author: LaROSE, Chief Judge.

text:
    IN the INTEREST OF Y.R-P., a child. J.R-P., Appellant, v. Department of Children and Families, Guardian Ad Litem Program, M.H., and O.R., Appellees.
    Case No. 2D16-5598
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017.

      Ita Neymotin, Regional Counsel, Second District, and Marisa L. Gonzalez, Assistant Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mary Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families.
    Matthew C. Wilson, Sanford, for Appel-lee Guardian ad Litem Program.
    Norman A. Palumbo, Jr., Tampa, for Appellee M.H.
    Scott L. Robbins, Tampa, for Appellee O.R.
   LaROSE, Chief Judge.

J.R-P. appeals a final order disestablishing his paternity. We affirm. We write, however, to address J.R-P.’s argument that the trial court improperly granted another male standing to challenge paternity under chapter 742, Florida Statutes (2014), in a dependency case.

Mystery shrouds this case. It concerns a child, two men who claim to be the father, and the child’s birth mother, who may have been murdered.

The child was sheltered shortly after her birth in August 2013. The child was placed with her maternal aunt, with whom she has remained throughout these proceedings. The child is in a safe and loving environment.

The child’s mother and J.R-P. never married. But J.R-P. is named as the father on the child’s birth certificate. Additionally, the shelter order recites that “[Gather asserts paternity today. Court finds him to be the father based on father’s testimony given in open court.” Only years later would the trial court learn that shortly after the child’s birth the mother told some relatives that J.R-P. likely was not the father; she also expressed concern that telling J.R-P. would make her homeless.

In September 2013, shortly after the entry of the shelter order, the Department of Children and Families (“DCF”) petitioned for an' adjudication of dependency under chapter 39, Florida Statutes (2013). The trial court adjudicated the child dependent: The child never lived with J.R-P. or her mother.

Sometime in 2014, the child’s mother disappeared. In September 2014, law enforcement opened a missing person case. Later, the case was transferred to the homicide division for further investigation based on a suspicion of murder. Law enforcement considered J.R-P. to be a “person of interest” in its investigation.

Pursuant to an October 2014 order, :the trial court permitted J.R-P. to have at least one two-hour unsupervised visit per week with the child. Although our record contains few details, it appears that an incident occurred during one of these visits that had a profound detrimental effect on the child. Thereafter, J.R-P. continued to have some visits with the child, but- in a secure setting. Incidents occurred during some of these visits that contributed to further concerns about the safety of the child while in J.R-P.’s care. '

Prior to the mother’s disappearance, she told some of her relatives about the child’s biological father. She showed a relative the home where the child’s biological father, O.R., lived. She told the relative: “If anything happens to me, the man who lives in that house is [the child’s] father.” After the mother disappeared, her relatives located O.R. and shared the mother’s story with him. O.R. voluntarily submitted to a DNA test. The results were virtually conclusive: there was a 99.99% probability of a relationship between O.R. and the child.

In January 2015, O.R. filed several items in the dependency case that revealed his competing, paternity claim. He filed a pro se motion to intervene and attached a document acknowledging his paternity, a copy of a “Florida Putative Father Registry Claim of Paternity,” and a copy of the DNA test results. Between the summer of 2015 and January 2016, the trial court grappled with the proper procedure to use in- resolving the competing paternity claims.

The trial court appointed counsel for O.R. In January 2016, counsel filed a motion to establish O.R.’s paternity and to disestablish J.R-P.’s paternity. J.R-P., through appointed counsel,' moved to dismiss or strike O.R.’s motion. DCF asked the trial court to deny J.R-P.’s motion. DCF argued that O.R. should be afforded an opportunity to be heard and to assert paternity either on his own motion or through participant status in the dependency case. DCF also asserted that J.R-P. “fraudulently signed the birth certificate for the child in that he had knowledge that he was not the biological father of the child.”

A “[participant” in a chapter 39 shelter, dependency, or termination of parental rights proceeding

means any person who is not a party but who should receive notice of hearings involving the child, including the -actual -custodian of the child, the foster parents or the legal custodian of the child, identified prospective parents, and any other person whose participation -may be in the best interest of the child .... Participants may be granted leave by the court to be heard without the necessity of filing a motion'to intervene.

§ 39.01(50), Fla. Stat. (2013). The trial court granted O.R. participant status, determined that O.R. had standing to challenge paternity, and found that it was in the best interest of the child for O.R. to have such standing. The trial court denied J.R-P.’s motion to dismiss or strike O.R.’s motion.

. The trial court conducted an evidentiary hearing on O.R.’s motion in September 2016. DCF and the Guardian ad Litem Program supported O.R., contending that it was in the child’s best interest to establish O.R.’s paternity and to disestablish J.R-P.’s paternity. The mother’s attorney appeared at the hearing, but took no position.

The trial court thereafter entered the order disestablishing J.R-P.’s paternity. Among other things, the trial court disr cussed section 742.18, Florida Statutes (2014), which provides the “circumstances under which a male may disestablish paternity ... when the male is hot the biological father of the child.” § 742.18(1). The trial court determined that section 742.18 was not exactly on point. Yet, it concluded that the case presented an issue within the scope of section 742.10(4), which allows a challenge to paternity established in reliance upon “a signed voluntary acknowledgment of paternity’ but “only on the basis of fraud, duress, or material mistake of fact.” The trial court “accepted] [J.R-P.’s] position that ... he was operating under a material mistake of fact: his belief in his biological paternity.” The trial court declined to find that J.R-P. had committed fraud by acknowledging paternity shortly after the child’s birth. But the trial court determined the mother’s support of J.R-P.’s assertion of paternity established her fraud.

The trial court found that the child had “never lived as a family with [J.R-P.], His parental status [was] based. on nothing more than his mistaken representations and the misrepresentations of the [child’s] mother.” The trial court found that O.R. was :

familiar-with [J.R-P.’s] tendency to commit violence and O.R. [did] not want the little girl to be placed at risk of harm. Upon learning about [the child] and her plight, [O.R.] could have chosen to ignore this child and this proceeding-and allowed the chips to fall where they may. Instead, [O.R.] took action after the mother’s relatives came looking for him and informed him that- [the, child] may be his daughter .... He has shown parental concern by taking the paternity test, acknowledging paternity and being tenacious in coming to court and seeking what he believes is necessary for the protection and best interest of [the child].

The trial court concluded that “[t]o continue the legal relationship and honor parental prerogatives incorrectly and fraudulently established based on nothing more than [J.R-P.’s] wishes would be detrimental to [the child] and would endanger her safety and well-being.” The trial court disestablished J.R-P.’s paternity, determined that he was not a parent or party to the dependency proceeding, and dismissed him from the dependency case,-

J.R-P, raises two major points on appeal. First, he contends that the trial court improperly granted O.R. standing to proceed even though J.R-P. did not wish to disestablish paternity. Second, J.R-P. maintains that fraud and material mistake of fact'were not properly pleaded and not supported by the evidence. As to J.R-P.’s concern with pleading deficiencies, J.R-P. did not present that issue to the trial court and, thus did not preserve it for our review. Further,, the trial court’s finding of fraud, and material mistake of fact is supported by competent substantial evidencé. We need say nothing more about J,R-P.’s second point. We now address J.R-P.’s standing argument.

O.R.’s paternity challenge arose in a chapter 39 dependency case. Florida Rule of Juvenile Procedure 8.226 addresses parenthood determinations in chapter 39 cases. See In re Amendments to Fla. Rules of Juvenile Procedure, 115 So.3d 286, 289 (Fla. 2013) (explaining the history behind the adoption of. rule 8.226 in May 2013 and establishing the. effective date of the rule as July 1, 2013). Rule 8.226(a) allows the trial court to conduct proceedings under chapter 742 “either as part Qf the chapter 39, Florida Statutes, proceeding or in a. separate action under chapter 742, Florida Statutes.”

Here, the dependency court conducted the chapter 742 proceedings as part of the chapter 39 proceeding. Although rule 8.226 authorizes matters of paternity to -be decided as part of the chapter 39 proceeding, it does not address the procedure for raising and resolving a paternity challenge such as that before us.

J.R-P. does not directly challenge the trial court’s procedure to resolve the paternity challenge. Rather, he proposes that a biological father lacks standing to disestablish another’s paternity. Relying on section 742.18, J.R.-P. asserts that he is the only person who may seek to disestablish his paternity. Section 742.18 “establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.” § 742.18(1). Thus, section 742.18 provides a mechanism by which J.R-P. could have sought to disestablish paternity if he had been so inclined.

But section 742.18 does not preclude an individual “from challenging a paternity determination, pursuant to s. 742.10(4).” § 742.18(11). Paternity established through “a signed voluntary acknowledgment of paternity” may be challenged on the grounds of “fraud, duress, or material mistake of fact” by a “challenger.” § 742.10(4). Nothing in section 742.10(4) precludes a child’s biological father from proceeding as a challenger.

Early in the dependency case, J.R-P. was identified as the child’s father. He asserts that his paternity was established by law through the shelter order. We do not view the shelter hearing as an adjudicatory hearing to establish J.R-P.’s paternity. Cf. Fla. R. Juv. P. 8.305(b)(2) (“The court shall determine at the [shelter] hearing the existence of probable cause to believe the child is dependent and whether the other criteria provided by' law for placement in a shelter have been met.”); Fla. R. Juv. P. 8.226(a) (“The court must determine the identity of all parents and prospective parents at the initial hearing in proceedings under chapter 39, Florida Statutes, as provided by law.” (emphasis added)). We recognize, however, that J.RP. asserts that his name on the birth certificate is an acknowledgment of his paternity.

But after the lapse of a sixty-day rescission period, “a signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.” § 742.10(4). Section 742.10(4) opens an avenue for O.R. to challenge paternity. Accordingly, we- reject J.R-P.’s argument that O.R. lacks standing to disestablish J.R-P.’s paternity.

J.R-P. also asserts that to establish standing a biological father must demonstrate a substantial concern for the child’s welfare. Even if that is so, the record before us adequately supports O.R.’s concern for the child. Here, the trial court granted O.R. participant status. A participant in a chapter 39 shelter, dependency, or termination of parental rights proceeding may include, among others, identified prospective parents and any other person whose participation may be in the best interest of the child. § 39.01(50). In the interlocutory order on standing, the trial court specifically found that it was “in the [cjhild’s best interest to allow [O.R.] standing.” The trial court did not specifically state whether it was granting O.R. participant status as an “identified prospective parent” or as “any other person whose participation may be in the best interest of the child” at that juncture in the proceedings. Either way, we conclude that in the context of a chapter 39 proceeding, the child’s best interest is the appropriate standard in deciding whether a biological father has standing to challenge paternity of a child born out of wedlock as between two males who were not married to the child’s mother.

Affirmed.

CRENSHAW and MORRIS, JJ., Concur.

      . This case is factually and legally complex. We commend the trial court for its thoughtful handling of the matter.

      . Neither J.R-P. nor anyone else -had been charged with a criminal offense arising from the disappearance of the mother. Yet, the criminal investigation created concern for DCF ana the child’s guardian ad litem with respect to whether J.R-P. should be permitted to have unsupervised visitation with the child.

      . The order on standing was not an order that allowed O.R. to intervene as a "party.” See § 39.01(51), Fla. Stat. (2013) (providing definition of "party” to be used in chapter 39 proceedings).

      . During closing arguments, the mother’s trial counsel explained that he was her lawyer and not a witness, that anything she might have said to him had the attorney-client privilege, and that he did not want to create any appellate issues,


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R.L.F., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4255
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017
    . Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, R.L.F. appeals from a disposition order finding that he committed delinquent acts, withholding adjudication of delinquency, and placing him on juvenile probation until the age of nineteen with special conditions. We affirm in all respects but note that a possible sentencing error may exist in the actual disposition order.

The disposition order reflects that the trial court imposed a total of $200 in costs and fees, whereas the trial court’s oral pronouncement of sentence imposed a total of $150 in “court costs.” See W.S.G. v. State, 32 So.3d 725, 726 (Fla. 2d DCA 2010) (“If a discrepancy exists between the written sentence and the oral pronouncement, the written sentence must be corrected to conform to the oral pronouncement.” (quoting Guerra v. State, 927 So.2d 248, 249 (Fla. 2d DCA 2006))). However, because R.L.F. failed to preserve this potential error by filing a motion to correct sentencing error, this court must affirm. See Thomas v. State, 190 So.3d 222, 223 (Fla. 1st DCA 2016) (affirming without prejudice the defendant’s sentence because even though the written sentence failed to comport with the trial court’s oral pronouncement, the defendant failed to properly preserve the sentencing error). Our affirmance is without prejudice for R.L.F. to raise this possible sentencing error in an appropriate posteonviction motion. See id.

Affirmed.

VILLANTI, KHOUZAM, and SLEET, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: SALARIO Judge. ROTHSTEIN-YOUAKIM, Judge,

text:
    Devin Gregory ROOP, DOC #C06445, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1573
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017.

      Anthony M. Candela of Candela Law Firm, Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appel-lee.
   SALARIO Judge.

Devin Gregory Roop appeals his convictions and .sentences for throwing a deadly missile at an occupied vehicle, see § 790.19, Fla. Stat. (2013), and criminal mischief ($200 or less), see § 806.13(1)(b)(1), Fla. Stat. (2013). We affirm in all respects. We write only to address Mr. Roop’s argument that the trial court erroneously admitted at trial that portion of a recording of a 911 call placed by the victim, Frank Yeater, during which Mr. Yeater identified Mr. Roop as .the perpetrator. Mr. Roop contends that Mr. Yeater’s statement on the recording was inadmissible hearsay. The trial court admitted the statement based on the State’s contention that the spontaneous statement and excited utterance exceptions to the hearsay rule applied. See § 90.803(1), (2), Fla. Stat. (2014). We find no abuse of discretion in the trial court’s admission of Mr. Yeater’s statement of identification under the excited utterance exception and further conclude that the admission of that statement, even if error, was harmless under the facts of this case.

I.

Someone threw a metal pipe at. Mr. Yeater’s truck as he was driving along a stretch of road in Lake Wales. Mr. Yeater said that someone was Mr. Roop. Mr. Roop’s stepfather, however, said that Mr. Roop had been at his house all- day on the day in question. The jury believed Mr. Yeater and convicted Mr. Roop.

At the time of the incident, Mr. Yeater had known' Mr. Roop for well over a decade. They had grown up in the same neighborhood and gone to the same school, and they used to be friends. Over time, the friendship fizzled and the relationship turned sour. The two men spoke disrespectfully to one another, and Mr. Yeater felt insulted by Mr. Roop. On New Year’s Eve 2013, there was an incident between Mr. Yeater and Mr. Roop’s stepbrother. Mr. Roop was. there when it happened. The police were called, to the scene of the incident, but no one was charged with any offenses.

Five days later—around noon on January" 5, 2014—Mr. Yeater was driving his truck down a two-lane country road. He noticed a black car approaching him from behind at a quick pace. The car moved to pass Mr. Yeater’s truck in the opposite lane. According to Mr. Yeater, Mr. Roop leaned out of the car’s rear passenger window and threw something at Mr. Yeater’s truck. Mr. Roop knew that the truck was Mr. Yeater’s because he had seen him driving it before. The object struck the driver’s side door near the handle, missing Mr. Yeater but damaging the truck.

Seconds later, Mr. Yeater turned around, returned to where the incident occurred, and called 911 from his mobile phone. About two minutes passed between the incident and the 911 call. After confirming his location, Mr. Yeater told .the 911 operator that he had been driving down the road- when Mr. Roop passed his car and threw something at the truck. He stayed on the phone with the operator, searched for whatever had hit his truck, and narrated his search to the 911 operator. The search led to the discovery of a metal pipe. Á sheriffs deputy was sent to the scene, took photographs of the damage to Mr. Yeater’s truck, and recovered the pipe. Law enforcement was unable to recover fingerprints from the pipe. The State charged Mr. Roop with throwing a deadly missile and criminal mischief.

The case proceeded to trial. After the jury was selected, but before any evidence was presented, the trial court heard a motion the State filed earlier that day seeking a ruling on the admissibility of a recording of Mr. Yeaters call to 911, including his statement on that call that Mr. Roop was his assailant. Without objection from either side, the motion was presented to the trial court based on the parties’ statements of what the evidence would show and a recording of the 911 call. The State proffered that Mr. Yeater would testify that a couple of minutes after the pipe was thrown at the car, Mr. Yeater pulled over to the side of the road, called 911, and identified Mr. Roop as the perpetrator and argued that Mr. Yeater was excited at the time of the 911 call even though he might seem calm on the recording. It argued and requested a determination that Mr. Yeater’s identification of Mr. Roop was admissible as either an excited utterance or a spontaneous statement. Mr. Roop’s counsel stated that Mr. Yeater testified at deposition that he was initially going to “forget about it,” but then decided to turn around because hé was concerned, that “something further might happen” with Mr. Roop and he wanted to “put it on the record.” He argued that this showed that Mr. Yeater was not under the stress of the excitement caused by the event when he called 911 such that the excited, utterance exception would apply and further that the lapse of time before calling 911 also prevented the spontaneous statement exception from applying. The trial court then listened to the full recording of the 911 call and thereafter ruled that a redacted recording, which 'included Mr. Yeater’s identification of Mr. Roop as the perpetrator, would be admissible.

Mr. Yeater was the State’s first witness at trial. He related the facts of the offense, including his identification of Mr. Roop as the perpetrator and his discovery of the metal pipe, just as described above. After he described what happened, the State asked Mr. Yeater about his call to 911, and the following exchange occurred:

THE STATE: Did the black car that was containing Mr. Roop pull over on the side of the road after this?
MR. YEATER: No. It continued even quicker to get away.
THE STATE: Okay. Did you pull over on the side of the road?
MR. YEATER: At first I continued to keep on going, and then I decided to turn around and—to go grab—see whatever it was, and then go pick it up.
THE STATE: Did you call 911?
MR. YEATER: Yes.
THE STATE: About how long after this incident occurred did you call 911?
MR. YEATER: Two minutes.
THE STATE: Are you approximating two minutes?
MR. YEATER: Yes, it was approximately two minutes.
THE STATE: Okay. Aré you scared at this point?
MR. YEATER: Yes. I was scared at that point.
THE STATE: Feeling any other emotions.
MR. YEATER: Yes, I was frightened, I didn’t know what—I didn’t know what his intentions were to do.

.The trial court thereafter excused the jury so that it could listen to the redacted recording the State had prepared in accord with its earlier instructions. After listening to the recording, the trial court asked the parties for comment. Although Mr. Roop renewed his objections to the admission of the recording, he did not seek to voir dire Mr. Yeater about the circumstances surrounding the 911 call or' to present other evidence bearing on the admissibility of Mr. Yeater’s statements to 911 as excited utterances or spontaneous statements. The redacted recording was admitted over Mr. Roop’s renewed objection, and the jury heard Mr. Yeater’s identification of Mr. Roop as his assailant and his narration of his search of the object that struck his truck.

On the cross-examination that followed, Mr. Yeater stated that, after his truck was hit by the pipe, he initially intended to continue driving but decided seconds later to turn around. On redirect, Mr. Yeater stated that he “was just going to let it go” at first but then had decided to call the police “[bjecause after initially thinking of who it was, I knew this wasn’t going to be a—it wasn’t going to stop with Devin Roop.” No additional objection was raised based on this testimony.

After the State rested, Mr. Roop called his stepfather, Russell Brown, Sr. Mr. Brown has known Mr. Roop since he was born and considers him a son. His biological son is the. stepbrother.of Mr. Roop and was involved in the incident with Mr. Yeater five days, before the pipe was thrown at his car. Mr. Brown testified that on the day of the incident, Mr. Roop had been at his residence all day to celebrate the birthday of Mr. Roop’s mother.

On cross-examination, Mr. Brown admitted that'until he was subpoenaed by the State toward the end of 2014, he had not mentioned to anyone that Mr. Roop had been with him that day. He also admitted that he knew beforé then that Mr. Roop was being prosecuted for throwing a pipe at Mr. Yeater’s truck. He initially said he had not mentioned anything about Mr. Roop’s alibi because he was “try[ing] not to get into none of that.” Later, however, he stated that he did not say anything because he had not realized that the inch-dent with Mr. Yeater happened on the same day as the celebration at his house. Mr. Brown testified, without objection, that although he discussed this prosecution with Mr. Roop, Mr. Roop never told him that the incident happened! on the same day he spent at Mr. Brown’s house. Mr. Roop did not testify.

Tke jury found Mr. Roop guilty on both counts. After denying Mr. Roop’s motion for new' trial, the trial court sentenced him to concurrent terms of fifteen years’ imprisonment as a prison releasee réoffender on the count for throwing a deadly missile and to time served on the count for criminal mischief. This is Mr. Roop’s timely appeal.

II.

Mr. Roop asserts that the trial court erred in admitting the redacted recording of the 911. call containing Mr, Yeater’s identification of Mr. Roop because it “was completely hearsay” and “[tjhere was no indication on the record that the evidence was introduced to show state of mind or an excited utterance (or some other hearsay-exception)” The State counters that it laid a sufficient predicate to admit the recordr ing of the 911 call as an excited utterance or a spontaneous statement. We . agree with the State that admitting this statement as, an. excited utterance was within the trial court’s discretion.

Although we review a trial court’s decision concerning the admissibility of evidence for abuse of discretion,- we are mindful that the trial court’s discretion is limited by the rules .of evidence and controlling decisions interpreting them. See Davis v. State, 121 So.3d 462, 481 (Fla. 2013) (first citing Hudson v. State, 992 So.2d 96, 107 (Fla. 2008); and then quoting Hayward v. State, 24 So.3d 17, 29 (Fla. 2009)). Under the evidence rules, a victim’s prior statement—like Mr. Yeater’s recorded statement—is generally inadmissible hearsay, see §§ 90.801(1)(c), 802, and thus cannot be used to corroborate the victim’s consistent, in-court testimony. See Tumblin v. State, 29 So.3d 1093, 1100 (Fla. 2010). A victim’s prior consistent' statement may be admitted as substantive evidence, however, when it meets an exception to the rule against hearsay, Rodriguez v. State, 609 So.2d 493, 500 (Fla. 1992), or when it is not hearsay, see Taylor v. State, 855 So.2d 1, 23 (Fla. 2003). The excited utterance exception makes a hearsay statement admissible when the statement relates “to a startling event or condition [and was] made while the declarant was under the stress of excitement caused by the event or condition.” § 90.803(2).

As interpreted by the courts, to qualify for admission under the excited utterance exception, “the statement must be made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’” Hudson, 992 So.2d at 107 (quoting Henyard v. State, 689 So.2d 239, 251 (Fla. 1996)); see also Hayward, 24 So.3d at 29 (relying on Hudson for the same proposition). The proponent of an excited utterance must lay a proper foundation establishing each of these three elements. Thomas v. State, 125 So.3d 928, 930 (Fla. 4th DCA 2013); see also Tucker v. State, 884 So.2d 168, 173 (Fla. 2d DCA 2004) (requiring that a preponderance of the evidence establish all three elements). A trial court’s decision that the.-proponent of the statement has laid that foundation is reviewed by appellate courts for abuse of discretion. See, e.g., Williams v. State, 967 So.2d 735, 748 (Fla. 2007) (applying abuse of discretion standard to trial court’s determination that, there had not been sufficient time for reflective thought); Taylor v. State, 146 So.3d 113, 116 (Fla. 5th DCA 2014) (“Whether the declarant made an excited utterance is a preliminary question of fact for the trial court, and the court’s ruling is reviewed for an abuse of discretion.”).

>Under that standard of review, we are bound to affirm the trial court’s admission of Mr. Yeater’s identification of Mr. Roop to 911 so long as that decision was not arbitrary, fanciful, or unreasonable in the sense that reasonable people could not conclude that the State’s predicate was sufficient to admit it as an excited utterance, See Graham v. State, 207 So.3d 135, 142 (Fla. 2016) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980), and applying its standard to the trial court’s evidentiary decision); Ballard v. State, 66 So.3d 912, 917 (Fla. 2011) (applying. Canakaris to an evidentiary decision). This standard is satisfied as to each of the three elements of the excited utterance exception.

Startling event. Before the 911 recording was admitted over Mr. Roop’s renewed objection, Mr. Yeater testified that while he was driving his truck, a car quickly overtook him and a passenger threw a metal pipe at him,- damaging his truck. We have no hesitation in concluding that reasonable people could find that this testimony established an event startling enough to cause nervous excitement. No one in this case—neither Mr. Roop nor the dissent— contends otherwise.

Time to contrive or misrepresent. Likewise, we have little difficulty concluding that a reasonable jurist could find that the State sufficiently established that Mr. Yeater identified Mr. Roop to 911 before there was time to contrive or misrepresent. In making such decisions, the courts have eschewed bright-line, hours- and-minutes rules based on the time between the startling event and the declarant’s statement. See Rogers v. State, 660 So.2d 237, 240 (Fla. 1995); Rivera v. State, 718 So.2d 856, 858 (Fla. 4th DCA 1998). Rather, the inquiry focuses on whether, under all of the circumstances, it is more probable than not that the interval of time was sufficiently long for the declarant to have engaged in reflective thought. Tucker, 884 So.2d at 174; see also State v. Jano, 524 So.2d 660, 662-63 (Fla. 1988). The nature and severity of the startling evént; the length of time between the event and the statement, the declarant’s state of mind at the time of the statement, and substance and context of the statement are all relevant data points in this evaluation. See J.A.S. v. State, 920 So.2d 759, 763 (Fla. 2d DCA 2006) (finding time for reflective thought when the event was a minor fight-, the statement was made -at least fifteen minutes after an officer was dispatched and the record did not reflect how much time passed before the officer was dispatched, and there was little to no evidence of excitement); Charles W. Ehrhardt, Ehrhardt’s Florida Evidence, § 803.2, at 1020-22 (2016 ed.) (describing relevant factors).

The State’s predicate in this case was sufficient to establish the absence of time to contrive or misrepresent. Through Mr. Yeater’s testimony and. the recording of his 911 call, the State showed that (1) someone threw a metal pipe at Mr. Yeater while he was driving; (2) Mr. Yeater believed it was Mr. Roop; (3) shortly thereafter, Mr. Yeater turned around to find the object; (4) he called 911 roughly two minutes after his truck had been struck by the object; (5) at the time he called 911, he was frightened and scared because he was worried about what else Mr. Roop, with whom he shared some bad blood and a recent incident, might try to do; and (6) after responding to the 911 operator about his location, Mr. Yeater immediately and without hesitation stated that Mr. Roop had thrown the pipe at him. This testimony and evidence may reasonably be interpreted as establishing an out-of-the-ordinary and dangerous startling event, a short interval between the event and the statement, a frightened declarant concerned for his safety, and a fast and confident identification of the perpetrator to the law enforcement officials. In our view, these circumstances were sufficient to permit a reasonable trial judge to conclude that at the time he identified Mr. Roop as his assailant, Mr. Yeater was acting on impulse and not with the benefit of time sufficient To -overcome his instincts and fabricate a story.

Although we have been unable to -locate an excited utterance case on precisely these facts, Florida courts have found the exception properly applied in cases involving fact's that we would expect to provoke a similar level of excited reaction, as well as on facts that involve more stressful events but- also substantially longer intervals between event and- subsequent statement than involved here. See, e.g., Cox v. State, 473 So.2d 778, 782 (Fla. 2d DCA 1985) (holding that wife’s statements to law enforcement at her home and en route to the hospital after being informed of her husband’s involvement in a traffic accident were admissible as excited utterances in subsequent prosecution for DUI manslaughter); Taylor, 146 So.3d at 116 (holding that statements made “minutes” after event by ex-girlfriend whose armed ex-boyfriend walked in front of her car while she was driving, yelled insults, and threatened to kill her were, admissible as excited utterances notwithstanding officer’s testimony that she calmed down as she was talking to her); Werley v. State, 814 So.2d 1159, 1161 (Fla. 1st DCA 2002) (holding that statements by domestic battery victim who was struck in the head with a bottle made more than one hour after the incident were admissible as excited utterances); Edwards v. State, 763 So.2d 549, 550-51 (Fla. 3d DCA 2000) (holding that statement by witness made at least ten minutes after a serious automobile accident was admissible as an excited utterance in subsequent DUI prosecution); Rivera, 718 So.2d at 858 (holding that statements made by battery victim to police officer fifteen minutes after the officer saw the victim screaming and waving her hands while crying was admissible as an excited utterance). The trial court’s admission of the 911 call is not at all out of line with the results in these cases or, for that matter, any other case that has been cited to us. We thus cannot find an abuse of discretion on the issue, of whether Mr. Yeater had sufficient, time,to contrive or misrepresent.

The dissent reaches a different conclusion because it believes the record shows that Mr. Yeater “acknowledged” having had the “ability to reflect” because he testified that he initially kept driving but then decided to turn around to see what had been thrown at him and call 911. From there, it reasons that the trial court erred by failing to require the State to further prove that Mr. Yeater did not in fact engage in reflective thought. See Williams, 967 So.2d at 748 (“If sufficient time passed for reflective thought, the proponent for admission of the statement must show that reflective thought did not occur.”). This argument misses the mark for two reasons.

The first is procedural. The argument that Mr. Yeater acknowledged the passing of sufficient time for reflective thought, and thát the State was therefore required to prove that he did not in fact reflectively think, is an argument only of the dissent’s creation. Mr. Roop has not presented the argument for our decision because he has not made the argument anywhere in his brief. Indeed, he did not even make this argument in the trial court. The dissent’s judgment that we should reverse on the basis of a ground not argued is “at odds with the structure of the appellate process which requires that a reviewing court ordinarily reverse only on the basis of the specific arguments presented by the appel-tent.” I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007); see also Philip J. Padovano, Florida Appellate Practice § 16.9, at 308 (2016 ed.) (“Generally, the appellate court will not reverse a case.on a ground that was not argued 'in the briefs.”). Since this argument has not been presented to us as a ground for reversal, we ought not to be reversing because of it.

The second is substantive. Our standard of review here is abuse of discretion, which means that the dissent must show that its construction of the evidence—i.e., that Mr. Yeater acknowledged having the time to reflect—is the only reasonable one. Truth be told, Mr. Yeater did not acknowledge having the ability to reflect in the sense of having admitted that he had time to do so. That is just the dissent’s interpretation of his testimony that after the pipe hit his truck, he initially continued driving and then decided to turn around. That, however, is not the only reasonable interpretation of Mr. Yeater’s testimony^ On the contrary, before it admitted the 911 recording over Mr. Roop’s renewed objection, the trial judge heard Mr. Yeater’s testimony that he and Mr. Roop had an aborted friendship, that there had been an incident involving the two men just five days prior to the pipe-throwing incident, and that, when he decided to turn around, Mr. Yeater believed Mr. Roop had just thrown a heavy object at him and was frightened, scared, and unsure of what Mr, Roop’s intentions were. We note in this regard that the trial court had the ability to observe Mr. Yeater on the stand and to assess his credibility with regard to these predicate facts—a perspective that should cause us, as an appellate court, to be reticent to upend its judgment about those facts. See Tucker, 884 So.2d at 175 (describing the superior vantage point of the trial judge when the declarant testifies to the predicate facts related to the admission of statements made during a 911 call as excited utterances).

One reasonable inference from the facts to which Mr. Yeater testified is that that the two-minute interval of time between the pipe hitting his truck and his call to 911 was sufficient only for decision driven by fear and instinct, rather than conscious deliberation. It is not at all difficult to imagine someone in the situation to which Mr. Yeater testified, alone on an isolated road and just having had a pipe thrown at his truck by a person with whom he had a bad history, being frightened about that person’s next move and impulsively thinking “I’d better call 911 because I don’t know what he’s going to do next.” That kind of decision—made a very short time after the startling event—can quite reasonably be interpreted "as the product of reaction to a startling situation rather than the product of time for conscious deliberation, much like any crime victim might decide to call 911 in the wake of the stressful event. A decision to admit Mr. Yeater’s statement to 911 based on that interpretation of the evidence, therefore, would be one a reasonable judge could make, The fact that the dissent might have a different interpretation of the evidence is insuffi-dent to overcome the abuse of discretion standard we apply to the trial court’s decision. See Williams, 967 So.2d at 748 (“Williams argues that the fact that Dyke may have attempted to shower demonstrates reflective thought, .and, therefore, the 911 statements do not qualify as excited utterances. While this assertion may be arguable, we conclude that it is insufficient to overcome the abuse of discretion standard necessary to overturn the trial court’s evidentiary ruling.”); Vanevery v. State, 980 So.2d 1105, 1107 (Fla. 4th DCA 2008) (“Appellant argues that the recording of the 911 call demonstrates, from the calm tone of the caller, who may have been speaking quietly in order to not be heard by appellant, that it was not an excited utterance.... In this case we are unable to say that the court abused its discretion

Under the stress .of excitement. Mr. Yeater testified that at the time he called 911 he was scared, frightened, and unsure of Mr. Roop’s intentions. No. one contends in this appeal that this testimony was insufficient to show that Mr. Yeater remained under the stress of excitement caused by the throwing of a pipe at his truck when he identified Mr. Roop .to. the 911 operator. Accordingly, the trial court did not abuse its discretion, in admitting the recording of that identification.

III.

Even if the trial court had erred in admitting the recording of Mr. Yeater’s identification of Mr. Roop to 911, we would not regard the error as. harmful. Trial court error is harmful when there is a reasonable possibility that the error affected the verdict. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). There are two ways in which Mr. Yeater’s identification of Mr. Roop might be seen as affecting the fact-finding process here: (1). as substantive evidence that Mr. Roop was Mr. Yeater’s assailant, and (2) as a prior consistent statement that bolstered Mr. Yeater’s credibility.

The first possibility is easily disposed of. As substantive evidence of Mr. Roop’s guilt, the evidence was merely cumulative of Mr. Yeater’s trial testimony. See Torres-Arboledo v. State, 524 So.2d 403, 408 (Fla. 1988) (holding that the admission of hearsay testimony was harmless where it was cumulative to other properly admitted evidence); Bogdanon v. State, 763 So.2d 376, 377 (Fla. 2d DCA 2000) (holding that admission of hearsay medical records in battery prosecution was harmless error where they were cumulative of the doctor’s testimony). Mr. Yeater identified Mr. Roop as his assailant during his live testimony at trial and was examined in detail on direct and cross about that identification. As substantive evidence of Mr. Roop’s identity as the perpetrator, the 911 recording was not accretive in any way that mattered. See, e.g., Aiken v. State, 44 So.3d 152, 155 (Fla. 4th DCA 2010) (explaining that even if rape victim’s identification of assailant to 911 was improperly admitted as an excited utterance, it was harmless where it “merely corroborated” her trial testimony).

Superficially, the second possibility—that the admission enhanced the credibility of Mr. Yeater’s in-court testimony in the jury’s mind because he said the same thing to 911—appears more problematic. This trial boiled down to a credibility contest between Mr. Yeater, who said Mr. Roop threw a pipe at him, and Mr. Brown; who said that Mr. Roop was at his house at the time. The State played the recording for the jury again in closing and argued about it at reasonable length. Our cases say that the credibility-enhancing effect of an improperly admitted prior consistent statement can be harmful in close cases like this. See, e.g., Szuba v. State, 749 So.2d 551, 553 (Fla. 2d DCA 2000); Keffer v. State, 687 So.2d 256, 258 (Fla. 2d DCA 1996).

Looking beneath the surface, however, two related facts specific to this case convince us that any bolstering effect from the admission of the 911 call was immaterial. The first is that the defense attack on Mr. Yeater’s credibility hinged on a specific motive to fabricate—the history of' bad feelings between Mr. Roop and Mr. Yeater, which hit a low-point in the incident with Mr. Roop’s stepbrother a few days before the offense. That motive, however, preexisted both the 911 call and the trial. Thus, if Mr. Yeater’s trial testimony that Mr. Roop was his assailant was suspect because of a motive to lie, his statement to 911 was equally suspect for the same reason. It is very hard to see how a jury would consider the trial testimony of a witness with a motive to lie more credible simply because the same witness said the same thing at an earlier time when he had the same motive to lie. The most natural inference, .if one thought the witness might be lying in court, is that he might have been lying at the time of the earlier statement as well. Thus, the bolstering effect such a prior consistent statement on the facts of this case, if any, would have been minimal. See Chandler v. State, 702 So.2d 186, 197-98 (Fla. 1997) (holding that improper admission of prior consistent statement was harmless when motive to falsify existed when statement was made and stating that, although “the statement may-have bolstered [the witness’s] credibility, we conclude ... that the jury had ample information from which to assess [her] credibility and weigh her testimony accordingly”).

The second salient feature of this case from a harmless error perspective is that the credibility of Mr. Brown’s testimony establishing Mr. Roop’s alibi was badly damaged on cross-examination. Cf. Newton v. State, 160 So.3d 524, 526-27 (Fla. 2d DCA 2015) (holding that exclusion of hearsay statement exonerating defendant was harmless where the statement and the trial testimony it corroborated were incredible); Rivera v. State, 840 So.2d 284, 289, 292 (Fla. 5th DCA 2003) (stating, in both the majority and the special concurrence, that prosecutor’s positive comment on victim’s credibility was harmless where the defendant’s testimony was highly incredible). Mr. Brown—who viewed himself as Mr. Roop’s father and who was the father of the man from the New Year’s Eve incident with Mr. Yeater—admitted on cross-examination that he was aware that Mr. Roop was being prosecuted, yet. told no one about the facts establishing Mr. Roop’s alibi for nearly a year. His explanation for keeping mum was shifting and highly incredible—initially, that he did not want to get involved in these proceedings (notwithstanding his love for Mr. Roop, who was being prosecuted) and thereafter, that he was confused about the dates (even though he had talked with Mr. Roop about the matter). He had to admit that, notwithstanding the seriousness of his predicament, Mr. Roop never said anything, to him like “Hey, you remember that I was at your house that day, right?” We see virtually no possibility that a jury would have afforded this testimony any weight. See Rivera, 840 So.2d at 289, 292.

Given the patent and severe credibility problems with Mr. Roop’s alibi witness, combined with the de minimis bolstering effect of the 911 recording, we conclude that there is no reasonable possibility that the admission of the 911 call contributed to the verdict. Thus, the admission of that recording, even if error, was harmless beyond a reasonable doubt and provides no basis for reversal.

IV.

In sum, we conclude that the trial court did not abuse its discretion in admitting the recording of the 911 call because the excited utterance exception to the hearsay rule was properly applied. Even if there had been error, however, it was harmless. Accordingly, we affirm Mr. Roop’s judgment and sentence. ■ '

Affirmed.

WALLACE, J., Concurs.

ROTHSTEIN-YOUAKIM, J., Dissents with opinion.

ROTHSTEIN-YOUAKIM, Judge,

Dissenting.

In his brief on appeal, Devin Roop argues that the trial court erred in admitting Frank Yeater’s 911 call because it was “completely hearsay” that did not fall within the excited utterance- “or some other hearsay exception” and that the error was not harmless beyond a reasonable doubt. Roop’s argument is not eloquent; nor is it particularly thorough. But he makes it.

Moreover, in the trial court, he twice objected that the call was inadmissible hearsay intended to improperly bolster Yeater’s testimony. And once he made a proper objection, the burden shifted to the State, as the proponent of the evidence, to establish its admissibility. See, e.g., Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008); Caldwell v. State, 137 So.3d 590, 591-92 (Fla. 4th DCA 2014); Self v. State, 55 So.3d 677, 679 (Fla. 5th DCA 2011). Because I disagree that the State carried that burden, I would hold that the trial court abused its discretion in admitting that portion of the call in which Yeater identified Roop as his assailant. Moreover, because I also disagree, on the facts of this particular case, that the error was harmless beyond a reasonable doubt, I would reverse and remand for a new trial.

Background'

Yeater has known Roop and Roop’s stepbrother for more thah a decade, and they all lived in the same neighborhood. Yeater and Roop went to school together and used to be friends.

On New Year’s Eve 2013, an incident occurred between Yeater and Roop’s stepbrother in Roop’s presence. The authorities were called, but Yeater was not charged with any wrongdoing.

At- around noon five days later, Yeater was driving along a quiet stretch of road in Lake Wales on his way home from a flea market when he noticed a car quickly gaining on him. The car pulled alongside Yeater’s truck. At that point, Yeater subsequently maintained, Roop leaned out of the car’s half-open, rear • passenger’s window and threw an object at Yeater’s truck. According to Yeater, Roop knew that Yeater owned that truck because he had seen Yeater driving it on previous occasions. The object struck the driver’s side door of the truck near the handle, and the car sped away.

At first, Yeater continued on, but then he decided to turn around and try to retrieve what had been thrown at his truck. He returned to the area where the incident had occurred and called 911. Approximately. two minutes had passed between the incident and the call. Yeater told the 911 operator that Roop had thrown an object at his truck. Yeater then stayed on the phone with the operator and contemporaneously narrated his search for the object, which eventually led to his discovery of a metal pipe, A sheriffs deputy was dispatched to the scene and took photograph's of the damage to Yeater’s truck, The deputy also recovered the metal pipe from Yeater’s truck bed. No fingerprints could be recovered from the pipe. No physical evidence tied Roop to the offense.

The State moved in limine to admit at trial a redacted versioii of the 911 call, arguing that, although hearsay, Yeater’s statement that Roop had thrown the object was admissible as a spontaneous statement and an excited utterance and Yeater’s narration of his search for, and eventual discovery of, the metal pipe also was admissible ^s a spontaneous statement. The State proffered that Yeater would testify that, a couple of minutes after the pipe had been thrown at his truck, he had pulled over to the -side of the road, had called 911, and had identified Roop as the person who had thrown the pipe. The State did not proffer further but argued that the mere fact that Yeater ’had used a calm tone of voice on the 911 recording did not mean that he had not been “still excited or stressed out” from the event.

Roop objected to the admission of the statement as either an excited utterance dr a spontaneous statement and argued that the State was merely attempting to bolster Yeater’s testimony. Roop proffered Yeater’s prior deposition testimony that, right after the event, Yeater had

dr[iven] down the road a ways because he was just gonna forget about it,, but then thought about it a little more and thought well, then maybe I just should turn back and call the police because something further might happen and I want to put it on the record.

After reviewing the State’s motion and “the affidavit in the file” (presumably the complaint affidavit) and listening to parties’ arguments and the audio recording of the entire 911 call, the trial court granted the State’s motion to play a redacted recording for the jury. As the majority observes, the court made no findings of fact and did not identify the hearsay exception on which it based its admissibility determination.

At trial, Yeater testified to the facts of the offense, as. set forth above. When asked whether he had pulled over to the side of the road after the car had sped off, Yeater responded,- “At first I continued to keep on going, and then I decided to turn around and—to go grab—see whatever it was, and then go pick it up,” Yeater testified that, when he had called 911, he “[had been] scared at that point” and “[had been] frightened” because “I didn’t know what— I don’t know what [Roop’s] intentions were to do.”

Over Roop’s renewed hearsay objection, the State introduced the redacted audio recording of the 911 call into evidence and played the following for the jury:

911 OPERATOR: What’s going on State Road 60? Hello?
MR. YEATER: I was headed—I was heading down the road and Devin Roop was in a—-the passenger in the back of a black car and he—he took a piece of, like, metal rebar and he threw it at the side of my truck.
911 OPERATOR: Are you outside walking around?
MR. YEATER: Yes.
911 OPERATOR: Okay.
MR. YEATER: I’m—I’m looking'for the piece of rebar he threw at my truck.
We were both heading south and he passed me up in the passing lane, and that’s, when he throwed the piece- of rebar at my truck.
There’s a nice little dent and scratch in my door.
I just found it. It’s a metal pipe. '
911 OPERATOR: It’s a pipe?
MR. YEATÉR: Yeah. It’s like a metal pipe. I’m not going to touch it. I’ve got a piece of paper here. That way you can get fingerprints off of it.

On cross-examination, Yeater acknowledged that, despite having been frightened after Roop had thrown the object, he had initially intended to continue driving but then had decided “[s]econds later” to turn around. On redirect, Yeater clarified that he “was just going to let it go” at first but then had decided to call the police “[because after initially thinking of who it was, I knew this wasn’t going to be a—it wasn’t going to stop with Devin Roop.”

After the State rested, Roop’s stepfather, Russell Brown Sr., testified that Roop had been at Brown’s residence in another town on the day of the incident. Brown testified that he remembered that day because it had been his wife’s birthday celebration. On cross-examination, Brown acknowledged that he had not told authorities that Roop had been with him that day until after defense counsel had contacted him toward the end of 2014. On redirect, however, he testified that he had not realized that the incident had occurred on the same day as the birthday celebration until after he had spoken to the defense investigator.

In closing, the State argued that the evidence established that Roop had thrown the pipe at Yeater in revenge for the New Year’s Eve incident. The State argued that Yeater was credible because, among other things, Yeater had “immediately” identified Roop as the perpetrator. Before again playing the redacted 911 call for the jury, the State directed, “I want you to pay attention and listen to how [Yeater] immediately identifies Mr. Roop as the person who threw that piece of metal pipe ... at his vehicle.” After playing it, the State emphasized that “there was absolutely no hesitation in Mr. Yeater’s voice, because he knew exactly who threw this piece of metal pipe .... There was no hesitation as he knew who caused the damage to his vehicle .... ”

In rebuttal closing argument, the State again emphasized the redacted 911 call in arguing that Yeater had not contrived this situation or fabricated his story:

Does that sound like a person who is calling 911 in a stressful situation and reporting an incident to law enforcement exactly how it occurred, right after it occurred, and is discussing with law enforcement the actions he’s taking to search for a weapon that was hurled at his vehicle? That 911 recording corroborates exactly what the victim told you.

Analysis

A prior consistent statement is “generally inadmissible hearsay and cannot be used solely to corroborate or bolster a witness’s testimony.” Howard v. State, 152 So.3d 825, 828 (Fla. 2d DCA 2014). There are, however, two conceptually related but distinct exceptions to this general rule: (1) if the statement is “[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” § 90.803(2), Fla. Stat. (2014); or (2) if it is “[a] spontaneous statement describing or explaining an event or condition made while the declar-ant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness,” § 90.803(1).

The majority holds that the trial court properly admitted Yeater’s 911 call under the “excited utterance” exception. To qualify as an excited utterance, “the statement must be made: (1). ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’ ” Hayward v. State, 24 So.3d 17, 29 (Fla. 2009) (quoting Hudson v. State, 992 So.2d 96, 107 (Fla. 2008)). The excitement of the startling event deprives the declarant of the reflective capacity essential for conscious misrepresentation and, thus, provides sufficient guarantees of reliability that justify admissibility. See id.; see also Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 803.2, at 1020-22 (2016 ed.) (“A person who is excited as a result of a startling event does not have the reflective capacity essential for .conscious misrepresentation; therefore statements that are made by the person who is in a state of excitement and has not had an opportunity to engage in reflective thought are spontaneous and have sufficient - guarantees of truthfulness.” (footnote omitted)). Consequently, “[i]f sufficient time passed for reflective thought, the proponent for admission of the statement must show that reflective thought did not occur,” Williams v. State, 967 So.2d 735, 748 (Fla. 2007), and it must do so by a preponderance of the evidence, Tucker v. State, 884 So.2d 168, 173 (Fla. 2d DCA 2004).

In my view, the record establishes that Yeater not only had sufficient time for reflective thought but actually engaged in-such thought. Contrary to the majority’s assertion, that I would find error on this basis does not mean that I shoulder Roop’s burden either in the trial court or on appeal to make a proper argument; it means that .1 decline to shoulder the State’s burden in the trial court to lay a sufficient predicate upon Roop’s objection to the statement’s admission as an excited utterance or a spontaneous statement. See Yisrael, 993 So.2d at 956 (“[T]he State, as the evidentiary proponent, thus had the burden of supplying a proper predicate to admit this evidence under an exception to the rule against hearsay.”); Mariano v. State, 933 So.2d 111, 118 (Fla. 4th DCA 2006) (“[I]t is the state’s burden to show that the statement is an excited utterance.”); see also Andrews v. State, 261 So.2d 497, 498 (Fla. 1972) (“[Fjailure to lay a proper predicate converts otherwise admissible testimony into hearsay. It follows that an objection on hearsay grounds is sufficient to preserve for appellate review the issue of failure to lay a proper predicate.”); Carter v. State, 951 So.2d 939, 943 (Fla. 4th DCA 2007) (“An objection to evidence on hearsay grounds is sufficient to preserve for appellate review the failure of the proponent of the evidence to lay a proper predicate.”). As set forth above, Yeater’s prior consistent statement was presumptively inadmissible hearsay absent a determination that it fell within the excited utterance or other exception. See Howard, 152 So.3d at 828; Tucker, 884 So.2d at 173 (“Because of these three factual preconditions, to the admission of an excited utterance, the procedures for preliminary questions outlined in section 90.105(1), Florida Statutes (2002), apply when a party seeks to introduce an excited utterance into evidence over the objection of the opposing party.”). Once Roop objected to its admission as an excited utterance, the trial court could not properly have admitted .it as an excited utterance until the State proved, and the court found, by a preponderance of the evidence, “the factual circumstances permitting the introduction of the statement as an excited utter-anee.” Tucker, 884 So.2d at 173 (stating that, when faced with objection to excited utterance, trial court must find that preponderance of evidence supports factual circumstances permitting statement’s admission as excited utterance). These factual 'circumstances include that the statement was made “before there was time to contrive or misrepresent,” i.e., before there was time for reflective thought. Id. at 174.

While the majority. merely “expresses some concern” that the trial court failed to explicitly find this factual circumstance, I would hold that reversal is warranted because it would have been impossible for the trial court to find this factual circumstance on this record, which the State bore the sole burden to establish. At the hearing on the motion in limine, 'the State did not contest or object to Roop’s proffer of Yeater’s prior deposition testimony that Yeater had

dr[iven] down the road a ways because he was just gonna forget about it, but then thought about it a little more and thought well, then maybe I just should turn back and call the police because something further might happen and I want to put it on the record.

Moreover, as noted above, before the State introduced the 911, tape at trial, Yeater had testified, “At first I continued to keep on going, and then I decided to turn around and—to go grab—see whatever it was, and then go pick it up.” (Emphasis added.)

The majority insists that this testimony can be construed to mean that Yeater was “acting on impulse and not with the benefit of time sufficient to overcome his instincts and fabricate a story.” Yet nothing about Yeater’s testimony suggests that he was merely acting on impulse. Yeater “thought about it” enough to decide that he should “put it on thé record” because it supposedly involved Rbop and “something further might happen.” He “decided” to go back to look for what had been thrown at his truck. This is evidence of a conscious, deliberate process. Yeater’s acknowledged ability to reflect is the exact opposite of evidence that he had not engaged in reflective thought, and, therefore, his subsequent identification could not have been admissible as an excited utterance regardless of whether ;he was otherwise still rat-' tied by- the event, See Elysee v. State, 920 So.2d 1205, 1207-08 (Fla. 4th DCA 2006) (holding that victim’s statement to police was not excited utterance, despite that victim made it while visibly upset and seared fifteen to twenty minutes after event, because victim’s testimony that she “got to thinking about it” before making the statement “indicated beyond any question that she had engaged in reflective thought”); see also Hutchinson v. State, 882 So.2d 943, 951-52 (Fla, 2004) (holding excited utterance inadmissible when there was sufficient time to permit reflective thought and court could only speculate as to whether declarant engaged in reflective thought between event arid statement absent any evidence on what transpired during this period, noting that “[a] statement as to what occurred does riot become admissible merely because the victim is still in an excited state” (quoting Charlot v. State, 679 So.2d 844, 845 (Fla. 4th DCA 1996))), receded from on other grounds by Deparvine v. State, 995 So.2d 351, 369 (Fla. 2008); Mariano, 933 So.2d at 117 (“[T]he statement took the form of a narrative of the events, which in and of itself indicates that the victim is reflecting upon the events of the evening. Because the only evidence the state provided to support the admission of the statement was the victim’s upset state, this was insufficient to warrant admission of the statement as an excited utterance.”). Accordingly, as Roop argues, albeit inartfully, on appeal, Yeater’s identification of him- to .the 911 operator was “completely hearsay” that did not fall within an exception.

Having concluded that the admission of the identification was error, the question becomes whether the error was harmless beyond a reasonable doubt. See Geissler v. State, 90 So.3d 941, 948 (Fla. 2d DCA 2012) (observing that State bears burden of establishing harmlessness beyond reasonable doubt (citing State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986))). With no physical evidence linking Roop to the offense, this case boiled down to a credibility contest between Yeater, the sole eyewitness, and Brown, who testified that Roop had been nowhére near the scene. Although acknowledging that “the credibility-enhancing effect of an improperly admitted prior consistent statement can be harmful in close cases like this,” the majority reasons that the risk of harm is diminished in this case because the bad blood between Roop and Yeater predated the 911 call:

[I]f Mr. Yeater’s trial testimony that Mr. Roop was his assailant was suspect because of a motive to lie, his statement to 911 was- .equally suspect for the same reason. It is very hard to see how a jury would consider the trial testimony’ of a witness with a motive to lie more credible simply because the same witness said the same thing at an earlier time when he had the same motive to lie.... Thus, the bolstering effect such a prior consistent statement on the facts of this case, if any, would have been minimal.

During closing argument, however, the State replayed Yeater’s 911 call and, among other things, repeatedly emphasized Yeater’s “immediate” identification of Roop as the attacker and argued that its very immediacy rendered it more worthy of belief. In short, the State relied on the statement itself to explicitly undermine the finding concerning the statement that the majority insists the jury naturally would have made. The risk of harm, therefore, is not diminished in this case but actually heightened. Moreover, although certainly “shifting,” Brown’s alibi testimony was not so lacking in credibility as to be inherently incredible.

Consequently, I cannot agree that there is no reasonable possibility that the admission of Yeater’s identification of Roop during the 911 call contributed to the verdict, see Thomas v. State, 993 So.2d 105, 108-09 (Fla. 1st DCA 2008) (reversing for new trial because there was reasonable possibility that erroneous admission of hearsay, which State emphasized at closing argument, contributed to conviction); Elysee, 920 So.2d at 1207-08 (holding that hearsay did not qualify under excited utterance exception and that “[ajllowing the officer to bolster the credibility of the victim, who was the only witness to the crime, with her prior consistent statements, was prejudicial”), and I must respectfully dissent.

      . The redactions are not pertinent to this appeal.

      , We do not further address whether this particular statement was not hearsay within the stated definition and its 'exceptions in section 90,801 because this issue was not raised and because, assuming that it was hearsay, it was still admissible under the excited utterance exception of section 90.803.

      . We pause to express concern about the procedure the trial court followed in admitting the recording. The proper procedure to resolve an excited utterance question is to conduct a hearing outside the presence of the jury, take whatever evidence is necessary, and make findings concerning the elements of the exception. Tucker, 884 So.2d at 173. Here, the trial court conducted an initial hearing based on the parties' representations of what the testimony would be and then heard evidence on the issue in the State's case-in chief. In admitting the recording, the trial court did not state that it was relying on the excited utterance exception (as distinguished from the spontaneous statement exception) and did not make express findings concerning its elements. We nonetheless regard the trial court’s determination that the 911 call was admissible as including a finding that the excited utterance exception applied for two reasons. First, Mr. Roop did not object to any aspect of the procedure in the trial court, has not raised any aspect of that procedure as an issue on appeal, .and names only the excited utterance exception in his brief. See I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007) (explaining that appellate courts reverse only on the basis of arguments presented); cf. Morrison v. State, 161 So.3d 564, 565 (Fla. 2d DCA 2014) (reaching argument concerning absence of hearing and predicate findings where appellant specifically raised the issue), Second, die predicate "the State laid during trial was directiy related to the elements of the excited utterance exception—including evidence of the defendant’s excited state at the time of the 911 call—which gives assurance that the trial court's decision was based on that predicate. Moreover, to the extent that the trial court might have considered Mr. Yeater’s statement of identification under the spontaneous statement exception—the only other basis argued by the State—that exception also requires the trial court to engage in the same factual considerations related to whether the declarant might have engaged in reflective thought before allowing the statement as is required by the excited utterance exception. See Ibar v. State, 938 So.2d 451, 467 (Fla. 2006). Eitiier alternative requires the same conclusion—the trial court decided that that the statement was admissible under section 90.803 based on a factual determination on the element related to reflective thought. As our analysis in the text makes clear, the potential for reflective thought is the only controversial issue in this case.

      . Mr. Roop's statement in his brief that' the 911 call is "completely hearsay” that is not subject to "an excited utterance (or some other hearsay exception),” is insufficient to present for review the argument the dissent raises. See Caldwell v. Fla. Pep’t of Elder Affairs, 121 So.3d 1062, 1064 (Fla. 1st DCA 2013) (holding that "perfunctory statements are. insufficient to present an argument for appellate review”); Hammond v. State, 34 So.3d 58, 59, (Fla. 4th DCA 2010) (“Claims for which an appellant ... provides only, conclu-sory argument ... are insufficiently presented for review and are waived.” (citing Doorbal v. State, 983 So.2d 464, 482-83 (Fla. 2008))).

      . The dissent emphasizes defense counsel’s characterization of testimony Mr. Yeater purportedly gave in his deposition that he called 911 after “he thought about it a little more” and decided to "put [the events] on the record” because "something else might happen.” . We think that emphasis misplaced. First, as described ,in. the text, that is not how Mr. Yeater testified at trial about his decision to call 911. Second, Mr. Roop never provided the trial judge with the deposition, and the deposition is not a part of our appellate record. And finally, although defense counsel’s description of Mr. Yeater's deposition testimony is more indicative of conscious deliberation than Mr. Yeater's testimony at trial, it is not inconsistent when taken together with the other facts of record, for the trial court to have concluded that Mr, Yeater called 911 out of fear that Mr. Roop might do something else rather than because he had sufficient time to contrive or misrepresent.

      . It is important to note that no one believed that this was a case of mistaken identity. As defense counsel put it in closing argument, the question was which side was lying. The jury understood well that, before the accident, Mr. Yeater knew who Mr. Roop was and did not like him much. Thus, although the dissent relies heavily on the State’s emphasis on the 911 call in closing, the fact remains that Mr. Yeater’s motive to lie was laid bare for the jury to see.

      . The State argued:
      A statement that described an event or condition as it’s occurring or immediately thereafter is sufficient for that exception even if the person making the statement doesn’t appear to be in an excited state which in the tape recording the. state seeks to introduce as the 911 call progresses, you know, five minutes, six minutes, obviously the state would submit that the excited condition or the speaker is still excited or stressed out from, the condition, but he is using a calm tone, of voice.
      So essentially I just provided this case to go to the point that’ even though [Yeater] doesn’t sound excited or stressed out his statement should still be admissible.

      . Pursuant to section 90.801(2)(b), Florida Statutes (2014), such a statement may constitute admissible nonhearsay when the declar-ant testifies at trial and the statement is offered to rebut a charge of improper influence, motive, or recent fabrication of the declarant, but the prior consistent statement "must have been made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.' " Ortuno v. State, 54 So.3d 1086, 1088 (Fla. 1st DCA 2011) (quoting Preston v. State, 470 So.2d 836, 837 (Fla. 2d DCA 1985)). Because Yeater made his statement to 911 identifying Roop as the perpetrator after Yeater had developed his dislike of Roop and after the incident on New Year's Eve, this section is inapplicable. See id. at 1088-89.

      . The cases upon which the majority relies either failed to mention what transpired between the event and statement or had evidence showing declarant did not engage in reflective thought, See Williams, 967 So.2d at 749-50 (noting that only evidence- between event and declaration was shower that declar-ant took while still suffering from stab wounds without any evidence of what transpired between event and declaration or what occurred during shower other than defendant’s conjecture); Cox v. State, 473 So.2d 778, 782 (Fla. 2d DCA 1985) (not mentioning whether reflective thought occurred); Taylor v. State, 146 So.3d 113, 116 (Fla. 5th DCA 2014) (noting absence of evidence that declar-ant had sufficient time,for reflection without mentioning whether declarant actually reflected between event and statement); Vanevery v. State, 980 So.2d 1105, 1107 (Fla. 4th DCA 2008) (rejecting argument that calm tone of caller was not excited utterance without describing whether there was sufficient time for reflective thought); Werley v. State, 814 So.2d 1159, 1161 (Fla. 1st DCA 2002) (not mentioning whether declarant actually engaged in reflective thought or what happened between startling event and statement); Edwards v. State, 763 So.2d 549, 550 (Fla. 3d DCA 2000) (same); Rivera v. State, 718 So.2d 856, 858 (Fla. 4th DCA 1998) (same).

      . The State elicited Yeater’s testimony that he had ultimately decided to call police ‘‘[b]e-cause after initially thinking of who it was, I knew ... it wasn't going to stop with Devin Roop” after.it had already played the 911 recording for the jury, and so this evidence was riot before the trial court when it overruled Roop’s renewed objection. Nonetheless, this evidence merely reinforces my determination that Yeater had ample opportunity for reflective thought before calling 911.

      . Because I am obligated to affirm on any basis that finds support in the record, see, e.g., Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (recognizing that "tipsy coachman” doctrine allows appellate court to affirm trial court that reaches right result but for wrong reason so long as there is any basis in record that would support result), I must also consider whether the statement was, alternatively, admissible as a "spontaneous statement” under section 90.803(1). I conclude that it was not: the facts precluding the statement’s admission as an excited utterance also preclude its admission as a spontaneous statement because they show both reflective thought and a lack of the requisite substantial contemporaneity between the event and Yeater’s identification of Roop as the perpetrator to the 911 operator. See Deparvine, 995 So.2d at 369-70; Hutchinson, 882 So.2d at 951-52 (holding that statement during phone call about fight was inadmissible under section 90.803(1) because declarant had placed call after leaving house where fight had occurred, interval between event and phone call was long enough to permit reflective thought, and there was no evidence that declarant had not, in fact, engaged in reflective thought).


author: WINSOR, J. MAKAR, J.,

text:
    Levar Jermaine Taborn TYSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4707
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017

      Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, for Appellee.
   WINSOR, J.

Before Levar Tyson pulled a- gun in a strip-club parking lot, he already had at least four felony convictions, including at least one for possession of a firearm by a felon. Tyson had already served part of a seven-year sentence in New Jersey for, among other things, weapon possession. So after the strip-club incident led to a new felon-in-possession conviction, it should have been no surprise that the sentencing court considered Tyson’s track record. The court gave Tyson ten years—below the fifteen-year maximum, but more than the seven years Tyson requested.

On appeal, Tyson does not challenge his conviction, and he does not contest the fact that his sentence fell within the permissible statutory range. His sole argument is that the trial court violated due process by announcing a rule that it would not “go backwards” by imposing a lighter sentence than Tyson earned for his earlier convictions. We review for fundamental error. See Cromartie v. State, 70 So.3d 559, 563 (Fla. 2011).

I.

At the sentencing hearing, Tyson apologized for his conduct and for the burden it put on Florida’s taxpayers. He acknowledged his past convictions, and he explained that he hoped to become a productive member of society. He asked the court for leniency. Through a letter submitted to the court, Tyson’s stepmother'also sought mercy, explaining that although Tyson’s criminal record was “extreme,” he was making efforts to change for the better. Tyson’s lawyer requested a seven-year sentence.

The State sought ten years. The prosecutor recounted the facts of the crime, explained Tyson’s prior record, and argued that Tyson was a danger to society. The prosecutor also argued that Tyson’s earlier punishments had been ineffective: “[I]t’s clear by his previous record and continued activity that he has not been deterred by the justice system and by the sentences that he has received in his previous cases from New Jersey.... He continues to commit crimes.”

Before pronouncing Tyson’s sentence, the court indicated it would consider the evidence presented at trial, Tyson’s statements at sentencing, the stepmother’s letter, Tyson’s prior record, and all arguments of counsel. It also offered this commentary:

And as you all know, obviously, when it comes to folks who have a prior history that come before me, I do look to see not only what the prior offenses are, but what was the prior sentence. Because one thing I am not going to do, is go backwards. That just doesn’t make any sense. Because obviously if they’ve been convicted, and given two years and they still are committing crimes and then they’re convicted and given four years and they’re still committing crimes and then they’re convicted or come before— we’re going to just keep going up until perhaps some amount of time will make a difference and wiíl send the proper message to the defendant.

The court .then imposed the ten-year sentence we now review...

ÍL

In Cromartie v. State, the supreme court held that a trial judge’s stated policy to always “round up” sentences to the next whole year violated due process because it “improperly extended” the defendant’s sentence in “an arbitrary manner.” 70 So.3d at 564. Relying almost exclusively on Cromartie, Tyson argues that the trial court’s announced I’m-not-going-to-go-backwards policy likewise violated due process. We cannot accept this argument.

Unlike the Cromartie, sentence, there was nothing arbitrary about Tyson’s ten-year sentence. In Cromartie, the trial judge had sentenced the defendant to eight years, after “rounding up” from the 7.8 year minimum. Id. at 560. After the discovery of a scoresheet error led to re-sentencing, the court again “rounded up”—but this time from 6.16 years (the revised scoresheet minimum) to seven. When pressed about the increased effect of the rounding, the judge’ said, “I round off in years. What can I tell you? That’s just my way.” Id. She then shared her view that it “really doesn’t make a difference. I’m telling you in the- real world whether you give somebody nine years or ten years doesn’t much matter, you know. It just doesn’t. And . to have—that’s an argument over minutia.” Id. In other words, the trial judge rounded up for no reason at all, other than her view that -it made no difference and was just “her way.” This, the Florida Supreme Court held; was arbitrary and violated due process.

Tyson’s sentence, on the other hand, came after the trial court’s consideration of Tyson’s particular case. The court evaluated the whole record—Tyson’s statement, the facts of his crime, and his substantial criminal history. The sentence that followed was not the product of some arbitrary rule; it was not ordered “without any reflection on the individuar merits of this particular defendant’s case,” Pressley v. State, 73 So.3d 834, 838 (Fla. 1st DCA 2011). On the contrary, it was the product of the court’s studied consideration. Cf. McKinney v. State, 27 So.3d 160, 162 (Fla. 1st DCA 2010) (criticizing trial court’s commentary on utility of youthful offender program but concluding “we are satisfied that the court’s [sentencing] decision ... was properly based upon a consideration of Appellant’s circumstances and the serious nature of his crimes, rather than the court’s opinion of the' youthful offender program”).

Moreover, to the extent the trial court imposed a strict I’m-not-going-to-go-backwards policy, we aré certain it made no difference. In Cromartie, the supreme court concluded'that “the trial judge’s stated policy ‘improperly extended’ Cromartie’s incarceration.” 70 So.3d at 564. Absent that arbitrary policy, the Cromartie sentence would have been shorter. Not so here. Indeed, Tyson himself asked for . seven years, which apparently exceeds the time he did in New'Jersey, He cannot ask for seven years below and argue here that it was error to not consider less. Cf. Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 65 (Fla. 2012) (“Fundamental error is waived under the invited error doctrine.”).

The dissent convincingly explains the problems with rigid never-backwards policies: not all crimes áre equal, people change, and so forth. But none of that helps us here, where the stated policy did not increase the sentence. Nothing in Cromartie requires resentencing whenever a judge announces a “policy” that might—in some other case—yield a due process violation. Cromartie would not require, for example, a new sentence if a judge announced he never gave probation but then detailed why the particular circumstances of that particular case justified a decades-long prison sentence.

The trial, court did .not violate Tyson’s due process rights.

AFFIRMED.

KELSEY, J., concurs; MAKAR, J.,. dissents with opinion.

MAKAR, J.,

dissenting.

A third rail in Florida’s criminal sentencing process is touched when trial judges say they won’t consider or summarily reject otherwise lawful sentencing options due to their individual sentencing practices, such as a policy of only rounding up sentencing recommendations to the next year or categorically excluding an available sentencing alternative. Cromartie v. State, 70 So.3d 559, 564 (Fla. 2011) (trial judge’s. “policy of ‘rounding up,’ ” and thereby improperly increasing defendant’s length of incarceration, “violated [the defendant’s] right to due process”); Pressley v. State, 73 So.3d 834, 836 (Fla. 1st DCA 2011) (“[Tjrial court’s arbitrary policy not to consider ‘boot camp,’ which is a type of youthful offender sentence, without any reflection on the merits of. [the defendant’s] case constitutes a denial of due process and, .thus, fundamental error.”). This type of error is akin to where unlawful factors are considered as a result of trial judges’ personal sentencing philosophies. See Fraser v. State, 201 So.3d 847, 849-50 (Fla. 4th DCA 2016) (holding invalid a trial judge’s general policy of refusing to consider mental disorder as a statutorily-permissible mitigating circumstance for which a downward departure was permissible),

On the theory that doing so is a denial of due process and fundamental error, our supreme court has required resentencing even when a trial court- has sentenced a defendant within a lawful range. Cromartie, 70 So.3d at 564 (“[T]he sentence imposed was within the legal guidelines—it was above the minimum required by the scoresheet and below the statutory maximum, but the trial judge’s stated policy ‘improperly extended’ [the defendant’s] incarceration in an arbitrary manner.”); see also Pressley, 73 So.3d at 838 (“The sentence imposed [but reversed on appeal] was within the, legal guidelines.”). And our Court and others have reversed for resen-tencing where, although the trial court appears ¡to have otherwise generally exercised appropriate discretion based on valid considerations, it also made a statement of its sentencing policy that conflicted with and thereby undermined observance of legitimate sentencing factors. See Pressley, 73 So.3d at 838 (“[T]he trial court failed to explain in any manner why the trial'court decided not to consider a youthful offender sentence. We find that the trial court made no comments that would convince us that the trial court properly exercised its discretion.”); see also Fraser, 201 So.3d at 850 (“The pertinent issue is not whether the court failed to take Fraser’s mental health into account at all, but whether it refused to consider his mental health needs as a basis for downward departure as a matter of policy.”).

At Tyson’s sentencing, the trial judge considered a range of permissible factors in deciding what sentence was appropriate (Tyson’s scoresheet set forth a minimum sentence of thirteen and a half months; the statutory maximum was fifteen years). And the trial judge made the common sense point that a repeat offender with a prior history of offenses might require a staffer punishment to both penalize the offender and protect society. But the judge’s general sentencing policy was to increase the length of a defendant’s sentence beyond what had been meted out against him in prior cases:

Because one thing I am not going to do, is go backwards: That just doesn’t make any sense. Because obviously if they’ve been convicted, and given two years and they still are committing crimes and then they’re convicted and given four years and they’re still committing crimes and then they’re convicted or come before—we’re going to just keep going up until perhaps some amount of time will make a difference and will send the proper message to the defendant.

Because Tyson had five prior felonies in New Jersey (four in 2007 and one in 2001), and most recently had been sentenced to seven years in prison (for the four 2007 felonies that included possession of a weapon), the trial judge’s policy eliminated consideration of all lawful sentencing options less than or equal to seven years of imprisonment, which included the sentence Tyson sought. Pursuant to the judge’s policy, Tyson was sentenced to ten years of incarceration for the one charge of firearm possession by a felon; the fact that Tyson’s ten-year sentence is within a lawful range doesn’t matter much, if at all. See, e.g., Cromartie, 70 So.3d at 564.

The seemingly straight-forward application of Cromartie’s fundamental error rule suggests no wiggle room in reversing this type of upward-ratcheting sentencing policy, one that might make sense in its application in cases of intractable re-offenders; after all, an increased sentence is oftentimes the only effective option that serves societal goals of deterrence, retribution, and eliminating recidivism (putting aside rehabilitation) as to some hardened recidivists. Imposing an increased sentence in such cases wouldn’t be arbitrary, it would be entirely rational. But the takeaway from Cromartie isn’t just prohibiting judicial policies that lack an explanation (such as “rounding up” sentences); it also includes the elimination of across-the-board judicial policies that deny defendants the individualized sentencing process that Cro-martie envisions is necessary to establish due process. See Fraser, 201 So.3d at 849 (“[T]rial court’s commentary during the sentencing hearing reflects that the court was deeply concerned, irrespective of Fraser’s individual situation, by the general concept that mental health could be considered a basis for a departure sentence.”) (emphasis added); Pressley, 73 So.2d at 838 (“[T]he trial court’s stated policy of not considering ‘boot camp,’ ... without any reflection on the individual merits of this particular defendant’s case is arbitrary and, consequently, a denial of due process.”) (emphasis added). This is particularly true where the current offense is qualitatively or quantitatively different from the past offenses, thereby making an inflexible policy—increasing a current sentence above prior sentences—an ill-suited apples-to-oranges approach. A new but minor offense might warrant less punishment than the sentence for a cluster of more severe crimes committed years ago.

A fly in the ointment is our decision in McKinney v. State, 27 So.3d 160, 162 (Fla. 1st DCA 2010), which held that a trial judge’s views about the “efficacy of the youthful offender program as a whole [had] no place in its sentencing decision,” but that

when those comments are viewed in context of trial court’s complete explanation of its sentencing decision, we are satisfied that the court’s decision not to sentence Appellant as a youthful offender was properly based upon a consideration of Appellant’s circumstances and the serious nature of his crimes, rather than the court’s opinion of the youthful offender program.

Id. The panel concluded the trial court didn’t abuse his discretion despite his discounting the youthful offender program, but its decision predated Cromartie, which came out the next year.

Assuming that McKinney survives Cro-martie, such that potentially prejudicial comments or policy statements made in the sentencing process can be deemed innocuous, what appears to have occurred in this close case falls more in line with Cro-martie, which involved automatically increased sentences via the trial judge’s rounding up policy. Similarly, a policy of increasing a sentence beyond prior ones— no matter the context—would exclude a range of lawful sentencing options and thereby be in conflict with Cromartie. The trial judge said she considered all factors, such as Tyson’s remorse, apology, and efforts to right himself, which is commendable, but her statement about not going “backwards” established that nothing less than a sentence greater than seven years would be considered, which violates Cro-martie. Such a policy makes a difference. Not only will no defendant receive consideration of a sentence other than one greater than the longest already served, no defendant will ask for a lesser sentence than one already served, even if within a lawful range. Keep in mind that Tyson asked for the same sentence he’d just completed, which was perhaps all he realistically could hope for given the trial judge’s stated policy; he wasn’t required to ask for a lesser punishment, such as parole, to raise a Cromartie claim, whose focus is on the sentencing process not the sentencing result.

What results is a rule of law that says a trial judge must consider all lawful sentencing options and not apply an individual judicial policy that runs counter to the legislatively-crafted punishment code. Doing so does not eliminate the role of a trial judge’s discretion at sentencing, which is broad and subject generally to deferential review. Individualized sentencing does not mean imposition of a lesser punishment; it can mean a stepped-up sentence to “send a message” to intractable offenders in individual cases. But given the fixedness of the fundamental error rule in Cromartie, a reversal and remand for resentencing is required here.

      . Tyson argues he preserved this issue by filing a rule 3.800(b) motion below. But Cro-martie foreclosed this argument, making clear our review is only for fundamental error. See 70 So.3d at 563.

      . This court, too, found merit in the argument that the "policy of mechanically rounding up a prison sentence to the nearest whole number .,. without any reflection on the individual merits of a particular defendant's case is arbitrary.” Cromartie v. State, 16 So.3d 882, 883 (Fla. 1st DCA 2009), quashed by 70 So.3d 559 (Fla. 2011), We held, though, that the issue was unpreserved. Id.

      . Notably, the supreme court did not remand for consideration of a- new sentence;, it remanded with directions, that Cromartie be sentenced ‘‘at the bottom of the guidelines.” Cromartie, 70 So.3d at 564. It obviously found the trial court would have imposed a minimum sentence but for its.arbitrary rounding policy.