author: PER CURIAM. QUINCE, J.,

text:
    Dontae MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. SC14-1317
    Supreme Court of Florida.
    [April 27, 2017]

      Howard L. “Rex” Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Carol M, Dittmar, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Dontae Morris appeals his convictions of first-degree murder and his sentences of death. For the following reasons, we affirm the convictions and sentences.

I. Background

Morris was convicted and sentenced to death on two counts for the first-degree premeditated murders of Officer David Curtis and Officer Jeffrey Kocab. The evidence at trial established that on June 29, 2010, at about 2:13 a.m., Officer Curtis pulled over a red Toyota Camry in Hills-borough County for not displaying an automobile tag. Cortnee Brantley was the driver, and Dontae Morris was in the passenger’s seat. The dashcam video from Officer Curtis’ patrol car was played for the jury at trial. The transcript of that video includes a discussion in which Morris identifies himself to Officer Curtis, disclosing his name, age, and birthdate. The transcript continues with a discussion between Officer Curtis and Ms. Brantley about the missing tag on the vehicle, and Ms. Brant-ley states that the tag was stolen.

Officer Curtis returned to his patrol car, entered Morris’ name in his in-ear computer, and discovered that there was a warrant out for Morris. He called for backup, and Officer Kocab pulled up and parked behind Officer Curtis’ parked patrol car. Then both officers approached the passenger side of the parked Camry. Officer Curtis, with Officer Kocab standing right behind him at the passenger side of the vehicle, asked Morris to exit the vehicle. Morris exited the vehicle as if he was surrendering but instead grabbed a gun and shot both officers in the head. The approximate time for the homicides of Officers Curtis and Kocab was 2:18 a.m. This interaction is captured in the dashcam video in the following way:

[Officer Curtis]: —you know anything about it?
[The Defendant]: The warrant?
[Officer Curtis]: Yeah.
[The Defendant]: I ain’t got no warrant.
[Officer Curtis]: Okay. Step over here. Turn around and step and put your hands behind your back.

(Shots fired.)

[Ms. Brantley]: Baby—Babe.

The remaining portion of the video captures panicking individuals tending to the injured officers and performing CPR. Both officers were transported to Tampa General Hospital where they were later pronounced dead. The officers’ autopsies confirmed that both officers died of fatal gunshot wounds to the head. Furthermore, an expert in the field of firearms analysis and identification concluded that both of the projectiles removed from the bodies of Officer Curtis and Officer Kocab were fired from the same firearm.

Immediately following the shooting, Morris fled the scene, running on foot northbound. Four days after the homicides, Morris turned himself in.

On the front seat of Officer Curtis’ patrol vehicle, detectives found Officer Curtis’ notepad and Cortnee Brantley’s driver’s license. On the notepad, Officer Curtis had noted the name and birthdate of the passenger as it was provided to him when he asked the passenger to identify himself. Additionally, in Officer Curtis’ car, the mobile dispatch terminal, or in-car computer, indicated Dontae Morris’ name, his identifying information, and a photograph of him. Morris’ birth certificate was entered into evidence and matched the name and birthdate that the passenger of the Camry in the dashcam video provided to Officer Curtis.

Temika Jones testified that she saw Morris, whom she knew as “Quelo,” on the day of the murders in the morning. She remembered that he was wearing a dark blue vest with a white shirt underneath, dark khaki shorts, and white sneakers or tennis shoes. Ms. Jones also testified that Morris called her around 2 a.m. Later that day, detectives interviewed Ms. Jones. When the detectives showed her a photograph, which was a still photo from the dashcam video, she identified the individual in the photo as Morris. She testified that it looked like Morris because of the head shape and outfit and because he had on the same clothing that he had on that morning when she saw him.

• ■ Additionally, two witnesses testified that they saw a black-male running northbound from the scene of the incident. Ynalia Keen lived in-a bottom floor apartment near where the traffic stop took place. She testified that on the night of the incident, she had stepped out of her apartment to get snacks from a gas station, and, when she heard the gunshots, she rushed back inside. From inside her apartment, looking through a front window that looks out onto the street, she saw a black male running on the sidewalk towards' her apartment building, then into the apartment complex, cutting through the middle of the,parking lot, and jumping a small fence. When she could not see him through the front window, Ms. Keen went, to the kitchen to look through, the window at the back of the apartpient, where she .saw him jump another, taller, chain-link fence.

The next day, on June 30th, Detective Charles Massueci interviewed Ms. Keen. Ms. Keen' identified Morris’ photograph from a photographic lineup. Ms. Keen also wrote the following statement: “Seen him on the back road with a group of people. He had ran by my house when the people was shot. Seen him at the Shell store.”

The other witness, Alfred Thompson, was walking northbound . on the , street where the traffic stop took place. As he walked past the Camry, he noticed that the car had two occupants, sitting in the front seat, a black female , in the driver’s side and a black male in the passenger’s side. He also saw the officer in his vehicle at that time. After Mr. Thompson passed the cars, he heard two gunshots coming from behind him from the'direction of the police car and the other vehicle, and he hid behind another car; he did not see the individual who fired the shots. Thereafter, Mr. Thompson saw a black, male run northbound (on the same sidewalk he was walking on), go through an apartment complex, and jump a chain-link fence.

Just north of the crime scene, detectives found footprints on the bottom part of thé large fence at the perimeter at the back of the apartment complex and also fóund a piece of a zipper that was torn off from an article of clothing attached to the top of that fence.

On the night of the murders, Morris called Ashley Price and confided in her regarding the murders. Ms. Price went to the Tampa Police Department on June 30, the next day, and spoke with Officer Kevin Durkin. She testified that she knew Morris as “Quelo” and that Moms called her more than once in the early morning hours of June 29. When she answered a call from Morris around 3:30 a.m., he asked for a ride, but she did not give him one. She spoke with him on the phone again at around noon that day, and Morris told Ms. Price “that he did it,” telling her to wateh the news'about the police officers.. Ms. Price also testified that Morris told her the following: that he shot the officers to get away from them, that he was out of the car when he shot the officers, that there were two officers, that he shot them in the head, that he referred to them as “crackers,” that he got the gun .from under the seat, that he gave the officer his name, that the officer had gone back to run his name, that he was afraid that he had a warrant, that he was the passenger in the car, and that he was going to try to go to Jacksonville.

Detective Charles Massueci confirmed that between the time of the murders and the afternoon of June 30, there were no releases from the Tampa Police Department about the facts of the case to the press or to the media concerning this subject matter that Ms. Price discussed.

The red Toyota Camry was located at an apartment complex on the morning of June 29, the same day as the crime, roughly nine-and-a-half hours after the crime itself. This apartment complex was located about 2.8 miles from the crime scene. The building in which Ms. Brantley, the driver, was located was about 500 yards from where the Camry was parked. Pursuant to a search’ warrant, the red Camry was seized and searched. DNA analysis showed the blood found on the exterior passenger side rear door matched that of Officer Curtis.

Ms. Brantley was escorted' to Tampa Police Department headquarters and was interviewed. During the approximately six- and-a-half hour interview, detectives asked Ms. Brantley more than once to identify the front seat passenger in the Camry during the stop, but she never identified him.

Additionally, cell phone records were presented at trial for cell phones associated with Morris and Ms. Brantley. Based on testimony regarding the cell records, cell towers, mapping, and diagrams, the cell phone use placed Morris and Ms. Brantley at or near the scene of the crime at the time of the incident. And the testimony revealed phone calls made in the minutes before and after the murders of the two officers from the cell phone associated with Morris.

Following the State’s case, the defense rested without presenting any evidence or witnesses. Thereafter, the jury returned guilty verdicts for two counts of first-degree premeditated murder and one count of escape while being transported.

At the penalty phase, the State presented evidence that, on March 13, 2013, Morris was convicted- of the first-degree murder and attempted robbery with a firearm of Rodney Jones and that Morris had been sentenced to life in prison without the possibility of parole for that conviction. The State also presented four victim impact statements from family members of Officers Curtis and Kocab. In mitigation, Morris presented the testimony of his mother, two cousins, and his aunt. On November 19, 2013, the jury recommended the death penalty by a vote "of twelve to zero on both counts.

At the subsequent Spencer hearing, the defense presented mental health mitigation with expert testimony from Dr. Valerie McClain, an expert in forensic psychology and neuropsychology. Dr. McClain reviewed Morris’ prior mental health records from Dr. Lamar Ingulli, which included memory testing and IQ testing. Dr. McClain diagnosed Morris with major depression with psychotic features and bor-derliné intellectual functioning but not intellectually disabled. She testified that Morris had deficiencies in verbal comprehension, such as word knowledge and processing speed.

Then the State presented rebuttal mental health expert testimony and additional victim impact testimony. Dr. Emily E. La-zarou, an expert in the area of forensic psychiatry, testified that she reviewed Dr. McClain’s depositions, Dr. Ingulli’s medical records, and Morris’ school records, and opined that Morris was in the average range of intellectual functioning with an IQ of at least 100 to 110,

Thereafter, the trial court sentenced Morris to death in accordance with the jury’s unanimous recommendations on both counts. In so doing, the trial court found the following aggravators were proved as to each count beyond a reasonable doubt: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of use of violence to a person (great weight); (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody (did not weigh or consider because merged with law enforcement officer ag-gravator); and (3) the victim of the capital felony was a law enforcement officer engaged in the performance of his official duties (great weight).

The trial court also found the following mitigators: (1) Morris was prematurely born to a sixteen-year-old, unwed mother (minimal weight); (2) Morris’ father was murdered when he was two years old (no weight); (3) Morris was raised by his maternal grandmother during his early years, but her health was fragile and she could not and did not adequately care for him (minimal weight); (4) Morris’ mother did not bond with her child because she suffered severe postpartum depression and was a child herself (moderate weight); (5) Morris started to bond with his step-grandfather, but he became a crack addict and left the family (minimal weight); (6) Morris was raised without a father or any other male role model (moderate weight); (7) Morris’ mother subsequently gave birth to two more children, and she eventually married their father (minimal weight); (8) Morris’ mother attempted to make a home with a supportive family (minimal weight); (9) Morris’ mother grew tired of the limited success of her efforts to integrate Morris into her new family, and Morris felt more and more isolated, alone, rejected, and left out (minimal weight); (10) Morris had to watch his siblings receive support and affection of a father, support he never had (minimal weight); (11) fourteen-year-old Morris assumed the role of man of the house and source of support for his siblings when his mother left her husband, and Morris suffered with his mother through a long and bitter divorce (minimal weight); (12) after the divorce, the family moved in with another man, and he and Morris competed for the role of man of the house and father to his siblings, and Morris was asked to leave the home (moderate weight); (13) the family conflict was encouraged by Morris’ former stepfather, who undermined and sabotaged the discipline of Morris and his siblings (moderate weight); (14) Morris lived for a period of time with his paternal grandparents, but they failed to control or discipline him, and he showed signs of deteriorating school work and social and behavioral turmoil (minimal weight); (15) Morris was close to his aunt and his cousins, who were positive influences and a healthy support system for him, but they moved during the time of his family’s turmoil (minimal weight); (16) Morris’ early teen years were unstable, and he was uprooted multiple times, attending five different schools and living in various relatives’ homes over a two-year period (minimal weight); (17) when Morris became involved in the juvenile justice system, his mother obtained counseling for him, and she also petitioned juvenile authorities and the court system to get more stringent treatment programs for him (moderate weight); (18) his mother’s requests were refused, and she was told Morris’ offenses were not serious enough, and he got no meaningful help or guidance during this critical juncture in his development (moderate weight); (19) Morris has maintained a supportive relationship with his child (moderate weight); (20) Morris has maintained a caring and supportive relationship with his cousins and other family members even while in jail (minimal weight); (21) Morris has expressed remorse for killing (minimal weight); and (22) the above circumstances cumulatively established general mitigating evidence that provides reasons the death penalty is not appropriate (moderate weight).

II, Analysis

A. Motion to Strike Jury Panel

Morris first argues that the trial court erred in denying Morris’ motion to strike the jury panel based on statements made by a prospective juror, Juror K, during jury selection. However, we conclude that the trial court did not err.

The denial of a motion to strike the jury panel is reviewed for abuse of discretion. Williams v. Osking, 105 So.3d 653, 655 (Pla. 4th DCA 2013). “In order for the statement of one venire member to taint the panel, the venire member must mention facts that would not otherwise be presented to the jury.” Johnson v. State, 903 So.2d 888, 897 (Fla. 2005). Additionally, “[a] venire member’s expression of an opinion before the entire panel is not normally considered sufficient to taint the remainder of the panel.” Id.

In this case, the trial court did not abuse its discretion. First, Juror K’s statements uttered before the other potential jurors did not reveal any knowledge she may have had regarding Morris previously being indicted for and convicted of another murder. Her comments, including the terms “another performance” and “repeat performance,” seeni to allude to her view that if the defendant was already convicted during the first proceeding, the guilt phase, for first-degree murder, that doing “another performance” of a second proceeding, the penalty phase, would be “wasting taxpayer’s money.” And the State’s follow-up question, seems to suggest that the prosecutor was interpreting her responses in this way since he explained that different evidence would be presented at the penalty phase (i.e., “evidence of aggravation”). Additionally, neither the prosecutor nor the prospective juror mentioned Morris, and the prospective juror did not reveal any knowledge she had about the defendant. Instead, the exchange reflects only a hypothetical discussion about a possible waste of resources with multiple proceedings.

It is only when Juror K was' brought in and questioned individually without the other jurors'present that she revealed that she had knowledge of Morris’' other crimes. When the comments made outside the presence of the jury are combined with the general and hypothetical comments she made in the presence of the jury, it becomes possible that Juror K may have been referring to her knowledge of the other crimes. However, .this discussion took place outside the presence of the jury panel. Importantly, Juror K did not reveal in. the comments she made in the presence of the jury any of her knowledge of other crimes. Additionally, the questioning of Juror K was promptly stopped before she revealed anything improper. Cf. Evans v. State, 36 So.3d 185, 185-86 (Fla. 4th DCA 2010) (reversing and remanding for a new trial because a prospective juror’s comments during voir dire that he knew the defendant from his work as a detention deputy at the jail suggested that the defendant had prior criminal charges or convictions).

Accordingly, the record demonstrates that the trial court did not abuse its discretion in denying Morris’ motion to strike thé entire jury panel.

B. Spontaneous Statements While Under Observation in Jail

Next, Morris claims the trial court erred in overruling ah objection to the admission of Morris’ redacted statement made while he was under observation in jail. Specifically, at trial, a corrections deputy testified that on one occasion he came to be in the presence of Morris and that he heard Morris make the following statement: “I repent for killing.” Morris also claims that the trial court erred in preventing the defense from presenting evidence regarding Morris’ mental state at the time he made the statement. However, we conclude that the trial court did not err in admitting the redacted statement and that any error in preventing the defense from presenting evidence was harmless.

A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. See Franklin v. State, 965 So.2d 79, 94 (Fla. 2007). Under Florida law, all relevant evidence, defined as that tending to prove or disprove a material fact, is admissible unless otherwise provided by law. See §§ 90.401-90.402, Fla. Stat. Relevant evidence is inadmissible, however, if the probative valúe is substantially outweighed by the danger of unfair prejudice. See § 90.403, Fla. Stat.

An admission of a party opponent is admissible as an exception to the hearsay evidence rule. § 90.803(18), Fla. Stat. “In the context of a criminal trial, an admission [by] the defendant is admissible if it tends in some way, when taken together with other facts, to establish guilt.” Swafford v. State, 533 So.2d 270, 274 (Fla. 1988). The evidence must “be relevant to a material issue other than propensity or bad character.” Johnston v. State, 863 So.2d 271, 279 (Fla. 2003) (quoting Drake v. State, 441 So.2d 1079, 1082 (Fla. 1983)).

In this case, Morris’ statement, “I repent for killing,” constitutes evidence tending to show that he was involved in the murders. And , because the statement was redacted to take out the reference to killing five people, the statement does not tend to show propensity or bad character. Moreover, the probative value of Morris’ redacted , statement is., not .substantially outweighed by the danger of unfair prejudice. Accordingly, the trial court did not abuse its discretion in admitting it.

Additionally, Morris argues ■ that the trial court erred in preventing the defense from presenting evidence- regarding Morris’ mental state at the time he made the statement. Pursuant to the Florida Evidence Code, Morris could offer evidence, to dispute the truthfulness of his statement and impeach his admission. See § 90.806(1), Fla. Stat. Specifically, the testimony Morris sought to offer was relevant to the circumstances surrounding his statement, namely his mental state at the time he made the statement, in an attempt to cast doubt on the credibility of the statement that he made. See, e.g., Palmes v. State, 397 So.2d 648, 653 (Fla. 1981) (defendant’s state of mind is relevant to the question of what weight to give the confession in determining guilt). However, any error in excluding evidence of Morris’ mental state at the time he made the statement was harmless beyond a reasonable doubt.' See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986).

C. Officers’ Testimony Regarding Dashcam Videotape

Additionally, Morris claims that the trial court erred in allowing law enforcement officers to give opinions identifying Morris’ voice and image from the dashcam videotape. Specifically, Morris argues that, because these -witnesses were law enforcement officers, the jury would defer to their opinions. However, we conclude that any possible error was harmless.

“A trial court’s decision to admit evidence is reviewed under the abuse of discretion standard.” Evans v. State, 177 So.3d 1219, 1229 (Fla. 2015) (citing Hudson v. State, 992 So.2d 96, 107 (Fla. 2008)). “In determining whether an error was harmful, the focus is on the effect that the error has upon the trier-of-fact.” Gregory v. State, 118 So.3d 770, 782 (Fla. 2013) (citing Williams v. State, 863 So.2d 1189, 1190 (Fla. 2003)).

In Evans, 177 So.3d at 1228, this Court addressed the issue of whether the trial court erred in permitting a law enforcement officer to testify to voice identification and offer his opinion that the voice on a 911 call-back, recording was the defendant’s. The majority of this Court held that the trial court erred when it admitted Detective Judy’s opinion testimony because he did not have prior special familiarity with the voice of the defendant. Id. at 1230-31.

However, in this case, any error in admitting the detectives’ testimony identifying Morris’ voice and image on the dashcam video was harmless beyond a reasonable doubt. See DiGuilio, 491 So.2d at 1138. The video itself revealed Morris’ identity, specifically, when Officer Curtis asked him to state and spell his name and asked him for his birth-date and age. This identification was corroborated by Officer Curtis’ notepad found on the front seat of his patrol car, listing the identifying information provided by Morris, as well as the search for his name (revealing his warrant) on Officer Curtis’ in-car computer. Additionally, Temika Jones testified at trial and identified Morris from a still picture taken from the dashcam video.. Accordingly, any error here was harmless.

D. Ashley Price’s Prior Consistent Statements

Morris claims that the trial court erred in allowing Detective Durkin to testify regarding prior consistent statements that Ashley Price made to the detective on the day after the murder because this testimony improperly bolstered Ms. Price’s testimony. However, the trial court did not abuse its discretion. See Tumblin v. State, 29 So.3d 1093, 1100 (Fla. 2010); see also Hudson, 992 So.2d at 107 (stating that the standard of review of a trial court’s decision to admit evidence is abuse of discretion).

“‘Generally, prior consistent statements are inadmissible to corroborate or bolster a witness’s trial testimony’ because they are usually hearsay, but a prior consistent statement may be admitted as nonhearsay if certain conditions are met.” Tumblin, 29 So.3d at 1100 (quoting Taylor v. State, 855 So.2d 1, 22 (Fla. 2003)). Specifically, “prior consistent statements are considered non-hearsay if the following conditions are met: the person who made the prior consistent statement testifies at trial and is subject to cross-examination concerning.that statement; and the statement, is offered'.to.‘rebut an express or implied charge ... of improper influence, motive, or.recent fabrication.’” Chandler v. State, 702 So.2d 186, 197-98 (Fla. 1997) (quoting § 90.801(2)(b), Fla. Stat. (1989)).

•In this case, Ms. Price. was subject to cross-examination, and the prior consistent statement was offered to rebut an implied charge of improper .influence, motive, or fabrication. By eliciting testimony of a financial benefit, the defense implied an improper motive for Ms. Price’s testimony. Ms. Price’s prior consistent statement, which she made the day after the murders when she went to the police, was offered to rebut this implied charge of improper motive. Accordingly, the .trial court did not abuse its discretion in admitting Ms. Price’s prior consistent statement.

E. Threats to Ashley Price

Morris also contends that the trial court erred in denying Morris’ motion for mistrial based on the jury.hearing about threats against Ashley Price. The trial court' denied the mption because the threats could not be attributed to Morris and because the trial court also provided a curative instruction. We conclude that the trial court did not abuse its discretion.

This Court reviews a trial court’s ruling on a motion for mistrial for abuse of discretion. Salazar v. State, 991 So.2d 364, 371 (Fla. 2008). “A motion for mistrial should be granted only when it is necessary to ensure that the defendant receives a fair trial.” Id. at 372 (quoting Cole v. State, 701 So.2d 845, 853 (Fla. 1997)). In other words, “[a] motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” England v. State, 940 So.2d 389, 401-02 (Fla. 2006). Additionally, “[i]t has been held that evidence of threats made against witnesses is inadmissible to prove guilt unless the threats are shown to be attributable to the defendant.” Koon v. State, 513 So.2d 1253, 1256 (Fla. 1987).

In this case, the State did not suggest, with its question regarding threats, that the threat came from the defendant. Additionally, the suggested threats in this case were not made to influence Ms. Price’s testimony, but rather the threats of an unknown and ambiguous nature were apparently the reason for Ms. Price relocating her residence. Cf. Jones v. State, 385 So.2d 1042, 1043-44 (Fla. 1st DCA 1980) (reversing and remanding for a new trial when the State insinuated that the defendant, or someone connected with him, had made threats against a witness to keep her from testifying without presenting any evidence to connect the defendant to the threats), disapproved on other grounds by Justus v. State, 438 So.2d 358, 368 (Fla. 1983). Furthermore, even assuming the question from the State was inappropriate, there was no response to the question because the defense promptly objected, the State stopped its questioning of the witness after the court sustained the defense’s objection, and the court gave a curative instruction explaining that Morris had nothing to do with the threats mentioned. See Tumblin, 29 So.3d at 1102 (“The giving of a curative instruction will often obviate the necessity of a mistrial.” (quoting Graham v. State, 479 So.2d 824, 825 (Fla. 2d DCA 1985))). Accordingly, the trial court did not abuse its discretion in denying the motion for mistrial.

F. Sufficiency

Regardless of whether the parties raise the issue, this Court “independently review[s] the sufficiency of the evidence in every case in which a sentence of death has been imposed.” Miller v. State, 42 So.3d 204, 227 (Fla. 2010). To conduct this review, this Court “view[s] the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So.2d 655, 674 (Fla. 2006); see also Davis v. State, 2 So.3d 952, 966-67 (Fla. 2008) (“In appeals where the death penalty has been imposed, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence.”).

As detailed above, the dashcam -video from Officer Curtis’ patrol car captured the killings of Officers Curtis and Kocab. In the video, Morris identifies himself, spelling his full name and accurately providing his date of birth and age. This same identifying information was discovered in Officer Curtis’ car, including on Officer Curtis’ notepad on which he wrote the identifying information the passenger provided him and on Officer Curtis’ in-car computer after he entered a search with Morris’ identifying information. Additionally, Ashley Price testified that Morris called her the morning of the shootings, and Morris confided in her, telling her “that he did it” and giving her details about the crime not yet released to the media. And Temika Jones testified at trial and identified Morris from a still picture taken from the dashcam video. Two witnesses testified that they saw a black male running from the scene of the crime after the shootings and saw him jump a large fence at the back of an apartment complex. One of these witnesses identified Morris from a photographic lineup shown to her by detectives the day after the shootings.

Accordingly, competent, substantial evidence supports Morris’ convictions for first-degree murder.

G. Proportionality

Furthermore, Morris’ death sentences are proportionate under the comparative proportionality review this Court undertakes in every death penalty case. In conducting its proportionality review, this Court does not compare the number of aggravating and mitigating circumstances. Pham v. State, 70 So.3d 485, 500 (Fla. 2011). Instead, this “Court looks at the totality of the circumstances to determine if death is warranted in comparison to other cases where the sentence of death has been upheld.” Id. (quoting England, 940 So.2d at 408). Additionally, this Court has recognized that, “[qualitatively, prior violent felony and HAC are among the weightiest aggravators set out in the statutory sentencing scheme.” Hodges v. State, 55 So.3d 515, 542 (Fla. 2010).

Morris’ case involves the shooting of two law enforcement officers on duty. His jury recommended death by a vote of twelve to zero on both counts of first-degree murder. The trial court found three aggravating circumstances were proved as to each count beyond a reasonable doubt and assigned weight as follows: (1) prior capital felony conviction (great weight); (2) escape or avoid arrest (did not weigh or consider because merged with law enforcement officer aggravator); and (3) victim was a law enforcement officer (great weight). In contrast to this weighty aggravation, the trial court found 22 nonstatuto-ry mitigating circumstances, none of which were assigned more than moderate weight.

Under the totality of the circumstances, Morris’ death sentences are proportionate in relation to other death sentences that this Court has upheld. See Burns v. State, 699 So.2d 646, 651 (Fla. 1997) (finding death sentence proportionate where the trial court found and merged three aggra-vators, and found two statutory mitigators, including the defendant’s age (42 years old) at the time of the offense and no significant criminal history, and a number of nonstatutory mitigators); see also Altersberger v. State, 103 So.3d 122, 130-31 (Fla. 2012) (finding death sentence proportionate where the trial court found the aggravators (1) CCP (great weight); and (2) victim was a law enforcement officer (great weight), and several mitigating circumstances, including that capacity to appreciate the criminality of conduct or to conform conduct to the requirements of law was substantially impaired (moderate weight), and defendant was brought up in a dysfunctional family and home environment (moderate weight)); Wheeler v. State, 4 So.3d 599, 613 (Fla. 2009) (finding death sentence proportionate where the trial court found the aggravators (1) CCP (great weight); (2) the merged avoid arrest aggravator, that the victim was a law enforcement officer and murder was committed to disrupt or hinder the enforcement of law; and (3) prior violent felony (some weight), and mitigating .circumstances (1) committed while under the influence of extreme mental and emotional disturbance (some weight); (2) capacity to appreciate the criminality of conduct or to conform conduct to the requirements of law was substantially impaired (some weight); and other mitigators given minimal to some weight); Bailey v. State, 998 So.2d 545, 551-52, 554 (Fla. 2008) (finding death sentence proportionate where the trial court found the aggravators (1) defendant was on probation at the time of the crime (great weight); and (2) avoid arrest (great weight), and a number of nonstatu-tory mitigating circumstances, such as the defendant’s young age arid low IQ, all given little weight).

Accordingly, we conclude that Morris’ sentences are proportionate.

H. Hurst

Finally, after the United States Supreme Court issued its decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), Morris filed supplemental briefing, arguing that his death sentences are unconstitutional under Hurst and that his case should be remanded for the imposition of life sentences. However, because the Hurst error in this case is harmless beyond a reasonable doubt, we affirm Morris’ death sentences.

We have held that “section 775.082(2), Florida Statutes, does not mandate the imposition of a life sentence in the event of a [Hurst] violation.” Knight v. State, 42 Fla. L. Weekly S133, S140, — So.3d -, —, 2017 WL 411329, at *14 (Fla. Jan. 31, 2017) (citing Hurst v. State, 202 So.3d 40, 63-66 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017)). Moreover, in Davis v. State, 207 So.3d 142 (Fla. 2016), petition for cert. filed, No. 16-8569 (Mar. 30, 2017), this Court emphasized the unanimous recommendations of death and held that the Hurst error was harmless.

What we said in Davis, 207 So.3d at 175, is also applicable here:

[T]he jury unanimously found all of the necessary facts for the imposition of death sentences by virtue of its unanimous recommendations. In fact, although the jury was informed that it was not required to recommend death unanimously, and despite the mitigation presented, the jury still Unanimously recommended that [the defendant] be sentenced to death .... The unanimous recommendations here aré precisely what we determined in Hurst to be' constitutionally necessary to impose a sentence of death.

Accordingly, the Hurst violation in Morris’ case was harmless beyond a reasonable doubt. See id. Therefore, as in Davis, the Hurst violation here does not entitle Morris to a new penalty phase.

III. Conclusion

For the foregoing reasons, we affirm Morris’ convictions for first-degree murder and his sentences of death.

It is so ordered.

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.

CANADY, POLSTON, and LAWSON, JJ., concur as to the conviction and concur in result as to the sentence.

QUINCE, J., concurs in part and dissents in part with an opinion,

QUINCE, J.,

concurring in part and dissenting in part.

I agree with the majority’s decision to affirm Morris’s convictions of two counts of first-degree murder. I dissent, however, to the decision to affirm Morris’s sentences and would find that the Hurst error in this case was not harmless beyond a reasonable doubt. As I’ve stated previously, “[bjecause Hurst ‘requires a jury, not a judge, to find each fact necessary to impose a sentence of death,’ the error cannot be harmless where such a factual determination was not made.” Hall v. State, 212 So.3d 1001, 1037, 2017 WL 626509 at *24 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (quoting Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 619, 193 L.E.d.2d 504 (2016)); see also Truehill v. State, 211 So.3d 930, 961-62 (Fla. 2017).

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

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

      . This prospective juror was eventually stricken for cause.

      . We also conclude that Morris was not denied a fundamentally fair trial based on cumulative error. See Brooks v. State, 918 So.2d 181, 202 (Fla. 2005), receded from on other grounds by State v. Sturdivant, 94 So.3d 434, 437 (Fla. 2012); Jackson v. State, 575 So.2d 181, 189 (Fla. 1991).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James Armando CARD, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC17-453
    Supreme Court of Florida.
    [May 4, 2017]
    Original Proceeding—Habeas Corpus
    Leor Veleanu, Federal Community Defender,. Philadelphia, Pennsylvania; and Billy H. Ñolas, Chief, Capital Habeas Unit, Office • of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

James Armando Card petitions this Court for a writ of habeas corpus seeking relief under Hurst v. Florida (Hurst v. Florida), 136 S.Ct. 616 (2016), and Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016) petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

Card’s sentence of death, which his penalty phase jury recommended by a vote of eleven to one, became final when the United States Supreme Court denied Card’s petition for writ of certiorari on June 28, 2002. See Card v. State, 803 So.2d 613 (Fla. 2001) cert. denied Card v. Florida 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 845 (2002); see also Fla. R. Crim. P. 3.851(d)(1)(B). We have held that Hurst applies retroactively to “defendants whose sentences became final after the United States Supreme Court issued its opinion in Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)].” Mosley v. State, 209 So.3d 1248, 1276 (Fla. 2016). Thus, Hurst applies retroactively to Card, whose sentence became final four days after the United States Supreme Court issued its opinion in Ring.

Accordingly, we must determine whether the Hurst error in Card’s penalty phase proceeding was harmless beyond a reasonable doubt. “[I]n the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence.” Hurst, 202 So.3d at 68. As applied to the right to a jury trial with regard to the factual findings necessary to impose a sentence of death, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that each aggravating factor was proven beyond a reasonable doubt, that the aggravating factors were sufficient to impose death, and that the aggravating factors outweighed the mitigating circumstances. See id. at 44.

We conclude that the State cannot establish that the Hurst error in Card’s case was harmless beyond a reasonable doubt. In Card’s case, the jury did not unanimously make the requisite factual findings and did not unanimously recommend a sentence of death. Instead, the jury recommended the sentence of death by a vote of eleven to one. Card, 803 So.2d at 619. This Court has no way of knowing if the jury unanimously found each aggravating factor, whether the aggravating factors were sufficient to impose a death sentence, or whether the aggravating factors outweighed the mitigating circumstances. Further, this Court cannot speculate why the one juror who voted to recommend a sentence of life imprisonment determined that a sentence of death was not the appropriate punishment. Thus, we conclude that the Hurst error in Card’s case was not harmless. The petition for writ of ha-beas corpus is hereby granted. Accordingly, we vacate the death sentence and remand this matter to the circuit court for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, POLSTON, and LAWSON, JJ., dissent.


author: PER CURIAM. POLSTON, J.,

text:
    NORTH BROWARD HOSPITAL DISTRICT, etc., et al., Appellants, v. Susan KALITAN, Appellee.
    No. SC15-1858
    Supreme Court of Florida.
    June 8, 2017

      Mark Hicks and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida, for Appellants North Broward Hospital District d/b/a Broward General Medical Center, Rob Alexander, M.D., Edward Punzalan, CRNA and ANESCO North Broward, LLC
    Thomas A. Valdez and Jeffrey R. Creas-man of Quintarnos, Prieto, Wood & Boyer, P.A., Tampa, Florida, for Appellants Barry University, Inc., and Eleidy Miedes, SRNA
    Crane A. Johnstone and Scott P. Schlesinger of Schlesinger Law Offices, P.A., Fort Lauderdale, Florida; and Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Appellee
    Pamela Jo Bondi, Attorney General, arid Osvaldo Vazquez, Deputy Solicitor General, Tallahassee, Florida, for Amicus Curiae State of Florida'
    Mark K. Delegal and Tiffany A. Roddenberry of Holland & Knight LLP, Tallahassee, Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee, Florida, for Amici Curiae Florida Justice Reform Institute and Florida Hospital Association, Inc.,
    Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, Florida, for Amicus Curiae Florida Justice Association
   PER CURIAM.

This case is before the Court on appeal from a decision of the Fourth District Court of Appeal, North Broward Hospital District v. Kalitan, 174 So.3d 403 (Fla. 4th DCA 2015), which held section 766.118, Florida Statutes (2011), to be invalid. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm the Fourth District’s decision and hold that the caps on personal'injury non-economic damages in medical negligence actions provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution.

FACTS AND PROCEDURAL HISTORY

•This case arose after complications from carpal tunnel surgery, left appellee Susan Kalitan severely injured. After trial, Kali-tan’s noneconomic damages were capped by sections 766.118(2) and (3). Section 766.118(2) provides .that in a cause of action for personal injury arising from the medical negligence of practitioners, the noneconomic damages award shall not exceed $500,000 per claimant; however, if the negligence resulted in a permanent vegetative state or .death, or if the negli-gerice caused a catastrophic injury and a manifest injustice would occur unless increased damages are awarded, then damages may be awarded in an .amount up to $1 million; Section 766.118(3) similarly limits damages to $760,000 and $1.5 million, respectively, when the- injury results from the negligence of nonpractitioners. The Fourth District held that the statutory caps on noneconomic damage awards in personal injury medical malpractice actions are unconstitutional, relying on this Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), which held that the cap on wrongful death noneconomic damages provided in section 766.118 violates the Equal Protection Clause of the Florida Constitution. Art. I, § 2, Fla. Const.

The Fourth District presented the following facts of Kalitan’s injury and the ensuing medical malpractice lawsuit:

I. Background
In 2007, Plaintiff went to defendant North Broward Hospital District (“the Hospital”) for outpatient surgery to treat carpal tunnel syndrome in her wrist. The surgery required Plaintiff to be placed under general anesthesia....
During intubation, as part of the administration of anesthesia for Plaintiffs surgery, one of the tubes perforated Plaintiffs esophagus. Prior to the surgery and intubation, Plaintiff had no problems with her esophagus, nor did she complain of any bodily pain unassociated with her carpal tunnel....
When Plaintiff awoke in recovery, she complained of excruciating pain in her chest and back. The Anesthesiologist was notified, and, unaware of the perforated esophagus, he ordered the administration of a drug for the chest pain and concluded that there was no issue with Plaintiffs heart. Plaintiff was discharged from the hospital later that afternoon. Plaintiffs neighbor picked her up and drove her home.
The neighbor returned the next day to check on Plaintiff. Plaintiff was unre.sponsive, so the neighbor took her to the emergency room of a nearby - hospital. Upon diagnosis of the problem, Plaintiff was rushed into lifesaving surgery to repair her esophagus. Plaintiffs next memory was waking up in the intensive care unit after being in a drug-induced coma for several weeks. Plaintiff had additional surgeries and underwent intensive therapy to begin eating again and regain mobility. She. testified that she continues to suffer from pain throughout the upper half of her body and from serious mental disorders as a result of the traumatic incident and the loss of independence because of her body’s physical limitations following this incident.
II. Plaintiffs Medical Malpractice Lawsuit
Plaintiff filed a medical negligence action against Defendants. The issues at trial encompassed personal liability and vicarious liability for Plaintiffs injuries, as well as the extent of the injuries and whether they amounted to “catastrophic injury” under section 766.118(l)(a). At the end of Plaintiffs case, all parties moved for directed. verdict on various grounds. Primarily, Defendants contended that Plaintiff failed to meet the threshold for . a determination of catastrophic injury.... •
Ultimately, the trial court .decided to submit [ ] two highly contested issues to the jury as questions on the verdict form.... With regard to catastrophic injury, the jury was asked to determine whether Plaintiff suffered a “permanent impairment constituted by: either ... [sjpinal cord injury involving severe paralysis of an arm, a leg, or the trunk ... [or] [sjevere brain or closed-head injury evidenced by a severe episodic neurological disorder.”
... [T]he jury determined that Plaintiff suffered catastrophic injury in the form of a “[sjevere brain or closed-head injury evidenced by a severe episodic neurological disorder” and awarded Plaintiff $4,718,011 in total damages. The noneconomic damage awards were $2 million for past pain and suffering and $2 million for future pain and suffering.
Multiple post-trial motions were filed, with Defendants primarily challenging the jury’s finding of catastrophic injury by way of severe brain or closed-head injury. Defendants argued that there was no evidence in the record to support the jury’s finding of such an injury.... All motions challenging the finding of catastrophic injury [ ] were denied. The court also rejected Plaintiffs challenge that the section 766.118 caps on noneco-nomic damages in medical negligence actions were unconstitutional.
The trial court issued a written final judgment as to damages.... The court [ ] limited the noneconomic damage awards by the caps provided in section 766.118, Florida Statutes (2011), after applying the increased cap for the finding of catastrophic injury, because the court found that competent substantial evidence existed in the record to support a finding of catastrophic injury under the statutory definition as determined by the jury. As such, the noneconomic damages award of $4 million was reduced by close to $2 million by the “[ljimitation on noneconomic damages for negligence of practitioners” under section 766.118(2) and “[[limitation on noneconomic damages for negligence of nonpractitioner defendants” under section 766.118(3), Florida Statutes (2011). Furthermore, the noneconomic damages award was further reduced by about $1.3 million, as the Hospital’s share of liability was capped at $100,000 by virtue of the hospital’s status as a sovereign entity. § 768.28, Fla. Stat. (2007).

Kalitan, 174 So.3d at 405-07.

In its analysis with regard to Kalitan’s constitutional challenge to the caps, the Fourth District observed that a majority of this Court in McCall determined that the cap on wrongful death noneconomic damages under section 766.118 violates the right to equal protection guaranteed by article I, section 2, of the Florida Constitution. The district court described the facts of McCall and highlighted relevant portions of the plurality and concurring in result opinions regarding the arbitrariness of the cap and the lack of a legitimate government interest justifying the cap. Although the Fourth District recognized that the decision in McCall was limited to a determination that the cap on noneconomic damages is unconstitutional in the context of wrongful death actions, it observed that section 766.118 applies to both wrongful death and personal injury actions. Thus, the district court applied this Court’s rationale in McCall to the personal injury context, concluding that “McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional.” Id. at 405. Therefore, the Fourth District directed the trial court to reinstate the total damages award as found by the jury. This appeal followed.

STATUTORY PROVISION

The issue before this Court concerns the caps on personal injury noneconomic damages in medical negligence actions provided in section 766.118, which states:

(2) LIMITATION ON NONECO-NOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS.—
(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneco-nomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.
(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total non-economic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. In cases that do not involve death or permanent vegetative state, the patient injured by medical negligence may recover noneconomic damages not to' exceed $1 million if:
1. The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and
2. The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.
(c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.
(3) LIMITATION ON NONECO-NOMIC DAMAGES FOR NEGLIGENCE OF NONPRACTITIONER DEFENDANTS.—
(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of non-practitioners, regardless of the number of such nonpractitioner defendants, non-economic damages shall not exceed $750,000 per claimant.
(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total non-economic damages recoverable by such claimant from all nonpractitioner defendants under this paragraph shall not exceed $1.5 million. The patient injured by medical negligence of a nonpracti-tioner defendant may recover noneco-nomic damages not to exceed $1.5 million if:
1. The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and
2. The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.
(c) Nonpractitioner defendants are subject to the cap on noneconomic damages provided in this subsection regardless of the theory of liability, including vicarious liability.
(d) The total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate.

§§ 766.118(2), (3), Fla. Stat.

ESTATE OF MCCALL V. UNITED STATES

To determine the constitutionality of this statute, we first examine McCall, in which we held that the cap. on wrongful death noneconomic damages-provided in section 766.118 is unconstitutional. 134 So.3d at 897. The .case involved an action brought by the Estate of Michelle McCall, who died as a result of medical negligence following the birth of her son. In McCall, we addressed certified questions from the United States Court of Appeals for the Eleventh Circuit and considered whether the cap on wrongful death noneconomic damages violates the right to equal protection. The plurality opinion concluded that section 766.118 violates the Equal Protection Clause because the statutory cap “imposes unfair and illogical burdens on injured parties” and “does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.” Id. at 901.

In analyzing the arbitrary distinctions created by the statute, the plurality opinion concluded that the cap “irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is á single claimant/survivor ...” and that “under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses.” Id. at 901-02.

Additionally, the plurality opinion described how the cap on noneconomic damages’ arbitrarily discriminates between slightly and severely injured plaintiffs while benefitting the tortfeasor. The opinion presented the following hypothetical from the Supreme Court of Illinois:

In the first example ... three plaintiffs are injured as a result of the same tortfeasor’s negligence. Plaintiff A is injured moderately, and suffers pain, disability and disfigurement for a month. Plaintiff B is severely injured and suffers one year of pain and - disability. Plaintiff C is drastically injured, and suffers permanent pain and disability.,.. [I]t is further assumed’ that a jury awards plaintiffs A and B $100,000 in compensatory damages for noneco-nomic injuries. Plaintiff C receives $1 million for his permanent, lifelong pain and disability.
.. With respect to plaintiff C, [the challenged legislation] arbitrarily and automatically reduces the jury’s award for a lifetime of pain and disability, without regard to whether or not the verdict, before reduction, was reasonable and fair.
The tortfeasors in this example are also treated differently, without any justification. The tortfeasor who injures plaintiffs A and B is liable for the full amount of fairly assessed compensatory damages. In contrast, [the challenged legislation] confers a benefit on the similarly situated tortfeasor who injures plaintiff C. This tortfeasor pays only a portion of fairly assessed compensatory damages because of the limitation [on noneconomic damages]. Therefore, the statute discriminates between slightly and severely injured plaintiffs, and also between tortfeasors who .cause severe and moderate or minor injuries.

Id. at 902-03 (quoting Best v. Taylor Mach. Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057, 1075 (Ill. 1997)).

Based on this analysis, the plurality opinion stated:-

Section 766.118, Florida Statutes, has the effect of saving a modest amount for many by imposing devastating costs on a few—those who are the most grievously injured, those who sustain the greatest damage and loss, and multiple claimants for whom judicially determined noneco-nomic damages are subject to division and reduction simply based upon the existence of the cap. Under the Equal Protection Clause of the Florida Constitution, and guided by our decision in [St. Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla. 2000) ], we hold that to reduce damages in this fashion is not only arbitrary, but irrational, and we conclude that it “offends the fundamental notion of equal justice under the law.”

Id. at 903 (quoting Phillipe, 769 So.2d at 972).

The plurality opinion additionally, concluded that the cap on noneconomic damages “bears no rational relationship to a legitimate state objective, thereby failing the rational basis test.” Id, at 905. The Florida Legislature’s purpose in enacting the statute was to address the-, medical malpractice insurance crisis. See ch. 2003-416, § 1, Laws of Fla., at 4035. “The Legislature asserted that the increase in medical malpractice liability insurance premiums has resulted in physicians leaving Florida, retiring early from the practice of medicine,.or refusing to perform high-risk procedures, thereby limiting the availability of health care.” McCall, 134 So.3d at 906. Howeyer, the plurality opinion determined that the findings by the Legislature as to the existence of a medical malpractice crisis were not fully, supported by available data.

The plurality opinion then declared that even if the Legislature’s .-findings were true, “section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on non-economic damages and alleviation of the purported crisis.” Id. at 909, The opinion observed a lack of evidence establishing a direct correlation between caps and reduced malpractice premiums. Thus, it adopted the reasoning of the Texas Supreme Court, which addressed whether caps on damages would lower insurance premiums, observing: “[i]n the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” Id. at 912 (quoting Lucas v. United States, 757 S.W.2d 687, 691 (Tex. 1988)).

Furthermore, the plurality opinion asserted that even if there existed a medical malpractice crisis when the statute was enacted, “[cjoriditions can'change, which remove or negate the ■ justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation.” Id. at 913. After reviewing current data, the opinion declared that “no rational basis exists to justify continued application of the- noneconomic damages cap of section 766.118.” Id. Ultimately, the plurality opinion concluded that “the cap on noneconomic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members.” Id. at 914-15.

The concurring in result opinion agreed that “the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases- based on the number, of survivors lacks- a rational relationship to the goal of reducing medical ■ malpractice premiums.” Id. at 916 (Pariente, J., concurring in result). The concurring in result opinion observed .that “the only asserted legitimate State interest is the alleviation of rising medical malpractice insurance premiums paid by the affected ■ doctors.” Id. at 919 (Pariente, J., concurring in result). However, the opinion determined that “there is no mechanism in place to assure that savings are actually passed on from the insurance companies to the doctors.” Id. (Pariente, J., concurring in result) (citing plurality op. at 911-12 (Lewis, J.)). Moreover, the concurring in result opinion agreed that a legislative finding that there was a medical malpractice crisis does not establish a permanent condition because a statute may become constitutionally invalid due to changed conditions. M. at 920 (Pariente, J., concurring in result) (citing Mizrahi v. N. Miami Med. Ctr., Ltd., 761 So.2d 1040, 1043 (Fla. 2000) (Pariente, J., dissenting)). Thus, it concluded that there was no evidence of a continuing medical malpractice crisis that would justify the arbitrary application of the statutory cap in wrongful death cases. Id. at 921 (Par-iente, J., concurring in result).

We now consider the applicability of McCall to the personal injury context at issue in the present case.

EQUAL PROTECTION

“The determination of a statute’s constitutionality and the interpretation of a constitutional provision are both questions of law reviewed de novo.” Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So.3d 204, 209 (Fla. 2012) (quoting Fla. Dept. of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla. 2005)).

The Florida Constitution declares that “[a]ll natural persons, female and male alike, are equal before the law.” Art. I, § 2, Fla. Const. “The constitutional right of equal protection of the laws means that everyone is entitled to stand before the law on equal terms with, to enjoy the same rights as belong to, and to bear the same burden as are imposed upon others in a like situation.” Caldwell v. Mann, 157 Fla. 633, 26 So.2d 788, 790 (1946). “Unless a suspect class or fundamental right protected by the Florida Constitution is implicated by the challenged provision, the rational basis test will apply to evaluate an equal protection challenge.” McCall, 134 So.3d at 901. “To satisfy the rational basis test, a statute must bear a rational and reasonable relationship to a legitimate state objective, and it cannot be arbitrary or capriciously imposed.” Id. (citing Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So.2d 317, 319 (Fla. 1987)); see also Amerisure Ins. Co. v. State Farm Mut. Auto. Ins. Co., 897 So.2d 1287, 1290 n.2 (Fla. 2005). Where a challenger fails to meet this burden, the statute must be upheld. Fla. High Sch. Activities Ass’n, Inc. v. Thomas, 434 So.2d 306, 308 (Fla. 1983).

Here, we address whether sections 766.118(2) and 766.118(3) violate the right to equal protection guaranteed by the Florida Constitution. Kalitan is not a member of a suspect class; thus the rational basis test applies. Appellants argue that the statutory caps in single claimant personal injury actions are constitutional and that the Fourth District erred in determining that the reasoning in McCall controls. However, we disagree and hold that the caps in section 766,118 violate equal protection under the rational basis test because the arbitrary reduction of compensation without regard to the severity of the injury does not bear a rational relationship to the Legislature’s stated interest in addressing the medical malpractice crisis.

Arbitrariness of Classification

In McCall, we concluded that the cap on wrongful death noneconomic damages imposed by section 766.118 arbitrarily diminished noneconomic damage awards based on the number of survivors and lacked a rational relationship to addressing, the medical malpractice crisis. The Fourth District below determined that the reasoning in McCall mandated a holding that the statutory caps in section 766.118 were similarly unconstitutional in personal injury actions because the reasoning of the plurality and concurring in result opinions struck at the “underpinning of the Legislature’s cap on noneconomic damages in general.” Kalitan, 174 So.3d at 413. Based on the agreement between the plurality and concurring in result opinions in McCall that there is no evidence of a continuing medical malpractice crisis justifying the arbitrary application of the statutory cap, we reach the same conclusion with regard to the unconstitutionality of the caps in the present case.

After the plurality opinion in McCall presented the hypothetical describing discrimination between slightly and severely injured plaintiffs under a statutory provision, it observed that section 766.118 has the effect of saving a modest amount for many by imposing devastating costs on thé most grievously injured, and those who sustain the greatest damage and loss. McCall, 134 So.3d at 903. The plurality opinion concluded that reducing damages for the most grievously injured is “not only arbitrary, but irrational, and ... that it ‘offends the fundamental notion of equal justice under the law.’ ” Id. (quoting Phillipe, 769 So.2d at 972).

Like the hypothetical statutory provision discussed in McCall, sections 766.118(2) and (3) create a similar distinction between classes of medical malpractice victims, arbitrarily reducing the damages that may be awarded to the most drastically injured victims. Section 766.118(2) provides a cap of $500,000 in noneconomic damages to a plaintiff who suffers from a practitioner’s negligence and increases the cap to $1 million in the event of death, permanent vegetative state, or “catastrophic injury” where a manifest injustice would occur unless increased damages are awarded. Similarly, section 766.118(3)s provides a cap of $750,000 in noneconomic damages to a plaintiff who suffers from a nonpractitioner’s negligence and increases the cap to $1.5 million in the event of death, permanent vegetative state, or “catastrophic injury” where a manifest injustice would occur unless increased damages are awarded.

Notably, .ydthin the definition of “catastrophic injury,” in section 766.118(l)(a), the Legislature defined instances that range from amputation of a hand to severe brain or closed-head injury. Thus, sections 766.118(2) and (3) impose equal caps on noneconomic damages in instances where a plaintiff suffers a permanent vegetative state, unquestionably a more serious injury, as in instances where a plaintiff suffers the amputation of a hand, if a court determines a manifest injustice would occur unless increased damages are awarded. Consequently, sections 766.118(2) and (3) set forth the same problematic scheme that the plurality opinion in McCall agreed created arbitrary and invidious discrimination between claimants.

To illustrate this example, we examine the hypothetical recovery of noneconomic damages for plaintiffs A, B, and C under sections 766.118(2) and (3). Plaintiff A-suffers a moderate injury; therefore recovery is capped at $600,000 if caused by a practitioner and $750,000 if caused by a nonprac-titioner. Plaintiff B suffers a statutorily defined “catastrophic injury,” such as the loss of a hand; therefore recovery may be capped at $1 million if caused by a practitioner and $1.5 million if caused by a non-practitionér. Plaintiff C suffers a drastic injury, such as a permanent vegetative state; therefore recovery is capped at $1 million if caused by á practitioner and $1.5 million if caúsed by a nonpractitioner. Under these circumstances, plaintiff A has the best chance of being fully compensated, plaintiff B may have a chance of being fully compensated, and plaintiff C has utterly no chance of being fully compensated. Clearly, under sections 766.118(2) and (3), plaintiff C’s damages award is arbitrarily diminished, even though plaintiff C has suffered the most grievous injury.

The caps under section 766.118 do not pass the rational basis test.because “[i]n the context of persons catastrophically-.injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” McCall, 134 So.3d at 912 (quoting Lucas, 757 S.W.2d at 691). Moreover, we “fail to see how singling out the most seriously injured medical malpractice victims for less than full recovery bears any rational relationship to the Legislature’s stated goal of alleviating the financial crisis in the medical liability insurance industry.” Univ. of Miami v. Echarte, 618 So.2d 189, 198 (Fla. 1993) (Barkett, C.J., dissenting). Therefore, we agree with the Fourth District’s conclusion: . .

So long as the caps discriminate between classes of medical malpractice victims, as they do in the personal injury context (where the claimants with little noneconomic damage can be awarded all of their damages, in contrast to those claimants whose .noneconomic damages are deemed to exceed the levei to which the caps apply), they are rendered unconstitutional by McCall.

Kalitan, 174 So.3d at 413.

Accordingly, we conclude that the statutory caps ⅛.section 766.118 unreasonably and arbitrarily, limit recovery of those most grievously injured by medical negligence.

Rational Relationship to Legitimate State Objective

Although we conclude the arbitrary caps are not rationally related to alleviating, the purported medical malpractice crisis, we nonetheless consider the legitimacy of the asserted state objective. In enacting section 766.118, the Florida Legislature found 'that “Florida [was] in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch. 2003-416, § 1, Laws of Fla., at 4035. However, in McCall, we observed a lack of evidence demonstrating how the statutory cap alleviated this crisis, and thus determined that the cap failed the rational basis test. The plurality opinion cited evidence that showed an increase in income for insurance companies, yet declared that “[r]eports have failed to establish a direct correlation between damage caps and reduced medical malpractice premiums” that were intended to reduce instances of doctors leaving Florida, retiring early, or refusing to perform. high risk procedures. McCall, 134 So.3d at 910. The concurring in result opinion reiterated the plurality’s observation that there is no mechanism in place to assure that savings are passed on from the insurance companies to the doctors in accordance with the stated purpose of alleviating the rising premiums. Id. at 919 (Par-iente, J., concurring in result).

Furthermore, in McCall, we determined that even if the damages cap were rationally related to a legitimate government purpose when the statute was enacted, there is no evidence of a continuing crisis that would justify the arbitrary application of the statutory cap. Both the plurality and concurring in result opinions recognized that “[a] statute may be constitutionally valid when enacted'but may become constitutionally invalid because of changes in the conditions to which the statute applies,” Id. at 913 (quoting Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 284 Wis.2d 573, 701 N.W.2d 440, 468 (2005)); see also id. at 920 (Pariente, j., concurring in result) (quoting Mizrahi, 761 So.2d at 1043 (Pariente, J., dissenting)). Moreover, the plurality opinion observed that “[a] law' depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.” McCall, 134 So.3d at 913 (quoting Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-48, 44 S.Ct. 405, 68 L.Ed. 841 (1924)). The plurality opinion explained: “even if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided. No rational basis currently exists (if it ever existed) between the cap- imposed by section 766.118 and any legitimate state purpose.” Id. at 914. The concurring in result opinion agreed that there is no evidence of a continuing medical malpractice crisis that would justify the arbitrary reduction of damages. Id. at 921 (Pariente, J., concurring in result). Consequently, we approve the Fourth District’s conclusion: “Because addressing the medical malpractice crisis was the Legislature’s stated objective when passing section 766.118, if the objective no longer exists, then there is no longer a ‘legitimate state objective’ .to which the caps could ‘rationally and reasonably relate.’ ” Kalitan, 174 So.3d at 411.

We note that Kalitan’s reliance on McCall to establish that the statutory caps failed the rational basis test satisfied her burden of proving that the statute is not rationally related to a legitimate government interest. Accordingly, we hold that the arbitrary caps on personal injury non-economic damages in sections 766.118(2) and (3) bear no rational relationship to a legitimate government interest.

CONCLUSION

We conclude that the caps .on noneco-nomic damages in sections 766.118(2) and (3) arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries. We further conclude that because there is no evidence of á continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution.

Accordingly, we affirm the Fourth District’s decision, and remand to the district court for further proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ., concur.

POLSTON, J.,

dissenting.

Just as I dissented to the erroneous plurality and concurring in result decisions in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), I dissent to the majority’s decision in this case. The majority continues to disregard our precedent’s rational basis standard as well as the Legislature’s policymaking role in our constitutional system. Under a proper rational basis analysis, the cap on noneconomic damages in section 766.118, Florida Statutes, easily passes constitutional muster.

The Florida Constitution guarantees that “[a]ll natural persons, female and male alike, are equal before the law.” Art. I, § 2, Fla. Const. Our precedent has interpreted this provision consistently with interpretations of the equal protection clause in the federal constitution. See, e.g., Duncan v. Moore, 754 So.2d 708, 712 (Fla. 2000). And because the classification alleged in this case does not involve a protected class or a fundamental right, this Court must employ the rational basis test. Id.

“Under a ‘rational basis’ standard of review a court should inquire only whether it is conceivable that the regulatory classification bears some rational relationship to a legitimate state purpose.” Fla. High Sch. Activities Ass’n v. Thomas, 434 So.2d 306, 308 (Fla. 1983). “The burden is upon the party challenging the statute or regulation to show that there is no conceivable factual predicate which would rationally support the classification under attack.” Id. Furthermore, under the rational basis test, “[i]t is not the court’s function to determine whether the legislation achieves its intended goal in the best manner possible, but only whether the goal is legitimate and the means to achieve it are rationally related to the goal.” Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cty., 496 So.2d 930, 938 (Fla. 4th DCA 1986).

Here, when enacting the noneconomic damages cap in section 766.118, the Legislature found that Florida’s medical malpractice crisis “threatens the quality and availability of health care for all Florida citizens,” that the “cost of medical malpractice insurance has increased dramatically during the past decade,” and that “both the increase and the current cost are substantially higher than the national average.” Ch. 2003-416, at § 1, Laws of Fla. The Florida Legislature concluded that physicians are forced “to practice medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine.” Id. The Florida Legislature also found that “there are certain elements of damage presently recoverable that have no monetary value, except on a purely arbitrary basis, while other elements of damage are either easily measured on a monetary basis or reflect ultimate monetary loss” and that “the high cost of medical malpractice claims can be substantially alleviated by imposing a limitation on noneconomic damages in medical malpractice actions.” Id.

No one disputes that increasing the availability, quality, and affordability of healthcare in Florida constitutes a legitimate state interest. This Court also has acknowledged that a medical malpractice insurance crisis constitutes a legitimate state interest under the rational basis test. See Mizrahi v. N. Miami Med. Ctr., Ltd., 761 So.2d 1040, 1042 n.3 (Fla. 2000); Univ. of Miami v. Echarte, 618 So.2d 189, 196-97 (Fla. 1993). Furthermore, the Legislature’s policy choice of a cap on noneconomic damages is rationally related to these legitimate state interests because “limiting claims, that may be advanced by some claimants would proportionally limit claims made overall and would directly affect the cost of providing health care by making it less expensive and more accessible.” Mizrahi, 761 So.2d at 1043. Therefore, applying the proper rational basis test, it is clear that the statutory cap does not violate Florida’s guarantee of equal protection.

Importantly, under the proper rational basis test, it is immaterial that the majority of this Court disagrees with the Legislature’s evidence regarding whether there was (or currently is) a medical malpractice crisis in Florida. It is also immaterial that a majority of this Court questions whether the Legislature’s policy choice of enacting a cap on noneconomic damages has resulted in insurance companies passing along savings to their physician customers.

Instead, under the rational basis test, “[t]he burden is upon the party challenging the statute ... to show that there is no conceivable factual predicate which would rationally support the classification under attack.” Fla. High Sch. Activities Ass’n, 434 So.2d at 308. In fact, “a legislative choice is not subject to courtroom fact-finding and may be based on rational spec-ulatiqn unsupported by evidence or empirical data.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). “A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Thus, under the dictates of the rational basis test, if we can conceive of a possible factual predicate that provides a rational basis in furtherance of a legitimate state interest, the statute does not violate the constitutional guarantee of equal protection.

Applying the proper rational basis standard, as I explained in my dissent in McCall,'

the Florida Legislature could have rationally believed that the cap on noneco-nomic damages under section 766.118(2)(b) would reduce malpractice damage awards, which would thereby increase predictability in the medical malpractice insurance market and lead to reduced- insurance premiums. Then, as a result of decreased insurance premiums, physicians would be more willing to stay in Florida and perform high-risk procedures at a lower cost to Floridians.

134 So.3d at 930 (Polston, J., dissenting) (footnote omitted); see also M.D. v. United States, 745 F.Supp.2d 1274, 1281 (M.D. Fla. 2010) (“A cap applicable to each occurrence, in cooperation with caps individually applicable to each claimant, reduces damage awards as a matter of mathematical certainty, enhances needed predictability, places a calculable limit on the exposure of healthcare and insurance providers, reduces malpractice insurance premiums, and promotes the availability of quality healthcare.”). Additionally, “the Legislature simply may have felt that it was fairer to malpractice plaintiffs in general to reduce only the very large noneconomic damage awards, rather than to diminish the more modest recoveries for pain and suffering and the like in the great bulk of cases.” Fein v. Permanente Med. Grp., 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, 683 (1985); see also Smith v. Botsford Gen. Hosp., 419 F.3d 513, 520 (6th Cir. 2005) (“By limiting at least one component of health care costs, the noneconomic damages limitation is rationally related to its intended purpose..” (quoting Zdrojewski v. Murphy, 254 Mich.App. 50, 657 N.W.2d 721, 739 (2002))); Boyd v. Bulala, 877 F.2d 1191, 1197 (4th Cir. 1989) (holding that statutory cap on all damages, including noneconomic damages, does not violate equal protection because it “bears a reasonable relation to a valid legislative purpose—the maintenance of adequate health care services in the Commonwealth of Virginia”); Davis v. Omitowoju, 883 F.2d 1155, 1158 (3d Cir. 1989) (“Clearly[,j the Virgin Island’s decision to curb, through legislation, the high costs of malpractice insurance and thereby promote quality medical care to the residents of the islands, provides- a rational basis for capping the amount of damages that can be awarded a plaintiff.”); Lucas v. United States, 807 F.2d 414, 422 (5th Cir. 1986) (“Lucas has failed to convince us that there is no reasonable basis for the Texas legislature to conclude that this ceiling, on recovery ... is not conceivably related to the availability and cost of malpractice insurance and that such insurance and the distribution of medical care in Texas are not conceivably linked.”); Hoffman v. United States, 767 F.2d 1431, 1437 (9th Cir. 1985) (“It was reasonable for the lawmakers to believe that placing a ceiling on noneco-nomic damages would help reduce malpractice insurance premiums”).

Accordingly, the cap on noneconomic damages in medical malpractice actions is rationally related to the .legitimate state interest of increasing the .affordability, availability, and quality of medical care in Florida. Therefore, under the proper rational basis test that our long-standing precedent requires, the cap in section 766.118 passes constitutional, muster.

Moreover, as I explained in my dissent in McCall, the statutory “limitations on noneconomic damages are part of an overall legislative plan enacted in 2003 to address the rising costs of medical liability insurance and the affordability and availability of healthcare in Florida[:]”

Other components of the plan include new healthcare facilities regulations, insurance regulation, license requirements, and agency requirements. [See ch. 2003-416, Laws'of Fla.]
The legislative effort began with the convening of the House Select Committee on Medical Liability Insurance, which “conducted an inquiry into the possible causes and potential solutions to the vexing problems associated with the availability of medical liability insurance in Florida.” Fla. H. Select Comm. on Med. Liab. Ins., Select Comm, on Med. Liab. Ins. Rep., at 2 (March 2003) (available at Fla. Dept. of State, Fla. State Archives, Tallahassee, Fla.). The Select Committee examined “how the reduced availability of affordable medical liability insurance affects the availability of medical services” and was “mindful of the need to maintain the right of access to redress when citizens are harmed during the delivery of medical services.” Id. at 3. The Select Committee held a series of meetings in Tallahassee, held four hearings outside the capital, and published an 82 page report (not including appendices). Id. It “received testimony from experts in each of the professional areas impacted” and reviewed records from efforts to address 'prior crises. Id. at 4: The Select Committee also reviewed the record of the Governor’s Select Task Force on Health Care Professional Liability Insurance, which produced a “345 page report as well as thirteen volumes of supportive materials.” Id. at 9. The Governor’s Task Force “undertook a comprehensive review of published studies and relevant literature” and held ten meetings at which it received extensive testimony and information. Gov.’s Select Task Force on Healthcare Prof. Liab. Ins., Gov.’s Task Force on Healthcare Prof. Liab. Ins, Rep., at 3, iv (2003).

134 So.3d at 924-25 (Polston, J., dissenting).

The majority just discards and ignores all of the Legislature’s work and fact-finding. But, under our constitutional system, it is the Legislature, not this Court, that is entitled to make laws as a matter of policy based upon the facts it finds. See art. II, § 3, Fla. Const.; art. Ill, § 1, Fla. Const. It is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida Statutes should be amended accordingly. For a majority of this Court to decide that a crisis no longer exists, if it ever existed, so it can essentially change a statute and policy it dislikes, improperly interjects the judiciary into a legislative function.

I respectfully dissent.

CANADY and LAWSON, JJ., concur.

      . Because our conclusion regarding the invalidity of section 766.118 is dispositive,- we find it unnecessary to address the remaining constitutional challenges. Additionally, we decline to reach the issues raised by the parties that do not fall under this Court’s mandatory jurisdiction.

      . While this case was pending, the Second District Court of Appeal issued Port Charlotte HMA, LLC v. Suarez, 210 So.3d 187 (Fla. 2d DCA 2016), in which it agreed with the Fourth District's conclusion that the statutory caps on personal injury noneconomic damages are unconstitutional.

      .Section 766.118(l)(a) defines “catastrophic injury" as:
      [A] permanent impairment constituted by:
      1. Spinal cord injury involving severe paralysis of ah arm, a leg, or the trunk;
      2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
      3. Severe brain or closed-head injury as evidenced by:
      a. Severe sensory or motor disturbances;
      b. Severe communication disturbances;
      c. Severe complex integrated disturbances of cerebral function;
      d. Severe episodic neurological disorders; or
      e.Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subpara-graphs a.-d.;
      4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns.of 5 percent or more to the face and hands;
      5. Blindness, defined as a complete and total loss of vision; or
      6. Loss of reproductive organs which results in an inability to procreate.
      § 766.118(l)(a), Fla. Stat.

      . While in Echarte this Court upheld the constitutionality of a noneconomic damages cap in medical malpractice arbitration proceedings, the dissenting opinion’s discussion of the equal protection issue regarding the statute’s creation of two classifications of medical malpractice victims proves insightful under the facts at issue.


text:
    Michael Joe MCCOY, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-1316
    Supreme Court of Florida.
    June 8, 2017
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the First District Court of Appeal in McCoy v. State, 194 So.3d 1058 (Fla. 1st DCA 2016), which was certified to be in direct conflict with the decision of the Fifth District Court of Appeal in Thomas v. State, 91 So.3d 880 (Fla. 5th DCA 2012), See art. V, § 3(b)(4), Fla. Const. Having considered the First District’s opinion and the briefs of the parties, upon further review, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss review.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.


text:
    Jeffrey D. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-451
    Supreme Court of Florida.
    June 8, 2017

      Kevin Alvarez of the Law Office of Kevin Alvarez P.A., Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, and Robert “Charlie” Lee, Assistant Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

We initially accepted discretionary review of the decision in State v. Williams, 184 So.3d 1205 (Fla. 1st DCA 2016). Upon further consideration, we exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss this review proceeding.

It is so ordered.

No motion for rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d)(2).

LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., dissents.


author: Kuntz, J.

text:
    Mikeara L. HAUGABOOK, Petitioner, v. Melissa JEFFCOAT-HULTBERG, Respondent.
    No. 4D16-2951
    District Court of Appeal of Florida, Fourth District.
    [December 22, 2016]
    Andrea J. White of Florida Rural Legal Services, Inc., Fort Pierce, for petitioner.
    Melissa Jeffcoat-Hultberg, Adairsville, Georgia, pro se.
   Kuntz, J.

The mother appeals the court’s denial of a verified petition for emergency child pick-up and return to the State of Florida. We treat this as a petition for a writ of certiorari, grant the petition, and quash the court’s order.

Background

Generally, the facts are undisputed. The child has lived in Florida since birth and has been in the custody of the mother his entire life. The mother dropped the child off at the child’s paternal great-grandmother’s in April 2016, with an agreement that she would pick up the child on June 17, 2016. On the day before the scheduled pickup, the father picked up the child and brought the child to his cousin in Georgia. On July 1, 2016, the father’s cousin, the respondent in this proceeding, filed a dependency action in the State of Georgia. Two weeks after the initiation of the- Georgia proceeding, the mother filed a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit and the verified petition at issue in this appeal.

On July 28, 2016, the court entered the order denying the petition. The court’s order stated that it had conferred with “the Honorable Kristy Treadaway, presiding judge in the aforementioned Georgia juvenile proceeding, who advised the pending juvenile action is in .the nature of a dependency case, such action having been filed July 1, 2016.” The order concluded by stating “[t]hat the Verified Petition for Emergency Child PickUp Order is DENIED, This Court reserves concurrent jurisdiction of this cause for all legal and proper-purposes.” This petition follows. '

Analysis

The mother timely appealed the court’s order; however, we treat the appeal as a petition for writ of certiorari. Hirvonen v. Filsinger, 866 So.2d 1273, 1275 (Fla. 4th DCA 2004) (denying petition after concluding that the Florida court properly exercised jurisdiction under the UCCJEA); Karam v. Karam, 6 So.3d 87, 90 (Fla. 3d DCA 2009) (granting petition for certiorari and quashing order).

The UCCJEA controls inter-state custody disputes. The UCCJEA is substantially similar in both Florida and Georgia and provides that jurisdiction to determine custody matters is generally limited to the “home state” of the child, § 61.514, Fla. Stat. (2016); Ga. Code § 19-9-61 (2016), defined as “the state in which a child lived with a parent or a person acting as, a parent for at least 6 consecutive months immediately before the commencement of a' child custody proceeding.” § 61.503(7), Fla. Stat. (2016); Ga. Code § 19-9-41(7) (2016). The six-month provision “protects a parent such as [the mother here], whose children have been removed from the home state .'.., by insuring that the stay-at-home parent may institute proceedings in his own state rather than being forced to pursue the fleeing parent and the child in another state.” Hickey v. Baxter, 461 So.2d 1364, 1368 (Fla. 1st DCA 1984).

In this case, there is no dispute that the “home state” is Florida. The child has lived in Florida since birth and the record does not provide an indication of any connection to Georgia until the child was taken there by a person other than his custodial parent. Further, in her answer brief, the respondent states that she “filed a Private Dependency Petition in Georgia based on Florida statutes § 61.517(1) and Georgia Code § 19-9-64.” Those two statutory provisions provide “temporary emergency jurisdiction” to the courts in each state, and are only applicable if the state where jurisdiction is invoked is not the home state.

The temporary emergency jurisdiction is applicable where “the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child," or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” § 61.517(1), Fla. Stat. (2016); Ga. Code § 19-9-64 (2016). Similar to Florida, the Georgia Supreme Court has explained that this provision “authorizes temporary emergency jurisdiction only ‘if the child is present in this state and the chilcl has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.’ ” Jackson v. Sanomi, 292 Ga. 888, 742 S.E.2d 717, 718 (2013) (quoting Ga. Code § 19-9-64 (2012)).

We have also explained; that the UC-CJEA provides that “a court with jurisdiction over a custody cause may decline to exercise that jurisdiction if the court ‘determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.’ ” K.I. v. Dep’t of Children & Families, 70 So.3d 749, 753 (Fla. 4th DCA 2011) (quoting § 61.520(1), Fla. Stat. (2010)). However, an order declining to exercise jurisdiction requires the court to .follow specific statutory' procedures and consider^ ations. Id..

One of the statutory considerations is that when a court of this state decides to communicate ■ with the court of another state, “[t]he court shall allow the parties to participate in the communication. If the parties elect to participate in the communication, they must be given the opportunity to present facts and legal • arguments before a decision on jurisdiction is made.” § ■61.511(2), Fla. Stat. (2016). Further, the statute states that “a record must be made of a communication under this section. The parties must be informed promptly .of the communication and granted access to the record.” § 61.511(4), Fla. Stat. (2Q16). Finally, the statute states that the “term ‘record’ means a form of information, including, but not limited to, an electronic recording or transcription by a court reporter which creates a verbatim memorial-ization of any communication between, two or, more individuals or entities.” § 61.511(5), Fla. Stat. (2016).

In this case, thé mother filed a'-motion specifically requesting that the court communicate with the Georgia court. In.that motion, she did not ask to be present during the communication but requested “that there be a written or electronic recording of the communication between courts.” Based upon the record before us, the court did not keep a record as requested by the mother and mandated by the statute.

We have previously held that the failure to allow a party to participate in the communication with a court in another state .requires reversal. K.I., 70 So.3d at 753-754; Poliandro v. Springer, 899 So.2d 441, 444 (Fla. 4th DCA 2005). The failure to maintain a record of communications with the .courts of a .sister state, as mandated by section. 61.511, Florida Statutes (2016), requires the same result.

Conclusion

We grant the petition and quash the order. We remand to allow the Florida court to communicate with' the Georgia court after giving notice to the parties .and to keep a récord of the communication in the manner required by the statute.' Further, if the court determines that it should decline to exercise its home state jurisdiction, the court’s order must contain factual findings that satisfy the requirements of the statute. K.I., 70 So.3d at 753-54; Poliandro, 899 So.2d at 444.

, ‘ Petition for writ of certiorari granted; order quashed.

Ciklin, C.J., and May, J., concur.