What the Jury Hears: Florida Caselaw, Week of September 25, 2026

November, twenty thirteen. A Child Protection Team interview, part of a DCF investigation. A teenage girl is asked whether she’s having sex with her step-uncle. She says no. In that same round of interviews, she says someone else, her stepfather, has touched her in a sexually inappropriate way, and she doesn’t feel safe going home.

Seven years later, she tells an investigator the step-uncle abused her after all. He’s charged, tried in Sarasota, convicted on two counts, and sentenced to twenty years.

The jury heard that she denied it back in twenty thirteen. The jury even heard that she accused her stepfather of abuse. What the jury never heard was one word: that the abuse she reported against the stepfather was sexual. The judge kept that word out. This week the Second District said that word was the whole comparison.

I’m Rory Safir, and this is Reasonably Safir.

This one is the caselaw edition: the decisions Florida’s appellate courts handed down this week, case by case, for the lawyers who’d rather hear them than read them.

This one’s going up on Sunday instead of Friday, and that’s on me. I was in Orlando for FACDL’s Blood, Breath and Tears DUI conference and didn’t have time to get it out. One piece of that conference fits this week’s deep dive, and I’ll get to it there.

Here’s the thing about this week. Nearly every opinion that matters this week turns on the same decision: what the jury gets to hear. A word kept out of a cross-examination. A defendant who wanted to tell the jury he has PTSD. An instruction telling jurors a mental condition isn’t a defense. A medical examiner telling the jury what somebody else’s toxicology test found. And on the injury side, two judges deciding whether a jury would ever hear the words punitive damages, and a slip and fall that never reached a jury at all. So that’s the theme. What the jury hears. Let’s get into it.

The first case is the one I opened with. Johnson against the State, Second District, out of Sarasota County, Judge Dana Moss below. Judge Atkinson wrote it, with Judges Morris and Labrit. I practice in Sarasota and Manatee regularly, so I pay attention when the Second District sends a case back to Sarasota. Two sexual battery convictions reversed for a new trial.

Before trial, the defense argued her twenty thirteen statements about the stepfather were fair game, because they explained why she denied abuse by Johnson and they went to her credibility. The judge disagreed, and at trial allowed only a sanitized version: even though there were allegations of abuse in your own home, you were still willing to go over there? The jury heard abuse. It didn’t hear sexual. The defense got the rest on the record outside the jury’s presence.

The Second District said that one word carried the defense. Here’s why. If she was willing to report sexual abuse by one relative during that investigation, while denying sexual abuse by another relative in the same interviews, a jury could infer the later accusation was fabricated. Without the word sexual, her silence about Johnson could be put down to the ordinary reluctance to report abuse. With it, that explanation gets much harder. The court relied on its own twenty twenty-four decision in Lydecker, and on the rule that a judge can’t cut off cross-examination on facts tied to the witness’s testimony that could plausibly support the defense.

Then harmless error, which is where the State usually wins these. The State pointed to a friend she confided in, a witness who saw an uncomfortable embrace, Johnson’s estranged wife, and Williams rule testimony from his daughter. The court said this was still, in its words, a case of he said, she said, with nothing like the controlled call in the First District case the State relied on. The jury acquitted on three of the five counts. And the grandmother testified the girl once told her she made the whole thing up after a fight with a boyfriend. Reversed on counts two and four.

The practice point is the proffer. The defense argued relevance before trial and fought it at the bench. Then it made a proffer, which means it put on the record, outside the jury’s presence, exactly what the excluded testimony would have been. Without that, the appellate court has nothing to measure the error against. That proffer is why there was anything to reverse. And the argument that won was specific: a comparison between what she reported and what she didn’t, in the same interviews.

The next case is Bedward against the State, Fourth District, out of Palm Beach County, Judge Gillen below, Judge Conner writing. It came back from the Florida Supreme Court, and the result didn’t change.

Bedward was tried for aggravated battery with a deadly weapon and claimed self-defense. He had been stabbed before, in an unrelated attack, and he has PTSD from it. The trial judge first said he could tell the jury he had PTSD, just not connect it to the stabbing without an expert. Then, after the State rested, the judge ruled PTSD categorically irrelevant to self-defense, relying on a Second District decision called Oquendo. Bedward didn’t testify.

Last year the Florida Supreme Court decided Oquendo itself and rejected the categorical rule: PTSD evidence may be relevant to the subjective part of a self-defense claim. It sent Bedward back for another look. On remand, the Fourth District affirmed again. Oquendo also says PTSD can’t become a back door to diminished capacity, and it pointed to conditions a trial court imposed in an earlier First District case, Mizell, including the defendant laying a predicate and an expert limited to explaining his background. Bedward never planned to call an expert, so the court held his own testimony about a diagnosis was inadmissible without one. And it added that he had no self-defense claim anyway: by his own account he lost his composure and, quote, put a beating on the victim, after being told to leave the victim’s apartment.

So after Oquendo, PTSD can come in on subjective fear. Plan to bring it in through an expert. The Fourth District just told you the defendant’s own word for his diagnosis isn’t enough.

The next case is Gabriel against the State, First District, out of Okaloosa County, Judge Gontarek below, and it comes at mental condition from the State’s side.

Gabriel was found at night in a stranger’s bedroom, dressed all in black, carrying a stolen gun and a backpack with rope in it. The homeowner held him at gunpoint with his own bedside pistol until law enforcement arrived. The defense was necessity: he was being chased, by an animal or a person, and the opinion notes that the story changed. In opening, his lawyer told the jury he was incoherent and terrified out of his mind.

So the State asked for standard instruction 3.6(p): mental illness, an abnormal mental condition, or diminished mental capacity is not a defense to any crime in this case. The defense objected that nobody had put mental condition at issue. The judge gave it, and the First District affirmed.

And the First District openly disagreed with the Fourth. In a twenty eighteen case called Perry, the Fourth District treated that same instruction, given without expert mental health evidence, as tantamount to a comment on the evidence. The First District said Perry doesn’t apply here, then went further. It disagreed that the instruction should be reserved for cases with expert testimony, and it said it does not share the Fourth District’s concern that the instruction is a judicial comment. Its line: the court is telling the jury what the law is and what it is not.

So in the Fourth District you have Perry. In the First, that argument now has a published answer, and trial judges elsewhere have two districts pointing different ways. And the lesson from Gabriel is about openings. If you tell the jury your client was incoherent and terrified out of his mind, you may have just earned the State its instruction.

The next case is short, and I want you to remember it. Fonte against the State, Third District, out of Miami-Dade, Judge Milton Hirsch below, Chief Judge Scales writing. A second-degree murder conviction affirmed.

At trial, the county’s chief medical examiner testified about the contents of a routine toxicology report. She didn’t run that test. A non-testifying analyst did, as part of the autopsy. The defense objected under the Confrontation Clause, relying on the Supreme Court’s twenty twenty-four decision in Smith against Arizona, which is about exactly that: a substitute witness telling the jury what an absent analyst found.

The Third District found no violation, because the toxicology report wasn’t testimonial. It was prepared under the autopsy’s standard protocol, as part of the medical examiner’s statutory duty when someone dies of criminal violence, and its primary purpose was the cause of death, which wasn’t even disputed, since Fonte admitted the stabbing. The court acknowledged the toxicology may have contradicted what Fonte told police, but said that wasn’t its primary purpose. It also flagged that the districts don’t agree on autopsy reports.

Now flip that. Take away the autopsy and the statutory duty. Put a deputy in the room requesting a legal blood draw from a DUI suspect, and send the vial to a lab whose job is prosecution. Hold that thought for the deep dive, because that case is sitting in a lot of your files.

The next two are First District traffic-stop cases, decided the same day by the same judge, Judge Long, and both answer arguments you may be making right now.

Parish, out of Escambia County. A lawful stop, a K-9 on scene, and an order to get out so the dog could work. Parish relied on the Florida Supreme Court’s twenty twenty-four decision in Creller, which said a K-9 officer may order a driver out during a lawful stop for officer safety reasons, and argued the State never proved any safety reason. The court said that misreads Creller. Under Pennsylvania against Mimms and Maryland against Wilson, an officer may order people out of a car during a traffic stop, because approaching an occupied car is always dangerous enough. The court said the officer safety language isn’t a condition the State has to prove in every case. It’s the justification for the rule.

And Smith, out of Okaloosa County. The argument was that the smell of burned cannabis coming from the car couldn’t supply probable cause. The court called that without merit, because it’s unlawful to smoke cannabis in a vehicle, medical marijuana included, under section 381.986. It noted other evidence too, including an admission there was marijuana in the car and his stomping on a baggy he’d dropped. And his challenge to the initial detention failed because his brief argued probable cause and never addressed reasonable suspicion. My reading, labeled as mine: the opinion rests on burned cannabis, meaning smoke, because smoking in a car is the unlawful act. A raw odor isn’t what this opinion decides.

One more short one, because it’s a rare sight: the State confessing error and the court refusing the confession. Adderley against the State, First District, out of Leon County, Judge Winokur writing. Methamphetamine trafficking. At sentencing the judge announced a twenty-one hundred dollar fine and a one hundred five dollar surcharge. The written order said the surcharge was twenty-five thousand one hundred five dollars. The defense called it a scrivener’s error, and the State agreed. The court did the math instead. The judge had also imposed two mandatory trafficking fines of two hundred fifty thousand dollars each, and five percent of five hundred two thousand one hundred is twenty-five thousand one hundred five. The written number was right, and because the section 938.04 surcharge is a mandatory cost, it never had to be pronounced. Before you file the 3.800(b)(2) motion, check the math.

The rest of the week, quickly. Brown, Second District, out of Sarasota: the six-person jury challenge rejected again, with a footnote noting the U.S. Supreme Court granted review of that exact issue in June, in a case called Kian out of the Fourth District. If you’re trying a felony in front of six, object and ask for twelve, so your client is preserved when that decision comes down. The Fifth District barred a Duval County prisoner from further pro se filings, quoting its own old line: enough is enough. And the Florida Supreme Court affirmed the denial of relief to Curtis Beasley, seventy-seven years old, with an execution date of September twenty-ninth. It held that the Florida Constitution’s conformity clause ties it to the U.S. Supreme Court, which recognizes only one age-based exemption, for people under eighteen at the time of the crime, and it denied a stay.

Now the injury side, and it’s two opinions on the same question in the same week: when does a jury get to hear the words punitive damages.

The standard first. Section 768.72 requires a reasonable showing by evidence in the record or a proffer before you can plead punitive damages. This year, in Perlmutter against Federal Insurance, the Florida Supreme Court held the clear and convincing standard doesn’t apply at that stage. The test is whether a reasonable person could conclude, from the claimant’s evidence, that the defendant committed intentional misconduct or gross negligence as the statute defines them.

First, Limousines of South Florida against Levit, Third District, out of Miami-Dade, Judge Gordo writing. A shuttle driver with a valid commercial license, but possibly without the passenger endorsement, braked late and made slight contact with the back of a car. The shuttle was empty. No injuries were reported at the scene. The trial judge let the plaintiffs add punitive damages on the theory that putting a driver without the endorsement on the road showed conscious disregard for the public.

Reversed. The court’s line: any missing passenger endorsement is a licensing deficiency, not a course of conduct. A licensing or traffic violation, standing alone, isn’t enough. You need some additional act showing recklessness, and a direct link between that conduct and the harm. Nothing about an endorsement had anything to do with a late brake on an empty bus. The court reminded trial judges that gross negligence here is the equivalent of the conduct in criminal manslaughter, and that leave to plead punitive damages can be a game changer, because it opens financial discovery.

Then Gresham against FEC Highway Services, Fifth District, out of Duval County, and this one is harder. The majority affirmed the denial of leave in a short per curiam opinion, calling the trial court’s order thorough and correct in its approach. Chief Judge Jay dissented, and the dissent lays out the proffer.

A semi-truck on I-95 approaching Jacksonville, in the rain. In the minutes before the crash the driver passed three message boards warning of construction and a lane closure, five road work signs, two uneven-lane signs, two closed-shoulder signs, and dozens of barrels. Traffic ahead slowed to a stop, and the dash camera shows the car in front braking safely. The truck veered into the concrete median, ricocheted back across two lanes, and crushed the car, dragging it about a hundred sixty feet. The driver, twenty-one, and her passenger, twenty-three, were killed. A trucking safety expert said the truck was going twenty miles an hour too fast for the conditions.

The truck driver couldn’t read English. He got his North Carolina commercial license through an interpreter, with no written test, and his Florida license by reciprocity. At deposition, asked whether he understood the English highway signs that day, and shown a dash-cam still of a sign and asked if he could read it, he took the Fifth.

The dissent supplies exactly the link Limousines found missing: the license problem explains the crash. A driver blows past a dozen warnings because he can’t read them, and he knew that about himself. A reasonable person, the dissent says, could call that conscious disregard.

So for anyone drafting a punitive proffer against a commercial driver: a bad license alone loses, and Limousines says so. What you have to build is the bridge from the license problem to the specific driving that caused the crash. The Gresham dissent is the template for that bridge, even though it didn’t carry the panel.

One more on the injury side, and it ties back to last week. This one’s out of Pasco County, which is right near me, and I practice there too. Ausburn against Wesley Chapel Toyota, Second District, Judge Barthle below, Judge Atkinson writing again. The trial judge granted summary judgment for the dealership, meaning the case ended before trial because there was no real factual dispute for a jury to decide, and the Second District affirmed.

An auto glass technician drove into a dealership service bay on a rainy afternoon to work on a customer’s car, stepped out, and both feet went out from under him. At deposition he couldn’t say whether it was oil, water, or what. He didn’t look down. He agreed rain would come off the running boards of the vehicle he’d just driven in.

Section 768.0755 is the transitory substance statute. It covers a slip and fall in a business on something that isn’t supposed to be on the floor, like a spill, grease or water, and it makes the injured person prove the business knew or should have known about it. Should have known comes one of two ways: the condition was there long enough, or it happened with regularity. The court said he couldn’t get through either door. You can’t show how long a substance sat on the floor when you can’t say what it was, and in the court’s words, a condition cannot be said to have occurred with regularity if the condition cannot be identified. His theory that it rained, wet cars came in, and someone let water pool was, the court said, impermissible inference stacking. Last week the Second District leaned on the rule against stacking inferences to reverse a probation revocation. This week it ended a premises case.

The practice point is intake. What was on the floor, what did it look like, was it dirty, were there track marks, and did anyone take a picture. The court cited cases where testimony about tracks through dirty, scuffed liquid got to a jury. Nothing like that existed here.

One more thing before I let you go, because ten minutes of holdings is a digest, and this show doesn’t do digests. Every Friday this segment takes the one doctrine the week actually turned on and gets into the deep end. This week it’s the substitute analyst: who has to take the stand when the State wants a lab result in front of a jury, and what that means for the blood report in your DUI file.

Start with the doctrine. Since Crawford against Washington in twenty oh four, the Confrontation Clause bars a testimonial statement from a witness who doesn’t appear at trial, unless that witness is unavailable and the defendant had a prior chance to cross-examine. Smith against Arizona put it in two words: the Clause applies only to testimonial hearsay, and each word is a limit. The statement has to be testimonial, and it has to come in for its truth. Fonte lost on the first word.

Now Florida, because Florida got here early. On May first, twenty oh eight, the Florida Supreme Court decided two cases the same day. The first was Belvin, a DUI. The breath technician who ran the test and prepared the affidavit didn’t testify, and the affidavit came in anyway. The Court held the parts of the affidavit containing the operator’s procedures and observations are testimonial, and admitting them without a chance to cross-examine her violated the Confrontation Clause. The State pointed out that the statute lets the defendant subpoena the operator. The Court said that doesn’t save it, because the burden of proof lies with the State, not the defendant.

The second was State against Johnson. An FDLE drug lab report came in through the analyst’s supervisor. The analyst had moved to the FBI in Virginia and was willing to fly down the next morning, and the State called that an unreasonable expense. The Court held the report testimonial even though it was a business record, because it was prepared at law enforcement’s request for the purpose of prosecution. It held the State hadn’t shown the analyst was unavailable. And in a footnote it confirmed that a discovery deposition is not the prior opportunity for cross-examination the Constitution requires.

Here’s the line Johnson drew, and it’s the line for your blood cases. The Court contrasted its two thousand decision in Baber, a DUI manslaughter case, where a hospital ran the defendant’s blood alcohol for medical treatment and the result came in as a hospital business record. A test run for treatment is one thing. A report prepared for prosecution is another. As Johnson describes it, the Second District had already applied that reasoning to a legal blood draw in a case called Sobota, where the toxicologist didn’t testify, and reversed.

Then the Supreme Court caught up, in a drunk driving case. Bullcoming against New Mexico, twenty eleven. New Mexico calls it DWI; here in Florida we call it DUI, but it’s the same kind of charge. A driver rear-ended a pickup truck in Farmington. His blood alcohol report came in through a different analyst, because the one who certified it had been placed on unpaid leave. The Court held that surrogate testimony of that kind does not meet the constitutional requirement: the accused has the right to be confronted with the analyst who made the certification. And it added the sentence prosecutors now build around. New Mexico could have avoided any Confrontation Clause problem by asking the substitute to retest the sample and testify to his own results.

For years after that, the common workaround was to have the substitute give his own opinion and treat the absent analyst’s work as mere basis for it, supposedly not offered for its truth. Smith against Arizona closed that door. The substitute there testified, in the Court’s words, to the precautions she said she took, the standards she said she followed, the tests she said she performed, and the results she said she obtained. The Court held that when an expert relays an absent analyst’s statements to support his opinion, those statements come in for their truth, because only if true can they give the jury a reason to credit him. The defendant has the right to confront the person who actually did the lab work, not a surrogate merely reading from her records. What the Court didn’t decide was whether those particular records were testimonial. It sent that question back.

And Florida has applied the retest rule. In Robinson, last October, the Third District affirmed where the original DNA technician was unavailable and a second analyst retested the samples and testified to her own work, citing that exact sentence from Bullcoming.

So here’s the working playbook.

First, identify what kind of blood result you have. Hospital blood drawn for treatment is the Baber side of the line, and the fight there is over foundation and trustworthiness. This is the piece from the Orlando conference. Deandra Grant presented on cross-examining the lab toxicologist and hospital blood. She was one of my professors when I earned the forensic lawyer-scientist designation, and full disclosure, she’s a good friend. Her materials lay out a three-part cross for a hospital result: who drew it and who had access to it, what was tested and how it was collected, and what method was used and for what medical purpose. A hospital number is often serum or plasma rather than whole blood, so it has to be converted, as a range, before you compare it to the legal limit. A legal draw requested by law enforcement and analyzed by a crime lab is the Johnson and Sobota side, and that report is testimonial. Fonte’s autopsy toxicology landed on that first side too, because the court found its primary purpose was the cause of death.

Second, find out who actually did the analysis. The person who signed the report may not be the person who ran the sample. Ask for the full lab packet in discovery, not just the one-page result.

Third, object on confrontation grounds, specifically, and make the record on both of Smith’s words. The report is testimonial because it was prepared for prosecution, and the substitute’s opinion depends on the absent analyst’s work being true.

Fourth, if the State calls a substitute, cross on what that witness did personally. Did you run this sample? Did you watch it run? Did you retest it? If not, everything the jury is hearing about the result depends on someone else’s work, and that’s Smith. And think before you demand the original analyst, because under Bullcoming and Robinson a genuine retest cures the problem. Know whether there’s any sample left.

Fifth, test unavailability. Johnson says the State has to make a good faith effort. An analyst who changed jobs but is willing to come isn’t unavailable, and a discovery deposition doesn’t count as a prior chance to cross.

Two caveats. Confrontation errors are subject to harmless error review, and courts apply it. And whether a given lab record is testimonial is the question the Supreme Court left open in Smith, so expect fights over it, especially for hospital and medical examiner records. Those are the lines as the cases draw them, and some judges will draw them differently.

If you want the set, Belvin and Johnson from twenty oh eight, Bullcoming, Smith against Arizona, Robinson and Fonte, plus a one-page lab witness checklist built on those five questions, email me and I’ll send them over.

So that’s the week. A sexual battery conviction reversed because the jury heard the word abuse and never heard the word sexual. A PTSD defense that needed an expert, and an instruction the First and Fourth Districts now read differently. A medical examiner allowed to relay someone else’s toxicology because an autopsy isn’t built for prosecution. Two traffic stops where the defense said the officer needed more than he had, and the court said he didn’t. A surcharge the State wanted to give back that was right to the dollar. On the injury side, a missing endorsement that couldn’t carry punitive damages, a driver who couldn’t read the signs and a panel that still said no, and a slip and fall that ended because nobody knew what was on the floor.

The pattern, if you want one: every one of these was decided by what somebody put in the record before the jury heard a word. The proffer, the expert, the opening statement, and the deposition answer. If it isn’t in the record, the jury doesn’t hear it, and neither does the court of appeal.

One caveat, colleague to colleague. These are summaries, most of these decisions aren’t final until the rehearing window runs, and nothing in this episode is legal advice. Pull the opinion before you rely on a word of it.

If you want any of this week’s opinions, or the lab witness checklist from the deep dive, email me at Rory at the Safir lawyer dot com and I’ll send them over.

And if you’re headed to the DUI Defense Lawyers Association conference in San Antonio this week, the group Deandra heads, I’m speaking there. Come say hello.

Take care of yourself, and take care of your clients.