        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                                JOSE SANTANA,
                                  Appellant,

                                         v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D14-4325

                                 [May 11, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael Robinson, Judge; L.T. Case No. 09-005565
CF10A.

  Gary S. Ostrow of The Law Office of Gary S. Ostrow, P.A., Fort
Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Jose Santana appealed his conviction and sentence for
trafficking in a controlled substance. Of his five issues raised, 1 we write
to address only Appellant’s claim that the State failed to properly lay the
foundation for audio recordings of conversations between Appellant and a
confidential informant. We conclude that Appellant is correct in this
argument and reverse. Because Appellant is deceased and this appeal is
proceeding under State v. Clements, 668 So. 2d 980 (Fla. 1996), the
reversal on this one issue requires a dismissal of the charge against
Appellant, which renders the other issues raised moot.

                                 BACKGROUND

1 Appellant claims that (1) he was objectively entrapped; (2) he was subjectively
entrapped; (3) the jury delivered inconsistent verdicts; (4) the trial court erred in
various ways by admitting audio recordings of Appellant; and (5) the State
violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405
U.S. 150 (1972).
    Appellant was charged with trafficking in ecstasy based upon his sale
of the drug to an undercover officer. He claimed that he was entrapped by
a confidential informant attempting to reduce the sentence for his own
drug offenses by working with a drug enforcement agent. At the behest of
a drug enforcement agent, the confidential informant recorded telephone
calls between himself and Appellant setting up the drug deal. The agent
did not monitor these phone calls, and the confidential informant provided
the recordings to the agent only after the conclusion of the transaction. At
trial, the agent could not testify that the audio tape of the recorded
conversations were true representations of what was actually said. They
were admitted at trial over Appellant’s objection that the tapes had not
been properly authenticated.

                                ANALYSIS

   “Authentication or identification of evidence is required as a condition
precedent to its admissibility. The requirements of this section are
satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” § 90.901, Fla. Stat. (2014). With
regards to the admission of audio recordings, “there [is] no specific list of
requirements” to determine compliance with section 90.901. Justus v.
State, 438 So. 2d 358, 365 (Fla. 1983). However, the authentication
should be made by the technician who operated the recording device or a
person with knowledge of the conversation that was recorded. See Charles
W. Ehrhardt, Florida Evidence § 401.4 (2015 ed.).

   Here, no such authentication evidence was introduced. Although the
State did introduce testimony supporting the identity of the speakers on
the recording, it did not introduce evidence that the recording was a fair
and accurate representation of the conversation that occurred. The
confidential informant did not testify, the law enforcement officials who
testified were not participants in or listening to the conversations as they
occurred, and the State did not ask Appellant whether the recordings were
accurate despite the fact that Appellant testified on his own behalf. The
introduction of the recordings without this foundation was an abuse of
discretion.

   The State alternatively argues that this error was harmless. It is
noteworthy that the jury in this case requested to listen to one of the
recordings again during their deliberations. The recorded conversations
between Appellant and the confidential informant that were played for the
jury could very well have contributed to the jury’s determination that
Appellant was not in fact entrapped. Thus, the state has not met its

                                     2
burden of “prov[ing] beyond a reasonable doubt that the error complained
of did not contribute to the verdict.” State v. DiGuilio, 491 So. 2d 1129,
1135 (Fla. 1986).

                                CONCLUSION

    We therefore hold that the trial court abused its discretion in admitting
the recordings of Appellant and the confidential informant when no
foundation was laid as to the accuracy of the recordings. Under normal
circumstances, we would proceed to analyze the other issues raised and
likely remand for a new trial. However, because Appellant passed during
the pendency of this appeal, there is no possibility of a new trial. Instead,
we remand for the trial court to dismiss the charge against Appellant and
to vacate his sentence, including the civil lien that was the Clements
foundation for this appeal.

   Reversed.

WARNER and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                     3
