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Gering v. State

Florida Court of Appeals, Third District

July 25, 2018

Robert Gering, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Nos. 97-23950, 15-9809, Cristina Miranda, Judge.

          Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.

          Before LAGOA, EMAS and FERNANDEZ, JJ.

          EMAS, J.

         INTRODUCTION

         Robert 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 this case.

         We 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.

         FACTS AND PROCEDURAL HISTORY

         In 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 in prison.

         On May 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.

         The 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.

         At 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.

         Following 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 that motion.

         Gering 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.[1]

         The 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 followed.

         On 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 ...


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