final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Nos.
97-23950, 15-9809, Cristina Miranda, Judge.
J. Martinez, Public Defender, and Stephen Weinbaum, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and G. Raemy Charest-Turken,
Assistant Attorney General, for appellee.
LAGOA, EMAS and FERNANDEZ, JJ.
Gering appeals from a final judgment adjudicating him a
sexually violent predator and ordering his commitment to the
Florida Civil Commitment Center, pursuant to sections
394.910-394.932, Florida Statutes (2016) ("the Jimmy
Ryce Act") and the Florida Rules of Civil Procedure for
Involuntary Commitment of Sexually Violent Predators (Fla. R.
Civ. P.-S.V.P. or "Jimmy Ryce Rules"). Gering
raises two issues: 1) the trial court was without authority
to grant a directed verdict during trial; and 2) even if a
directed verdict is authorized in Jimmy Ryce cases, the trial
court erred in granting the motion for directed verdict in
affirm and hold that the Jimmy Ryce Act and Jimmy Ryce Rules
authorize either party to move for, and the trial court to
grant, a directed verdict in a Jimmy Ryce jury trial. We
further hold that the trial court properly directed a verdict
in favor of the State in the instant case.
AND PROCEDURAL HISTORY
1986, Gering was charged with, and later convicted of, raping
a seventy-year old woman in New York. After serving less than
five years in prison, Gering was released from prison, but
violated his parole several times. Gering later absconded to
Miami Beach where, in 1997, he was charged with and convicted
of lewd and lascivious battery and false imprisonment of
another elderly woman. Gering was sentenced to twenty years
1, 2015, the State filed a petition, pursuant to section
394.917, Florida Statutes (2015), to declare Gering a
sexually violent predator and sought, following completion of
his incarcerative sentence, to have Gering committed to the
custody of the Department of Children and Family Services
("DCF"), until his "mental abnormality or
personality disorder has so changed that it is safe for
[Gering] to be at large." § 394.917(2). The State
alleged that Gering suffered from sexual sadism disorder and
antisocial personality disorder and that, after evaluation by
a licensed psychologist, he is likely to engage in future
acts of sexual violence if not confined in a secure facility
for long-term control, care and treatment pursuant to Chapter
394, Florida Statutes.
trial court held a probable cause hearing, found probable
cause to believe Gering is a sexually violent predator, and
ordered DCF to take Gering into custody following completion
of his incarcerative sentence, pending a trial on the
State's petition for involuntary civil commitment. Gering
requested a jury trial, which was held in February 2016.
trial, the State presented two witnesses: Dr. Jeffrey
Musgrove, a clinical and forensic psychologist, and Dr.
Sheila Rapa, also a clinical and forensic psychologist. Both
doctors opined that Gering met all of the factors for civil
commitment and that he was likely to reoffend in a sexually
violent manner if not confined to a secured facility for
long-term care, control and treatment.
Dr. Rapa's testimony, the State rested and Gering moved
for a directed verdict, which the trial court denied. The
State also moved for a directed verdict (consistent with its
written motion for same), but the court deferred ruling on
then sought to call Dr. William Samek, a clinical
psychologist. The State objected to Dr. Samek testifying as
an expert, asserting he was unqualified to offer expert
testimony. The trial court agreed and excluded Dr. Samek from
offering expert testimony, but did rule that Dr. Samek would
be permitted to testify regarding his meetings with Gering
and the matters they discussed. Gering's counsel chose
not to present any testimony from Dr. Samek and did not
proffer the expert testimony it would have elicited from him
had he been permitted to testify.
trial court then heard further argument on the State's
motion for directed verdict, and granted the motion, finding
there was no conflict in the evidence which could properly be
submitted to the jury and that no reasonable juror could find
Gering was not a sexually violent predator. The court entered
a final judgment of adjudication and civil commitment. This
appeal, Gering contends that the trial court had no authority
to direct a verdict in favor of the State in a Jimmy Ryce
trial and alternatively, if the trial court had such
authority, it erred ...