author: PER CURIAM.

text:
    Jesus DELGADO, Appellant, v. STATE of Florida, Appellee.
    No. SC04-2274.
    Supreme Court of Florida.
    Nov. 16, 2006.
    Rehearing Denied Jan. 24, 2007.

      Roy D. Wasson of Wasson and Associates, Chartered, Miami, FL, for Appellant.
    Charles J. Christ, Jr., Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
   PER CURIAM.

In 2004, Jesus Delgado was retried for the 1990 murders of Tomas and Violetta Rodriguez pursuant to this Court’s decision in Delgado v. State, 776 So.2d 233, 242 (Fla.2000) (hereinafter Delgado I). Delgado now appeals his convictions and death sentences from his 2004 retrial. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Delgado’s convictions and death sentences.

FACTUAL AND PROCEDURAL BACKGROUND

The record of Delgado’s 2004 retrial establishes the following facts. In the early-evening hours of August 30, 1990, Marlene McField saw her neighbors, Tomas and Violetta Rodriguez, arrive home. Later that night, around 10 p.m., Ms. McField heard dogs in the house directly behind the Rodriguezes’ home, wailing and crying in an unusual fashion. The following morning, Ms. McField went to the Rodri-guezes’ home and noticed that the gate leading to the front porch was ajar and that the key was still in the lock on the inside portion of the gate. She removed the key from the gate, entered the front porch area, and rang the doorbell. No one answered. Knowing that the Rodriguezes were extremely security-conscious, Ms. McField became suspicious and called the police.

When the police arrived, they discovered that the front door was unlocked. The first officer on the scene did not notice any sign of forced entry or any sign of struggle in the living room and bedrooms. However, as the police moved toward the kitchen area, they discovered a bloodstained knife and a pistol lying on the floor. The police noticed signs of struggle in the kitchen, the garage, and the utility room connecting the kitchen to the garage. The wooden door leading from the utility room into the garage was cracked in the center and its hinges were broken. Mr. Rodriguez’s body was found lying next to this door, just inside the garage, with multiple bullet and stab wounds. Mrs. Rodriguez’s body was also discovered in the garage, wedged between the Rodriguezes’ car and the garage wall. Her body exhibited signs of blunt force trauma, multiple stab wounds, and lacerations on her. hands that the medical examiner later classified as defensive wounds. A single set of bloody shoeprint impressions led from the garage into the kitchen and up to two open kitchen drawers. In these drawers, the police found a knife similar to the one they had discovered earlier on the floor. Mr. Rodriguez was found without shoes and the soles of Mrs. Rodriguez’s slippers did not match the bloody shoeprints.

The pistol found earlier was a .22 caliber Ruger semiautomatic that had been equipped with a homemade silencer, and its serial number had been removed. Six .22 caliber shell casings were recovered from the house and later determined to have been fired from the Ruger. No other .22 caliber ammunition was found in the home. Police discovered a .38 caliber revolver, which belonged to Mr. Rodriguez, in a zippered pouch inside a closed cabinet in the master bedroom, but testing on this revolver revealed that it had not been fired and tests performed on the victims’ hands indicated that neither had triggered a firearm.

Several drops of blood matching Delgado’s blood type, which is found only in one percent of the population, were found in the garage. A mixture of Delgado’s blood type and the victims’ blood types was found in the garage, on the handgun, at the base of the kitchen phone that hung from a wall, and on the kitchen phone itself. Delgado’s palm print and fingerprint were discovered on the kitchen phone in a mixture of Delgado’s and the victims’ blood types. The police later determined that the last call on the kitchen phone was made to the home of Delgado’s girlfriend, Barbara Lamellas, with whom Delgado was residing at the time.

In addition to the physical evidence gathered from the crime scene, police learned that Delgado knew the Rodri-guezes. In June 1990, the Rodriguezes sold their dry cleaning business to Horatio Lamellas, the father of Delgado’s girlfriend, Barbara Lamellas. Barbara and Delgado ran the business. An employee at the dry cleaning business under both the Rodriguezes and Delgado, Maria Hernandez, testified that after the sale, Delgado complained that the machines were not working properly and that the customers were dissatisfied. She also heard Delgado state that the Rodriguezes had tricked him with regard to the machines and the business. Ms. Hernandez stated that when the Rodriguezes owned the dry cleaning business, business was steady and the machines worked well.

On December 23, 1992, nearly two years after the murders of Tomas and Violetta Rodriguez, police apprehended Delgado. On July 27, 1993, he was indicted by a grand jury on one count of first-degree murder for the killing of Tomas Rodriguez, one count of first-degree murder for the killing of Violetta Rodriguez, one count of armed burglary, and one count of possession of a firearm by a convicted felon. In addition, for the two counts of first-degree murder, Delgado was indicted on alternative theories, that the murders were either premeditated or committed during the commission of a felony. His first trial was conducted in 1994, and the jury found Delgado guilty on all counts. Delgado I, 776 So.2d at 235. After the penalty phase, the same jury recommended that Delgado be sentenced to death for the murder of Mr. Rodriguez by a vote of seven to five and that Delgado be sentenced to death for the murder of Mrs. Rodriguez by a unanimous vote of twelve to zero. Id. The trial court agreed and sentenced Delgado to death for each murder and to life for armed burglary. Id.

On direct appeal, this Court granted Delgado a new trial. We held that the State’s theory of burglary, which formed the basis of a conviction on felony murder, was legally inadequate because the State had not shown that Delgado remained in the Rodriguezes’ dwelling surreptitiously. Id. at 242, superseded by § 810.015, Fla. Stat. (2001). At Delgado’s new trial, the State tried him on two counts of first-degree murder based exclusively on the theory that the murders were premeditated. Delgado maintained a theory of inno-eence and presented no evidence or testimony.

On May 26, 2004, Delgado was convicted of two counts of first-degree premeditated murder for the deaths of Tomas and Vio-letta Rodriguez. The penalty phase was conducted on July 8, 2004. Delgado sought to waive his right to present mitigation evidence. After a colloquy to determine if Delgado’s waiver was knowing and voluntary, the trial court accepted the waiver. The jury recommended death for the first-degree murder of Tomas Rodriguez by a vote of nine to three and death for the first-degree murder of Violetta Rodriguez by a vote of nine to three. On September 30, 2004, a Spence hearing was held in which Delgado again was advised of his right to present mitigation evidence, but he declined to do so. Finally, at the sentencing hearing on October 18, 2004, the trial court again gave Delgado one last opportunity to put on mitigating evidence. Again, Delgado declined.

In its sentencing order, the trial court gave the jury recommendation moderate weight. The trial court found three aggravating circumstances in each murder to which it assigned great weight. For both murders, the trial court found the heinous, atrocious, or cruel (HAC) and cold, calculated, and premeditated (CCP) aggrava-tors. In addition, for Tomas Rodriguez, the trial court found the prior violent felony aggravator based on Delgado’s prior conviction for aggravated assault; and, for Violetta Rodriguez, the trial court found the prior violent felony aggravator based on Delgado’s contemporaneous conviction for the death of Tomas Rodriguez. No statutory mitigators were established. However, the trial court did find the following nonstatutory mitigators based primarily on the mitigating evidence established at Delgado’s first trial: (1) Delgado never used drugs or alcohol — assigned moderate weight; (2) he had a difficult childhood and suffered physical and emotional abuse at the hands of his mother, father, stepfather, the Cuban government, and neighbors — assigned moderate weight; (3) he loves his family — assigned minimal weight; and (4) his behavior throughout trial was appropriate — moderate weight. The trial court also considered Delgado’s presentence investigation report.

The trial court found that the three weighty aggravators were more than sufficient to impose the death penalty and substantially outweighed the totality of the mitigating circumstances. Therefore, the trial court sentenced Delgado to death for each count of first-degree murder. Delgado filed this appeal.

ISSUES ON APPEAL

Delgado raises eight issues in this appeal: (1) whether retrying him for first-degree premeditated murder violated his right to be free from double jeopardy based on this Court’s holding in Delgado I; (2) whether the trial court erred in denying a mistrial based on the prosecutor’s comments to the jury and at sidebar during closing argument; (3) whether the trial court abused its discretion in allowing the pen register tape to be admitted into .evidence without a foundation laid by a technical expert and the officer who employed the pen register device; (4) whether the trial court committed reversible error when it repeated the jury instructions concerning the definition and elements of first-degree murder; (5) whether the trial court committed reversible error by instructing the jury panels during voir dire that they “will” rather than “may” hear mitigation evidence if they returned a guilty verdict even though there was no contemporaneous objection; (6) whether Florida’s capital sentencing scheme violates Delgado’s Sixth Amendment right under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), by authorizing imposition of the death sentence without a unanimous jury verdict; (7) whether the trial court committed reversible error when it sustained the State’s objection to defense counsel’s comments during closing argument regarding the State’s failure to present DNA evidence; and (8) whether there is a reasonable probability that the cumulative errors at trial contributed to the jury’s verdict regardless of whether evidence of guilt was otherwise substantial. In addition, we also consider whether the evidence was sufficient to sustain Delgado’s convictions and whether his sentences are proportionate.

.After fully examining this record, we find that claims (4), (5), (7), and (8) are without merit and require no further discussion. In addition, we have repeatedly rejected Ring claims similar to Delgado’s and deny claim (6) without further discussion. In the analysis that follows, we analyze Delgado’s first three claims and ultimately affirm Delgado’s convictions and death sentences.

I. Double Jeopardy

Delgado claims that his retrial on two counts of first-degree premeditated murder was barred by double jeopardy because he was, in effect, judicially acquitted of first-degree murder by this Court in Delgado I. Delgado reasons that because this Court held that the State’s theory of burglary was both factually and legally insufficient, likewise the State’s theory of first-degree felony murder was both factually and legally insufficient. He further reasons that he has effectually been acquitted of first-degree murder in its entirety due to the factual insufficiency of the underlying theory of felony murder and, therefore, cannot be retried on the theory of premeditated murder.

Delgado’s claim is without merit. While we recognize that an acquittal is required when a conviction is not supported by factually sufficient evidence, see, e.g., Ballard v. State, 923 So.2d 475, 486 (Fla.2006) (reversing convictions, vacating sentences, and remanding with directions to enter a judgment of acquittal where evidence was insufficient to support convictions), and that such an acquittal gives rise to double jeopardy protections, Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), this Court did not effectually acquit Delgado of first-degree murder in Delgado I. In Delgado I, we discussed at length the distinction between legal and factual insufficiency and expressly stated that. “[t]his is not a case where there was merely insufficient evidence to support the burglary charge.” Id. at 242 (emphasis added). Rather, we stated that “[p]ursuant to our analysis in today’s opinion, [the State’s] theory .of burglary (and felony murder) is legally inadequate.” Id. (emphasis added). We did not find that either of the State’s theories of first-degree murder was factually insufficient and expressly stated that “[o]ur decision in no way prevents the State from prosecuting appellant for whatever crimes he may have committed once inside the victim’s home.” Id. at 241. In fact, the only factual insufficiency we recognized was consequent to our holding that the State was required to show that Delgado remained in the Rodriguezes’ dwelling surreptitiously in order to prove Delgado committed burglary. Id. at 242.

Moreover, even if the State’s theory of felony murder was rendered factually insufficient by our holding in Delgado I, we expressly recognized that a defendant may be retried on the same count where one of two alternative theories is factually insufficient but the other is not. Id. (citing Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); San Martin v. State, 717 So.2d 462, 470 (Fla.1998)). Thus, because the State’s alternative theory of first-degree murder based on premeditation was not held to be factually insufficient in Delgado I, Delgado was not effectually acquitted of first-degree murder.

In the alternative, Delgado asserts that he was acquitted of premeditated murder under Delgado I because the State’s theory of burglary at his first trial included all the elements of premeditated murder; and, therefore, his acquittal on the burglary count amounts to an acquittal on the premeditated murder count under the “same elements” test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, burglary and first-degree premeditated murder do not share all of the same statutory elements; in particular, they do not share the same element of intent. Conceding this fact, Delgado invites us to expand the “same elements” test beyond a comparison of the statutory elements to consider the record and the State’s actual theory. Gaber v. State, 684 So.2d 189, 190 (Fla.1996) (stating that in our double jeopardy analysis, “we cannot examine facts from the record” but “must look only to the statutory elements”). We decline the invitation. We find no compelling reason to depart from established precedent and expand the “same elements” test in Florida.

Our holding in Delgado I did not bar the State from retrying Delgado for first-degree murder under the theory that it was premeditated. Therefore, we deny this claim for relief.

II. Prosecutorial Comments

Delgado next claims that the trial court erred in denying his motion for mistrial based on the prosecutor’s comments during closing argument, both to the jury and at sidebar. Delgado argues that these comments were so prejudicial that, at the very least, their cumulative effect warrants reversal. After thoroughly examining the prosecutor’s comments during closing argument, we find that none of these comments, either individually or taken together, necessitated that the trial court declare a mistrial. Ferguson v. State, 417 So.2d 639, 641 (Fla.1982) (“A motion for mistrial is addressed to' the sound discretion of the trial judge and ... ‘should be done only in cases of absolute necessity’ ”) (quoting Salvatore v. State, 366 So.2d 745, 750 (Fla.1978)).

While we deny Deglado’s request for relief on this claim, the prosecutor’s comment concerning the defense’s “concession” warrants further discussion. During closing argument, Delgado argued that the murders were clearly premeditated and that the State had shown the jury multiple pictures of the crime scene and the victims’ bodies only to evoke an emotional response. In response, the prosecutor explained that it showed the jury these pictures in order to prove premeditation. In this context, the prosecutor made the following statement: :

It is all well and good for him to stand up now after we have been in trial for two and a half weeks and tell you that, yeah, these are horrible, premeditated murders, but the problem is that two and a half weeks ago, I didn’t hear that concession.

Delgado objected to the State’s characterization of his closing argument as a “concession” that the murders were premeditated and simultaneously moved for a mistrial on three grounds, including that the comment shifted the burden to the defense. The trial court denied Delgado’s motion and stated that the objection was not sustained “except to the extent that I don’t want you to pursue anything that would suggest a burden on anybody but the State.” The prosecutor responded by reminding the jury that the State alone carries the only burden of proof. She said:

What is the name of the charges in this case? First Degree Premeditated Murder. Who has the burden of proving the charges in this case? Right here on the State. Right here. The only burden in this case, in any criminal case falls to the State.

In this context, even if the comment was improper it was certainly not “so prejudicial as to vitiate the entire trial.” Duest v. State, 462 So.2d 446, 448 (Fla.1985) (citing Cobb v. State, 376 So.2d 230 (Fla.1979)); accord Ibar v. State, 938 So.2d 451, 31 Fla. L. Weekly S149, S155 (Fla. Mar. 9, 2006) (quoting Duest, 462 So.2d at 448). Therefore, Delgado has not demonstrated that a mistrial was an absolute necessity. Duest, 462 So.2d at 448; Ferguson, 417 So.2d at 641. Therefore, we deny relief.

III. Admission of Pen Register Tape

Delgado claims that the trial court erred by admitting the pen register tape into evidence without laying a proper foundation. The pen register tape shows that the last telephone number dialed from the Rodriguezes’ kitchen phone was to the home of Delgado’s girlfriend, Barbara La-mellas. The State laid the foundation for admission of the pen register tape through Detective Israel Reyes. Detective Reyes testified that he was a college and law school graduate who had training and experience utilizing electronic surveillance techniques, including the utilization of pen registers, which he observed in more than a dozen cases and personally utilized in two prior cases. He was in the room when the pen register was operated and he saw and heard what normally occurs when a pen register is used. Further, he identified the pen register tape as the tape produced by the pen register utilized during the investigation in this case. However, Detective Reyes was neither a technical expert nor the officer who operated the pen register.

Defense counsel objected to the admission of the pen register tape through Detective Reyes, arguing that the evidentiary foundation needed to admit a pen register tape is comparable to that required to admit the results of a breathalyzer test. Specifically, defense counsel argued that “[t]he content of the pen register tape requires authentication by a person who did the work [and] could testify as to the accuracy.” Further, defense counsel argued that the State must establish the expertise of the person who did the work, and that this person must testify as to “the procedure employed ... [and] the validity of the results ... [of the] machinery or whatever device was used.... ” The trial court overruled defense counsel’s objection and allowed the State to lay the foundation for the admission of the pen register tape through Detective Reyes.

Delgado’s claim is without merit. He has not demonstrated that the foundation laid at trial was insufficient to admit the pen register tape into evidence. While he argues that the State was required to lay the same heightened foundation as that required by statute to admit breathalyzer test results, he has failed to cite any authority that actually supports his argument, and he offers no compelling reason why pen register tapes require the same heightened foundation as breathalyzer test results. Accordingly, he has not demonstrated that the trial court abused its discretion in admitting the pen register tape through the testimony of Detective Reyes. Dessaure v. State, 891 So.2d 455, 466 (Fla.2004) (“A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.”) (citing Blanco v. State, 452 So.2d 520 (Fla.1984)). Therefore, we deny relief on this claim.

IV. Sufficiency of the Evidence

Although Delgado did not challenge the sufficiency of the evidence on appeal, this Court will “independently review the evidence to determine whether sufficient evidence exists to support a first-degree murder conviction.” Snelgrove v. State, 921 So.2d 560, 570 (Fla.2005) (citing Mansfield v. State, 758 So.2d 636, 649 (Fla.2000)). We have recognized that “circumstantial evidence can be sufficient to sustain a conviction” provided that the evidence is (1) “consistent with the defendant’s guilt” and (2) “inconsistent with any reasonable hypothesis of innocence.” Orme v. State, 677 So.2d 258, 261 & n. 1 (Fla.1996) (quoting Davis v. State, 90 So.2d 629, 631 (Fla.1956)). On the other hand,

Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, ... is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict.

Orme, 677 So.2d at 261 n. 1 (quoting Davis v. State, 90 So.2d 629, 631-32 (Fla.1956)). “The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict,” reversal is not required. Darling v. State, 808 So.2d 145, 155 (Fla.2002) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)). In addition, the State is not required to “rebut conclusively, every possible variation of events,” but only to present evidence that is inconsistent with the defendant’s reasonable hypothesis. Id. at 156 (quoting Law, 559 So.2d at 188-89).

Although the evidence is circumstantial, the State has presented competent, substantial evidence which is consistent with Delgado’s guilt and inconsistent with Delgado’s reasonable hypothesis of innocence. First, as for the evidence consistent with Delgado’s guilt, the record shows that Delgado’s blood type, matching only one percent of the population, was found at the crime scene and on one of the murder weapons, the pistol, in a mixture of the victims’ blood types; his palm and fingerprints were found on the kitchen phone in a mixture of his blood type and the victims’ blood types; and the last call made from the kitchen phone was to his girlfriend’s home. In addition, the record shows that more than sufficient evidence of premeditation was presented. The record also shows that Delgado had a motive based on his relationship with the victims — he was unhappy with them over the dry cleaning business.

Second, the State also presented substantial, competent evidence that is inconsistent with Delgado’s alternative theories of innocence. The first defense theory was that Delgado was innocent because he had no relationship with the victims and, therefore, no motive. The State not only presented evidence that was inconsistent with this theory, but this theory itself is inconsistent with Delgado’s alternative theory, that he was in their home but he did not commit the act and that someone else committed the murder after he left. The physical evidence at the crime scene is inconsistent with Delgado’s alternative theory that he did not commit the act. Furthermore, there is no evidence in the record that another person had been in the victims’ home. Cf Orme, 677 So.2d at 261-62 (holding State’s theory was more plausible than defendant’s theory that someone else committed the murder after defendant left the motel room where nothing in record suggested that another person was present). Thus, we conclude that “competent substantial evidence supports the conclusion that the State had presented adequate evidence refuting [the defendant’s] theory, creating inconsistency between the State and defense theories.” Id. at 262. Therefore, we affirm Delgado’s convictions for first-degree murder.

V. Proportionality

Finally, although Delgado did not raise this issue on appeal, this Court reviews each death sentence for proportionality. See, e.g., Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). “[T]o ensure uniformity in death penalty proceedings, ‘we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.’ ” Floyd v. State, 913 So.2d 564, 578 (Fla.2005) (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003)). Where a defendant has waived the presentation of mitigation evidence, the trial court is required to consider all mitigation contained in the record and in the presentence investigation report. Muhammad v. State, 782 So.2d 343, 363-64 (Fla.2001).

The trial court sentenced Delgado to death based on the following facts. The jury recommended death by a vote of nine to three on each count of first-degree murder, to which the judge assigned moderate weight because Delgado waived the presentation of mitigation. The trial court found the existence of three weighty aggravating factors beyond a reasonable doubt for each victim. For Tomas, the trial court found: (1) prior violent felony conviction based on a prior aggravated assault; (2) CCP; and (3) HAC. For Vio-letta, the trial court found the same three aggravating factors with the exception that the prior violent felony aggravator is based on Delgado’s contemporaneous conviction for Tomas’s murder. The trial court considered whether any mitigating factors applied based on mitigation evidence introduced during the penalty phase at Delgado’s first trial and based on the presentence investigation report. The trial court found that none of the statutory mitigators applied but found that four non-statutory mitigators applied, each of which was afforded moderate weight. Given this analysis, the trial court determined that death was appropriate and sentenced Delgado to death.

We find that Delgado’s sentences are proportional in relation to other death sentences that this Court has upheld. See, e.g., Lynch v. State, 841 So.2d 362, 377 (Fla.2003) (finding death sentence proportional in double murder case where the trial court found the HAC, CCP, and prior violent felony (contemporaneous murder) aggravators outweighed one statutory mit-igator, i.e., no significant criminal history, and eight nonstatutory mitigators); Dennis v. State, 817 So.2d 741, 750, 766 (Fla.2002) (finding death sentence proportional in double murder case where four weighty aggravating factors, HAC, CCP, prior violent felony (contemporaneous murder), and murder committed in course of felony (burglary), outweighed three statutory and five nonstatutory mitigators assigned little or no weight). Therefore, we affirm Delgado’s sentences.

CONCLUSION

For the reasons expressed above, we affirm Delgado’s convictions and sentences of death.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . At Delgado’s first trial, the trial court found two aggravating circumstances in the death of Tomas Rodriguez: (1) prior violent felony and (2) murder committed during an enumerated felony (armed burglary). The trial court found three aggravating circumstances in the death of Violetta Rodriguez: (1) prior violent felony, (2) murder committed during an enumerated felony (armed burglary), and (3) heinous, atrocious, or cruel (HAC). The trial court found no statutory mitigation,, and some nonstatutoiy mitigation. See infra, note 7.

      . Section 810.015(1), Florida Statutes, states as follows:
      The Legislature finds that the case of Delgado v. State, [776 So.2d] 233 (Fla.2000), was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State. The Legislature finds that in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously.

      .The trial court granted Delgado’s uncontested pretrial motion to bar retrial on burglary and felony murder based on Delgado I. The State also nolle prosequied the count of possession of a firearm.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . The sentencing order cites to Muhammad v. State, 782 So.2d 343, 363 (Fla.2001) (finding that jury's recommendation cannot be afforded great weight when mitigation evidence is not presented).

      . The trial court reviewed documents from Delgado's first trial to determine whether Delgado's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The trial court found that (a) Delgado's neurological examination that occurred between the guilt and penalty phases of the first trial did not reveal evidence of any neurological complications; and (b) three previously rendered psychology reports and his presentence investigation revealed no credible evidence to suggest that Delgado’s capacity was diminished.

      . "This test inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution.” Boler v. State, 678 So.2d 319, 321 (Fla.1996) (citing Blockburger, 284 U.S. at 304, 52 S.Ct. 180).

      . The intent required for burglary is that the accused intended to commit an offense. § 810.02(l)(a), Fla. Stat. (2006). The intent required for premeditated murder is that the accused formed the specific intent to kill a human being. § 782.04(l)(a)(l), Fla. Stat. • (2006).

      . The other two grounds for Delgado’s objection were that (1) the comment was improper closing argument and (2) the comment went to Delgado’s right to remain silent.

      . See State v. Donaldson, 579 So.2d 728, 729 (Fla.1991) (stating that "there must be probative evidence (1) that a breathalyzer test was performed substantially in accordance with methods approved by the [Department of Health and Rehabilitative Services (HRS)], and with a type of machine approved by HRS, by a person trained and qualified to conduct it and (2) that the machine itself has been calibrated, tested, and inspected in accordance with HRS regulations to assure its accuracy before the results of a breathalyzer test may be introduced. Evidence of the reliability of the machine can be presented by the person conducting its testing and inspection or, if records of use and periodic testing are kept in the regular course of business, by production of such records.”) (citing State v. Bender, 382 So.2d 697 (Fla.1980)). See § 316.1932, Fla. Stat. (2006) (providing testing methods for alcohol blood level, including breathalyzers, and implied consent rule); § 316.1934(3), Fla. Stat. (2006) (providing that officer's affidavit attesting to specific information regarding defendant’s breathalyzer test results, including the date the breathalyzer was last inspected, is admissible as exception to hearsay rule).

      . We note that Florida law does regulate the use of pen registers. See § 934.01, Fla. Stat. (2002) (making legislative findings); § 934.02(20), Fla. Stat. (2002) (defining pen register); §§ 934.03-.09, Fla. Stat. (2002) (regulations applying to electronic wire communications to protect privacy of Floridians); §§ 934.31-.34 (2002) (regulations applying specifically to pen registers). However, unlike the admissibility requirements for breathalyzer tests, Florida's statutory law does not impose heightened requirements for the admissibility of information lawfully obtained through the use of a pen register.

      . Although Delgado argued that there was a palm print on the Rodriguezes' vehicle in the garage which did not belong to him, the police were not able to test whether the palm print belonged to one of the victims. Because the evidence suggests that Mrs. Rodriguez was chased around the vehicle by her murderer, it would have been reasonable for the jury to infer that this palm print belonged to her.


source: Caselaw Access Project

author: PER CURIAM. LEWIS, C.J.,

license: Public Domain

text:
    Mark Andrew TOBIN, et al., Appellants, v. MICHIGAN MUTUAL INSURANCE COMPANY, Appellee.
    No. SC05-214.
    Supreme Court of Florida.
    Dec. 21, 2006.

      Christopher J. Lynch of Hunter, Williams and Lynch, P.A., Coral Gables, FL, for Appellant.
    Wendy F. Lumish of Carlton Fields, P.A., Miami, FL, and Stephen J. Harburg of O’Melveny and Myers, Washington, D.C., for Appellee.
   PER CURIAM.

We have for review the following question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent from this Court:

DOES THE DEFENDANT MICHIGAN MUTUAL HAVE ANY LIABILITY TO THE PLAINTIFFS UNDER THE POLICY IN QUESTION, AND, IF SO, WHAT IS THE EXTENT OF THAT LIABILITY?

Tobin v. Mich. Mut. Ins. Co., 398 F.3d 1267, 1275 (11th Cir.2005). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. We rephrase the certified question to more accurately address the procedural setting we are facing, as follows:

WHETHER THE PLAINTIFFS ARE ENTITLED TO UNINSURED/UN-DERINSURED MOTORIST COVERAGE UNDER THE POLICY AS REFORMED.

FACTS AND PROCEDURAL HISTORY

The facts of the underlying action are not in dispute. Appellants Tobin, Hunter, and the Mackays were either injured or killed in accidents with uninsured drivers while operating or occupying vehicles leased from Ford Motor Company. See Tobin, 398 F.3d at 1269. The lease agreements entered into with regard to these vehicles each contained language to the effect that the lessees would be responsible for obtaining insurance for these vehicles. Appellants Hunter and the Mackays’ “Red Carpet” lease agreements stated that the “lessor is not providing vehicle insurance or liability insurance” and that the lessee “must insure the vehicle during this lease.” Id. Appellant Tobin’s lease agreement stated that “[t]he Lessee must insure the vehicle for the term of the lease.” Id.

Notwithstanding the above-quoted language in the respective lease agreements, appellants seek to recover under an insurance policy issued to Ford by defendant Michigan Mutual Insurance Company (“Michigan Mutual”). See id. Appellants present the claim for insurance coverage and benefits under a theory that the insurance policy at issue did not comply with section 627.727 of the Florida Statutes relating to uninsured and under-insured motorist coverage (“UM/UIM”). That statute requires that UM/UIM coverage be offered and either accepted or properly rejected by a “named insured” when an insurance policy which provides liability coverage is issued or delivered in this State and provides:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein.... However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.

§ 627.727(1), Fla. Stat. (2004). If an insurer fails to comply with the statutory requirements, UM/UIM coverage is provided by the contract as though the required coverage had been offered and accepted by the “named insured” as a matter of law. See Am. Fire & Indem. Co. v. Spaulding, 442 So.2d 206, 208 (Fla.1983) (“[T]he statute clearly provides that uninsured motorist coverage is by operation of law equal to general liability coverage unless the named insured selects otherwise.... ”).

The details surrounding the issuance of the Michigan Mutual policy at issue here (the “policy”) as described in the Eleventh Circuit’s opinion reveal:

Ford entered into a separate insurance agreement with Michigan Mutual ..., which contains three sections. The commercial general liability section provides coverage for Ford’s premises and operations activities. The business auto section provides coverage for a group of vehicles used by Ford for business purposes. The personal auto section is designed to provide coverage to a group of vehicles assigned to Ford management personnel under the lease evaluation program. The lease agreement signed by the Ford personnel in the lease evaluation program, unlike the retail lease agreements signed by the plaintiffs here, specifically states that “the Company [Ford] provides insurance on the vehicle during the term of the lease.” Ford employees who participate in the lease evaluation program also receive a certificate of no-fault insurance and an identification card that indicates their coverage under the Michigan Mutual policy.
This consolidated appeal involves only the personal auto section of the Michigan Mutual policy and specifically what is entitled the personal auto policy supplement (“auto supplement”) to the policy.

Tobin, 398 F.3d at 1269 (alteration in original).

The arguments in the instant matter center on four specific provisions found in the personal auto supplement to the policy, as follows: (1) The Declarations page of the personal auto supplement provides the following definitions:

Item 1. Named Insured
FORD MOTOR COMPANY, ITS U.S. SUBSIDIARIES AND ANY PERSON TO WHOM AN AUTOMOBILE HAS BEEN ASSIGNED, LEASED OR LOANED
Item 2. Description of Auto
1. See Endorsement Number PP FO RD 04

(2) Endorsement PP FO RD 04, which modifies the personal auto supplement, states:

A. By addition of this endorsement to your policy, the following replaces paragraph J. of DEFINITIONS [defining “covered auto”]:
J. “Your Covered Auto” is changed as follows:
1. Any auto which has been designated with the following tag- letters:
L — Leased vehicles
E — Executive Vehicles
S — Sales Vehicles
in the records of Ford Motor Company’s vehicle administration system.

(3) The uninsured motorist coverage provision states:

“Insured” as used in this Part means:
1. You or any “family member.”
2. Any other person “occupying” “your covered auto.”

(4) Endorsement PP FO RD 01, added exclusions which include:

2. This policy, however, shall provide contingent loss and excess auto liability coverages for autos included in the following programs: a. Red Carpet Lease
but only as respects the liability of Named Insured. No coverage is provided to lessees, agents, or permissive users.

In the federal district court, the appellants and Michigan Mutual both sought summary final judgment with regard to the issue of whether the appellants were provided coverage and entitled to UM7 UIM benefits under the policy at issue. The district court determined that the claimants were entitled to a summary judgment on the issue of coverage under the terms of the insurance contract based upon the decision of the Third District Court of Appeal in Perez v. Michigan Mutual Insurance Co., 723 So.2d 849 (Fla. 3d DCA 1998), which was predicated upon the determination that persons in the position of these claimants are “named insureds” under this contract. However, notwithstanding the determination of the issue of coverage and the definition of “named insured” under the contract as written, the district court conducted further proceedings and a bench trial to consider and determine whether the insurance policy should otherwise be reformed because it did not accurately reflect the intent of the contracting parties. At the conclusion of this subsequent proceeding, the district court found that Ford and Michigan Mutual had not intended to provide coverage to retail lessees under the policy. Therefore, the district court reformed the definition of “named insured” under the insurance contract to exclude any coverage for retail lessees. As a result of this reformation, the district court entered final judgment for Michigan Mutual, reasoning that “[o]nce the contract has been reformed, no motor vehicle liability policy was issued with respect to retail lessees” and, therefore, the district court concluded that section 627.727 of the Florida Statutes and the requirements contained therein for “named insureds” had no application with respect to these claimants. . Appellants sought review of this judgment in the United States Court of Appeals for the Eleventh Circuit and this certified question followed.

ANALYSIS

Reformation

The federal district court ultimately denied the appellants relief here because it reformed the “named insured” provision of the insurance policy to reflect the intent of the contracting parties to exclude any coverage for retail lessees, such as these appellants. Upon review, we agree with the district court’s decision to reform the policy and hold that reformation was appropriate.

We have held that “[a] court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument.” Providence Square Ass’n., Inc. v. Biancardi, 507 So.2d 1366, 1369 (Fla.1987) (citing Blumberg v. Am. Fire & Cas. Co., 51 So.2d 182, 184 (Fla.1951)). Furthermore, the First District has implied that this broad concept ' of reformation would apply to the specific issue of reformation of a “named insured” clause in an insurance contract to accurately reflect the mutual intent of the contracting parties as to who was to be designated a “named insured.” See Canal Ins. Co. v. Hartford Ins. Co., 415 So.2d 1295, 1297-98 (Fla. 1st DCA 1982) (implying that, although the facts did not indicate a mutual mistake, had there been a drafting mistake resulting in the “named insured” being defined other than as the parties mutually intended, reformation of the “named insured” clause would be appropriate). One commentator who has addressed this specific subject has noted that “[o]ne of the main grounds for reformation in the cases dealing with automobile liability policies is that there was a mutual mistake which caused someone other than the person intended to be insured to become the named insured.” D.E. Ytreberg, Annotation, Reformation of Automobile Liability Insurance Policy by Adding to or Substituting for the Named Insured the Person Intended to Be Insured, 1 A.L.R.3d 885, § 4[a] (1965).

Following a bench trial on the issue of reformation, the district court made a finding of fact that Ford and Michigan Mutual “never ... inten[ded] to provide coverage to retail lessees, and that the personal auto policy section was only meant to provide coverage to certain vehicles leased or loaned to Ford’s current and former employees.” On appeal, “[t]he findings of a trial court are presumptively correct and must stand unless clearly erroneous.” Chiles v. State Employees Attorneys Guild, 734 So.2d 1030, 1034 (Fla.1999). Based on the district court’s finding of fact with respect to the parties’ intention, if the definition of “named insured” on the declarations page of the policy includes retail lessees, then the imprecise wording of that definition would not reflect the parties’ intended agreement. This would be a mutual mistake entitling the parties to reformation. See Biancardi, 507 So,2d at 1372 (“A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.”) (citing Blumberg, 51 So.2d at 184). Therefore, reformation was appropriate and, consequently, the appellants are not “named insureds” under the policy. We need not address what, if any, statutory provisions with regard to “named insureds” would be implicated because the insurance contract was properly reformed.

The “Other Insurance” Clause

Appellants next assert that, even if the definition of “named insured” is reformed to exclude retail lessees, the UM7 UIM coverage issue is not resolved adversely and they are still entitled to coverage under the “other insurance” clause in endorsement PP FO RD 01 which states that “contingent loss and excess auto liability” coverage is provided for Red Carpet Lease vehicles. Through this clause, appellants claim that they are at least entitled to UM7UIM coverage as Class II insureds because they were lawful occupants of covered vehicles at the time of their accidents. Class II insureds “are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent.” Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 233 (Fla.1971).

The language the appellants attempt to invoke to create their insured status as occupants of a covered vehicle is an “other insurance” provision, found in an endorsement, which replaces only the “other insurance” clause found in the underlying policy form Liability Coverage section of the personal auto supplement. The original “other insurance” clause in the underlying contract form that this endorsement replaces is the last paragraph of two policy pages “Part A — Liability Coverage.” Nothing in the endorsement indicates that the replacement of the “other insurance” clause has any impact on any remaining policy provisions. In fact, the endorsement specifically states in capital font that “ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.”

An “other insurance” clause describes what occurs if other insurance coverage is available for the particular loss. It describes the application and relationship that arises if multiple insurance contracts apply to the same loss. See 8A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 4909, at 70 (2005 Supp.). The “other insurance” clause at issue in the present action provides excess coverage once the policy limits of other insurance covering the same risk are exhausted and is only intended to provide excess liability coverage to the “named insured,” Ford, in the event that a retail lessee’s primary insurance is inadequate or the primary insurer denies coverage. The only effect of the endorsement is to afford liability coverage to Ford in the event it is exposed to damages due to an accident involving a vehicle leased through one of three programs listed in the endorsement. Appellants have no legitimate claim for liability coverage under this clause and certainly no claim for UM/UIM coverage, because the description specifically states that “[n]o coverage is provided to lessees, agents, or permissive users.”

Contrary to the appellants’ contention, the “other insurance” clause does not alter the description of “covered auto” found elsewhere in the policy or endorsement. The endorsement which contains the “other insurance” clause states that “[a]ll other terms and conditions remain unchanged,” directing that a plain reading of the policy provisions demonstrates that the description of “covered auto” in endorsement PP FO RD 04 remains unchanged by the addition of this “other insurance” clause to the liability coverage section of the personal auto supplement. Similarly, the “other insurance” clause does not alter the definition of an “insured” under the uninsured motorist coverage section of the personal auto supplement. The appellants do not become “insureds” under the uninsured motorist coverage because that definition remains unchanged. Therefore, the language in the “other insurance” clause does not support the appellants’ position that they are insureds entitled to UM/UIM coverage.

CONCLUSION

In summary, we conclude that the district court properly reformed the policy to reflect the mutual intent of the contracting parties that appellants are not “named insureds” under the policy. Additionally, the claim that appellants are within the category of being Class II insureds as occupants of “covered autos” under the reformed policy also fails. Post-reformation, the appellants are neither “named insureds” nor occupants of “covered autos.” Accordingly, the appellants have no relationship with the policy which would allow them to assert any rights under section 627.727 of the Florida Statutes. Following the reformation, none of the clauses the appellants seek to use to claim their insured status apply to them. Accordingly, we answer the certified question in the negative and return this case to the United States Court of Appeals for the Eleventh Circuit for further proceedings.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, C.J., concurs with an opinion.

LEWIS, C.J.,

concurring.

I concur in the majority’s determination that the federal district court properly reformed the insurance contract at issue in the instant matter, and that appellants are not entitled to uninsured motorist coverage under the policy post-reformation because they are neither “named insureds” nor class II insureds as occupants of “covered autos.” I write separately because we should answer the question certified and not begin our analysis in the “middle” of the process. The question certified is:

DOES THE DEFENDANT MICHIGAN MUTUAL HAVE ANY LIABILITY TO THE PLAINTIFFS UNDER THE POLICY IN QUESTION, AND, IF SO, WHAT IS THE EXTENT OF THAT LIABILITY?

Tobin v. Mich. Mut. Ins. Co., 398 F.3d 1267 (11th Cir.2005). The analysis begins with a determination of whether the appellants were “named insureds” under the policy prior to reformation because that is essential to any resolution in the instant matter, because if the appellants were not “named insureds,” the district court’s reformation of the policy was unnecessary and inappropriate.

Appellants’ “Named Insured” Status

“Named insureds” are those persons defined or described by the language of the insurance contract. See Kohly v. Royal Indem. Co., 190 So.2d 819, 821 (Fla. 3d DCA 1966) (“In interpreting insurance policies, the courts have uniformly held that the term ‘named insured’ has a restricted meaning and does not apply to any persons other than those named in the policy.”). The contract at issue in the instant matter defines “named insured” as

FORD MOTOR COMPANY, ITS U.S. SUBSIDIARIES AND ANY PERSON TO WHOM AN AUTOMOBILE HAS BEEN ASSIGNED, LEASED OR LOANED.

In the context of UM/UIM coverage, an analysis of who is a “named insured” is always the first step in any analysis with regard to the statutory requirements and protections, because “named insureds” are the only persons authorized under the UM/UIM statute to reject UM/UIM coverage or to accept UM/UIM coverage at lower limits. See, e.g., Kimbrell v. Great Am. Ins. Co., 420 So.2d 1086, 1087 (Fla.1982) (“[S]ection 627.727(1) ... requires insurers to provide uninsured motorist coverage to policy holders in an amount equal to their bodily injury liability coverage, unless the uninsured motorist coverage is rejected by the named insured.” (emphasis supplied)). This is particularly true when any issue touching upon UM/ UIM coverage by operation of the statute arises because, as indicated above, if the statutorily mandated offer and rejection or acceptance does not take place, UM/UIM coverage is provided by operation of the UM/UIM statute. See id.

In concluding that summary judgment in favor of the appellants on the issue of coverage was proper, the district court in the instant matter specifically determined, based on the analysis of the Third District in Perez v. Michigan Mutual Insurance Co., 723 So.2d 849 (Fla. 3d DCA 1998), that the appellants were “named insureds” under the plain language of the insurance policy prior to reformation, i.e., “person[s] to whom an automobile has been ... leased or loaned.” In Perez, the Third District determined that the plaintiff, a retail lessee, was a “named insured” under the same insurance contract at issue in the present case. See Perez, 723 So.2d at 850-51. The Third District reasoned that under Item 1 listed on the declarations page, describing the “Named Insured” as “Ford Motor Company, its U.S. subsidiaries, and any person to whom an automobile has been assigned, leased or loaned,” the plaintiff, as an individual to whom an automobile had been leased, came within the definition of a “named insured” under the plain language of the policy. See id. at 850. The Third District concluded that the insurance policy’s language was unambiguous and, therefore, did “not require construction, and must be given effect as written.” Id. at 851. Adopting this reasoning, the district court below determined that appellants were likewise “named insureds” under the policy. As such, they would be entitled to UM/UIM coverage under the policy by operation of section 627.727 of the Florida Statutes because neither the appellants nor any other “named insured” under the policy were offered and either accepted or properly rejected the coverage. See § 627.727, Fla. Stat. (2004).

Michigan Mutual looks to the policy definition of “covered auto” to amend the separate policy provision of “named insured,” arguing that a different definition of vehicles in a separate “covered autos” provision in Endorsement [PP] FO RD 04 changes “named insureds” under the policy at issue. We have held that “insurance contracts must be construed in accordance with the plain language of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003). The definition of “named insured” on the declarations page of the policy at issue here clearly states and includes “any person to whom an automobile has been ... leased.” An interpretation of the plain meaning of that definition would, absent any modification of the definition of “named insured” elsewhere in the policy or by endorsement, include appellants retail lessees as “named insureds.” See Kohly, 190 So.2d at 821 (“named insured” status is only given to those named in the policy).

Michigan Mutual attempts to change the definition of “named insured” on the declarations page of the policy, by reference to the description of a “covered auto” with the tag designations listed in Endorsement PP FO RD 04 under the definition of “covered auto,” not “named insured,” and conclude that the retail lessees are not “named insureds” under the policy at issue. If we adopted this reasoning, we would stretch the concept of interpretation entirely beyond that permitted by Florida law by mixing distinct insurance provisions, one policy provision and concept— “named insured” — being defined by reference to a definition of an entirely different independent policy provision, definition, and concept — “covered auto.” Who is a “named insured” under a policy is not altered by the description of a “covered auto” found in a separate, different provision, definition, and concept contained in an endorsement to that policy. Therefore, the tag designations listed in endorsement PP FO RD 04, which are used to describe the term “covered auto” and not “named insured,” cannot be used to totally alter the separate definition of “named insured” found on the declarations page in a different policy provision. There is no endorsement which modifies the definition of “named insured” in this contract. The plain and unambiguous language in the distinct contract provision on the declarations page which defines who qualifies as a “named insured” must control and dictate who is in that category without resorting to a distinct and different policy provision and definition to change the unambiguous policy language. Reference to a “covered auto” may modify or impact the vehicle or where coverage may apply, but it does not alter the definition of “named insured” as a policy term.

Even if the definition of the distinct and separate contract description of “covered auto” in Endorsement PP FO RD 04 could be construed as creating ambiguity as to the separate definition and provision of the term “named insured,” principles of insurance contract construction would still require that the plaintiff retail lessees be considered “named insureds.” We have held that “where policy language is subject to differing interpretations, the term should be construed liberally, in favor of the insured and strictly against the insurer.” State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998) (citing Container Corp. of Am. v. Md. Cas. Co., 707 So.2d 733, 736 (Fla.1998)). Under this reasoning, an interpretation of “person to whom an automobile has been ... leased,” which clearly includes a retail lessee, should be favored over one that includes only Ford employee lessees, because the former interpretation would adhere to the rule of construing policy language subject to differing interpretations “liberally in favor of the insured and strictly against the insurer.” CTC Dev. Corp., 720 So.2d at 1076.

Based on the foregoing, I would conclude that the appellants were within the definition of “named insured” and were entitled to the statutory protection related thereto under the policy at issue in its pre-reformation state. Therefore, the district court’s reformation of the policy was the proper process to analyze this case if appellants as retail lessees were to be excluded from the definition of “named insured” under the policy. Since the majority correctly determines that reformation was appropriate in the instant matter and supported by competent substantial evidence, I concur.

      . Tobin, Hunter, and the Mackays will be collectively referred to as "appellants.”

      . The Eleventh Circuit’s opinion indicates that although certain vehicles were leased from a Ford subsidiary, such as Ford Motor Credit or Jaguar Credit Corporation, for purposes of this appeal, and to simplify matters, it referred to all vehicles as being leased from Ford. Tobin v. Mich. Mut. Ins. Co., 398 F.3d 1267, 1269 n. 1 (11th Cir.2005). This opinion adopts that approach and also refers to Ford as the lessor of all vehicles in question.


author: QUINCE, J.

text:
    STATE of Florida, Petitioner-Appellant, v. Jeffrey Scott RATNER, Respondent-Appellee.
    Nos. SC05-1007, SC05-1009.
    Supreme Court of Florida.
    Jan. 11, 2007.

      Bill McCollum, Attorney General, Tallahassee, Florida, Celia A. Terenzio, Bureau Chief and Richard Valuntas, Assistant Attorney General, West Palm Beach, for Petitioner/Appellant.
    James L. Eisenberg and Kai Li Aloe Fouts of Eisenberg and Fouts, P.A., West Palm Beach Florida, for Respondent/Ap-pellee.
   QUINCE, J.

We have on appeal a decision from the Fourth District Court of Appeal declaring invalid portions of section 924.07(1), Florida Statutes (2003), as applied to appeals to the district courts. We have jurisdiction. See art.V, § 3(b)(1), Fla. Const. For the reasons explained below, we reverse the decision of the district court and hold that the district courts of appeal have discretionary jurisdiction over nonfinal appeals certified by the county court to be of great public importance when the order is one that is otherwise appealable to the circuit court under section 924.07, Florida Statutes.

PACTS AND PROCEDURAL HISTORY

On the evening of June 14, 2003, Diane Ratner fled the family home with her son and drove a short distance to the nearest police station. She was crying and upset when she approached a police officer, who was seated in his squad car. The officer observed that her face was bloodied and that her nose and eyes were swollen. He asked, “My goodness. What happened to you?” She answered, “I want to report that my husband beat me up, punched me, knocked me down, and kicked me in the face.” The officer then escorted her into the police station and filled out a victim witness form. She answered some questions regarding the incident but then refused to provide a written statement. After being treated by paramedics, she was escorted home by police officers where her husband, Scott Ratner, was awaiting her arrival. She then told police that she did not want to press charges against her husband and expressly recanted her previous statement. Ratner was arrested and charged with domestic battery.

The State filed a motion in limine in the county court seeking to admit the statement made by Mrs. Ratner in the parking lot as an excited utterance exception to the hearsay rule. See § 90.803(2), Fla. Stat. (2006). The State also advised the court that it did not intend to call Mrs. Ratner as a witness. Mr. Ratner argued that the recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), precluded admission of the hearsay statement because it was testimonial in nature. The county court denied the State’s motion to admit the statement and certified the Crawford hearsay issue as a question of great public importance. The State timely sought review of the certified question in the Fourth District pursuant to Florida Rule of Appellate Procedure 9.140(c).

The district court initially granted jurisdiction but after the case was fully briefed, the court ultimately decided to dismiss the appeal and transfer the case to the circuit court. The district court held that it lacked jurisdiction to hear the matter, reasoning that “[although some provisions of section 924.07(1) have been adopted in rule 9.140(c) by the Florida Supreme Court, the portions relied upon by the State have not been adopted by rule and are unconstitutional as to appeals to district courts of appeal.” State v. Ratner, 902 So.2d 267, 269 (Fla. 4th DCA 2005). The State subsequently petitioned this Court. This Court granted jurisdiction to resolve the issue of whether the nonfinal county court order denying the State’s motion to admit the hearsay statement and certifying a question to be of great public importance was directly renewable by the district court of appeal. We review de novo a district court’s decision declaring unconstitutional a state statute. See Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 (Fla.2004).

DISCUSSION

The issue before this Court involves the jurisdiction of the district courts of appeal and the interplay of article V, section 4(b) of the Florida Constitution with section 924.07(1), Florida Statutes (2003), and Florida Rules of Appellate Procedure 9.030(b)(4), 9.030(c)(1)(B), and 9.140(c). As the district court correctly points out, “our constitution grants the power to authorize non-final appeals to district courts of appeal to our supreme court.” Ratner, 902 So.2d at 269. When the above-stated constitutional, statutory, and rules provisions are read in pari materia, this Court has in fact authorized review of the kind of nonfinal order entered by the county court.

The Florida Constitution provides in relevant part:

District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appeal-able to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.

Art. V, § 4(b)(1) Fla. Const, (emphasis added). The certified county court order denying the State’s motion in limine is an interlocutory or nonfinal order. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Thus, the question that must be answered is whether this Court has adopted a rule that would give review of the county court certified question to the district court.

As provided by article V, section 2 of the Florida Constitution, this Court is empowered to adopt rules governing appellate review, and the Court has done so in the Florida Rules of Appellate Procedure. Rule 9.030(b)(4)(B) is the rule which governs review in the district court of non-final orders that certify a question of great public importance. Rule 9.030(b)(4)(B) provides:

(b) Jurisdiction of District Courts of Appeal.
(4) Discretionary Review, See [Amendments to the Florida Rules of Appellate Procedure, ] 894 So.2d [202] at 211 [(Fla. 2005]). District courts of appeal, in their, discretion, may review by appeal
(B) non-final orders, otherwise appeal-able to the circuit court under rule 9.140(c), that the county court has certified to be of great public importance.

Thus, the district courts, of appeal can only review an order of the county court which certifies a question to be of great public importance if the order, without regard to certification, would otherwise be appeal-able to the circuit court in its appellate capacity under rule 9.140(c).

Rule 9.030(c), which delineates the appellate jurisdiction of the circuit courts, provides in pertinent part as follows:

(c) Jurisdiction of Circuit Courts.
(1) Appeal Jurisdiction. The circuit courts shall review, by appeal
(B) nonfinal orders of lower tribunals as provided by general law; ...
This appellate rule mirrors article V, section 5(b), which authorizes appellate jurisdiction in the circuit courts only as provided for by general law.

Lastly, rule 9.140(c) delineates under subdivision (1) the kind of orders that are appealable by the State. The county court order denying the State’s motion to admit Mrs. Ratner’s statement is not one of the types of orders appealable by the State under subdivision (1). However, the rule also provides under subdivision (2) for the appeal of other types of nonfinal county court orders to the circuit court. Rule 9.140(c)(2) provides:

(c) Appeals by the State.
(2) Non-Final Orders (See [In re Amendments to Florida Rule of Appellate Procedure 9.140(c)(1),] 901 So.2d [109] at 109 [(Fla.2005)]). The state as provided by general law may appeal to the circuit court non-final orders rendered in the county court.

Id. (emphasis added).

Because the appeal jurisdiction of the circuit court is controlled by general law, we must look to the statutes enacted by the Legislature to determine what non-final county court orders are appealable by the State to the circuit court under this provision of rule 9.140(c)(2). Cf. City of Miami v. McGrath, 824 So.2d 143, 148 (Fla.2002) (recognizing that a legislative enactment that has uniform applicability within a permissible class is a general law). In other words, the circuit court’s appellate jurisdiction to hear appeals by the State of nonfinal orders is controlled by authorization from the Legislature.

The general law enacted by the Legislature that governs State appeals and that would govern the State’s right to appeal under rule 9.140(c)(2) is section 924.07, Florida Statutes (2003). This statutory provision outlines a number of orders that are appealable by the State. Some of these statutory provisions are also found in Florida Rule of Appellate Procedure 9.140(c)(1), which governs State appeals to the district courts of appeal. However, because constitutionally appeals to the circuit courts are governed by general law, these statutory provisions control the kind of orders that may be appealed to the circuit court. The general law, pursuant to section 924.07(l)(h), grants the State the right to appeal “[a]ll other pretrial orders, except that it may not take more than one appeal under this subsection in any case.” In addition, section 924.07(1)(£) allows the State to appeal “[a]n order or ruling suppressing evidence or evidence in limine at trial.” The State could therefore appeal to the circuit court a county court order that falls under either of the above-quoted provisions of section 924.07.

In this case, the State filed a motion in limine seeking to admit a statement made by the victim to a police officer as an excited utterance. The State admitted that it did not intend to call the victim as a witness. The defense, on the other hand, argued the admission of the statement would violate the defendant’s confrontation rights as explained in Crawford. The county court entered an order denying the State’s motion and entered an amended order denying the motion and certifying a question as one of great public importance. Because this nonfinal order of the county court was an order suppressing evidence in limine, the order was appealable to the circuit court under rule 9.140(c)(2). Thus, contrary to the district court’s assertion, the order in question is appealable to the district court of appeal under rule 9.030(b)(4)(B) because it is an order from the county court certifying a question as one of great public importance and it is “otherwise appealable to the circuit court under rule 9.140(c).”

In determining that it did not have jurisdiction to review the type of nonfinal order entered by the county court, the district court relied on the fact that the type of order being appealed, the denial of a motion in limine, was not an authorized motion that the State could directly appeal to a district court of appeal. The court further opined that section 924.07 could not be used to expand the list of appeal-able orders delineated in rule 9.140(c)(1). We need not reach this issue, however, because it is clear that section 924.07 is constitutional as applied to appeals from the county court to the circuit court because the Legislature has the authority to determine the appeals that may be taken to the circuit court. See art. V, § 5(b), Fla. Const.

CONCLUSION

For the reasons stated above, we hold that the district courts of appeal have jurisdiction to hear appeals from the type of county court order entered in this case, which certified a question of great public importance, because the underlying order was otherwise appealable to the circuit court under rule 9.140(c)(2). We therefore reverse the decision of the district court of appeal and remand to the district court for further proceedings consistent with this opinion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO and BELL, JJ., concur.

      . Although the parties have addressed an issue involving the applicability of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to the excited utterance exception to the hearsay rule, we do not address this issue because it was not addressed by the district court in its May 18, 2005, opinion on rehearing.

      . Article V, section 5(b) of the Florida Constitution provides that circuit courts shall have appellate jurisdiction as provided by general law. This provision states in pertinent part: "The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law." (Emphasis added.)

      . The State also argues that the order is ap-pealable pursuant to section 924.07(l)(h). However, we need not make a determination on this issue because the order clearly falls under 924.07(1)(Z).