author: SCALES, J.

text:
    Jason BECKMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-304
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SCALES, JJ, •
   SCALES, J.

Jason Beckman, the defendant below, appeals his conviction and sentence for first degree premeditated murder, claiming that he is entitled to a new trial based on erroneous evidentiary rulings by the lower court and improper closing argument by the prosecutor. The defendant also argues .that Florida’s sentencing scheme for juveniles convicted of capital crimes, which comports with Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See § 921.1401, Fla. Stat. (2015). Finding no abuse of discretion as to any of the alleged trial errors and concluding that the defendant’s sentence was constitutional, we affirm for the following reasons.

The underlying facts

On April 12, 2009, the then seventeen-year-old defendant shot and killed his father with a shotgun in the bathroom of their home, while his father was taking a shower. The shotgun had two barrels, each with a safety. At the time of the shooting, one safety was on and one was off. Each chamber was loaded with live ammunition. The shotgun trigger required two to four pounds of pressure to fire. The defendant fired the shotgun once, while standing just four and half to six feet from his father, who was standing in the shower tub taking a shower.

The shotgun pellets went through the shower curtain, hitting the father in the neck and face. The pellets lacerated his tongue, fractured his jaw, broke or displaced his teeth and .lodged inside his head, causing hemorrhaging in the brain. He bled to death after several minutes.

Within a minute of the shooting, the defendant called out, “Oh my God, call 911” loud enough for a neighbor, Frank Alfonso, to hear. During the 911 call, the defendant told the police dispatch, “Please, come quickly, I accidentally shot my father.” He then stated that he was going hunting with his father and that he had gone into the bathroom to show his father a'shotgun, which accidentally went off even though the safety was on.

Upon arriving at the scene, the police searched the home and found the defendant’s book bag in a bedroom. In the book bag was a spiral notebook, the first page of which was labeled “The List” at the top. Underneath the title were ten names that were each preceded by a Roman numeral III, IV or V. The father’s name was at the top of the page and was the only name with a roman numeral V next to it. Other names on the list included those of the defendant’s teachers and classmates.

The defendant was arrested and charged by indictment with first-degree premeditated murder with a firearm that discharged and caused death, and unlawful possession of a firearm while engaged in a criminal offense. The State’s theory was that the defendant had a longstanding hatred for his father and that he had intentionally shot and killed him. The defendant admitted to shooting his father, but claimed it was an accident.

While in jail awaiting trial, the defendant shared a cell with Michael Nistal, who claimed the defendant had told Mr. Nistal about the shooting. According to Mr. Nis-tal, who gave a statement to the police about his jailhouse conversations, the defendant stated that he shot his father in the face with the shotgun because he hated him and that he would have used a knife had he not underestimated the circumstantial evidence in the case. Mr. Nistal also claimed that the defendant kept another list of names while he was in jail, which included the names of fellow inmates and the defendant’s neighbors. Mr. Nistal claimed that the defendant told him that he wanted to kill the neighbors because they were potential trial witnesses.

At trial, the court permitted the State to introduce The List found in the defendant’s book bag. The court also allowed the State to present several of the defendant’s classmates and teachers, who testified that the defendant told them why he had created The List, and as to how certain people ended up being placed on The List. Several of these witnesses testified that the defendant told them that he hated his father and wanted him to die, even offering one witness money if he would kill the defendant’s father. The court also permitted the State to elicit testimony, through Mr. Nistal, about the second list -the defendant maintained while awaiting trial.

The court excluded any evidence that the defendant suffers from Asperger’s syndrome, finding that his condition only goes to diminished capacity, which is an impermissible defense in Florida. Nevertheless, the court did permit the defense to introduce testimony that the defendant is “weird,” and speaks “oddly,” “out of turn” and in a “monotone” voice as ⅝ means of explaining his mannerisms and demeanor.

The court excluded the content of the defendant’s 911 call to police dispatch, finding it did not satisfy the excited utterance exception to the hearsay rule. The court did so upon determining that the defendant had an opportunity to reflect prior to making the call. In so holding, the court relied upon the testimony of the defendant’s neighborhood friend, Lisa Syren. She testified that, just two weeks prior to the shooting, the defendant had both shown her the shotgun and said that he wanted to shoot his father with it and make it look like self-defense.

During closing argument, the prosecutor made a number of comments—some objected to, some not—which the defendant claims amounted to misconduct and which entitle him to a new trial. The court denied his motion for a new trial.

The jury convicted the defendant as charged of first degree premeditated murder. Because he was seventeen years and twenty-nine days old at the time of the offense, the trial court conducted an individualized sentencing hearing under section 921.1401 of the Florida Statutes. The trial court imposed a sentence of life in prison, later amended to life with judicial review after twenty five years. This appeal ensued.

On this appeal, the defendant claims the trial court abused its discretion by: permitting the prosecutor to introduce bad character evidence with respect to The List and the second list he kept in jail awaiting trial; precluding the defense from introducing testimony that the defendant had Asperger’s syndrome; excluding the defendant’s 911 call to the police as hearsay; and denying the defense motion for mistrial based on improper closing argument. The defendant also argues that the individualized hearing for juveniles set forth in section 921.1401 of the Florida Statutes violates Apprendi because the trial court, not the jury, conducts the individualized hearing and determines whether a life sentence is appropriate. We address each claim separately.

Evidence of The List

Background facts

The List contained ten names with a Roman numeral preceding each name. The father’s name was at the top of The List and was the only name with a Roman numeral V next to it. Of the remaining nine names on The List, there were seven names with a Roman numeral IV and two with a Roman numeral III. There were no Roman numerals I or II.

At a motion in limine hearing, the State argued that an un-redacted copy of The List should be presented to the jury because it was “inextricably intertwined” evidence. See § 90.402, Fla. Stat. (2013) (“All relevant evidence is admissible, except as provided by law.”). To this end, the State commented that “witnesses will come in and testify that they knew the Defendant had a list ... and he described to them what the list was for.” The State proffered that the witnesses would “discuss the levels of the list”? and that-the defendant regularly stated that he hated his father and wanted to kill him. The State also noted that “everyone on this list had an incident with this Defendant that they can recall.” The trial court, ruled that The List would be admitted at trial.

At trial, the court was asked to clarify its earlier ruling with respect to the witnesses who would be testifying about The List. The defense objected to any witnesses testifying as to any personal incident they had with defendant that resulted with either their name-being placed on The List, or the defendant telling them their name had been placed on The List, Defense counsel argued that none of the unrelated incidents were relevant as to whether the defendant intentionally killed his father. In response, the State argued that the witnesses’ testimony as. to the unrelated incidents would provide an. “understanding of this list” insofar as it was evidence of “the way that the Defendant keeps track of people whom he does not like-and that he. intends to punish.” The trial court agreed with the State and ruled their testimony was admissible.

Consistent with the court’s rulings, the State introduced the - testimony of several of the defendant’s former classmates and teachers at-trial with respect to The List.

Analysis

The defendant argues that, by allowing witnesses to testify as to why people were on The List, the tonal court erroneously admitted Williams rule evidence, 1.e., collateral evidence of uncharged bad acts introduced solely to prove the defendant’s bad character or propensity to commit crime, in violation of section 90.404(2)(a)- of the Florida Statutes. The State counters that though it did provide a Williams Rule notice at trial, it ultimately sought to introduce the witnesses’ testimony only under section 90.402 of the Florida Statutes, which provides that. “[a]ll relevant evidence is admissible, except as provided by law.” Because the State’s argument is well taken, we address only the section 90.402 argument. See Griffin v. State, 639 So.2d 966, 968 (Fla. 1994) (“[Ejvidence of uncharged crimes which ... is inextricably intertwined with the crime charged, is not Williams rule evidence.”).

In Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006) (citations omitted), this court sitting en banc stated the standard under section 90.402 for admitting relevant evidence of uncharged collateral acts that is considered to be “inextricably intertwined” with the charged crime(s):

Evidence is inextricably intertwined if the evidence is necessary to (1) “adequately describe the deed,”; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).

Collateral evidence is admissible under section 90.402 if it is a “relevant and inseparable part of the act which is in issue.” Id. at 1214-15 (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). If this standard is met, the court must' then decide if the probative valué of introducing such evidence is “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence,” Id. at 1212 (quoting § 90.403, Fla. Stat.). This Court reviews the trial court’s ruling on admissibility of such evidence for an abuse of discretion. See Knight v. State, 15 So.3d 936, 938 (Fla. 3d DCA 2009). “In the context of the trial proceedings to that point, [where] reasonable trial judges might well disagree on whether the defense objection should have been overruled or sustained, ... no abuse of discretion [will be] shown,” Id.

Here, the defendant concedes that the un-redacted list was admissible at trial, as well as witness testimony as to the meaning of the Roman numerals next to the names on the list and the differing levels of deserved punishment the defendant assigned to them. The defendant argues, however, that the testimony should have stopped there, claiming that whether the defendant had threatened and/or intended to hurt teachers, classmates and neighbors, was in no way relevant to prove that he intentionally killed his father. In contrast, as it argued below, the State claims that the witnesses’ testimony about circumstances surrounding the defendant’s placement of their names on the list was necessary to establish the entire context out of which the charged crimes arose and to adequately describe, the events leading up to the shooting. These are the third and fourth justifications stated in Dorsett.

Having reviewed the trial transcripts, we find that The tidal court did not abuse its discretion in determining that the testimony of the defendant’s former teachers and classmates -was inextricably intertwined with the charged crime and that the probative value of such evidence was not outweighed by its prejudicial effect. See Dorsett, 944 So.2d at 1215 (“Given these facts, without being able to explain the entire context and circumstances leading to the charged, transaction, -the jury would not have been presented with a true understanding regarding the officer’s focus and attention on the defendant.”); State v. Rambaran, 975 So.2d 519, 525 (Fla. 3d DCA 2008) (permitting the State to introduce evidence of collateral crimes by the defendant against the two victims on two prior occasions because the prior events “provide an intelligent account of the events that led to' the crimes being tried,” where the defendant was charged with two counts of attempted murder).

The State is correct that providing testimony only as to the father’s name appearing on The List and the meaning úf the Roman numeral designation next to his name would not have provided the full context of when and how the defendant developed his hatred and premeditated intent to kill his father. Without more, the jury would have had little insight into the defendant’s thought process- or intent when creating The List—such as, what types of acts merited a person being designated a category I or II (just mad.' at person),,and categories III (deserved punishment), IV (deserved severe, permanent punishment) and V (deserved death), and what moved a person up and/or down The List, as well as why only the father merited a category V. ,

Evidence of the jail list

Background facts

Prior to trial, Michael Nistal gave a statement to the police about jailhouse conversations he had with the defendant. Mr. Nistal claimed that, the defendant had told him that his neighbors who were potentially going to testify against him at trial were on his list and that he was going to kill them. The trial court ruled that the defendant’s statements tq.Mr. Nistal were admissible as consciousness of guilt.

At trial, when the State asked Mr. Nis-tal about the list that the defendant kept while in jail, Mr. Nistal testified that the people on the list were cellmates and the defendant’s aunt. The State then asked Mr. Nistal if he and the defendant had discussed the neighbors that might testify against the defendant at trial. Mr. Nistal answered yes to this, and also to the State’s question whether the defendant told him that he wanted to kill the neighbors.

Analysis

As with The List, the defendant argues that Michael Nistal’s testimony as to-the existence of .a second list was impermissible bad character evidence. We disagree.

Collateral crime evidence is admissible as relevant under section 90.402 of the Florida Statutes to show consciousness of guilt. See Grace v. State, 122 So.3d 417, 418 (Fla. 4th DCA 2013) (permitting the State to introduce evidence that the defendant, who was charged with robbery, shot the robbery victim the night before trial, finding it showed consciousness of guilt); Waller v. State, 943 So.2d 865, 866 (Fla. 3d DCA 2006) (allowing the State to introduce evidence that the defendant threatened a witness prior to trial, finding “[t]he threat is relevant to the defendant’s desire to evade prosecution and his consciousness of guilt.”). This' Court reviews the trial court’s ruling on admissibility of this evidence for an abuse of discretion. See Knight, 15 So.3d at 938.

Here, the State sought to establish through Mr. Nistal that the defendant had created another list while in jail, that the defendant’s neighbors were on the list, and that the defendant wanted to kill the neighbors because they would testify against him at trial. As the State clearly had a valid legal basis—consciousness of guilt—for seeking to introduce this testimony, we find the trial' court did not abuse its discretion in ruling it was admissible. Though the State failed to ask Mr. Nistal at trial if the neighbors were on this second list, which was part of his pre-trial statement to the police, we do not find this oversight amounts to reversible error in this case.

Evidence the defendant has Asperger’s syndrome

Background facts

Prior to trial, the State moved in limine to exclude any evidence that the defendant “may or does have autism and or As-perger’s syndrome as this had no relevance to the crimes charged and would solely imply that there is a defense of diminished capacity,” citing to Chestnut v. State, 538 So.2d 820 (Fla. 1989). The State also moved to exclude “any mention that the defendant has a ‘different’ or ‘unusual’ or ‘weird’ speech pattern or that the defendant is ‘a little off as that only goes to a possible defense of diminished capacity.” At the motion in limine hearing, the defense argued that the defendant’s condition would not be introduced “for the purpose of suggesting that- he had a diminished mental capacity,” but to “explain how his affect is and how he lacks emotion.” The court granted the State’s motion in limine as to both grounds.

At the conclusion of the pre-trial competency hearing, the subject of the court’s rulings on the State’s motions in limine as to Asperger’s syndrome was raised again. Therein, defense counsel erroneously assumed that the State would be allowed to introduce testimony' that the defendant is “loud,” “weird,” “odd,” “bothersome” and speaks “differently.” Therefore, the defense Wanted to call an expert to say that the defendant suffers from Asperger’s syndrome because it was “important for the Jurors to know the reason behind why he made those statements and in the manner iri which they were made and how they were made.” The defense also wanted the jury to know that the defendant has As-perger’s syndrome as á way of explaining his physical demeanor in the courtroom.

Of course, it was the State that had moved in limine to exclude any testimony that the defendant is “different,” “unusual,” “weird” or a “little off’ and the court had granted that motion. On the continued insistence of defense counsel that the defense wanted the jury to be able to understand “why he is behaving that way,” the court ultimately ruled that defense counsel could question the witnesses about the fact that defendant is “weird,” “speaks oddly,” “speaks in a monotone,” and “speaks out of turn,” but the defense could not bring in a doctor to say that the defendant has As-perger’s syndrome.

At trial, defense counsel moved for a mistrial after opening statement for not being able to introduce evidence that the defendant has Asperger’s syndrome. The court denied the motion. At the close of all the evidence, defense counsel again moved for a mistrial on this basis. The court denied the motion.

Analysis

The defendant argues that he should have been permitted to introduce evidence that the defendant has Asper-ger’s syndrome at trial. We review the trial court’s exclusion of this evidence for abuse of discretion. See Knight, 15 So.3d at 938.

The State moved to exclude any mention that the defendant has Asperger’s syndrome and that he is “different,” “unusual,” “weird” or a “little off.” At defense counsel’s insistence, the court ultimately permitted defense counsel to introduce evidence that the defendant is “weird,” “speaks oddly”, “speaks in a monotone,” and “speaks out of turn” so that the jury could have some context for understanding both his personal interactions with the trial witnesses and his odd' courtroom demeanor.

Given defense counsel’s narrow rationale for seeking admittance of this limited testimony in the lower proceedings, we find that the trial court did not abuse its discretion in ruling that the defense could not also bring in a doctor to testify that the defendant has Asperger’s syndrome. It was enough for the jury to know that the defendant generally acted differently from most people. See Slicker v. State, 941 So.2d 1191, 1194 (Fla. 2d DCA 2006) (permitting the defendant to introduce state-of-mind evidence through lay witnesses that the defendant was under physical and mental fatigue at the time of the charged crime, noting that the defense “did not attempt to introduce expert testimony that she suffered a mental abnormality”). Having a defense expert assign a medical condition to the defendant’s conduct would not have assisted the jury any further on the narrow point for which this evidence was being introduced; any marginal relevance would have been outweighed by confusion of the issues and/or misled the jury. See § 90.403, Fla. Stat. (2013).

On appeal, the defendant makes an additional argument that was never made below: that the evidence the defendant has Asperger’s syndrome demonstrates that he did not form the premeditated intent to kill his father in this case. Specifically, 'that the defendant merely compiled The List as a coping mechanism for his social disorder, not because he actually wanted to kill his father. To this, the State correctly notes that the idea of a coping mechanism was briefly mentioned when the defendant’s competency to stand trial was at issue, but it was never raised as a ground for admitting testimony of Asperger’s syndrome at trial. Nor did the defendant ever proffer that it wanted to establish that people with Asperger’s .syndrome keep lists of any sort. Therefore, this issue was not preserved for appellate review. “Generally, an appellate court cannot address claims raised for the first time on appeal.” Galvez v. Ramos, 941 So.2d 475, 477 (Fla. 3d DCA 2006); see also Manning v. Tunnell, 943 So.2d 1018, 1020 (Fla. 1st DCA 2006) (same).

In any event, even if this issue were preserved, this claim has no merit. The defendant tries to draw a distinction between using evidence of Asperger’s syndrome to show he could not form the premeditated‘intent to kill—.which the defendant concedes is clearly inadmissible— and the use of such evidence to refute the State’s theory that he had such ‘intent. This is a distinction without a difference as the Florida Supreme Court has found that such evidence is inadmissiblé for either reason.

In Chestnut, the Florida'Supreme Court answered “no” to the following certified question of great public importance:

Is evidence of an abnormal mental condition not constituting legal insanity admissible for the purpose of proving either that the defendant could not or did not entertain the specific intent or state of mind essential to proof of the offense, in order to determine whether the crime charged, or a lesser degree thereof, was in fact committed?

538 So.2d at 820 (emphasis added). The certified question itself contemplates the position argued by the defendant on this appeal—using evidence of Asperger’s syndrome to prove that .the defendant did not have premeditated intent.

Likewise,.in setting out the issue before it in‘Chestnut, the Florida. Supreme Court cited authority that explained that labels like “diminished capacity” are “shorthand for the proposition that expert evidence of mental abnormalities is admissible on the question of whether the defendant in fact possessed a particular mental state which is an element of the charged offense.” Id. at 822-23 (quoting Muench v. Israel, 715 F.2d 1124, 1142-43 (7th Cir. 1983)). “When a court rejects the doctrine of diminished capacity, it is saying that the psychiatric evidence is inadmissible on the mens rea issue.” Id. at 823. Upon analyzing the broad question before it, and answering it in the negative, or supreme court concluded that unless the alleged mental deficiency meets the definition of insanity, “[p]er-sons with less serious mental deficiencies should be held accountable for their crimes just as everyone else.” Id. at 825; see also Nelson v. State, 43 So.3d 20, 30 (Fla. 2010) (finding that trial counsel was not ineffective for failing to call a doctor to “establish that Nelson lacked mens rea” where Nelson suffered from schizoaffective disorder because “[o]ur precedent has firmly established the inadmissibility of evidence relating to mental capacity absent an insanity plea”).

Thus, Chestnut clearly contemplated not only circumstances where the defense sought to argue that the defendant could not form the intent to commit a crime because of a mental infirmity, but also where, as here, the defense sought to argue that the defendant’s mental infirmity was evidence that he had not formed the intent to commit the crime. While the defendant is correct that the Florida Supreme Court did not apply Chestnut where the defendant allegedly, had an epileptic seizure during the commission of the crime, that case did not concern a mental deficiency. See Bunney v. State, 603 So.2d 1270, 1273 n.1 (Fla. 1992) (noting that, conditions like epilepsy, infancy and senility are “commonly understood conditions that are beyond one’s control," but that, even then, such evidence would not be admissible to the extent the defense sought to introduce evidence “relating to a general mental impairment”).

And, while the First District Court of Appeal may have permitted a defendant to present expert testimony that the defendant’s “calm” demeanor immediately following a shooting death suggested that the defendant was in “shock” so as to rebut the State’s argument that his calm demeanor was “indicative of his cold-blooded nature,” that case also-did not involve a mental deficiency of. any kind. See Dorbad v. State, 12 So.3d 255, 258-69 (Fla. 1st DCA 2009). Therefore, the Dorbad court did not even cite to Chestnut, or even address the type of distinction that the defendant urges here.

For the foregoing reasons, we find that Chestnut precludes -the introduction of evidence that the defendant has Asperger’s syndrome for the-purpose of proving that the defendant did not have premeditated intent to kill.

Evidence of the 911 call

Background facts

Approximately one minute after shooting his father, the defendant called 911 and told police dispatch, “Please, come quickly, I accidentally.shot my father.” The defendant said on the call that he was going hunting with his father and that he had gone into the bathroom to show his father a shotgun, which accidentally went off even though the safety was on. The State does not dispute either the timing of the 911 call, or that the defendant sounded hysterical on the 911 recording. •

Frank Alfonso, a neighbor, was outside' washing his car when he heard a loud boom that sounded like a gunshot comé from inside the defendant’s house. Seconds after hearing the noise, Mr. Alfonso heard a voice inside the defendant’s home call out, “Oh, my God, call 911.” Mr. Alfonso then heard the same voice,- still inside the home, speaking to the 911 operator.

The State moved in limine to exclude “[a]ny and all mention of self-serving statements of the defendant,” including “the defendant’s statements to the 911 operator” and “statements made to witnesses ,.. following the crime after he -told witness Frank Alphonso to call the police.” At the - motion in limine hearing, the trial court ruled the 911 call inadmissible hearsay that did not satisfy the excited utterance exception to the hearsay rule because the defendant had an opportunity to contrive the call, making it untrustworthy. Specifically, the defendant had shown the shotgun to a neighborhood friend, Lisa Syren, a couple of weeks before the shooting and told her that he wanted to kill his father and make it look like self-defense. As the court explained, “If you go ahead and say: ‘I am going to create this startling event,’ and thén all of a sudden that startling event occurs, then that is the connection.” The court expounded, “The point is that when you have an opportunity to fabricate or contrive or misrepresent that it is self-defense, or that you are making the statement that, yes, ‘I want to kill my father,’ there is nothing spontaneous about that kind of statement.”

At trial, the court agreed to listen to the 911 call and, after doing so, again ruled that the tape was inadmissible hearsay because of the evidence the call was contrived. •

Analysis

The defendant argues that his 911 call to the police satisfies the excited utterance exception to the hearsay rule. See § 90.803(2), Fla. Stat. (2013). “Whether the necessary state of mind is present for a court to admit a statement as an ‘excited utterance’ exception is a preliminary fact for the trial court’s determination.” Cotton v. State, 763 So.2d 437, 440-41 (Fla. 4th DCA 2000) (en banc) (citing Charles W. Ehrhardt, Florida Evidence § 803.2 (1998 Ed.)); see also Tucker v. State, 884 So.2d 168, 173 (Fla. 2d DCA 2004) (“To admit an excited utterance, the trial court must conclude that the preponderance of the evidence supports the factual circumstances permitting the introduction of the statement as an excited utterance.”). Our standard of review on appeal is abuse of discretion. Cotton, 763 So.2d at 441.

The “excited utterance” exception to the hearsay rule requires that the out-of-court statement relate to “a startling event ... made while the declarant was under the stress of excitement caused by the event.” § 90.803(2), Fla. Stat. (2013). As explained by the Florida Supreme Court, “in order for an excited utterance to be admissible, the following requirements must be met: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.” Stoll v. State, 762 So.2d 870, 873 (Fla. 2000). Here, the parties’ focus is solely on the second prong—that is, whether the 911 call was made before there was time to contrive or misrepresent.

As to the second prong, the Florida Supreme Court has noted that if “the time interval between the [startling] event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.” State v. Jano, 524 So.2d 660, 662 (Fla. 1988) (quoting McCormick on Evidence, § 297 (3d ed.)); see also Hutchinson v. State, 882 So.2d 943, 952 (Fla. 2004), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla. 2008) (“There is no evidence in the record to show what occurred between the fight with Hutchinson [ (the startling event) ] and [Renee’s] phone call to Pruitt. Absent some evidence that Renee did not engage in reflective thought, the statement to Pruitt cannot be admitted as an excited utterance.”); Rogers v. State, 660 So.2d 237, 240 (Fla. 1995) (permitting a witness to testify to statements the victim made eight to ten minutes after calling the police because “[although there conceivably was time for [the victim] to engage in reflective thought, the record indicates that [the victim] did not engage in any reflection”). Citing to these cases, the defendant claims that the court can look only to the time period between the startling event and the out-of-court statement when determining whether the statement should be excluded. We disagree.

In applying the three-part test for an excited utterance, “[fjactors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age- of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements.” Jano, 524 So.2d at 661 (quoting Charles W. Ehrhardt, Florida Evidence § 803.2 at 473-74 (2d ed. 1984)). When conducting this analysis, it is important to remember that “[a]n excited utterance is admissible as an exception to the hearsay rule because the declarant does not have the reflective capacity necessary for conscious misrepresentation. Thus, statements made by someone who is excited are spontaneous and have sufficient guarantees of truthfulness.” Rogers, 660 So.2d at 240 (emphasis added) (citing Charles W. Ehrhardt, Florida Evidence § 803.2 (1994 ed.)); see also Blandenburg v. State, 890 So.2d 267, 270 (Fla. 1st DCA 2004) (stating that “excited utterances are admissible because the circumstances under which such statements are made provide certain guarantees against ‘conscious misrepresentation’” (quoting Rogers, 660 So.2d at 240)). Spontaneity is therefore paramount.

In examining the comparable federal rules governing hearsay exceptions for spontaneous statements—which include excited utterances—one popular treatise explains that “since spontaneity is the principal, and often the only, guarantee of trustworthiness for the exceptions ..., its absence should result in exclusion of the statement. Circumstances indicating a lack of spontaneity, which may be related to the self-serving character of the statement, are accordingly extremely important to the determination of admissibility.” 2 McCormick on Evidence, § 270 (7th ed.). Along the same lines, another treatise explains that a statement may not be spontaneous where there is evidence of fabrication:

It has been broadly stated that the test of admissibility of statements as excited utterances is their spontaneity. “Spontaneity” refers to the state of mind of the person making the statement, ... In determining whether the declaration was spontaneous, a court may consider such elements as the lapse of time between the main act and the declaration, the opportunity or likelihood of fabric cation, the inducement to fabricate, the declarant’s actual excitement, the place of the declaration, the presence there of visible results of the act or occurrence to which the utterance relates, whether the utterance was made in response to a question, whether the declaration was in narrative form, and whether the declaration was against interest or self-serving.

31A C.J.S. Evidence § 493 (2017) (footnotes omitted) (emphasis added); see also 2 McCormick on Evidence, § 272 (7th ed.) (“The rationale for the [excited utterance] exception lies in the special reliability that is furnished when excitement suspends the declarant’s power of reflection and fabrication.”).

Here, the motion in limine hearing transcripts reflect that the trial court was concerned that the defendant’s statements to 911 dispatch were not at all “spontaneous” given the defendant’s stated motivation to stage the shooting death of his father with a shotgun that he showed his friend, Ms. Syren, which had occurred just two weeks before the defendant actually shot his father with the same shotgun. The court therefore excluded the defendant’s comments to the 911 operator because there was evidence that the defendant had contrived both the shooting (the startling event) and the 911 call (the out-of-court statement).

In essence, the court below excluded the 911 call because the defendant could not satisfy his burden of demonstrat-ingthat he was under any stress or excitement- at the time he called 911 and gave his self-serving statement. “The.mere fact that statements, are self-serving is not, in and of itself, a sufficient .evidentiary basis for their exclusion from evidence.” Stiles v. State, 672 So.2d 850, 851-52 (Fla. 4th DCA 1996) (quoting Alexander v. State, 627 So.2d 35, 43 (Fla. 1st DCA 1993)). Neyer-theless, the self-serving nature .of the statement, is still a factor that can .be considered when determining whether the statement was fabricated. See Sunn v. Colonial Penn Ins. Co., 556 So.2d 1156, 1157 (Fla. 3d DCA 1990) (noting that one of the factors to be analyzed ' in determining whether a statement qualifies as an excited utterance includes “whether the statement is self-serving”); 2 McCormick on Evidence, § 272 (7th ed.) (“Although not grounds for automatic exclusion, evidence that the statement ... was self-serving is an indication that the statement was the result of reflective thought”), (footnotes omitted).

To this end, we find persuasive two federal cases that have touched upon-this issue, albeit in dicta. See United States v. Moore, 791 F.2d 566, 571 (7th Cir. 1986); United States v. Knife, 592 F.2d 472 (8th Cir. 1979). In Knife, the Eighth Circuit Court of Appeals opined that where there was evidence- that the declarant had planned the shooting of the victim at a particular time, which then took place, that “it would be difficult to believe that the preplanned shooting ... was an event so startling or unexpected as to suspend the defendant declarant’s powers of reflection.” 592 F.2d at 481, n.10. In Moore, the Seventh Circuit Court of Appeals noted that “[t]he statement, in Knife assumes that the timing, location and circumstances of the [startling] event .. .were within the declarant’s control,” 791 F.2d at 571. But, the Seventh Circuit declined to apply it because the declarant in Moore did not have the requisite control over the event in question. Id. Here, the defendant clearly had the requisite control over the time, location and circumstances of the shooting.

For these reasons, we find .the trial court did not abuse its discretion in excluding the 911 call as hearsay. Moreover, because of this, we find no reversible error in the lower court’s decision also to exclude testimony that the defendant’s neighbor, Mr. Alfonso, heard the defendant making the 911 call.

Closing arguments

Background facts

During closing argument, the prosecutor made fifteen comments that are challenged on appeal. The defendant categorizes these comments as either misleading, improper comment on the defendant’s right to remain silent, or denigration of the defense. The- defense objected to (and sought a mistrial for) only four comments; the remaining eleven complained-of comments received no objection.

Analysis

“Ordinarily, to preserve a claim based on improper comment,- counsel has the obligation to object and request a mistrial. If counsel fails to object or if, after having objected, fails to move for a mistrial, his silence will be considered an implied waiver.” Nixon v. State, 572 So.2d 1336, 1340 (Fla. 1990). For preserved error, a trial court’s ruling on a motion for mistrial is'reviewed for abuse of discretion. See Jordan v. State, 176 So.3d 920, 927 (Fla. 2015). Where the defense fails to preserve the error, this court applies a fundamental error review. Id. at 929. Here, the State rightly notes that eleven of the fifteen comments were not objected to and are therefore subject to fundamental error analysis.

As to the preserved errors, the parties agree that they fall into two categories. The first category is the prosecutor’s comment that the defendant “didn’t try to save his father,” which the defense claims was misleading. We find that- the trial court did not abuse its discretion denying the motion for mistrial as to this comment where the context of the prose-. cutor’s surrounding statements demonstrates the State was not exploiting the exclusion of the 911 call from evidence. To this end, the prosecutor painted a picture of what might have happened on the morning of the shooting, all of which suggested that it was premeditated: “[H]e walked into that bathroom and stood 24 inches from his father’s face that he could clearly see with his finger on the trigger. He leveled that shotgun, he aimed it and he fired. Bang.” The prosecutor also noted that there was no blood on the defendant’s clothing at the crime scene.

The second category of preserved error are the three comments, purportedly directed at the defendant’s right to remain silent. Such comments are reversible error where “the only person who could have testified at trial” as to what took place was the defendant. Dean v. State, 690 So.2d 720, 724 (Fla. 4th DCA 1997); Marshall v. State, 473 So.2d 688, 689 (Fla. 4th DCA 1984), quashed on other grounds by State v. Marshall, 476 So.2d 150 (Fla. 1985) (“Since only two people witnessed the events in question, and one of those chose not to testify, we cannot accept the state’s argument that the prosecutor’s remarks amounted to nothing more than a comment on .‘the evidence as it existed before the jury.’ ”). The first objected-to comment was,. “I submit to you there is no other explanation for this defendant walking into that bathroom with a loaded shotgun ... standing 24 inches from his father’s face and pulling the trigger.” On rebuttal, the- State similarly commented, “[The shooting] occurred with that shotgun that you’ve seen time and time again; that you know fits well, into the bathroom for which there is no other explanation for hini to walk into with it,” We find that the trial court did not abuse its discretion in denying a mistrial as to either of these comments as they were not directed at the defendant’s right to remain.silent.

Unlike the cases relied upon 'by the defendant, the prosecutor did not explicitly, or even implicitly comment bn the defendant’s failure to testify. See Dean, 690 So.2d at 724 (“Is there any other reasonable explanation[?] If there is you haven't heard it in this trial.”); Marshall, 476 So.2d at 151 (“Ladies and gentlemen, the only person you. heard from in . this courtroom with regard to the events of November 9, 1981, was Brenda Scavone [the victim].”); Cunningham v. State, 404 So.2d 759, 759 (Fla. 3d DCA 1981) (“That.has not been explained in this case” and “I think counsel owes you an explanation for that.”). Moreover, as the trial court found here in denying the motion for mistrial, “[the defendant] is not the only one who can testify as to what happened. There were other witnesses who came to the house and observed the bathroom. And furthermore, there were other witnesses who testified what he said. So to say he’s the only one who can explain something, that [sic] not the case here. He’s not the only witness. He would not have been the only witness to rebut solely what was said.”

The other objected-to comment was made in response to.this remark by defense counsel during his closing argument: “Because, look at'the floor. It looks like this..rug or towel or whatever it is, it’s all rumpled up. It’s not laying flat like it would normally be. It’s all rumpled up inside the bathroom at a point where a person would be holding the shotgun in their hands, pointing it up, like this, and the gun goes off.” On rebuttal, the State commented, “It was about an hour and 35 minutes or so of argument about sympathy and bias and blame it on Jay Beckman to hear something about the towel on the floor, a scrunched up towel on the floor. Did somebody say anything about a towel on the floor?” We find that the trial court did not abuse its discretion in denying a mistrial as to this rebuttal remark as it was merely a fair comment on the evidence, where the photographic evidence depicted a floor mat, not a towel, on the floor of the bathroom.

As to the unpreserved errors, this court looks to whether the cumulative effect of any improper closing arguments deprived the defendant of a fair trial, i.e., fundamental error. See Bell v. State, 108 So.3d 639, 650 (Fla. 2013). “Fundamental error is that which ‘reaches down into the validity of the trial such that a guilty verdict ... could not have been obtained without the assistance of the alleged error.’ ” Id. at 650 (quoting Wade v. State, 41 So.3d 857, 868 (Fla. 2010)). Viewing the entire closing argument in context, we And that these comments—viewed individually or collectively—do not rise to the level of fundamental error.

The Apprendi issue

Background facts

The defendant was convicted of first-degree murder, a capital felony punishable by a term of forty years to life imprisonment. See § 775.082(1)(b), Fla. Stat. (2015); § 782.04(1)(a)1., Fla. Stat. (2015). Because he was seventeen years and twenty-nine days old at the time of the offense, the trial court conducted an individualized sentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) to determine whether life imprisonment was appropriate. See § 921.1401, Fla. Stat. (2015). The court sentenced him to life in prison without parole.

While the defendant’s appeal before this court was pending, on February 2, 2016, the defendant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion in the lower court. Therein, the defendant argued that his life sentence violated the Sixth Amendment to the U.S. Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the trial judge, rather than a jury, was the one who considered the factors set forth in Miller and who determined a life sentence without parole was appropriate. In the alternative, the defendant argued that he was entitled to judicial review of his sentence after twenty five years.

At the short hearing on the motion, the trial court stated that it was going to deny the motion as to the Apprendi issue, but grant the motion as the judicial review aspect of his sentence. The trial court thereafter entered an amended sentencing order consistent with its oral ruling, sentencing the defendant to life with judicial review after twenty five years.

Analysis

A claim of error under Apprendi and Miller raises a pure question of law and is, therefore, subject to de novo review. See Plott v. State, 148 So.3d 90, 93 (Fla. 2014).

In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. For purposes of Apprendi, this statutory maximum “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Ap-prendi is based on the right to a jury trial under the Sixth Amendment to the U.S. Constitution.

In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that imposing a mandatory life sentence on a juvenile without the possibility of parole violates the Eighth Amendment to the U.S. Constitution. Recognizing that juveniles have “diminished culpability and heightened capacity for change,” the Court set forth a number of factors that should be considered before imposing a life-without-parole sentence. Id. at 468-69, 132 S.Ct. 2455. In Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 735, 193 L.Ed.2d 599 (2016), the Court determined that Miller should be applied retroactively, also emphasizing that “[a] hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” In response, Florida and other states passed legislation in order to satisfy the procedural requirements set forth in Miller, specifying that the trial court shall conduct an individualized sentencing hearing when considering whether to impose a life without parole sentence on a juvenile convicted of a capital crime. See Ch. 2014-220, §§ 1, 3, Laws of Fla.; § 775.082, Fla. Stat. (2015); § 921.1401, Fla. Stat. (2015).

On this appeal, the defendant claims Florida’s juvenile sentencing procedure—which the Florida Legislature passed to satisfy the individual sentencing requirements for juveniles contemplated by Miller and therefore not to violate the Eighth Amendment—violates the Sixth Amendment under Apprendi and its progeny. This is because the trial court, not the jury, considers the “defendant’s youth and attendant circumstances” in determining whether a sentence of life imprisonment “is an appropriate sentence.” See § 921.1401(1)-(2), Fla. Stat. (2015). This appears to be an issue of first impression in Florida and there is very little case law from other jurisdictions that directly addresses this question.

We are, however, persuaded by the rationale in People v. Hyatt, 316 Mich.App. 368, 891 N.W.2d 549 (2016). In Hyatt, the Michigan Court of Appeals noted that, in Apprendi, the United States Supreme Court was careful to specify that “nothing ... suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Hyatt, 891 N.W.2d at 557 (quoting Apprendi, 530 U.S. at 481, 120 S.Ct. 2348). Thus, where a sentencing judge imposes a sentence within the range prescribed by statute, “any facts found function[] as mere sentencing factors, rather than elements of an aggravated offense.” Id.

After conducting further analysis of the numerous cases that followed Apprendi, including Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (both death penalty cases), the Hyatt court concluded that Apprendi and its progeny permit “a judge acting within the range of punishment authorized by statute [to] exercise his or her discretion—and find facts and consider factors relating to the offense and the offender—without violating the Sixth Amendment.” Hyatt, 891 N.W.2d at 561.

With this backdrop, the Hyatt court found that “the instant case is not one in which the finding of a particular fact increases the maximum penalty. Nor does the case involve a statutory scheme that makes imposition of life without' parole contingent on any particular finding.” Id. at 564, Rather, the individualized sentence is “required to ensure proportionality, not to aggravate the maximum -penalty available under the law.” Id. In other words, “the remodeling that Miller - performed on life-without-parole sentences ‘for juveniles did not touch the ceiling—or floor, for that matter—of the available sentence for juvenile homicide offenders.” Id. at 564-65. The Hyatt court further noted that “nowhere in Miller’s individualized sentencing mandate is the idea-that Miller altered the maximum punishment available for juvenile offenders or made the imposition of any punishment contingent on fact-finding”; thus, distinguishing this type of case from the death-penalty cases, where the sentencing statute at issue there imper-missibly required the court to make additional findings on certain aggravating factors before imposing a death sentence. Id. at 565.

The Hyatt court then turned to Michigan’s different, but sufficiently analogous, juvenile sentencing statute. See MICH. COMP. LAWS § 769.25 (2014). The court found that “our Legislature did not alter the statutory maximum sentence that may be imposed solely on the basis of the jury’s verdict, nor did our Legislature make imposition of the statutory maximum dependent on any particular finding of fact.” Id. at 566. Rather, “[t]he sentencing judge decides whether to exercise his or her discretion to impose that statutory maximum by considering the so-called Miller factors- to satisfy Miller’s individualized sentencing mandate.” Id. at 567.

Next, the Hyatt court' noted that the subject statutory scheme actually “sets forth a framework of mitigation, rather than aggravation” as it has the effect of “mitigating the maximum penalty authorized by the jury’s verdict rather than aggravating the penalty beyond that which was set forth by law”; thus, reserviiig life sentences for “the rare juvenile deserving of the harshest penalty.” Id. at 569. As the court explained, “Eighth Amendment prohibitions [in Miller] are considered to be mitigating factors that act as a bar against imposing the statutory maximum penalty, rather than as elements that' enhance the maximum possible penalty, and the determination of whether those mitigating factors exist need hot, under Apprendi and its progeny, be made by a jury.” Id. at 570.

A California appellate court similarly rejected this same Apprendi argument in People v. Blackwell, 3 Cal.App.5th 166, 207 Cal.Rptr.3d 444 (2016). In that ease, the-court found no Apprendi violation in permitting the trial judge to engage in. “discretionary consideration of mitigating circumstances so that [it] can reach a moral judgment about an individual juvenile’s irreparable corruption, i.e., a determination of what sentence is proportionate to a particular offense and offender.” Id. at 466.

For these reasons, we find that Florida’s juvenile sentencing procedure set forth in section 921.1401, as contemplated by Miller, does not violate the Sixth Amendment under Apprendi and its progeny.

Conclusion

For the foregoing reasons, we find that the trial court did not abuse its discretion in: (1) admitting The List under section 90.402 because it was inextricably intertwined with the charged crime; (2) admitting Mr. Nistal’s testimony as to the jail list under section 90.402 because it showed the defendant’s consciousness of guilt; (3) precluding the defense from introducing testimony that the defendant [had Asper-ger’s syndrome where it would not have assisted the jury on' the narrow point for which the defense sought to introduce it below, any probative value would be outweighed by its prejudicial effect, and such evidence is otherwise impermissible to prove that the defendant did not have premeditated intent to kill; (4) excluding the 911 call for failure to satisfy the excited utterance clause to the hearsay exception because of evidence the call was fabricated; and (5) as to preserved error, denying the defense motion for mistrial based on improper closing argument; additionally, we find that none of the unpreserved comments rise to' the level of fundamental error. Finally, we find that Florida’s juvenile sentencing procedure set forth in section 921.1401 does not violate the Sixth Amendment to the U.S. Constitution under Apprendi and its progeny.

Accordingly, we affirm the defendant’s conviction and sentence for first degree murder.

Affirmed.

      . The State dismissed the unlawful possession charge at trial.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . As to the defendant’s claim that the testimony was relevant only to show his propensity to commit violence, the State correctly notes that several of the witnesses testified that they never even knew they were on The List, and there was no evidence that the defendant took any steps to harm any of the persons on The List, besides his father.

      . There is an element of spontaneity in both the spontaneous statement and the excited utterance exceptions to the hearsay rule. It is clear on this record that the court based its ruling on the law applicable to excited utter-anees.

      . At the motion in limine hearing, defense counsel accused the trial court of believing Ms. Syren’s testimony that the defendant had told her that he wanted to kill his father and make it look like self-defense. The court responded, "I am merely considering the State’s position" and that "whether the statement is true or not, that’s not a position for this Court to say, one way or the other.” The court also stated that it was focusing on whether the defendant "had an opportunity to misrepresent," an "opportunity to reflect.” As noted in Jano, it is the opportunity to reflect that raises the possibility of fabrication and calls into question the trustworthiness of the declarant’s statement. 524 So.2d at 662.

      . This is not to say that Florida and Michigan’s statutes are at all identical. On the contrary, there are several notable differences between the legislation. It' suffices to say, though, that they are sufficiently similar: both authorize a life sentence without parole for a juvenile convicted of premeditated murder; both direct the trial court to conduct an individualized sentencing hearing at which the court is to consider the factors listed in Miller; and both direct the court to determine whether to impose a life sentence.

      . _ Though the Hyatt court found Michigan’s individualized sentencing scheme for juveniles did not violate the Sixth Amendment under Apprendi and its progeny, the court did go on .to find that trial court had abused its discretion in imposing a life sentence on the juvenile under the facts of that case, as it relates to Miller. Id. at 578-79. To this, we note that the instant defendant has raised no challenge to the propriety of the trial court's decision to impose a life sentence without parole after conducting the individualized sentencing hearing required by section 921.1401 of the Florida Statutes. Therefore, we do not address it.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    FETLAR, LLC, et al., Petitioners, v. Kerry SUAREZ, etc., et al., Respondents.
    No. 3D17-1315
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017.
    Rehearing Denied October 11, 2017

      Lewis Brisbois Bisgaard & Smith and Todd Ehrenreich, Seth V. Alhadeff and Ravika Rameshwar, for petitioners.
    Loreen I. Kreizinger and Justine S. An-agnos (Fort Lauderdale), for respondents.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   SALTER, J.

Fetlar, LLC, Sway 204-1 Borrower, LLC, Sway Management, LLC (doing business as “Waypoint Homes”), and SRP Sub, LLC, defendants in the wrongful death lawsuit below, petition for a writ of certiorari quashing a circuit court order granting the plaintiffs’ motion to amend to add a claim for punitive damages. The plaintiffs, respondents here, are the co-personal representatives of the estate of them son, Alfredo Suarez. Alfredo, then eight years old, died when a driveway gate gave way and fell on him. The four defendants are companies which owned, managed, or maintained the rented residence where Alfredo and his family lived and where the incident occurred.

Because the respondents failed to comply with the procedure applicable to motions to amend to add claims for punitive damages, Florida Rule of Civil Procedure 1.190(f), and failed to make the proffer required to assert such claims against corporate defendants under section 768.72(3), Florida Statutes (2016), we grant the petition and quash the order.

A claimant’s failure to comply with the procedural requirements of the punitive damages statute may be redressed via certiorari. Royal Caribbean Cruises, Ltd. v. Doe, 44 So.3d 230 (Fla. 3d DCA 2010).

Rule 1.190(f)

The plaintiffs filed a motion to amend to add a claim for punitive damages, but they did not attach to their motion their proposed amended complaint. Instead, they included in the body of their motion the facts asserted to meet the proffer required by section 768.72. The plaintiffs did not file their amended complaint containing the claims for punitive damages until after the trial court granted their motion to amend.

Florida Rule of Civil Procedure 1.190(a) specifies that a party filing a motion to amend “shall” attach the proposed amended pleading to the motion. The plaintiffs argue that it is permissible to file a motion to amend “separately” when the proposed amendment only adds the punitive damages claims, based on their interpretation of Rule 1.190(f):

(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

The plain meaning of Rule 1.190(f) does not support the plaintiffs’ argument. The Rule allows the motion to amend (attaching, as Rule 1.190(a) requires, the proposed amended pleading) to be filed separately from the evidence or proffer asserted to satisfy the statutory requirements of section 768.72. Rule 1.190(f) does not waive or dispense with the requirement to attach the proposed amended pleading to the motion to amend. Varnedore v. Copeland, 210 So.3d 741, 745 (Fla. 5th DCA 2017).

In responding to a motion to amend to add punitive damages, this procedure allows the non-moving party to address the amended complaint in the specific form the movant actually intends to file if leave to amend is granted. In the present case, a proposed amended complaint drawn with greater specificity might have avoided the shortcomings described below regarding (1) the lack of differentiation among the four corporate petitioner/defendants, and (2) the lack of allegations and evidence or proffers directed to section 768.72(3) and the attribution of intentional misconduct or gross negligence of individual employees to the corporate employer/defendants.

The plaintiffs also failed to file and serve one of the deposition transcripts comprising part of their proffer at least twenty days before the hearing on the motion to amend, an additional requirement of Rule 1.190(f).

Section 768.72(3)

The plaintiffs sued the four limited liability companies that are the petitioners in this case, but not the individual employees who are alleged by name to have engaged in “intentional misconduct” or “gross negligence” as defined in section 768.72(2)(a) and (b), respectively. Three subparagraphs of section 768.72(3) state the factual prerequisites for establishing punitive damages claims against an employer or corporate entity:

(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or • .
(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, .or injury suffered by the claimant..

The plaintiffs assume that the alleged misconduct of the individual construction managers, superintendents, construction workers—who were not, on the record before us, officers or managing members of the limited liability companies—is, without more, misconduct of the four corporate petitioner/defendants for purposes of section 768.72. But that is contrary to the plain language of the statute.

Á second shortcoming is that the plaintiffs’ allegations, including the informátion proffered to show intentional misconduct or gross negligence, lump together the three primary individual employee actors and the five limited liability company defendants. According to the plaintiffs’ proffer, Franz Randall was a construction superintendent for defendant Sway Management, LLC, doing business as Way-point Homes, but there is no indication that he played any role in corporate management. Alex Pierce was a construction manager for defendant Stellar Homes, but there is no indication that his acts or omissions should be imputed to the other limited liability company defendants. Angel Ramirez was a project manager for Stellar Homes, but there is no indication that his conduct should .be imputed to Stellar Homes, much less the.other corporate defendants,

Based on such shortcomings in the.record. before us, the claim for punitive damages should not have been allowed. Coronado Condo. Ass’n. Inc. v. La Corte, 103 So.3d 239 (Fla. 3d DCA 2012). For these reasons, and in accordance with Globe Newspaper Co. v. King, 658 So.2d 518 (Fla. 1995), we grant the four corporate defendants’ petition and quash the order granting the plaintiffs leave to amend to plead punitive damages.

Petition granted; order quashed.

      . The fifth limited liability company defen- • dant, Stellar Homes Group, LLC, -is' not a petitioner in this case,


author: LUCK, J.

text:
    John M. BENNETT and Nancy L. Bennett, Appellants, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Home Loan Alliance, LLC f/k/a Leverage Financial, LLC d/b/a LF Loans, Jamal M. Wilson, and GTE Federal Credit Union, Appellees.
    No. 3D17-0001
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017

      Rex E. Russo, for appellants.
    Scott Jay Feder, P.A. and Scott Jay Feder, for appellees.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   LUCK, J.

The ancient Greek playwright Sophocles asked in one of his best known dramas, Antigone, “what prowess is it to slay the slain anew?” (Nowadays we would ask, “why beat a dead horse?”) Congress must have had Sophocles in mind when it drafted the truth-in-lending act. Section 1640(b) of the act shields creditors from liability if they fix disclosure errors and pay back debtors within sixty days of discovering the error. Why allow a federal cause of action where the clerical error has been timely corrected?

John and Nancy Bennett sued Mortgage Electronic Registration System, Inc., LF Loans, LF Loan’s president, Jamal Wilson, and GTE Federal Credit Union for fraud, declaratory relief, and violating the truth-in-lending act because the defendants failed to disclose at closing that the Bennetts would have to pay for private mortgage insurance as part of the refinance on the couple’s home. Because there was no genuine issue of material fact that the defendants fixed the mortgage insurance discrepancy and paid back the Ben-netts for the premiums they paid within sixty days of discovering the error, there was no liability under the truth-in-lending act, no damages for fraud, and no present need for declaratory relief. We, therefore, affirm the trial court’s summary judgment for the defendants.

Factual Background and Procedural History

In April 2012, the Bennetts were looking for assistance to refinance the mortgage on their home. They learned of a government program, the Home Affordable Refinance Program, intended to assist borrowers whose mortgages exceeded the value of their home. The Bennetts completed a loan application with their broker, Advance Mortgage. With the assistance of their broker, on April 17, 2012, they applied for a HARP II loan from LF Loans. The truth-in-lending act disclosure statement attached to the application form estimated a monthly payment of $1,345.68, which included $237.60 in escrow for taxes, property insurance, and private mortgage insurance. The loan was closed on June 12, 2012 by Stewart Title Company, at which time the Bennetts initialed and signed several documents, including a payment letter and an initial escrow account disclosure statement. At closing, the estimated monthly payment was $1,237.96 and did not include private mortgage insurance.

After closing, the Bennetts’ loan was assigned to GTE Federal Credit Union. Prior to the first payment due in August 2012, the Bennetts received a monthly payment statement from GTE. Mr. Bennett noticed that the monthly payment listed on the statement was less than the estimated monthly payment he received at closing. Mr. Bennett called GTE to avoid future issues with the loan. A few days later GTE called back and told Mr. Bennett the correct payment amount; however, this time the amount was greater than the amount he was told at closing. Mr. Bennett asked GTE to send him a copy of the documents he signed agreeing to the higher payment. Within a week he received several documents, including a payment letter and initial escrow account disclosure statement, which the Bennetts contend were forgeries. Unlike the Bennetts’ copies of the closing documents, the documents sent to Mr. Bennett by GTE included a $100.92 charge for private mortgage insurance.

On July 10, 2012, the Bennetts’ counsel sent a demand letter to GTE with copies to LF Loans and Stewart Title. The letter informed GTE: of the discrepancy; the Bennetts had no obligation to pay private mortgage insurance on the loan; and the Bennetts would be paying the insurance under protest until GTE corrected its records. The letter also stated:

we demand that this matter be fully rectified within 60 days. Failure to fully rectify this matter within that time will lead to the filing of legal action. In order to fully rectify this matter you must not only correct your Loan Statement and purge all the fraudulent documents in order to avoid a repetition of the fraud through further transfer of the mortgage instruments, but you must also pay compensation for fees and costs suffered by the borrowers, as well as credit back to them the overpayments for the improperly charged PMI.
To date the borrowers attorney’s fees paid are $200.00 with an anticipated additional amount of $300.00 to become due. Accordingly, you should issue a payment or credit to the borrowers of $200 and a send a separate check for $300 payable to me ....

On July 16, 2012, LF Loans electronically mailed the Bennetts’ counsel the following message:

The issue with the documents being falsified lies at the feet of the title company. We sent out a final package with [private mortgage insurance] on all loan documents. I don’t have corroboration from the title company but my thought process is that they mistakenly got the initial documentation signed realized the error and transposed the necessary docs including 1st payment letter....
I am uncertain as to why those parties chose to take action resulting in misrepresentation. However, this loan indeed has [private mortgage insurance] due to the, fact that [mortgage insurance] ■ has to be transferred' on all HARP loans during the refinance process. I am also attaching a signed 1033 and [Truth-in-Lending disclosure] from the borrower showing [private mortgage insurance] was initially disclosed on this loan, making your client.aware of [private mortgage insurance] in this transaction.,.. Unfortunately due to the nature of HARP loans we are unable to remove [private mortgage insurance] from this loan and do need to have these items re[-]signed....

On July 19, 2012, the Bennetts’ counsel responded by - electronic mail that his clients would not be re-signing anything because they had no legal obligation to do so and if proper disclosures had been made the Bennetts might have opted not to enter into the home refinance. The message threatened legal action for fraud. ■

Eleven days later, LF Loans said, by electronic mail, the privaté mortgage insurance would be taken off the loan and any insdrance payments the Bennetts made would be refunded. On October 17, 2012, GTE sent the Bennetts the first of the new monthly payment statements which did not. include private mortgage insurance; and the following month, GTE refunded the $302.76 the Bennetts had paid under protest for the August, September -and-, . October 2012 ..insurance amounts.

On October 23, 2012, three months after the mortgage insurance issue was resolved, the Bennetts filed their initial complaint against LF Loans, its principal, GTE, and MERS, which held the legal title to the mortgage. Two complaints, and four years later, the Bennetts second amended complaint alleged forgery as to LF Loans and its principal (count one); declaratory relief against MERS and GTE (count two); and a truth-in-lending act violation against all the defendants (count three).

The defendants moved for summary judgment because the Bennetts suffered no damages as a result of the alleged forgery after the private mortgage insurance payments were removed and refunded; there was no pending dispute between the parties warranting declaratory relief; MERS could not be held liable for truth-in-lending act violations; and .the disclosure errors were cured within the truth-in-lending act’s sixty-day window to correct errors. The trial court granted summary judgment, and this appeal followed.

Standard of Review

“The standard of review for summary judgment is de novo. Summary judgment is proper if there is no genuine issue of material fact and the movant is entitled to judgment as a matter. of law.” Alvarez-Mejia v. Bellissimo Props., LLC, 208 So.3d 797, 798-99 (Fla. 3d DCA 2016) (citations omitted).

Discussion

The Bennetts contend the trial court erred in granting summary judgment for the defendants because (1) they had a right to rescind the mortgage under the truth-in-lending act; (2) there were disputed issues of-fact that the closing documents were forged; and (3) the potential of the forged documents in the loan.file being transferred to another lender pre-eluded summary judgment on the declaratory relief claim. We will address each of these contentions below.

1. The Truth-in-Lending Act Claim

The Bennetts claimed they were entitled to rescind the mortgage and statutory penalties under the truth-in-lending act because the defendants charged them for private mortgage insurance that was not disclosed as a finance charge at closing. Indeed, the truth-in-lending act requires lenders to disclose any “finance charge” associated with the mortgage. 12 C.F.R. § 1026.18(d). A “finance charge” is any money payable by the borrower and imposed by the lender, as a condition of receiving the loan, and includes “[p]remi-ums or other charges for any guarantee or insurance protecting the creditor against the consumer’s default or other loss.” Id. § 1026.4(a), (b)(5).

The finance charges as part of the mortgage, including any charges for' private mortgage insurance, must be disclosed “before consummation of the transaction,” that is, before the closing. Id. § 1026.17(b). Failing to disclose finance charges, like for mortgage insurance, may be a violation of the truth-in-lending act and subject the lender to statutory penalties or rescission of the mortgage. See, e.g., Madel v. GMAC Mortgage Corp. (In re Madel), No. 03-32367, 2004 WL 4055247, at *8 (Bankr. E.D. Wis. Nov. 8, 2004) (“Improper disclosure of the amount of the finance charge is a material violation for purposes of rescission.”).

The act, however, provides a safe harbor for lenders that correct' failures to disclose finance charges within sixty days of being notified of the error.

A creditor or assignee has no liability under this section ... for any failure to comply with any requirement imposed under this part or part E, if within sixty days after discovering an error ... and prior to the institution of an action under this section or the receipt of written notice of the error from the obligor, the creditor or assignee notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to assure that the person will not be required to pay an amount .in excess of the charge actually disclosed .;..

15 U.S.C. § 1640(b).

Here, there was no genuine dispute that on July 10, 2012 the Bennetts’ counsel notified the defendants that the August 2012 statement included private mortgage insurance that had not been disclosed at the time of closing. Three weeks later, on July 31, LF Loans responded that private mortgage insurance would be removed from future statements consistent with the closing documents and the money the Ben-netts’ paid for private mortgage insurance would be refunded. Three months after that, on October 23, the Bennetts sued under the truth-in-lending act.

The defendants discovered the error 'when they got the call from the Bennetts and received their attorney’s letter on July 10. Within sixty days .of discovering the error, by July. 31, and prior to.the filing of the couple’s lawsuit, the defendants notified the Bennetts that there was indeed an error on the statement and it would be adjusted to reflect what had been disclosed at closing about private, mortgage insurance. The defendants refunded the money the Bennetts overpaid and corrected the statements. Pursuant to the section 1640(b) safe harbor, the defendants have “no liability” for the failure to disclose the mortgage insurance finance charge.

The Bennetts’ rescission claim, moreover, is precluded by section 1635(e). The rescission remedy does not apply to a “refinancing” of the same home. Id. § 1635(e)(2); see also Kucera v. Citizens Bank & Tr. Co., 754 F.2d 280, 281 (8th Cir. 1985) (“[E]ven if the loans were secured by the Kuceras’ principal residence, the seven refinancing transactions are exempt from coverage under the right-of-rescission”). There is no genuine dispute that the Ben-netts’ 2012 mortgage was a refinance of their existing mortgage, secured by an interest in the same residential home.

Finally, the trial court properly granted summary judgment on the Ben-netts’ truth-in-lending act claim as to MERS because “MERS is neither a creditor nor assignee, as defined by [the truth-in-lending act].” Cannon v. U.S. Bank, NA, No. CIV. 11-00079 HG-BMK, 2011 WL 2117015, at *5 (D. Haw. May 24, 2011). The act’s disclosure requirements only apply to creditors and assignees and MERS is neither as defined by Congress and the federal regulators.

2. Forgery Claim

The Bennetts also alleged that LF Loans and its principal committed forgery. “Forgery exists under' Florida law where the defendant makes a writing which falsely purports to be the writing of another, made with the intent to injure or defraud any person. The instrument in question must have some legal efficacy.” Schauer v. Gen. Motors Acceptance Corp., 819 So.2d 809, 814 (Fla. 4th DCA 2002) (quotation omitted). And, as with any kind of fraud, resulting damages to the plaintiff are an essential element. Poliakoff v. Nat’l Emblem Ins. Co., 249 So.2d 477, 478 (Fla. 3d DCA 1971) (The essential elements of fraud are ... resulting damage to the plaintiff.”).

The summary judgment evidence, with every inference made in favor of the Bennetts, showed that they did not suffer damages as a result of the forged/fraudulent documents. The Bennetts, on July 10, 2012, informed the defendants about the “fraudulent documents” and asked that the payment statements be amended to reflect the agreement at closing, which did not include private mortgage insurance, and to refund any overpayments. Six days later, LF Loans acknowledged the “falsified lies” and “misrepresentation^,” and on July 31, agreed to remove the insurance requirement from the;mortgage, issue new statements, and refund the money. Within twenty one days, that is, the Bennetts got everything they wanted (other than attorney’s fees).

■ Still, three months later, the Bennetts sued the defendants for forgery. By then, however, the result of the forged documents—having to pay private mortgage insurance-had been fixed, and LF Loans had promised to amend the loan statements and refund overpayments. By October 23, when the initial complaint was filed, the Bennetts were not required to pay the insurance, even assuming LF Loans and its principal forged the loan documents. Without damages,, summary judgment was due to be granted on the forgery/fraud claim. See Sussex Mut. Ins. Co. v. Gabor, 568 So.2d 1004, 1005 (Fla. 3d DCA 1990) (affirming summary judgment because “on this record, it is clear that the plaintiff suffered no damages on its fraud and related claims”).

3. Declaratory Relief Claim

The Bennetts’ final claim was for a declaration that the private mortgage insurance on their statement was null and void because it was based on forged doeu-ments. “The elements of an action seeking a declaratory judgment require the plaintiff to show there is [1] a bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the plaintiff; [2] the plaintiffs doubt about the existence or non-existence of his rights or privileges; [3] that he is entitled to have the doubt removed.” Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1093 (Fla. 3d DCA 2014).

In this case, there was no genuine dispute that there was no bona fide adverse interest. The Bennetts, on July 10, 2012, gave the defendants sixty days’ notice to cure the forged documents and the assessment of private mortgage insurance contrary to what had been disclosed at closing. Within three weeks, the defendants acknowledged that the disputed documents were “falsified” and “misrepresentation[s],” and agreed to remove the private mortgage insurance payments consistent with the closing documents, revise the statements, and return the overpaid money. When summary judgment was granted, and even by the time the complaint was filed, there was no dispute between the parties about the documents and whether the Bennetts were required to pay for mortgage insurance.

The Florida Supreme Court handled a similar case in Santa Rosa County v. Administration Commission, 661 So.2d 1190 (Fla. 1995). There, a county and the state department of community affairs had a dispute about the county’s proposed comprehensive plan. Id. at 1191. The dispute resulted in two lawsuits—one in front of the division of administrative hearings and the other in the circuit court for declaratory and injunctive relief. Id. The parties settled the administrative action, and the department of community affairs moved for summary judgment in the declaratory relief case because there was “no present need for a declaratory judgment,” Id. at 1192. The trial court granted the motion because “[t]he [settlement [ajgreement resolved the dispute between the parties as to the particular facts alleged in the complaint,” and therefore, there was “no longer ... a bona fide, present need for the declaration.” Id. (quoting trial court’s order on rehearing). The Florida Supreme Court agreed that “all disputes between the parties were resolved by the stipulated settlement agreement .... [Bjecause there was no pending controversy, the Declaratory Judgment Act was no longer available” to the county. Id.

There is even less of a “present” controversy in this case. The dispute between the Bennetts and the defendants—whether the Bennetts were wrongly charged for mortgage insurance—was resolved months before the initial complaint was filed, and years before summary judgment was entered. The Bennetts (other than attorney’s fees) received everything they had asked for by October 2012. As in the Santa Rosa County case, there was no need to slay the slain.

Conclusion

There being no truth-in-lending act liability, no fraud damages, and no present controversy, the trial court properly granted summary judgment for the defendants. We, therefore, affirm.

Affirmed.

      . http://www.monologuearchive.eom/s/ sophocles_006 ,html.

      . With their appeal, the Bennetts also filed a petition for writ of certiorari seeking review of the trial court's order determining the defendants were entitled to attorney’s fees based ■ on section 57.105 of the Florida Statutes. At . oral argument, the Bennetts abandoned their petition in favor of a direct appeal in ease number 17-1254 of the trial court's judgment awarding section 57,105 fees, which remains pending. We,- therefore, do not address the defendants’ entitlement to section 57.105 fees.

      . As the Bennetts explain in their initial brief, "[fjorgery is recognized as a species of fraud in Florida.” (Initial Br. at 38.)