       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 25, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-558
                    Lower Tribunal Nos. 97-23950, 15-9809
                             ________________


                               Robert Gering,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



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



                                            2
      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.



                                          3
      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



1On appeal, Gering does not challenge the trial court’s determination that Dr.
Samek was not qualified to offer expert testimony.

                                         4
court had such authority, it erred in directing a verdict in favor of the State in this

case.

        ANALYSIS

        Does the trial court have the authority to enter a directed verdict in
        favor of the State in a Jimmy Ryce jury trial?

        Because this question requires us to construe a statute and rules of

procedure, our standard of review is de novo. State v. Phillips, 119 So. 3d 1233

(Fla. 2013).

        The Florida Legislature enacted the Jimmy Ryce Act for the purpose of

creating “a civil commitment procedure for the long-term care and treatment of

sexually violent predators.” § 394.910, Fla. Stat. (2016). Under the statute, a

“sexually violent predator is any person who ‘has been convicted of a sexually

violent offense; and suffers from a mental abnormality or personality disorder that

makes the person likely to engage in acts of sexual violence if not confined in a

secure facility for long-term control, care, and treatment.” Phillips, 119 So. 3d at

1237 (quoting § 394.912(10)(a), (b), Fla. Stat. (2005)).

        Gering’s claim appears to be a question of first impression in Florida:

Whether a trial court is authorized by statute or rule to direct a verdict in favor of

the State in a Jimmy Ryce jury trial. Gering contends that once a Jimmy Ryce jury

trial has commenced, the question of whether a respondent is a sexually violent

predator must be determined by a verdict of the jury, and the trial court is not

                                          5
authorized to take the case away from the jury and direct a verdict in favor of the

State.2

          We begin by noting that Gering does not contend in this appeal that a

commitment proceeding under the Jimmy Ryce Act is criminal in nature; indeed,

as the Florida Supreme Court has held on more than one occasion, an involuntary

civil commitment proceeding under the Jimmy Ryce Act is civil, not criminal.

See, e.g., Westerheide v. State, 831 So. 2d 93, 100 (Fla. 2002) (holding that the

Jimmy Ryce Act “was clearly intended to create a civil commitment scheme” for

those who are determined to be sexually violent predators under the Act); Osborne

v. State, 907 So. 2d 505 (Fla. 2005); Mitchell v. State, 911 So. 2d 1211, 1215 (Fla.

2005) (noting “it is now settled law that the statutes authorizing civil commitment

of sexually violent predators (i.e., the Jimmy Ryce Act), are civil”).

          Although Jimmy Ryce proceedings are civil in nature, we acknowledge that

in light of the liberty interests implicated by such proceedings and the correlative

due process concerns, certain procedures have been established and rights afforded

which in some respects mirror procedures established and rights afforded in

criminal prosecutions. See Mitchell, 911 So. 2d at 1216 (reaffirming that Jimmy


2 Because the instant Jimmy Ryce case proceeded by jury trial, we confine our
analysis and discussion to directed verdicts under Florida Rule of Civil Procedure
1.480(b). We note, however, that our analysis would appear to be equally
applicable to a Jimmy Ryce case that proceeded to a bench trial, in which event
rule 1.420(b) (involuntary dismissal) would be invoked.

                                          6
Ryce proceedings are civil, but observing that “[t]he liberty interests affected in

Ryce Act proceedings are not dissimilar to the liberty interests involved in criminal

proceedings, although there are obviously critical distinctions”).3

      In a Jimmy Ryce proceeding, a respondent is afforded certain rights

analogous in some respect to criminal proceedings.        For example: the right to

appointed counsel if he or she is indigent, see Fla. R. Civ. P.—S.V.P. 4.400(a); the

right to self-representation following a hearing held pursuant to Faretta v.

California, 422 U.S. 806 (1975), see Fla. R. Civ. P.—S.V.P. 4.400(b); the right to

an adversarial probable cause hearing under certain circumstances, see Fla. R. Civ.

P.—S.V.P. 4.220 and § 394.915, Fla. Stat. (2016); the right to seek habeas corpus

relief based upon a claim of ineffective assistance of counsel, see Fla. R. Civ. P.—

S.V.P. 4.460; § 394.9215, Fla. Stat. (2016). Additionally, the state attorney’s

office is charged with the responsibility of filing the petition seeking involuntary



3 Analogously, other proceedings incorporate similar due process protections to
protect important liberty interests, but are nonetheless considered civil, rather than
criminal in nature. See, e.g., J.B. v. Florida Dep’t of Children and Families, 170
So. 3d 780, 785 (Fla. 2015) (recognizing certain due process procedures rights
must be afforded in termination of parental rights cases (e.g., right to appointed
counsel for indigent parents), and establishing a mechanism for bringing a claim of
ineffective assistance of counsel in such cases); N.S.H. v. Florida Dep’t of
Children and Family Servs., 843 So. 2d 898, 902 (Fla. 2003) (observing;
“termination of parental rights ‘cases are not criminal in nature. They are civil
proceedings which happen to affect the substantial interests of the parents and
children involved’”) (quoting Ostrum v. Dept. of Health and Rehab. Servs. of Fla.,
663 So. 2d 1359, 1361 (Fla. 4th DCA 1995)).

                                          7
commitment under the Jimmy Ryce Act and for prosecuting such petition. See

generally §§ 394.9125-394.914, Fla. Stat. (2016).

      Nevertheless, there are also critical procedural differences between a Jimmy

Ryce proceeding and a criminal prosecution.         For example:     A Jimmy Ryce

proceeding is initiated by a petition, and respondent is required to respond by filing

an answer, including, if appropriate, affirmative defenses, see Fla. R. Civ. P.—

S.V.P. 4.100(a); further, “[a]ll pleadings shall comply with the rules governing

pleadings in other civil actions” see Fla. R. Civ. P.—S.V.P. 4.100(a); the discovery

provisions governing a Jimmy Ryce proceeding virtually mirror the discovery

provisions in civil actions,    see Fla. R. Civ. P.—S.V.P. 4.280-4.310, 4.390;

petitioner is entitled to take the deposition of the respondent in a Jimmy Ryce

proceeding, see Fla. R. Civ. P.—S.V.P. 4.310(a); a jury trial in a Jimmy Ryce

proceeding must be demanded in writing or is deemed waived, see Fla. R. Civ.

P.—S.V.P. 4.430(b), whereas a jury trial in a criminal proceeding is granted as a

matter of right unless waived by the defendant,        see Fla. R. Crim. P. 3.260

(providing “A defendant may in writing waive a jury trial with the consent of the

state”); the burden of proof in a Jimmy Ryce proceeding is “clear and convincing

evidence” rather than “beyond a reasonable doubt,” see § 394.917(1), Fla. Stat.

(2016); Fla. R. Civ. P.—S.V.P. 4.240(c); the State can appeal a jury verdict in




                                          8
favor of the respondent in a Jimmy Ryce proceeding. State v. Bryant, 901 So. 2d

381 (Fla. 3d DCA 2005).

      Gering contends that the State has no right to move for a directed verdict

and the trial court has no authority to direct a verdict in favor of the State. For this

proposition, he relies on one Jimmy Ryce rule and one statutory provision of the

Jimmy Ryce Act:

   Rule 4.110, Fla. R. Civ. P. – S.V.P. is entitled “Motions” and provides:

      (a) Motion for Summary Judgment. After the pleadings and
      discovery are closed, but within such time as not to delay the trial, any
      party may move for summary judgment. Summary judgment practice
      shall be governed by Fla. R. Civ. P. 1.510.

      (b) Motions to Dismiss. Motions directed to the sufficiency of the
      petition shall be contained in the answer as an affirmative defense.

      (c) Motion for More Definite Statement. A respondent may file a
      motion for a more definite statement which shall be considered a
      motion for a statement of particulars in response to the original
      petition. The motion shall disclose the defects in the petition.

      Gering contends that rule 4.110 contains the only motions which may be

filed in a Jimmy Ryce proceeding and, because rule 4.110 does not include a

motion for directed verdict, no such motion is authorized.

      In further support, Gering relies upon section 394.917(1), which provides in

pertinent part: “The court or jury shall determine by clear and convincing evidence

whether the person is a sexually violent predator. If the determination is made by a

jury, the verdict must be unanimous.” Gering urges us to construe the statutory

                                           9
language of section 394.917(1) to prohibit a motion for directed verdict, because

that provision requires that “[t]he court or jury shall determine . . . whether the

person is a sexually violent predator.” (Emphasis added.) This language, Gering

posits, evidences a clear intent by the Legislature that, where the trial is by jury,

the determination must be reached by a verdict of the jury and cannot be made by

way of a directed verdict.

      However, Gering’s argument ignores a fact of singular import: the Jimmy

Ryce Act and the Jimmy Ryce Rules each expressly incorporates the Florida Rules

of Civil Procedure:

   Rule 4.440(a)(1) (entitled: “Rules of Procedure and Evidence”) provides:

   (a) In all commitment proceedings initiated under part V, chapter 394,
   Florida Statutes and this rule, the following applies:

   (1) The Florida Rules of Civil Procedure and Florida Rules of Judicial
   Administration apply unless otherwise superseded by these rules.

(Emphasis added.)

      Similarly, section 394.9155(1) provides:

      The Florida Rules of Civil Procedure apply unless otherwise specified
      in this part.

(Emphasis added.)


      In light of this express incorporation by the Legislature and the Florida

Supreme Court, Florida Rule of Civil Procedure 1.480(a), governing motion for



                                         10
directed verdict, plainly applies to a Jimmy Ryce proceeding “unless otherwise

superseded by” the Jimmy Ryce rules.4 See rule 4.440(a)(1). Gering cannot point

to language in any provision of the Jimmy Ryce rules that supersedes or otherwise

prohibits application of rule 1.480(a). Gering’s reliance on rule 4.110 for this

proposition falls far short, as that rule merely sets forth a list of three pretrial

motions (motion for summary judgment, motion to dismiss, motion for more

definite statement) which are available in a Jimmy Ryce proceeding. Nothing in

the language of rule 4.110 indicates it supersedes the express incorporation of the

rules of civil procedure, nor does it indicate any intent that the three pretrial

motions listed in rule 4.110 constitute the only authorized motions that can be filed

in a Jimmy Ryce proceeding. Surely if the Florida Supreme Court intended rule

4.110 to represent an exhaustive or exclusive list of authorized motions, it would

have said just that.5 Stated another way, the relevant question is not whether rule

4   Rule 1.480(a) provides:

        (a) Effect. A party who moves for a directed verdict at the close of the
        evidence offered by the adverse party may offer evidence in the event
        the motion is denied without having reserved the right to do so and to
        the same extent as if the motion had not been made. The denial of a
        motion for a directed verdict shall not operate to discharge the jury. A
        motion for a directed verdict shall state the specific grounds therefor.
        The order directing a verdict is effective without any assent of the
        jury.
5 Indeed, one can find numerous other provisions within the Jimmy Ryce rules
authorizing motions beyond those provided in rule 4.110. See, e.g., rule 4.260
(motion for continuance of trial); rule 4.280(c) (motion for protective order); rule

                                          11
4.110 permits motions for a directed verdict; the relevant question is whether, in

light of the incorporation of the rules of civil procedure, rule 4.110 (or any other

rule) prohibits a motion for directed verdict. Demonstrably, the answer is no.

      Gering’s reliance upon the language of section 394.917(1) is equally

unavailing; read in context, that statute merely sets forth the process for a Jimmy

Ryce trial by judge or jury and a final determination of whether a respondent is a

sexually violent predator. Nothing in the language of that subsection indicates that

motions for directed verdict are prohibited or unauthorized. Like the Florida

Supreme Court, had the Legislature intended to exempt motions for directed

verdict from its incorporation of the rules of civil procedure, it would have said so.6

We find nothing in the provisions of the Jimmy Ryce Act or the Jimmy Ryce Rules

to indicate the Florida Legislature or the Florida Supreme Court intended to

prohibit or exclude such motions. See also Osborne v. State, 907 So. 2d at 507

(concluding that the State, in a Jimmy Ryce proceeding, possesses the same right




4.310(d) (motion to terminate or limit deposition); rule 4.380 (motion for order
compelling discovery); rule 4.431 (motion for interview of juror).
6 Gering argues, in essence, that he has a right to a verdict in a jury trial which

cannot be short-circuited by a motion for a directed verdict. This is, however,
irreconcilable with the fact that rule 4.110(a) expressly authorizes a motion for
summary judgment, which may be entered on behalf of the State or the respondent.
It is difficult to see how the Jimmy Ryce Act and Jimmy Ryce Rules can be read to
require that, once commenced, a jury trial must proceed to verdict (unimpeded by
a directed verdict) when the trial court has the authority to enter summary
judgment in favor of the State, precluding a trial altogether.

                                          12
to appeal as any other party in a civil proceeding, even though the right to appeal is

not expressly provided for in the Jimmy Ryce Act).

      In sum, we find no support for Gering’s assertion that the State is without

authority to seek, and the trial court is without authority to grant, a motion for

directed verdict in a Jimmy Ryce proceeding. We further note that, if we were to

adopt Gering’s position and conclude that rule 4.110 contains the exclusive list of

authorized motions, the following motions (which are contained in the rules of

civil procedure but are not expressly duplicated in the Jimmy Ryce rules) would be

prohibited in a Jimmy Ryce proceeding: motion to amend petition; motion to

amend answer to petition; motion for voluntary dismissal (by the State); motion for

new trial; motion for rehearing; motion for relief from judgment.

      In addition, Gering’s position would necessarily preclude both the State and

the respondent from moving for a directed verdict in a Jimmy Rice jury trial. But

this court, as well as our sister courts, have implicitly recognized a respondent’s

right to seek a directed verdict at the conclusion of a Jimmy Ryce trial. For

example, in Brown v. State, 940 So. 2d 609, 610 (Fla. 4th DCA 2006), the Fourth

District observed:

      In a civil commitment proceeding filed under the Jimmy Ryce Act,
      the Florida Rules of Civil Procedure generally apply. See §
      394.9155(1), Fla. Stat. (2005) (“The Florida Rules of Civil Procedure
      apply unless otherwise specified in this part.”). Florida Rule of Civil
      Procedure 1.480 outlines the procedures governing a motion for
      directed verdict. Rule 1.480(b) provides, in pertinent part:

                                         13
            When a motion for a directed verdict made at the close of
            all of the evidence is denied or for any reason is not
            granted, the court is deemed to have submitted the action
            to the jury subject to a later determination of the legal
            questions raised by the motion. Within 10 days after the
            return of a verdict, a party who has timely moved for a
            directed verdict may serve a motion to set aside the
            verdict and any judgment entered thereon and to enter
            judgment in accordance with the motion for a directed
            verdict.

      In Murray v. State, 27 So. 3d 781 (Fla. 3d DCA 2010) respondent was

adjudicated a sexually violent predator following a Jimmy Ryce jury trial. On

appeal from that judgment, appellant contended that the trial court erred in denying

his motion for directed verdict. We affirmed because appellant had failed to

comply with rule 1.480(b) by renewing his motion for directed verdict, thus failing

to preserve this claim. In doing so, we implicitly acknowledged that a motion for

directed verdict, as provided by rule 1.480, was incorporated into the Jimmy Ryce

Act and Jimmy Ryce Rules, citing approvingly to Brown for this proposition. See

also Roosevelt v. State, 42 So. 3d 293 (Fla. 3d DCA 2010); Stengel v. State, 43

Fla. L. Weekly D978 (Fla. 4th DCA May 2, 2018); Hartzog v. State, 133 So. 3d

570 (Fla. 1st DCA 2014); Shaw v. State, 29 So. 3d 1161, 1161 (Fla. 1st DCA

2010) (noting that Florida Rule of Civil Procedure 1.480 is the proper vehicle for

seeking a directed verdict in a Jimmy Ryce proceeding); State v. Shaw, 929 So. 2d

1145 (Fla. 5th DCA 2006).



                                        14
      CONCLUSION

      As the Florida Supreme Court has determined, a Jimmy Ryce proceeding is

civil in nature. And while aspects of the Jimmy Ryce Act and the accompanying

procedural rules provide certain safeguards which mirror criminal procedures to

comport with notions of due process in light of the liberty interests at stake, these

additional safeguards do not transform a Jimmy Ryce proceeding from civil to

criminal.

      Given that the Jimmy Ryce Act and the Jimmy Ryce Rules expressly

incorporate the rules of civil procedure (by which either party may seek a directed

verdict), and the fact that a motion for directed verdict under the rules of civil

procedure is not prohibited or otherwise superseded by any provision of the Jimmy

Ryce Act or the Jimmy Ryce Rules, we hold that the trial court has the authority,

upon proper motion and showing, to enter a directed verdict in favor of the State or

respondent. We conclude that the trial court, in the instant case, properly directed

a verdict in favor of the State.7

7 We find no merit in appellant’s remaining argument that the trial court erred in
entering a directed verdict in favor of the State. Viewing the evidence, and all
reasonable inferences, in a light most favorable to the non-moving party, there was
simply “no reasonable evidence upon which the jury could legally predicate a
verdict in favor of the non-moving party.” appellant. Tylinski v. Klein
Automotive, Inc., 90 So. 3d 870, 873 (Fla. 3d DCA 2012). See also Duval
Laundry Co. v. Reif, 177 So. 726, 729 (Fla. 1937) (observing that “the court
should never direct a verdict for one party unless the evidence is such that no view
which the jury may lawfully take of it favorable to the opposite party can be
sustained under the law.”)

                                         15
Affirmed.




            16
