Third District Court of Appeal

State of Florida 

Opinion filed October 2, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-148

Lower Tribunal No. M22-15662

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T.M.,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the County Court for Miami-Dade County, Javier 

Enriquez, Judge.

Carlos J. Martinez, Public Defender, and John Eddy Morrison, 

Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Jacqueline I. Kurland, Senior 

Assistant Attorney General (Fort Lauderdale), for appellee.

Before LOGUE, C.J., and MILLER and LOBREE, JJ.

LOBREE, J.

T.M. appeals an order granting a petition for involuntary outpatient 
2

treatment pursuant to section 394.4655, Florida Statutes (2022).

1

 Upon 

review of the record, we find the trial court erred in granting the State’s

petition as there was no competent, substantial evidence to support that T.M.

had twice been involuntarily admitted to a treatment facility within the 

preceding thirty-six months, as required for a person to be ordered to 

involuntary outpatient services. See § 394.4655(2)(e)1., Fla. Stat. (2022) (“A 

person may be ordered to involuntary outpatient services upon a finding of 

the court, by clear and convincing evidence, that the person meets all of the 

following criteria: . . . (e) The person has: 1. At least twice within the 

immediately preceding 36 months been involuntarily admitted to a receiving 

or treatment facility . . . .”).

The evidence the State relied upon was testimony from the treating 

physician that she had reviewed T.M.’s medical records during his 

examination, T.M. had been recommended to participate in treatment within 

the past thirty-six months, and T.M. admitted that he previously failed to 

comply with treatment. However, that testimony alone was insufficient to 

meet the State’s burden regarding the timing and frequency of T.M.’s prior 

treatment over the defense hearsay objection. “Florida courts have routinely

1 Although the commitment has expired this appeal is not moot as collateral 

legal consequences that affect the rights of T.M. may flow from the issue to 

be determined. See Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992).
3

recognized that an expert’s testimony ‘may not merely be used as a conduit 

for the introduction of the otherwise inadmissible evidence.’” Linn v. Fossum, 

946 So. 2d 1032, 1037–38 (Fla. 2006) (quoting Erwin v. Todd, 699 So. 2d 

275, 277 (Fla. 5th DCA 1997)). In the absence of personal knowledge of the 

witness, or admission of T.M.’s relevant medical records via a records 

custodian or a business records affidavit, we are constrained to reverse. See

United Auto. Ins. Co. v. Affiliated Healthcare Ctrs., Inc., 43 So. 3d 127, 130 

(Fla. 3d DCA 2010) (“[I]n order to lay a proper foundation for the admission 

of a business record as required by section 90.803(6)(a), the affidavit must 

show that the record was: 1) made at or near the time of the event recorded, 

2) by, or from information transmitted by, a person with knowledge, 3) kept 

in the course of a regularly conducted business activity, and 4) it was the 

regular practice of that business to make such a record.” (quoting Lowe’s of 

Tallahassee v. Giaimo, 552 So. 2d 304, 305 (Fla. 1st DCA 1989))).

Reversed.