla. Stat. No presumption of viability is provided in the statute.

Because there is no statutory or precedential presumption of viability, in terms of the stage of pregnancy or otherwise, there must be some evidence of viability via testimony or otherwise. Only after the threshold determination of viability has been made may the court weigh the state’s compelling interest to preserve the life of the fetus against the patient’s fundamental constitutional right to refuse medical treatment.

Even if the State had made the threshold showing of viability and the court had made the requisite determination, the legal test recited in the order on appeal was a misapplication of the law. The holding in M. N. v. Southern Baptist Hosp. of Florida, 648 So. 2d 769 (Fla. 1st DCA 1994), “that as between parent and child, the ultimate welfare of the child is the controlling factor,” does not apply to this case. Unlike this case, in M.N., the parents refused consent for a blood transfusion and chemotherapy for their 8-month-old infant. No privacy rights of a pregnant woman were involved.

The test to overcome a woman’s right to refuse medical intervention in her pregnancy is whether the state’s compelling state interest is sufficient to override the pregnant woman’s constitutional right to the control of her person, including

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her right to refuse medical treatment. Dubreuil, 629 So. 2d 819; Browning, 568 So. 2d 4; Public Health Trust of Dade County v. Wons, 541 So. 2d 96 (Fla. 1989). In addition, where the state does establish a compelling state interest and the court has found the state’s interest sufficient to override a pregnant patient’s right to determine her course of medical treatment, the state must then show that the method for pursuing that compelling state interest is “narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.” Browning, 568 So. 2d at 14.

REVERSED.

VAN NORTWICK, J., CONCURS WITH WRITTEN OPINION, and BERGER, WENDY, ASSOCIATE JUDGE, DISSENTS WITH WRITTEN OPINION.

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Van Nortwick, J., concurring

I concur completely with Judge Clark’s opinion. I write because, given the deprivation of her physical liberty and violation of her privacy interests, the proceeding below violated Samantha Burton’s constitutional right to appointed counsel in this case. Accordingly, I would reverse on these constitutional grounds as well.

The constitutional right to appointed counsel in criminal proceedings is wellestablished under the Sixth Amendment.¹ Gideon v. Wainwright, 372 U.S. 335 (1963). In civil proceedings, however, there is no corollary to the Sixth Amendment right to counsel. The Supreme Court has held that, under the Due Process Clause, “an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Lassiter v. Department of Social Services, 452 U.S. 18, 26-27 (1981). For example, in In Re Gault, 387 U.S. 1 (1967), the Court held that the Due Process Clause of the Fourteenth Amendment requires appointment of counsel to represent a child in state civil delinquency proceedings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed.” Id. at 36.

In the context of a case involving the termination of parental rights, the

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Court in Lassiter examined the limited nature of the right to counsel in civil proceedings. There, the Court applied the case-by-case due process analysis established in Mathews v. Eldridge, 424 U.S. 319 (1976), to the question of whether indigent parents are entitled to counsel in proceedings to terminate their parental rights. Lassiter, 452 U.S. at 27 (citing Eldridge, 424 U.S. at 339). As the Lassiter court explained, courts must first evaluate the three Eldridge elements: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Id. Courts then “must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” Id.

The Florida Supreme Court has recognized the right to appointed counsel in certain civil proceedings under Florida’s Due Process Clause. See Art. I § 9, Fla. Const. Thus, “[t]he subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process.” In Re Beverly, 342 So. 2d 481, 489 (Fla. 1977); see also Pullen v. State, 802 So. 2d 1113, 1116 (Fla. 2001). Similarly, there is a right to appointed counsel in proceedings which can result in the permanent loss of parental custody. In Interest of D.B., 385 So. 2d 83, 90-91 (Fla. 1980).

An individual who faces involuntary hospitalization and mandated invasive

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medical treatment under the procedure established in In Re Dubreuil, 629 So. 2d 819 (Fla. 1994), has serious liberty and privacy interests at stake. Here, Ms. Burton was involuntarily admitted to the hospital and, ultimately, required to undergo a caesarian section against her will. She suffered a significant deprivation of her physical liberty and personal freedom at least the equivalent of the interests at stake in D.B. and Beverly. Although in the order under review the trial court directed the special assistant state attorney appointed for this proceeding to contact North Florida Legal Services, Inc., to request that office to provide Ms. Burton representation, no counsel appeared on her behalf until after the caesarian section was performed. Appointment of counsel after the fact does not satisfy the due process requirements under the Federal and Florida Constitutions. Here, the State had the time to appoint a special assistant state attorney to institute this proceeding. I see no reason why there was not also the opportunity to appoint counsel for Ms. Burton prior to the hearing.

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BERGER, W., Associate Judge, dissenting.

I agree with the majority that the trial judge applied the wrong legal standard. If this case were not moot, I would reverse and remand for consideration using the correct, compelling state interest standard. However, because I disagree with the majority view that this is a case capable of repetition yet evading review, I would dismiss the appeal as moot. Accordingly, I dissent.

This court was not presented with a case of first impression warranting an opinion to assist trial courts and counsel in similar future expedited cases. It matters not that the case before us involves a hospital’s desire to compel medical treatment over the objection of a pregnant woman. See Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 66 F. Supp 2d 1247 (N.D. Fla. 1999) (State’s interest in preserving the life of the unborn child outweighed the pregnant mother’s constitutional right to refuse medical treatment.). The law to be followed is clear and unambiguous. The proper test to be applied when a trial court is presented with a request to override a competent adult’s constitutional right to refuse medical treatment was decided in In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (State has a duty to assure that a person’s wishes regarding medical treatment are respected unless the State has a compelling interest great enough to override this constitutional right.). The proper procedure to be followed when a healthcare provider wishes to override a patient’s decision to refuse medical treatment was

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outlined in In re Matter of Dubreuil, 629 So. 2d 819 (Fla. 1994) (Healthcare provider must immediately provide notice to both the state attorney, who is responsible for deciding whether to engage in legal action, and to interested third parties known to the provider.). Additionally, it is well settled that the State’s interest in preserving the life of an unborn child becomes compelling upon viability. Roe v. Wade, 140 U.S. 113, 163 (1978); In re T. W., 551 So. 2d 1186, 1194 (Fla. 1989) (Viability under Florida law occurs at that point in time when the fetus becomes capable of meaningful life outside the womb through standard medical measures. Under current standards, this point generally occurs upon completion of the second trimester.). Here the trial judge followed the correct procedure but applied the wrong legal standard. Instead of determining whether the State had a compelling interest in overriding the appellant’s right to refuse medical treatment, the judge determined forced treatment was in the best interest of the child.

The trial court specifically found that the risk of severe injury or death to the unborn child was substantial and unacceptable and that the interests of the State in this matter overrode appellant’s privacy interests.² While I believe the balancing

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of interests employed by the trial judge would have been appropriate under Browning, ³ it was the trial court’s application of the State’s parens patriae authority to override the appellant’s right to refuse medical treatment for an existing child that was in error. However, since the principles of law to be applied in this case are not new and the case is now moot, I would dismiss the appeal.

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^1. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI.

^2. Due to the lack of an adequate record, we must presume there was sufficient evidence to support the trial judge’s decision, e.g., that viability was determined. See J.P. Morgan Chase Bank v. Combee, 883 So. 2d 330 (Fla. 1st DCA 2004) (Inadequacy of record on appeal required District Court of Appeal to presume that sufficient evidence supported trial court’s dismissal of bank’s complaint…the trial court’s decision could well be supported by evidence adduced at trial or hearing but not stated in the judge’s order or otherwise apparent in the incomplete record on appeal.); See also Hill v. Hill, 778 So. 2d 967 (Fla. 2001), quoting Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152) (Fla. 1979) (When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.)

^3. A finding of viability must be made before the trial court may engage in a balancing test. It is undisputed that appellant was in the 25th week, or third trimester, of pregnancy. Although this fact alone is not dispositive, it supports a finding of viability, even though not specifically stated in the judge’s order.
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NO. 1D09-1807District Court Of Appeal
First District
State Of Florida

Opinion filed August 12, 2010.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Duval County. Michael R. Weatherby, Judge.

MARSTILLER, J.

Appellant, Tyree Harris, raises two issues on appeal from his conviction and sentence for attempted second degree murder. He asserts the trial court erred by admitting into evidence certain out-of-court statements made by several prosecution witnesses, and fundamentally erred under State v. Montgomery, 35 Fla.

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L. Weekly S204 (Fla. Apr. 8, 2010), by including the element of intent in the jury instruction on the lesser included crime of attempted voluntary manslaughter. We affirm because we conclude the challenged statements were admissible and the manslaughter instruction did not violate Montgomery.

At trial, the state’s witnesses included the victim and four eyewitnesses, one of whom is Appellant’s father. All five testified that Appellant fought with the victim, retrieved a firearm from his apartment, shot the victim, and then fled the scene in his car. They identified Appellant in court as the shooter, and all but Appellant’s father testified that shortly after the incident they identified Appellant from a photo lineup. The investigator who responded to the shooting scene also was a prosecution witness, and his testimony included, inter alia, statements made to him at the scene by three of the testifying eyewitnesses. The on-scene statements the deputy relayed to the jury were essentially identical to the testimony given by the eyewitnesses. The trial court admitted the out-of-court statements into evidence as prior consistent statements under section 90.801(2)(b), Florida Statutes. Under that provision, an out-of-court statement is not hearsay if the declarant testifies at trial, the statement is consistent with the declarant’s testimony, and the statement is “offered to rebut an express or implied charge… of improper influence, motive, or recent fabrication.” § 90.801(2)(b), Fla. Stat. (2009).

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We agree the statements were not admissible as prior consistent statements because they were not offered for the purposes specified in the statute. But we find the statements were admissible under section 90.801(2)(c) which provides that an out-of-court statement is not hearsay if it is “[o]ne of identification of a person made after perceiving the person” and the declarant testifies and is subject to crossexamination. § 90.801(2)(c), Fla. Stat. (2009). See Puryear v.State, 810 So. 2d 901, 904 (Fla. 2002). The record thus provides us a basis to affirm the trial court’s ruling. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644(Fla. 1999).

As to Appellant’s claim that the trial court committed fundamental error by including intent in the manslaughter jury instruction, we find this case on all fours with Griffin v. State, 35 Fla. L. Weekly D1540 (Fla. 1st DCA July 13, 2010), in which we found no fundamental error. There the court instructed the jury that to prove attempted voluntary manslaughter the state only had to prove “the defendant committed an act ‘which would have resulted in the death of [the victim] except that someone prevented [Appellant] from killing [the victim] or he failed to do so.’” Id. at D1540. We concluded the instruction did not, as did the fatally flawed instruction in Montgomery, require proof of intent to kill to convict for attempted voluntary manslaughter. Id. But the trial court in Griffin also told the jury “‘it is not necessary for the State to prove the defendant had a premeditated intent to

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cause death.’” Id. Although we found this to be error, the language did not establish intent to kill as an element of the crime

This portion of the instruction should not have been given because Appellant was not charged with firstdegree murder. See In re Standard Jury Instructions in Criminal Cases (93-1), 636 So.2d 502, 506 (Fla.1994) (stating that this portion of the instruction should be given when attempted voluntary manslaughter is being defined as a lesser included offense of attempted firstdegree premeditated murder). However, the inclusion of this language does not constitute fundamental error because this language is a correct statement of the law and because it does not affirmatively instruct the jury that an intent to kill is necessary for attempted voluntary manslaughter.

Id.

The jury instruction given in Appellant’s case is virtually identical to that given in Griffin:

The next lesser included offense is attempted voluntary manslaughter. This is what the state has to prove with regard to this charge: Mr. Harris committed an act which would have resulted in the death of Mr. White except that someone prevented Mr. Harris from killing Mr. White or

simply because he failed to do so.
* * *
As with second degree murder, in order for you to convict the defendant of attempted voluntary manslaughter it is not necessary for the state to prove that the defendant had a premeditated intent to cause death.

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Based upon our reasoning in Griffin., we conclude the trial court in this case did not commit fundamental error in instructing the jury on attempted voluntary manslaughter.

AFFIRMED.

KAHN and ROWE, JJ., CONCUR.

======================

This opinion is made available by David Edelstein, a criminal lawyer practicing in Fort Lauderdale, Florida, as well as in other cities throughout Florida.

Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.

Before COPE, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, J.

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Marvin Glenn Clark (“Clark”) appeals the trial court’s order, following a bench trial, declaring him a sexually violent predator and civilly committing him for treatment pursuant to sections 394.910-932, Florida Statutes (2008) (“the Jimmy Ryce Act”). Because we find no abuse of discretion as to the objected-to evidence introduced at trial and there is more than ample evidence to support the trial court’s finding, we affirm.

In 1993, Clark committed numerous lewd assaults or acts and other offenses against young boys, generally twelve to thirteen years of age. Although some of the victims were older, all were minors. Although Clark pled guilty in 1994 to ten counts of lewd assault and one count of kidnapping, charged in four separate cases, he admitted to committing many more lewd assaults or acts against minor boys during the same time frame. Clark admitted that he used his position as a volunteer basketball coach at a Jewish community center to lure the victims to various locations where he would expose himself and masturbate in their presence, sometimes while watching pornographic movies or viewing pornographic magazines, encouraging his victims to masturbate with him. Moreover, on at least one occasion, Clark fondled the penis of a thirteen-year-old boy, masturbated him, and then forcibly tackled the boy onto the floor, pinning him down and then rubbing himself up against the victim.

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Inexplicably, despite Clark’s admission to these offenses, he was sentenced to only 364 days in jail followed by fifteen years of probation. In January of 1995, after Clark was released from jail, his probation was transferred, at his request, to Texas, where he soon re-offended. Based on Clark’s version of the incident which resulted in his violation, he picked up a fifteen-year-old boy after “meeting him” in an internet chat room for fifteen-to-eighteen-year-olds, by misrepresenting his own age as seventeen¹ and offering to let the victim drive his new Corvette. He drove the victim to a school parking lot, asked the victim if he wanted to masturbate with him and was unzipping his own pants to masturbate when the police arrived and he was arrested. The victim’s account differs from Clark’s in that the victim claimed that Clark asked the victim if he wanted to masturbate, and when the victim declined, Clark reached for the victim’s penis, the victim pushed Clark away, and as Clark was about to try again, the police arrived.

While the charges in Texas were still pending, the Florida Department of Corrections filed an affidavit charging Clark with violating his probation based on his 1995 arrest in Texas for the incident just described, which was charged as an attempted indecency with a child. Thereafter, Clark was transported to Florida to face the probation violation. Clark ultimately admitted to the allegations in the

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affidavit, pled guilty to violating his probation in Florida, was adjudicated guilty, and sentenced to fifteen years in prison.

In February of 2002, while Clark was still incarcerated in Florida, the State filed a petition seeking Clark’s commitment as a sexually violent predator under the Jimmy Ryce Act. The trial court entered an order finding probable cause to believe Clark was a sexually violent predator and eligible for civil commitment under the Jimmy Ryce Act. However, before Clark could be tried, he completed his Florida sentence, and due to the interstate criminal hold filed by Texas, Clark was transported to Texas to face the still-pending charges in Texas. Clark pled guilty in Texas to the 1995 attempted indecency with a child charge, was adjudicated, given credit for time served, and was released.

Florida continued to pursue its civil commitment petition, but because Clark had already completed his Florida sentence, and commitment proceedings are civil in nature, Clark’s appearance in Florida could not be compelled. Thus, although Clark was represented by counsel, Clark did not personally appear for trial in Florida and he was tried in absentia. At the conclusion of the trial, the trial court entered a final judgment finding Clark to be a sexually violent predator and committing him indefinitely for treatment. However, because Clark’s commitment is a civil commitment, his presence in Florida cannot be compelled, and he continues to reside in Texas.

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THE TRIAL

Dr. Eric Imhof, a psychologist and a member of the multidisciplinary team that evaluated Clark prior to his release from his Florida incarceration in 2002, recommended that Clark be involuntarily civilly committed. Dr. Imhof, who testified on behalf of the State, diagnosed Clark as having a mental disorder (paraphilia) and a personality disorder; found that Clark demonstrated features of pedophilia based on his predilection for younger males; opined that Clark was likely to engage in acts of sexual violence if not confined; and placed Clark in the high-risk of reoffending category. Dr. Imhofs diagnosis and expert opinions were based on his review of Clark’s prior offenses, his interview of Clark in 2001, the incident that occurred in Texas which resulted in the violation of Clark’s Florida probation, Clark’s poor judgment in his continued association with minors by repeatedly putting himself in high-risk situations, and the results of three actuarial tests he performed on Clark.

Among the prior offenses Dr. Imhof relied on are the offenses to which Clark pled guilty (ten counts of lewd assault or acts against young boys and one count of kidnapping), and his admissions to many additional offenses. Clark told Dr. Imhof that on approximately fifteen occasions, he provided pornography to the boys on his basketball team, ages twelve to seventeen, and masturbated in front of them. On seven or eight occasions, he was able to convince his victims to

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masturbate with him. Clark told Dr. Imhof that he was addicted to pornography. Dr. Imhof also considered Clark’s statement to the police in which he admitted to “countless occasions involving sexual activity in the presence of juveniles” and to numerous acts in addition to the acts prosecuted.

Dr. Imhof found that Clark demonstrated a pattern of grooming young males with cars and money and then engaging them in sexual activity. Dr. Imhof considered it significant that while Clark was on probation in Florida and under close scrutiny, he committed the attempted indecency with a child in Texas and continued to place himself in high-risk situations by associating with minor boys. Dr. Imhof testified that Clark suffers from paraphilia, a lifelong chronic disorder; scored in the high-risk category in the three actuarial tests he performed; refused treatment when he was incarcerated in Florida; and was likely to commit sexually violent acts if not confined.

Dr. Amy Phenix, who testified for the defense, considered the same historical information considered by Dr. Imhof and her interview and testing of Clark. She agreed with Dr. Imhof that Clark suffers from paraphilia, a chronic condition that is not outgrown, but opined that, because Clark did not re-offend from 2002 to 2008 (the time of trial), he likely possessed adequate volitional controls. Dr. Phenix, however, expressed her concern that Clark continued to

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place himself in high-risk situations, and noted that Clark’s statements to the various doctors were inconsistent.

ISSUES ON APPEAL

Clark has raised two grounds for reversal on appeal: (1) the introduction of four police reports generated in Texas where Clark was not arrested or charged for the conduct alleged; and (2) the introduction of a written report generated in 2001 by Dr. Peter Bursten, a psychologist, who was a member of the multidisciplinary team that evaluated Clark in 2001 and recommended his commitment. The State based its petition seeking civil commitment under the Jimmy Ryce Act on this evaluation.

A. The Police Reports

The trial court, over Clark’s objection, admitted the contents of four police reports generated in Texas. It is undisputed that none of the incidents described in these reports, which allegedly occurred after Clark returned to Texas after his release from a Florida prison in 2002, led to an arrest, plea, or conviction.

The first report was made in September of 2003, after Clark, who was a registered sex offender and thirty-six years of age, asked a neighbor if he could take her fourteen-year-old son with him to the park to play basketball. The second report was made in June of 2004, by another neighbor. This neighbor reported that she had observed Clark with young (thirteen-to-fourteen-year-old) boys in his

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apartment and that some of these boys stayed overnight in Clark’s apartment. She reported her observations after learning that Clark was a registered sex offender. Several neighbors who were subsequently interviewed by the police stated that they had made similar observations. The third complaint was filed in July of 2005 by an eighteen-year-old boy who initially claimed that after Clark allowed him to stay in his apartment for a couple of days, Clark fondled his penis and then anally raped him. The boy later recanted and admitted that the sex was consensual, stating that he had fabricated his claim that the sexual encounter was nonconsensual to avoid getting into trouble with his family. The final report was filed by a police officer in September of 2006, after he found Clark, who was then forty years old, in a parked vehicle just before midnight, accompanied by a fifteen-year-old boy and a seventeen-year-old boy, with a pornographic DVD sitting on top of the car’s console.

Clark contends that the admission of this hearsay evidence was error requiring a new trial because the uncharged bad acts lacked the requisite indicia of reliability and violated his right to due process by denying him the ability to confront his accusers. We disagree that the admission of these reports requires a new trial based on our standard of review; section 394.9155(5), Florida Statutes (2008), which permits the introduction of hearsay evidence during involuntary civil commitment Jimmy Ryce Act proceedings; Clark’s admission to the accuracy

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of most of the hearsay evidence; the psychologists’ reliance on the portions of these reports Clark admitted to; and the fact that Clark’s commitment order was not based exclusively on this hearsay evidence. We also note that Clark was represented by counsel during these proceedings and he did not attempt to call any of the witnesses in the reports during his trial.

A trial court’s ruling on the admissibility of evidence will not be disturbed absent a finding that the trial court abused its discretion. Franklin v. State, 965 So. 2d 79, 94 (Fla. 2007). Section 394.9155 allows the introduction of hearsay evidence under the Jimmy Ryce Act, providing the evidence is relevant and the trial court does not find that the evidence is unreliable. Section 394.9155 provides, in relevant part:

(4) The court may consider evidence of prior behavior by a person who is subject to proceedings under this part if such evidence is relevant to proving that the person is a sexually violent predator.

(5) Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.

(emphasis added).

The police reports were clearly relevant. The experts considered the evidence contained in these reports in rendering their opinions regarding the risk of Clark re-offending. Dr. Imhof testified that the reports demonstrated that Clark

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continued to exercise poor judgment by placing himself in high-risk situations, noting the significant age differential (a forty-year-old man associating with teenage boys), and his continued interest in pornography, despite his denials to the contrary. Dr. Phenix, Clark’s expert witness, also expressed her concern regarding Clark’s continued association with teenage boys. She testified that, in her opinion, Clark liked to be around teenage boys because he is aroused by them and she did not believe that Clark asked to play basketball with the fourteen-year-old boy simply because he wanted to play basketball. Dr. Phenix also considered it to be a problem and a high-risk situation for Clark, as the employer of a seventeen-yearold, and as an authority figure, to invite the boy to his home, especially in view of his history of befriending young boys and “grooming” them to commit lewd acts with or upon them. Thus, these hearsay reports were clearly relevant.

The second question we must answer is whether the hearsay evidence had sufficient indicia of reliability to permit its admission. Section 394.9155(5) specifies that hearsay evidence is admissible unless the trial court finds it is not reliable. Although a plea of guilt or a conviction may establish the reliability of hearsay statements contained in police reports, see Jenkins v. State, 803 So. 2d 783, 785 (Fla. 5th DCA 2001), a conviction is not required where the defendant admits to the allegations contained in these reports and the hearsay evidence is not the sole basis for the defendant’s commitment. See Pesci v. State, 963 So. 2d 780,

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785 (Fla. 3d DCA 2007) (finding no abuse of discretion in the introduction of police reports wherein the defendant admitted to the psychologists the accuracy of most of the hearsay evidence that was presented and this hearsay evidence was not the sole basis for the defendant’s commitment); Sloss v. State, 925 So. 2d 419, 423 (Fla. 5th DCA 2006); Lee v. State, 854 So. 2d 709, 713 (Fla. 2d DCA 2003) receded from on other grounds by In re Commitment of DeBolt, 19 So. 3d 335, 338 (Fla. 2d DCA 2009) (en banc).

The record reflects that Clark admitted to the psychologists the accuracy of most of the allegations contained in the police reports and Clark’s admissions to this hearsay evidence was considered by the experts in determining whether Clark was likely to re-offend.² Additionally, this hearsay evidence was not the sole basis for Clark’s commitment. In addition to the hearsay evidence, the experts considered, and the trial court had before it, Clark’s prior offenses, the violation of his probation soon after his release from his initial Florida incarceration, his scores

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on the various risk-assessment examinations, and his refusal to receive treatment during his second, and more lengthy, incarceration. Because the objected-to hearsay was relevant, reliable, relied on by both of the testifying experts in forming their opinions, and not the sole basis for Clark’s commitment, we find no abuse in discretion in its admission.

B. Dr. Peter Bursten’s Report

Clark contends that the admission of Dr. Bursten’s report violated the trial court’s pretrial ruling limiting the number of experts to one per side.³ The State, however, argues that because Dr. Bursten did not testify, his report was relied on by both the State’s and Clark’s experts at trial, and Dr. Bursten was a member of the multidisciplinary team retained by the Department of Children and Families to evaluate Clark and make a recommendation regarding civil commitment, not a witness retained by either the State of the defense, his report was properly admitted. We agree with the State.

Section 394.9155(5) provides that reports prepared by a member of the multidisciplinary team or on behalf of the multidisciplinary team, are admissible unless they are unreliable. Clark does not dispute that Dr. Bursten’s report is reliable and that it was considered by his own expert, Dr. Phenix, in performing her evaluation of Clark and was referred to by Dr. Phenix during her testimony at trial.

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It is also undisputed that Dr. Bursten was not retained by the State Attorney’s Office to evaluate Clark or to testify as a witness at trial. Dr. Bursten evaluated Clark in 2001 and his report was provided to the State and Clark. We therefore find that the trial court did not violate its pretrial ruling or abuse its discretion in admitting Dr. Bursten’s report.

CONCLUSION

Because we find that the trial court did not abuse its discretion or violate its pre-trial ruling regarding the admissibility of the objected-to evidence, and we conclude that the record evidence supports the trial court’s finding declaring Clark a sexually violent predator and civilly committing him for treatment under the Jimmy Ryce Act, we affirm.

Affirmed.

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