text:
    Hailey A. NEVILLE, Mother, Appellant, v. Ryan A. MCKIBBEN, Father, Appellee.
    CASE NO. 1D16-3158
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017

      Clark H. Henderson of Campbell & Henderson, PLLC, Shalimar, for Appellant.
    E. Jane Brehany, Pensacola, for Appel-lee.
   PER CURIAM.

Hailey A. Neville, the Mother, challenges the final judgment: 1) awarding ultimate decision-making authority regarding the minor child to Ryan A. McKibben, the Father; 2) establishing a 50/50 time-sharing schedule; 3) changing the minor child’s legal surname to that of McKibben; 4) ordering use of McKibben’s address for school designation purposes; and 5) for failure to address a request for reimbursement of half of past medical and childcare expenses. As grounds, Neville argues the trial court abused its discretion as the final judgment is not supported by competent, substantial evidence, nor does it satisfy the statutory requirements for custody determinations under section 61.13, Florida Statutes (2015). We agree in part and reverse to the extent provided below.

Ultimate Decision-Making Authority

We first address the trial court’s award of ultimate decision-making authority to McKibben “in all matters pertaining to the child.” Neville argues this determination is not supported by competent, substantial evidence and contravenes the statutory goal of shared parental responsibility. We agree.

Trial courts must order shared parental responsibility unless the court finds it would be detrimental to the child. § 61.13(2)(c)2., Fla. Stat. (2015). Shared parental responsibility “contemplates that the parties will mutually confer on major decisions. (e.g., medical, religious, educational) affecting the child’s welfare and will reach agreement.” Smith v. Smith, 971 So.2d 191, 195 (Fla. 1st DCA 2007). If it is in a child’s best interest, the court may award ultimate decision-making authority over specific aspects of the child’s welfare to just one parent. § 61.13(2)(c)2.a., Fla. Stat. (2015). However, “a blanket, nonspecific award of ‘ultimate responsibility’ is contrary to the statutory concept of shared parental responsibility.” Wheeler v. Wheeler, 501 So.2d 729, 729 (Fla. 1st DCA 1987); see also Fazzaro v. Fazzaro, 110 So.3d 49, 51 (Fla. 2d DCA 2013).

In support of its blanket award of ultimate decision-making authority to McKibben, the trial court characterized a number of Neville’s parenting choices as dangerous and contrary to normal medical care. Specifically, the trial court questioned Neville’s decisions regarding the child’s immunization schedule, chiropractic care, Neville’s co-sleeping with the child, the duration of breastfeeding, and the use of amber bead necklaces for teething pain. While the trial court’s concerns were sincerely held, no competent, substantial evidence was introduced to support the trial court’s findings that Ne-ville’s parenting decisions were dangerous or contrary to normal medical care.

Time Sharing & Address for School Designation'

There is no abuse of discretion where reasonable persons could differ as to the trial court’s ruling. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). Additionally, there is no statutory requirement that a trial court engage in a discussion as to each of the factors of section 61.13, Florida Statutes. Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003); Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998). However, the trial court must find, at a minimum, that its custody determination is in the best interests of the child. Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002). Although the final judgment did not include the magic words “best interests of the child,” a plain reading confirms the trial court tracked the factors of section 61.13 in'its determination of timesharing and the address for school designation. As competent, substantial evidence exists to support the trial court’s award of 50/50 timesharing and school address designation, it must be affirmed on appeal.

Legal Surname

The standard of review regarding a change in a child’s surname is abuse of discretion. Airsman v. Airsman, 179 So.3d 342, 343 (Fla. 2d DCA 2015). A name change is proper “only where the record affirmatively shows that such change is required for the welfare of the minor.” Collinsworth v. O’Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987) (quoting Lazow v. Lazow, 147 So.2d 12, 13 (Fla. 3d DCA 1962)). If only conclusory assertions are provided in the record, “the issue should ordinarily be resolved against the party having the burden of proof, the proponent of change.” Collinsworth, 508 So.2d at 747; Bardin v. State, Dep’t of Revenue, 720 So.2d 609, 610 (Fla. 1st DCA 1998). A name change may not be based solely on a finding of paternity. Hutcheson v. Taylor, 43 So.3d 921, 922 (Fla. 1st DCA 2010) (citing Bardin, 720 So.2d at 612).

The only evidence presented by McKibben in support of a change in the legal surname of the child was his own testimony, which was self-serving. McKib-ben requests the name change solely to “carry on” his family name. At the hearing, Neville confirmed her desire that the minor child maintain the legal name listed on his birth certificate, her last name, as she has been the primary caregiver since his birth. The trial court changed the minor child’s name, finding, “[T]he ultimate decision authority regarding medical, educational, and health related needs and extracurricular activities and daycare/after-school care for the child shall be with the Petitioner [McKibben]. For this reason it would be more convenient for [McKibben] and the child’s last name to be the same.” However, claims of convenience are not sufficient to support a name change. Airsman, 179 So.3d at 345.

Accordingly, we reverse this aspect of the final judgment and remand with directions for the trial court to enter an order restoring the child’s surname to that of Neville.

Reimbursement of Daycare and Medical Expenses

The last issue raised by Neville is whether the trial court erred in failing, to address reimbursement for daycare and uncovered medical and' dental expenses. We answer this question in the affirmative and remand for further proceedings.

In the final judgment, the trial court addressed child support arrearages, but not daycare or uncovered medical and dental expenses. The temporary order entered on December 11, 2015, required all reasonable medical, dental, optical and orthodontic expenses of the minor child iiot covered under insurance, to be equally paid by the parties, as well as daycare expenses. The trial court failed to address Neville’s claims of. unpaid medical and daycare .expenses raised in her Motion for Contempt, which arose from the temporary order. This issue was ripe for adjudication because “once a court enters a final judgment, temporary support orders.are no longer enforceable unless a claim for arrearages is addressed in the final judgment or the court reserves jurisdiction to consider the claim.” Conte v. Conte, 858 So.2d 1165, 1166 (Fla. 2d DCA 2003). In ruling on this matter, this Court is not commenting on the strength of the evidence submitted, but only with respect to whether the matter was resolved as part of the final judgment issued by the trial court. We find it was not; therefore, the. matter is reversed and remanded for reconsideration of the issues.

AFFIRMED in part, REVERSED in part, and REMANDED with' instructions.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


source: Caselaw Access Project

author: JAY, J.

license: Public Domain

text:
    Lynwood and Myrtle VIVERETTE, Appellants, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    CASE NO. 1D17-0618
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.

      Charles S. Stratton and Joshua S. Strat-ton of Broad and Cassel LLP, Tallahassee, for Appellants.
    Marc Peoples, Assistant General Counsel, Department of Transportation,. Tallahassee, for Appellee;
   JAY, J.

Appellants, Lynwood and Myrtle Viver-ette, challenge an order granting a petition filed by the Department of Transportation (“the Department”) to condemn a portion of their property through eminent domain. Appellants raise two issues for our consideration. We find only one has merit. The Department’s petition was defective because the authorizing resolution attached to the petition referenced out-of-date right-of-way maps that did not reflect the parcel of appellants’ land the Department sought to condemn. Due to this defect in the petition, we reverse.

I. Facts

In February 2016, the Department filed a petition to condemn a portion of appellants’ property referred to as parcel 121. The Department attached to its petition a “project resolution” and a “parcel resolution.” The project resolution authorized a road-widening project. It stated that the Department had prepared right-of-way maps reflecting the project, which were “adopted as the official Right of Way maps” for the project. The project resolution was dated December 2014. Also attached to the petition was a parcel resolution, which listed the specific parcels of land the Department deemed necessary for the completion of the project, including parcel 121.

The circuit court denied the petition, finding the Department failed to show that it needed to condemn the entirety of parcel 121. Therefore, in November 2016, the Department filed a second petition seeking to condemn a smaller portion of appellants’ property, referenced as parcel 121R. The second petition attached an updated parcel resolution reflecting parcel 121R, but retained, as an additional attachment, the original 2014 project resolution.

Appellants argued that the second petition was also defective because the Department attached the 2014 project resolution, which adopted the now out-of-date right-of-way maps reflecting parcel 121, not parcel 121R. They argued the Department should have attached an updated project resolution adopting the current right-of-way maps. The trial court rejected this argument and granted the petition.

II. Analysis

The Florida Constitution prohibits the taking of private property “except for a public purpose and with full compensation.” Art. X, § 6(a), Fla. Const. Section 73.021, Florida Statutes (2016), provides in pertinent part:

Those having the right to exercise the power of eminent domain may file a petition ... which ... shall set forth:
(1) The authority under which and the public use or purpose for which the property is to be acquired, and that the property is necessary for that public use or purpose; [and]
(2) A description identifying the property sought to be acquired ....

Section 73.021 “must be strictly construed in favor of the landowner and ... substantial compliance with its provisions is required to sustain a petition for condemnation” because eminent domain “ ‘is one of the most harsh proceedings known to the law.’ ” Tosohatchee Game Preserve, Inc. v. Cent. & S. Fla. Flood Control Dist., 265 So.2d 681, 683 (Fla. 1972) (quoting P[e]avy-Wilson Lumber Co. v. Brevard Cty., 159 Fla. 311, 31 So.2d 483 (1947)). “Nothing short of a petition which adheres to the statutory guidelines will commence condemnation proceedings under chapter 73.” Dep’t of Envtl. Prot. v. Gibbins, 696 So.2d 888, 890 (Fla. 5th DCA 1997).

In Tosohatchee, the Florida Supreme Court interpreted section 73.021 as requiring that “a petition in condemnation must be accompanied by an authorizing resolution (where one is required) adopted prior to the initiation of eminent domain proceedings.” 265 So.2d at 684. The supreme court reasoned that “[t]o permit the condemning authority to adopt a resolution authorizing condemnation after initiating proceedings in court would, in our view, frustrate the purpose intended to be served by orderly procedure in an eminent domain action.” Id. “If an agency cannot condemn without first resolving to do so through its governing board, it • is the height of frivolity for such agency to initiate court action against the landowner before adoption of an authorizing resolution. No other purpose than harassment is served by such a practice.” Id.

As part of the Tosohatchee analysis, a trial court is “required to consider any exhibit attached to, or incorporated” into a condemning authority’s petition. Bott v. City of Marathon, 949 So.2d 295, 296 (Fla. 3d DCA 2007). Any attached exhibit is controlling, and if the allegations of the petition are contradicted by the exhibit, the “plain meaning” of the exhibit prevails. Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994). Stated another way, any inconsistency between the pleading and the attached exhibit has the effect of “neutralizing” the allegations of the petition, rendering the pleading deficient. Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736, 736-37 (Fla. 3d DCA 1971).

Because the 2014 project resolution was attached to the Department’s second petition, the resolution became an integral part of the pleading'“for all purposes.” See Fladell v. Palm Beach Cty. Canvassing Bd., 772 So.2d 1240, 1242 (Fla. 2000). The project resolution adopted the original right-of-way maps, which were outdated and did not reflect the portion of appellants’ land the Department currently seeks to condemn. Because “[a] defective petition will not allow a landowner’s property to be taken,” City of Ocala v. Red Oak Farm, Inc., 636 So.2d 81, 83 (Fla. 5th DCA 1994), and because the 2014 resolution could not authorize the acquisition of a parcel that was not drawn up until 2016, the Department’s petition should have been dismissed.

We next consider the connected question of whether the Department can cure the pleading defect by requesting leave to file an amended petition or whether the pleading requirements of section 73.021 aré jurisdictional. If the latter were true, the trial court would be divested of jurisdiction to entertain a motion to amend after the dismissal of the Department’s second petition. Our answer to this question is guided by two key decisions.

Florida Power & Light Co. v. Canal Authority, 423 So.2d 421 (Fla. 5th DCA 1982), involved an appeal from the denial of a motion for relief from judgment that contested condemnation judgments, which had been entered over a decade before. Id. at 422. The motion for relief alleged that because the condemnation petitions did not attach the authorizing resolutions, the trial court lacked subject matter jurisdiction over the petitions, thereby invalidating the judgments. Id.

In affirming the denial of the motion for relief, the Fifth District emphasized that “the test for whether a pleading sufficiently [invokes], the jurisdiction of a court is not as stringent as the test as to whether ... the pleading is subject to a motion to dismiss for failure to state a cause of action.” Id. at 425 (citing Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 775-76 (1927)). As a * result, “[e]ven if ... the failure of the condemning authority to attach resolutions to their petitions for condemnation made those petitions subject to motions to dismiss, such deficiencies in the pleading invoking the jurisdiction of the trial court did not deprive the court of jurisdiction” Id. (footnotes omitted) (emphasis added). Instead, “the trial court ... being the circuit court, had subject-matter jurisdiction over the class of cases known as condemnation suits.” Id.

Later, in Cunningham v. Standard Guaranty Insurance Co., 630 So.2d 179 (Fla. 1994), the Florida Supreme Court reaffirmed the principle that subject matter jurisdiction is the “ ‘power lawfully conferred to deal with the general subject involved.in the action’” and ‘“does not depend upon, the ultimate existence of a good cause of action in the plaintiff, in the particular case before the court.’ ” Id. at 181 (quoting Malone v. Meres, 91 Fla. 709, 109 So. 677, 683 (1926)). Stated differently, “[i]t is the power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case.” Id. (citation and internal quotations marks omitted).

. In finding that the circuit court in Cunningham had jurisdiction over bad faith claims against insurance companies, the supreme court relied on Florida Power’s holding that “ ‘deficiencies in the pleading invoking the jurisdiction of the trial court [do] not deprive the court of jurisdiction.’ ” 630 So.2d at 181 (quoting Fla. Power, 423 So.2d at 425). In doing so, it specifically referenced the fact that the condemning authority in Florida Power failed to attach the authorizing resolutions to its petitions and recognized that this failure was the basis for the claim that the trial court lacked subject matter jurisdiction when it entered the condemnation judgments. Id. at 181. As a, result, we believe it is clear that Cunningham approved Florida Power’s conclusion that pleading deficiencies in a condemning authority’s petition do not revoke the circuit court’s subject matter jurisdiction “ ‘over the class of cases known as condemnation suits.’” Id.; see Hon. Scott Stephens, Florida’s Third Species of Jurisdiction, 82 Fla. Bar J. 11, 19-20 (March 2008) (“The Supreme Court [in Cunningham] perceived that the district courts had strayed from the actual meaning of subject matter jurisdiction and approvingly cited Florida Power and Light for the proposition that ‘deficiencies in the pleading invoking the jurisdiction of the trial court did not deprive the court of jurisdiction.’ ”); see also Paulucci v. Gen-Dynamics Corp„ 842 So.2d 797, 801 n.3 (Fla. 2003) (holding “[sjubject matter jurisdiction ‘means no more than the power lawfully existing to hear and determine a cause,’ ” quoting Cunningham, 630 So.2d at 181)); In re Adoption of D.P.P., 158 So.3d 633, 636-37 (Fla. 5th DCA 2014) (“[A] challenge to subject matter jurisdiction is proper only when the court lacks authority to hear a class of cases, rather than when it simply lacks authority to grant the relief requested in a particular case.”).

Based op Cunningham, we hold that the pleading requirements of section 73.021 are not jurisdictional insofar as a pleading defect does not deprive the trial court of subject matter jurisdiction to entertain a motion to amend to cure the deficiency. To the extent that this Court held to the contrary in Gulf Power Co. v. Stack, 296 So.2d 572 (Fla. 1st DCA 1974), we conclude Stack is inconsistent with, and effectively overruled by, the supreme court’s decision in Cunningham. Accordingly, we reverse the Order of Taking and remand with instructions that the trial court dismiss the petition without prejudice to the Department’s seeking leave to file an amended petition, thereby allowing the Department to potentially cure the pleading defect under section 73.021.

REVERSED and REMANDED.

ROWE, J„ and GRIFFIS III, STANLEY H., ASSOCIATE JUDGE, CONCUR.


author: Per .Curiam.

text:
    Tharod BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2417
    District Court of Appeal of Florida, Fourth District.
    October 11, 2017
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,' Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT

Per .Curiam.

Pursuant to the opinion of the supreme court in Weatherspoon v. State, 214 So.3d 578 (Fla. 2017), and the order of the supreme court issued on June 9, 2017, on review of the instant case (SC 15-245), we reverse appellant’s convictions for attempted murder and remand for a new trial. We affirm appellant’s conviction for robbery.

Warner, May and Conner, JJ., concur.


author: Per Curiam.

text:
    GMAC MORTGAGE, LLC, Appellant, v. Linda PISANO, Steven Pisano, Camino Sheridan Villas Homeowners Association, Inc., Citibank (South Dakota), N.A., and Margaret Braniss, Appellees.
    No. 4D15-2843
    District Court of Appeal of Florida, Fourth District.
    October 11, 2017

      Kimberly S. Mello and Jonathan S. Tan-nen of Greenberg Traurig, P.A., Tampa, and Patrick G. Broderick of Greenberg Traurig, P.A., West Palm Beach, for appellant.
    Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, for appellees Linda Pisa-no and Steven Pisano.
   Per Curiam.

The bank appeals a final judgment dismissing its foreclosure action for lack of standing. Because the bank demonstrated its standing as a holder of the note, we reverse.

GMAC originated the homeowner’s loan in 2006. Eventually, the homeowner defaulted and GMAC initiated a foreclosure action. After GMAC filed its complaint, Ocwen purchased the loan from GMAC and was substituted as the plaintiff in the foreclosure case. At trial, an Ocwen employee testified that GMAC had originated the loan and held the original note from origination through the filing of the complaint. While GMAC held the note, Freddie Mac/Fannie Mae actually owned the loan. Finding that Ocwen had failed to demonstrate that GMAC owned the loan when it filed the complaint, the trial court dismissed the action for lack of standing.

We review questions of standing de novo. Vogel v. Wells Fargo Bank, N.A., 192 So.3d 714, 716 (Fla. 4th DCA 2016). A foreclosure plaintiff satisfies the standing requirement when, at trial, it presents “competent, substantial evidence that it has standing to foreclose.” Id.

A plaintiff must have standing when it files the complaint. McLean v. JPMorgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). Standing may be based on a plaintiffs status as a note holder, id., or its status as the original lender if “it owned the note and mortgage at the time it filed suit,” Lewis v. J.P. Morgan Chase Bank, 138 So.3d 1212, 1213 (Fla. 4th DCA 2014).

Here, the Ocwen employee’s trial testimony demonstrated that GMAC held the note when it filed the complaint. The employee testified that she did not know of any transfers based on her review of records related to the note, nor did the records actually evidence any transfers of the note. In fact, nothing in the record suggested that the note ever left GMAC’s possession. Evidence of a blank indorsement on the note, without more, does not support appellees’ argument that the note was transferred, but only demonstrates that it could be transferred. See § 673.2051(2), Fla. Stat. (‘When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.”) (emphasis added).

Because the record contained no evidence that the note was transferred, we must conclude that GMAC remained the note’s sole holder from the loan’s origination at least through the filing of the complaint. Appellees’ assertions to the contrary are nothing more than mere speculation. Because GMAC held the note when it filed the complaint, it had standing to bring this action. McLean, 79 So.3d at 173. Contrary to the trial court’s conclusion, neither Ocwen nor GMAC had to prove that it owned the loan in order to have standing. Thus, Ocwen, as successor plaintiff to the note’s holder, can step into GMAC’s shoes and continue with this suit. We therefore reverse the trial court’s dismissal of the action and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

Warner, Levine, JJ., and Buchanan, Laurie E., Associate Judge, concur.

      . The homeowner died during the pendency of this appeal and appellees Linda and Steven Pisano were substituted in her place.


text:
    Sherman COLSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4267
    District Court of Appeal of Florida, Fourth District.
    October 11, 2017
    Antony P. Ryan, Regional Counsel, and Dan Hallenberg, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant appeals his convictions for first-degree murder and robbery with a firearm, asserting that the trial court erred in denying his motion to suppress. Appellant and co-defendant Sammiel both appealed the denial of the motion to suppress. This court affirmed Sammiel’s conviction. See Sammiel v. State, 225 So.3d 250, 42 Fla. L. Weekly D1541 (Fla. 4th DCA July 12, 2017). Because appellant raises the same issue as Sammiel with regard to the motion to suppress, we adopt the analysis in Sammiel and affirm without further comment.

Appellant also argues that several of the state’s comments during closing arguments deprived him of his due process right to a fair trial. Improper closing arguments, if not preserved, must rise to the level of fundamental error in order to warrant reversal—that is, they must reach “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained” without them. Augustine v. State, 143 So.3d 940, 941 (Fla. 4th DCA 2014) (citation omitted). Because “we cannot say that a conviction could not have been obtained absent the prosecutor’s improper arguments,” we find no reversible error and affirm. See id.

Affirmed.

Warner, Damoorgian and Levine, JJ., concur.


author: PER CURIAM.

text:
    James Ray WELLS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1528
    District Court of Appeal of Florida, First District.
    Opinion filed October 13, 2017
    James Ray Wells, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ROBERTS, RAY, and OSTERHAUS,' JJ., CONCUR.


text:
    James R. PERMENTER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3825
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017.
    James R. Permenter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.


text:
    Johnny Lee HILL, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3583
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    Johnny Lee Hill, pro se, Petitioner..
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as untimely. See Fla. R. App. P. 9.141(d)(5).

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR. .


text:
    STATE of Florida, Petitioner, v. David GUFFEY, Respondent.
    No. 4D17-465
    District Court of Appeal of Florida, Fourth District.
    October 18, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna M'. Perry, Assistant Attorney General, West Palm Beach, for petitioner.
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for respondent.
   Per Curiam.

The petition for writ of prohibition is granted, and the order precluding the state from seeking the death penalty is quashed. State v. Lopez, 219 So.3d 865 (Fla. 4th DCA 2017); State v. Chapman, No. 4D17-428, 227 So.3d 626, 2017 WL 3727098 (Fla. 4th DCA Aug. 30, 2017).

Petition granted.

Gerber, C.J., Ciklin and Conner, JJ., concur.


author: EDWARDS, J.

text:
    Ernest Todd KEENE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2455
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Ernest Todd Keene, Lake City, pro se.
    Pamela Jo Bondi, Attorney. General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.-
   EDWARDS, J.

Appellant seeks review of the order denying his rule 3.800(a) motion for postcon-viction relief. Appellant’s first claim, that the trial court erred by failing to. give him a downward departure sentence, is merit-less, His second claim, that his conviction for felony DUI was illegal because his prior DUI conviction was too far removed in time, constitutes an attack on the sufficiency of the evidence. This claim should have been raised on direct appeal and is not cognizable under rule 3.800(a). See Prince v. State, 903 So.2d 1068, 1069 (Fla. 2d DCA 2005). In his third claim, Appellant asserts in a conclusory fashion that he was sentenced above the limit contemplated by the plea offer; however, Appellant makes no claim that this increase rendered his sentence illegal. Given its conclusory nature, this claim is also meritless. See Santiago v. State, 22 So.3d 789, 790 (Fla. 5th DCA 2009). We affirm the denial of those three claims.

We also affirm as to Appellant’s fourth claim, in which he asserts that the postcon-viction court lacked jurisdiction to revoke his original term of community control and probation imposed for Count I, because he had already completed the requisite terms under that count. Although Appellant was still serving a term of probation as punishment for his conviction under Count II, it appears that he may have completed his sentence as to Count I at the time the lower court ordered his community control and probation revoked as to both Counts I and II. This claim cannot be adjudicated based upon the records presented. However, we affirm without prejudice for Appellant to raise this jurisdictional claim in a timely motion pursuant to rule 3.860 if he can argue in good faith that the sentence imposed for violation of probation was more severe because the lower court’s order of revocation was as to both Counts I and II, rather than only revoking as to Count II.

AFFIRMED.

TORPY and LAMBERT, JJ., concur.


text:
    Eunice CICH, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2933
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Eunice Cich, Ocala, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the March 8, 2016 judgments and sentences in Case No. 2014-301210-CFDB, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., LAMBERT and EDWARDS, JJ., concur.


author: LAMBERT, J.

text:
    Donald R. HODGE, Appellant, v. Ann B. HODGE, Appellee.
    Case No. 5D16-40
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017

      Julie Glocker Pierce, Indialantic, for Appellant.
    Elizabeth Siano Harris, of Widerman Malek, PL, Melbourne, for Appellee.
   LAMBERT, J.

The parties appear a second time before this court regarding the dissolution of their long-term marriage. In Hodge v. Hodge, 129 So.3d 441 (Fla. 5th DCA 2013), we reversed the part of the amended final judgment of dissolution of marriage that awarded Former Wife $2500 per month in permanent periodic alimony and one-half of the total passive appreciation in certain real property (the “Old Dominion” property) that Former Husband owned at the time of the marriage. We concluded that the trial court erred when calculating the parties’ respective incomes for alimony purposes by failing to deduct the ordinary and reasonable expenses from the monthly rental income generated by the Old Dominion property and by not including any investment income to Former Wife attributable tó the assets awarded to her in the equitable distribution scheme. 129 So.3d at 444. We also determined that the court erred in its application of Kaaa v. Kaaa, 58 So.3d 867, 869 (Fla. 2010), in calculating Former Husband’s nonmarital portion of the appreciation of the Old Dominion property. Thus, we remanded the ease back to the trial court for further proceedings. Hodge, 129 So.3d at 445.

The court on remand held an evidentiary hearing and thereafter rendered the final judgment on appeal. The court, among other things, awarded Former Wife the same $2500 per month in permanent periodic alimony as well as one-half of the passive appreciation of the Old Dominion property. Former Husband appeals and, as we.explain below, we again reverse on these two issues. We affirm without further discussion the remaining claims raised by Former Husband.

Former Husband argues that the trial court failed to properly apply the five-step analysis in Kaaa in calculating his nonmar-ital portion of the passive appreciation of the Old Dominion property. In Kaaa, the court held that the calculation of passive appreciation of nonmarital property and its equitable distribution is a fact-specific inquiry that requires a determination of: (1) the current fair market value of the home; (2) whether there was passive appreciation in the home’s value; (3) whbther the passive appreciation is a marital asset; (4) the value of the passive appreciation that accrued during the marriage, subject to equitable distribution; and (5) how the value is allocated. 58 So.3d at 872. Former Husband asserts, and Former Wife concedes, that a correct application of Kaaa to the Old Dominion property results in Former Wife’s interest in the property being $73,645. We agree. On remand, the trial court shall enter an amended judgment directing Former Husband to immediately pay Former Wife $73,645 for the equitable distribution of her interest in the Old Dominion property.

Former Husband also contends that the trial court erred in both awarding and thereafter calculating permanent periodic alimony. Former Husband’s primary argument is not that he lacks the ability to pay alimony or that permanent periodic alimony is otherwise inappropriate, but rather, he argues that Former Wife failed to establish her need for the alimony. See § 61.08(2), Fla. Stat. (2014) (“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.”).

“The primary factors for a court to consider when awarding alimony are the requesting spouse’s need and the other spouse’s ability to pay.” Berger v. Berger, 201 So.3d 819, 823 (Fla. 4th DCA 2016) (quoting Sherlock v. Sherlock, 199 So.3d 1039, 1043 (Fla. 4th DCA 2016)). In awarding alimony, the trial court is required to consider “[t]he financial resources of each party, including the, nonmarital and the marital assets and liabilities distributed to each.” § 61.08(2)(d), Fla. Stat. (2014). While a spouse is not required to deplete his or her capital assets in order to maintain the standard of living during the marriage, Beal v. Beal, 146 So.3d 153, 155 (Fla. 5th DCA 2014), a court in its computation of alimony should impute income that could reasonably be projected on a former spouse’s liquid assets. Rosecan v. Springer, 985 So.2d 607, 609 (Fla. 4th DCA 2008) (citing Greenberg v. Greenberg, 793 So.2d 52, 55 (Fla. 4th DCA 2001)). Here, the parties stipulated .to a six percent return on their investment assets.

In awarding Former Wife $2500 per month alimony, on remand,, the trial court found that Former Husband’s monthly net income is $7624.08 and Former Wife’s is $1586.24. Former Husband disputes both figures, arguing that his monthly net income, including investment income, is $7103.62 and that Former Wife’s net income is far greater than $1586.24 per month. In its final judgment, the court found that Former Wife’s retirement investment assets will total $349,893.84 upon payment of the equitable distribution from Former Husband as ordered. Applying the stipulated six percent return on Former Wife’s investment assets computes to just under $1750 per month income to Former Wife. Additionally, Former Wife receives slightly more than $1000 per month in social security income. Former Wife’s financial affidavit admitted into evidence showed her living expenses to be approximately $4000 per month. As it appears that the trial court may have significantly understated Former Wife’s monthly income, and further, because Former Wife’s investment assets will increase by $73,645 upon Former Husband’s payment to her on remand for her interest in the Old Dominion property (and Former- Husband’s monthly income will increase by retaining all of the net rental income from this property), we conclude that the trial court’s $2500 award needs to be revisited. *We therefore reverse the trial court’s findings with regard to the calculation of both parties’ respective incomes and remand for a determination of Former Wife’s need for permanent periodic alimony and, if established, the amount. .

AFFIRMED in part; REVERSED in part, and REMANDED.

ORFINGER and EISNAUGLE, JJ., concur.

      . Former Husband’s counsel conceded at oral argument that there was a mathematical error in his initial brief and that the value of Former Wife’s interest in the Old Dominion property is $73,645.

      . At oral argument, Former Husband's counsel represented that upon remand, Former Husband would promptly pay the $73,645 to Former Wife for her interest in the Old Dominion property. Case law supports the proposition that counsel's representations during oral argument are binding. See, e.g., Renfroe v. Renfroe, 326 So.2d 211, 211 (Fla. 4th DCA 1976) ("On oral argument before the court, counsel for the respective parties stipulated that such payments were to be made weekly. Accordingly[,] the final judgment is modified to that effect.”). As such, Former Husband’s claim on appeal that the trial court erred in requiring that he evenly split with Former Wife one-half of the net rental income from the Old Dominion property has been rendered moot.

      .Both parties are over seventy years old and retired, and they were married to each other for thirty years.

      . Former Husband also contends that Former Wife’s monthly expenses are much less than $4000 because of mathematical errors that Former Husband states are apparent in the financial affidavit.


text:
    PRIORIA ROBOTICS, INC., Petitioner, v. CONDOR AERIAL, LLC, and Fred Culbertson, Respondents.
    CASE NO. 1D17-3685
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017.
    George Franjóla of Gilligan, Gooding, Franjóla, & Batsel, P.A., Ocala, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

WOLF, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    John Thomas GOTRO, Petitioner, v. Catherine Suzanne GOTRO, Respondent.
    CASE NO. 1D17-3552
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017
    Brian P. North, Fort Walton Beach, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied.

WOLF, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    MEDERI CARETENDERS VISITING SERVICES OF SOUTHEAST FLORIDA, LLC, and Almost Family, Inc., a Delaware corporation, Appellants, v. Elizabeth WHITE, Appellee.
    Nos. 4D14-488
    4D14-2460
    District Court of Appeal of Florida, Fourth District.
    October 25, 2017
    Patrick M. Muldowney, Marilyn G. Moran, Tiffany L. Cummins and James W. Seegers of Baker & Hostetler LLP, Orlando, for appellants.
    Margaret Cooper of Jones, Foster, Johnston & Stubbs, P.A., Jane Kreusler-Walsh and Stephanie L. Serafín of Kreus-ler-Walsh, Compiani & Vargas, P.A., West Palm Beach, Joel C. Zwemer and Daryl J. Krauza of Dean, Mead, Minton & Zwemer, Fort Pierce, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

Per Curiam.

In accordance with the supreme court mandate in White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, No. SC16-28, 226 So.3d 774, 2017 WL 4053930 (Fla. Sept. 14, 2017), we reverse the final summary judgment and remand for proceedings consistent with the supreme court opinion. We also reverse the award of attorney’s fees, as we did in our original opinion.

Warner, Ciklin and Forst, JJ., concur.


author: Gross, J.

text:
    The ALLEGRO AT BOYNTON BEACH, L.L.C., a Florida Limited liability company, Appellant, v. C. Bruce PEARSON, an individual, and Olson Land Partners, LLC, Appellees.
    No. 4D16-4299
    District Court of Appeal of Florida, Fourth District.
    October 25, 2017

      Wade McK. Hampton and Theresa M. Kenney of Duss, Kenney, Safer, Hampton & Joos, P.A., Jacksonville, for appellant.
    James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman <& Cohen, North Palm Beach, for appellee, Olson Land Partners, LLC.
   Gross, J.

This dispute is between a plaintiff, who holds a right of first refusal to purchase real property, and a defendant property owner who failed to honor that right. The primary issue on appeal is whether the plaintiff made an election of remedies that prevented it from seeking specific performance. Because we hold that the plaintiff did not make such an election of remedies, we reverse.

Facts

The Allegro at Boynton Beach, LLC held a right of first refusal to a parcel of land owned by C. Bruce Pearson (the Seller). The Seller entered into an agreement to sell the property to Olson Land Partners, LLC (the Buyer), and refused to honor Allegro’s right of first refusal. Allegro sued the Seller for breach of contract seeking damages, a declaratory judgment, injunctive relief, and specific performance. The trial court allowed the Buyer to intervene.

Allegro moved for “Partial Summary Judgment as to Counts I and II of the Complaint for Breach of Contract and Declaratory Judgment.” The last line of Allegro’s memorandum of law in support of its motion reads: “Upon election of its remedy, Allegro will be able to either seek damages, specific performance or injunction.”

The trial court granted Allegro’s motion, finding: (1) Allegro’s right of first refusal remained in effect; and (2) the Seller failed to comply with Allegro’s right of first refusal.

Two days later, in an attempt to evade Allegro’s pursuit of its right of first refusal, the Buyer terminated the first agreement to purchase the parcel, and then signed a new agreement with the Seller to purchase the same parcel—this time at a considerably higher purchase price with a shortened inspection period. The Seller delivered the new agreement to Allegro giving it ten days to exercise its right of first refusal.

Instead, Allegro filed a “Motion for Entry of Final Judgment of Specific Performance Upon Election of Remedy.” Allegro’s motion was summarily denied.

The Buyer filed a counterclaim for declaratory judgment followed by a motion for summary judgment on the counterclaim. The trial court granted the Buyer’s motion, finding that Allegro made an election of remedies to recover damages for breach of contract, and that the original purchase agreement was no longer valid and enforceable. The court held that “other than recovering damages for the breach of the right of first refusal, Allegro has no further rights with respect to the original purchase agreement.”

Analysis

When a trial court grants a motion for summary judgment upon a finding that the plaintiff made an election of remedies, this court’s standard of review is de novo. Vasquez v. Sorrells Grove Care, Inc., 962 So.2d 411 (Fla. 2d DCA 2007).

The purpose of the election of remedies doctrine is to prevent double recovery for a single wrong. However, when a party elects a remedy that is unavailable, application of the doctrine serves as an instrument of injustice. For that reason, prior to imposing the doctrine, courts must carefully consider the facts of each case. Sec, & Inv. Corp. of the Palm Beaches v. Droege, 529 So.2d 799, 802 (Fla. 4th DCA 1988).

Before a trial court can apply the election of remedies doctrine, it must determine whether the remedies are factually consistent. A party may not obtain judgment for two remedies that are factually, inconsistent. Barbe v. Villeneuve, 505 So.2d 1331 (Fla. 1987) (the remedy of triple damages for theft of purchase price was factually inconsistent with the remedy of replevin and clear title based on ownership by purchase).

Remedies are factually consistent when they “logically can coexist on the same facts.” Droege, 529 So.2d at 802. Remedies are factually inconsistent when one remedy “implies'negation of the underlying facts necessary for the other.” Id.

The trial court found that Allegro’s damages remedy was “incompatible” with Allegro’s specific performance remedy. However, Allegro’s remedies in this case’ were factually consistent because both affirm the' underlying transaction. Allegro’s damages remedy affirms the transaction and seeks recompense for the Owner’s breach. Allegro’s specific performance remedy also affirms the transaction and seeks full performance by the Owner. See Kelsey v. Pewthers, 685 So.2d 953, 956 (Fla. 4th DCA 1996) (“money damages and equitable relief are not inconsistent remedies; rather both rely on the validity of a contract and seek redress for its breach.’-’); Erwin v. Scholfield, 416 So.2d 478, 479 (Fla. 5th DCA 1982) (finding that in a breach of contract context, a seller’s damages remedy is factually consistent with a séller’s specific performance remedy). Because the remedies sought by Allegro rely on the same set of facts, they were factually consistent.

When remedies are factually consistent, the “mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies,” Am. Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 944. (1908). Where remedies are factually consistent, “only a full satisfaction of the right asserted will estop the plaintiff from pursuing hér other consistent remedies.” Id.; see also Droege, 529 So.2d at 802; Klondike, Inc. v. Blair, 211 So.2d 41, 42 (Fla. 4th DCA 1968) (a plaintiff is considered to have elected among consistent remedies only “where the remedy pursued results in satisfaction of the claim.”).

Here, the trial court erred in finding that Allegro’s motion for summary judgment on its damages claim estopped it from later electing to pursue its specific performance claim. The remedies were factually consistent and only full satisfaction of the damages claim would estop Allegro from' pursuing its specific performance claim.

Allegro also argues that the trial court erred in finding that the remedy of specific performance was no longer available because the Buyer and Seller terminated the underlying purchase agreement. We agree. -

When an owner enters into a contract for sale, a pre-existing right of first refusal is “converted into an irrevocable option to purchase.” Vorpe v. Key Island, Inc., 374 So.2d 1035, 1037 (Fla. 2d DCA 1979); see 1 Williston on Contracts, §§ 5:15, 5:16, 5:18 (4th ed. May 2017). Once a holder’s right of first refusal ripens into an option, the option is not affected by termination of the underlying contract. Vorpe, 374 So.2d at 1037; see also King v. Hall, 306 So.2d 171, 173 (Fla. 1st DCA 1975).

Here, once the Seller entered into the purchase agreement with the Buyer, Allegro’s right of first refusal was converted into an irrevocable option to purchase. The Buyer’s subsequent termination of the purchase agreement did not affect Allegro’s option. The trial court erred in finding that the termination of the purchase agreement divested Allegro of its option to exercise its right of first refusal.

We reverse the trial court’s grant of summary judgment to the Buyer and remand for further proceedings.

Ciklin and Klingensmith, JJ., concur.

      . We find no error in the denial of Allegro’s motion. The order granting Allegro’s motion for summary judgment established only that the Seller breached the parties’ agreement. If Allegro chooses to pursue the remedy of specific performance, it bears the evidentiary burden of establishing its entitlement to this equitable remedy. See Sunbank, N.A. v. Retirement Facility at Palm-Aire, Ltd., 698 So.2d 392 (Fla. 4th DCA 1997).


author: PER CURIAM. PARIENTE, J., PERRY, Senior Justice,

text:
    Leo Louis KACZMAR, III, Appellant, v. STATE of Florida, Appellee.
    No. SC13-2247
    Supreme Court of Florida.
    [January 31, 2017]

      Clinton Andrew Thomas, Public Defender, and Nada Margaret Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Leo Louis Kaczmar, III, appeals his sentence of death imposed after a new penalty phase proceeding. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm Kaez-mar’s sentence of death.

STATEMENT OF THE CASE AND FACTS

We previously set forth the relevant facts in Kaczmar v. State, 104 So.3d 990, 995-98 (Fla. 2012). Kaczmar was convicted for first-degree murder, attempted sexual battery, and arson. During Kaezmar’s first penalty phase, the parties stipulated that Kaczmar had been previously convicted of a robbery. Id. at 997. The State presented a victim impact statement from Ruiz’s brother. Id. The defense presented testimony from Kaezmar’s family and friends that depicted Kaczmar as a good person who had a troubled upbringing due to his father’s abuse. Dr. Miguel Mandoki, a child psychiatrist, testified that Kaczmar was traumatized as a child by his father’s alcoholism and his own chronic drug abuse. Id. Dr. Mandoki also testified that although he believed Kaczmar to be competent during trial, he did not think Kaczmar knew what he was doing on the night of the murder and did not know right from wrong. Id. At the end of the penalty phase, the jury recommended a sentence of death by a vote of eleven to one. Id.

During the first Spencer hearing, neither the State nor the defense presented testimony. Id at 998. In the trial court’s sentencing order, the court found four statutory aggravating factors. Id. The trial court also found fourteen mitigating factors. The trial court concluded that the aggravating circumstances outweighed the mitigation and imposed a sentence of death. Id

Kaczmar raised nine issues on direct appeal. Id. We affirmed Kaezmar’s convictions, held that the trial court erred in finding the CCP and committed during the course of attempted sexual battery aggra-vators, which was not harmless beyond a reasonable doubt, and therefore remanded for a new penalty phase. Id. at 1008,

On August 8, 2018, the trial court'held a Koon hearing, at which Kaczmar waived his right to present mitigation against his counsel’s advice; -including the presentation of any live mitigation witnesses or the testimony of the mitigation witnesses from the first penalty phase read into the record. During the second penalty phase proceeding, held on August 19-20, 2013, the prosecutor gave an opening statement in which he sought to prove two aggravating circumstances: (1) the capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or felony probation; and (2) the capital felony was especially heinous, atrocious, or cruel (HAC). The prosecutor and the defense stipulated to the identity of the victim and Kaczmar’s 2002 conviction for the prior violent felony of robbery. The State presented the live testimony of the medical examiner, Dr. Jesse Giles, and prior sworn testimony of nine additional witnesses.

The trial court conducted another waiver colloquy during the second penalty phase proceeding. Kaczmar again refused to present mitigation; however, he agreed to his dounsel’s reading to the jury a stipulation regarding his age at the time of the murder. -The trial court noted that Kacz-mar waived most mitigation but intended to present the stipulation and argue mitigation presented during the guilt phase. Thus, the defense counsel presented before the jury the stipulation that Kaczmar was twenty-four years old on the date of the murder. Thereafter/ the defense rested, and the jury unanimously recommended the death sentence.

On August 20, 2013, the trial court conducted a Spencer hearing. The State did not present any additional evidence, and Kaczmar admitted into evidence the transcripts of testimony from six mitigating witnesses who testified during the first penalty phase proceeding, including the. testimony of Dr. Mandoki. Both parties submitted to the trial court sentencing memoranda.

In its sentencing order, the trial court found two statutory aggravating circumstances: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; and (2) the capital felony was especially HAC. The trial court considered three statutory mitigating circumstances and found that none had been proven, and therefore gave them no weight. The trial court also discussed twenty nonstatutory mitigating circumstances and gave fifteen of them slight weight. The trial court found that the aggravating circumstances far outweighed the mitigating circumstances in this case. In the sentencing order, the trial court noted that it was “required to give great weight to the jury’s recommendation” and fully agreed with the “jury’s assessment of the aggravating circumstances,” ■

Kaczmar appealed the trial court’s sentencing order to this Court raising six claims.

DISCUSSION

Kaczmar first argues that his death sentence violates Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). We agree but find the error harmless.

In Hurst v. Florida, the United States Supreme Court held that Florida’s capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact'necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” 136 S.Ct. at 619. In Hurst v. State, 202 So.3d 40, 54 (Fla. 2016), this Court held that “in addition to finding the existence of any aggravating factor unanimously, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unani-rnously find' that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.” Id. We further held that a unanimous jury recommendation is réquired before the trial court may impose a sentence of death. Id. We also concluded that a Hurst error is capable of harmless error review. Id. at 68.

Kaczmar was sentenced to death under the procedure that the United States Supreme Court invalidated in Hurst v. Florida. “When the [United States] Supreme Court announces ‘a new rule for the conduct of criminal prosecutions,’ the rule must be applied to ‘all cases, state or federal, pending on direct review or not yet final.’ ” State v. Fleming, 61 So.3d 399, 403 (Fla. 2011) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Because Kaczmar’s case was pending on direct appeal when Hurst v. Florida issued, the United States Supreme Court’s decision applies to him. See Davis v. State, 207 So.3d 142 (Fla. Nov. 10, 2016).

We must next address whether that error was harmless beyond a reasonable doubt. We conclude that the error was harmless. As this Court explained in Hurst:

The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Hurst, 202 So.3d at 68 (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986)). The Court further discussed the lens through which harmless error should be evaluated:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. See, e.g., Zack v. State, 753 So.2d 9, 20 (Fla. 2000). Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, “the harmless error test is to be rigorously applied,” DiGuilio, 491 So.2d at 1137, and the State bears an extremely heavy burden in cases involving constitutional error. Therefore, in the context of a Hurst 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 Hurst’s death sentence in this case. We reiterate,
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So.2d at 1139. “The question is whether there is a reasonable possibility that the error affected the [sentence].” Id.

Id. at 68. Regarding the right to a jury trial, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors and that the aggravating factors outweighed the mitigating circumstances.

In this case, we find the Hurst v. Florida violation to be harmless beyond a reasonable doubt. We recently decided a similar case, in which that defendant’s-jury, like Kaczmar’s jury, unanimously recommended a death sentence. Davis, 207 So.3d at 156. In Davis, we held that the Hurst v. Florida error was harmless: “With regard to Davis’s sentences, we emphasize the unanimous jury recommendations of death. These recommendations allow us to conclude beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggrava-tors to outweigh the mitigating factors.” Id. at 174. Kaczmar’s jury likewise recommended a death sentence by a unanimous twelve-to-zero vote. Kaczmar’s jury received the same standard criminal jury instruction we cited in Davis, ensuring that the jury “determine^] whether sufficient aggravators existed and whether the aggravation outweighed the mitigation before it ... recommend[ed] a sentence of death.” Id. (citing Fla. Std. Jury Instr. Crim. 7.11). As with the jury in Davis, Kaczmar’s “jury was presented with evidence of mitigating circumstances and was properly informed that it may consider mitigating circumstances that are proven by the greater weight of the evidence.” Id. (citing Fla. Std. Jury Instr. Crim. 7.11). As in Davis, Kaczmar’s “jury was not informed that the finding that sufficient aggravating circumstances outweighed the mitigating circumstances must be unanimous, and even though it was instructed that it was not required to recommend death even if the aggravators outweighed the mitigators, the jury did in fact recommend death unanimously.” Id. (citing Fla. Std. Jury Instr. Crim. 7.11). Given that Kaczmar’s jury received the same critical instructions as Davis’s jury, we are confident beyond a reasonable doubt that here, as in Davis, “the jury unanimously made the requisite factual findings to impose death before it issued the unanimous recommendations.” Id. Finally, as in Davis, “the egregious facts of this case” provide “[fjurther support ] [for] our conclusion that any Hurst v. Florida error here was harmless.” Id. at 175. Kaezmar stabbed a woman approximately ninety-three times after she refused to have sex with him, burned down his own house to cover up the murder, and attempted to recruit an undercover police officer to frame his friend for the murder. See Kaczmar, 104 So.3d at 996-97. The sentencing court found two aggravating factors: that Kaezmar had previously been convicted of a violent felony and that the murder was especially heinous, atrocious, or cruel (HAC). See § 921.141(5)(b), (h) (2009). “And this Court has indicated that the prior violent felony and HAC aggrava-tors are ‘two of the most weighty in Florida’s sentencing calculus.’ ” Partin v. State, 82 So.3d 31, 46 (Fla. 2011) (quoting Sireci v. Moore, 825 So.2d 882, 887 (Fla. 2002)).

Accordingly, we hold that the Hurst v. Florida violation was harmless beyond a reasonable doubt. See Davis, 207 So.3d at 175. What we said in Davis is equally true in this case:

Here, the 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 are precisely what we determined in Hurst v. State to be constitutionally necessary to impose a sentence of death.

Id. As in Davis, the Hurst v. Florida violation in Kaczmar’s case does not entitle him to a new penalty phase.

In his second claim, Kaezmar contends that the trial court violated this Court’s holding in Muhammad v. State, 782 So.2d 343 (Fla. 2001), and therefore the Eighth Amendment to the United States Constitution when the trial court gave great weight to the recommendation of Kaczmar’s penalty phase jury despite the fact that no mitigating evidence was presented to the jury. We disagree.

In Muhammad, even though the defendant discharged his penalty phase counsel and did not present.any mitigating evidence to the jury during the penalty phase, the trial court nevertheless instructed the penalty phase jury by stating that “[yjour,advisory sentence as to what sentence should be imposed, on this Defendant is entitled by Law and will be given great weight by this Court in determining what sentence to impose in this case.” Id. at 361, 363 n.9. Afterward, the jury returned a recommended, sentence of death. At the sentencing hearing, the trial court considered mitigating circumstances that were not, presented to the jury, imposed a death sentence, and indicated in the sentencing order that “[t]his Court must give great weight to the jury’s sentencing recommendation,” Id. at 362. On direct appeal, this Court reversed for a new .penalty phase and found that “the trial court erred when it gave great weight to the jury’s recommendation in light of Muhammad’s refusal to present mitigating evidence and the failure of the. trial court, to provide for an alternative means for the jury to be advised of available mitigating evidence.” Id. at 361-62.

. Here, the trial court considered Kacz-mar’s age at the time of the murder, a statutory mitigating circumstance, and found that it was not proven and thereby gave it no weight. Thereafter, the trial court concluded in its sentencing order as follows:

This Court has carefully considered and weighed the aggravating and mitigating circumstance's found in this case.' Understanding that this is not an arithmetic •comparison, but' one which requires qualitative analysis, this' Court has assigned an appropriate weight to each aggravating 'circumstance and each mitigating circumstance in this Order. On balance, the- aggravating circumstances in this case far outweigh the mitigating circumstances. The jury was fully justified in its twelve to zero recommendation that the death penalty be imposed upon Defendant for Ms. Ruiz’s murder. This Court is required to give great weight to the jury’s recommendation and fully agrees with the jury’s assessment of the aggravating circumstances presented. Defendant waived mitigation before the jury. The prior testimony of the former mitigation witnesses, however, was submitted to this Court. After considering the mitigating circumstances presented, this Court finds that the ultimate penalty that this Court can impose in this case should be imposed.

(Footnote omitted.)

The sentencing order here is similar to, the one in Grim v. State, 841 So.2d 455 (Fla. 2003). Even though Grim waived his right to present mitigation and the jury returned a recommendation of death, the Grim trial court stated in its sentencing order that it gave the jury’s recommendation ¡great weight. Id. We recognized that the Grim' trial court’s sentencing order was distinguishable from the sentencing order in Muhammad. Id. at 461. The Grim trial court acknowledged in its sentencing order, unlike the Muhammad trial court, that the penalty phase jury did not have the benefit of hearing mitigation. As such, the Grim trial court independently weighed the aggravating and mitigating circumstances and duly considered the jury’s recommendation. Id, We therefore found that Muhammad was distinguishable and concluded that the trial court in' Grim properly sentenced Grim despite the lack of mitigation presented for the jury’s consideration in the penalty phase. Id.

Similarly, the trial judge here stated in his sentencing order that he agreed “with the jury’s assessment of the aggravating circumstances presented,” acknowledged that Kaczmar “waived mitigation before the jury,” “carefully considered and weighed the aggravating and mitigating circumstances,” and thereafter concluded that death was the appropriate sentence after acknowledging that he stated that he was required to give great' weight to the jury’s'" recommendation. See Brooks v. State, 918 So.2d 181, 210 (Fla. 2005) (“Indeed, the length, thoroughness, and tone of the sentencing order strongly imply that the trial judge’s sentencing determination is based on the weighing of the aggravating and mitigating factors and on the jury’s recommendation:”), receded from on other grounds by, State v. Sturdivant, 94 So.3d 434 (Fla. 2012). In addition, unlike Muhammad, the trial court did not instruct the jury that its sentencing recommendation would be given great weight. Muhammad, 782 So.2d at 363, n.9. Nor did the trial court specifically warn Kaczmar during the Koon hearing that he, as the sentencing judge, must give great weight to the' jury’s recommendation. Grim, 841 So.2d at 461. Therefore, we likewise find this case distinguishable from Muhammad and conclude that the trial court properly sentenced Kaczmar notwithstanding the lack of mitigation presented for the jury’s consideration. See Grim, 841 So.2d at 461. Accordingly, we deny relief with regard to this claim.

In his third claim, Kaczmar argues that the trial judge improperly interfered with the jury’s decision-making and usurped the jury’s function when, in response to questions the jury posed during its deliberations, the judge stated to the jury “not relevant.” We disagree.'

Absent a contemporaneous objection, an appellate court reviews a trial court’s improper comment for. fundamental error. Bell v. State, 108 So.3d 639, 650 (Fla. 2013). “Fundamental error is- error that ‘reach[es] down into the validity of the trial itself to the extent that a'verdict of guilty could not have been obtained 'Without the assistance of the alleged error.’ ” Carr v. State, 156 So.3d 1052, 1062-63 (Fla. 2015) (quoting Archer v. State, 934 So.2d 1187, 1205 (Fla. 2006)).

Here, defense counsel failed to contemporaneously object to the trial court’s response to the jury. As such,,' defensé counsel failed to preserve this issue for appellate review. See Braddy v. State, 111 So.3d 810, 855 (Fla. 2012) (“[T]o meet,the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal,” (quoting Castor v. State, 365 So.2d 701, 703 (Fla. 1978))). Furthermore, -we find that there is no fundamental error—no error that reaches down into' the validity of the‘trial-itself to the extent that a-verdict of guilty could not have been obtained without the assistance1 of the alleged error. See Bell, 108 So.3d at 650. Accordingly, Kaczmar is not entitled .to relief concerning this claim;

With regard to his fourth claim, Kaczmar asserts that the trial court erred in failing to grant a mistrial when the prosecutor engaged in impermissible closing argument when he referred to the defense’s mitigating evidence regarding the defendant’s age as “excuses.” We disagree.

“As a general rule, the. failure to raise a contemporaneous objection., when improper closing argument comments are made waives any claim, concerning such comments for appellate review.” Card v. State, 803 So.2d 613, 622 (Fla. 2001). For those prosecutorial comments to which .a defendant fails to .contemporaneously object at trial but raises on appeal, we apply fundamental error review. Braddy, 111 So.3d at 837) (citing Brooks v. State, 762 So.2d 879, 899 (Fla. 2000)). Such a review includes two factors: (1) whether the improper statement was repeated; and (2) whether the jury was provided with an accurate statement of law after the improper comment was made. See Poole v. State, 151 So.3d 402, 415 (Fla. 2014). We have “ ‘long recognized that a prosecutor cannot improperly denigrate mitigation during a closing argument.’” Franqui v. State, 59 So.3d 82, 98 (Fla. 2011) (quoting Williamson v. State, 994 So.2d 1000, 1014 (Fla. 2008)); see Brooks, 762 So.2d at 904.

Here, the prosecutor made the following comment during his closing argument:

Mitigators. I know the defense has indicated to you that they’re going to argue some mitigators- to you. The only evidence they presented is [the defendant] was 24 at the time, just a few days shy of being 25 at the time. That’s the evidence they presented to you.
Now they may make arguments and ask you to speculate about some other things, you know, create some excuses or mitigation as I would call them for his actions, but at the end of the day that’s your call. You determine whether those mitigators are present in the evidence I presented and you determine if they are present what weight to give them and at the end of the day you determine how they weigh out with the aggravators that have been presented in this case.

We conclude that the prosecutor’s characterization of the mitigating evidence regarding Kaczmar’s age at the time of the crime was improper. See Oyola v. State, 158 So.3d 504, 512 (Fla. 2015) (citing Delhall v. State, 95 So.3d 134, 167-68 (Fla. 2012) (“Prosecutors who claim in closing statements that defendants’ mitigating evidence are ‘excuses,’ ‘make-believe,’ ‘flimsy,’ or ‘phantom’ have been rebuked by this Court.”)). However, the comment does not rise to the level of fundamental error.

Here, the prosecutor called the mitigating evidence—the stipulation of the defendant’s age at the time of the crime—“excuses” only once, and after making the statement, the prosecutor encouraged the jury to weigh the aggravators and the mitigators in order to recommend an advisory sentence. Also, the trial court read the standard jury instructions, which included an accurate statement of the law with regard to mitigation. See Poole, 151 So.3d at 415. We therefore find that the prosecutor’s statement here did not rise to the level of fundamental error. See Mendoza v. State, 964 So.2d 121, 133 (Fla. 2007). Accordingly, Kaczmar is not entitled to relief with regard to this claim.

In his fifth claim, Kaczmar contends that the trial court erred in failing to find the nonstatutory mitigating circumstance that he was emotionally torn by extremes of parental abuse and parental overindulgence. Specifically, Kaczmar argues that the trial court erred in failing to find this mitigator on the ground that Dr. Miguel Mandoki’s testimony, which was transcribed and submitted to the trial court only during the second Spencer hearing, linked Kaczmar’s inability to know right from wrong to the crimes even though there is no requirement that mitigation have a nexus to the offenses. We agree but conclude that the error is harmless.

We require a trial court to enter a written sentencing order that “expressly evaluates]” -the defendant’s proposed mitigation. Campbell v. State, 571 So.2d 415, 419 (Fla. 1990), receded from on other grounds by, Trease v. State, 768 So.2d 1050, 1055 (Fla. 2000). Since Campbell was decided, we have held:

Where it is clear that the trial court has considered all evidence presénted in support of a mitigating factor, the court’s decision as to whether that circumstance is established will be reviewed only for abuse of discretion.... The weight assigned to an established mitigating circumstance is also reviewed for abuse of discretion.
When a trial court fails to detail its findings, however, this Court is “deprive[d] ... of the opportunity for meaningful review.” In such circumstances, this Court has vacated the defendant’s death sentence and remanded to the trial court with instructions to issue a new sentencing order. However, a trial court’s findings on mitigation are also subject to review for harmless error, and this Court will not overturn a capital appellant’s sentence if it determines that an error was harmless beyond a reasonable doubt.

Ault v. State, 53 So.3d 175, 186-87 (Fla. 2010) (citations omitted).

In its sentencing order, the trial court here made the following finding with regard to mitigating evidence that it considered:

Tammy Evans, Martha Moody and Katherine Casleton testified that Defendant’s father would alternate between beating Defendant and overindulging him. Defendant, however, failed to present evidence of how this upbringing impacted his ability to know right from wrong or inhibited his ability to be a law-abiding member of society. This Court finds this mitigating circumstance was not proven and gives it no weight in determining the appropriate sentence for Defendant.

In its finding, the trial court specifically stated that the defendant “failed to present evidence of how this upbringing impacted his ability to know right from wrong or inhibited his ability to be a law-abiding member of society.” However, the record indicated that Dr. Miguel Mandoki, the defense’s expert witness, testified to such evidence during the original penalty phase proceeding.

We find that the trial court failed to expressly evaluate Dr. Mafidoki’s testimony regarding Kaczmar’s emotional state of being torn by extremes of parental abuse ánd parental overindulgence when it made no reference in the sentencing order to Dr. Mandoki’s testimony. See Deparvine v. State, 995 So.2d 351, 380 (Fla. 2008). The trial court had prior notice that Dr. Man-doki’s testimony was going to be offered as mitigating evidence because defense counsel filed a sentencing memorandum during the first Spencer hearing that described Dr. Mandoki’s explanation of “how such parental erratic behavior deprives a child of the normal, positive and negative reinforcements needed to learn and grow into a mature and responsible adult.” Even though defense counsel incorporated that sentencing memorandum as its sentencing memorandum for the second Spencer hearing, the trial court failed to mention in its sentencing order Dr. Mandoki’s professional opinion regarding Kaczmar’s emotional state or his inability to know right from wrong due to the extremes of being physically beaten and overindulged as a child. See id.

Furthermore, the only mitigating evidence that the trial court here considered in its sentencing order concerning the mitigator was the testimony of Tammy Evans, Martha Moody, and Katherine Ca-sleton. None of these witnesses testified about how the abuse and overindulgence affected Kaczmar emotionally. A “sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported' by the evidence and whether, in the ease of nonstatutory factors, it is truly of a mitigating nature.” Harris v. State, 843 So.2d 856, 869 (Fla. 2003) (quoting Campbell, 571 So.2d at 419)). Because the trial court failed to address Dr. Mandoki’s testimony in the sentencing order with regard to this particular nonstatutory mitigator, we find that the trial court erred in not giving it more express .consideration - “pursuant to this Court’s mandate to expressly . evaluate each mitigating circumstance.” Deparvine, 995 So.2d at 381. We therefore conclude that the trial court abused its discretion when it found that the mitigator was unproven. See Merck v. State, 763 So.2d 295, 297-99 (Fla. 2000); Reese v. State, 694 So.2d 678, 684 (Fla. 1997).

However, the trial court’s error in-not treating. Dr. Mandoki’s testimony in greater detail mats' sentencing -order is harmless. See Thomas v. State, 693 So.2d 951, 953 (Fla. 1997). In this context, we-- set the following parameters for evaluating harmless error:

The question is whether there is a reasonable possibility that the error contributed to the sentence. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986). Reversal is permitted only if the excluded mitigating factors reasonably could have resulted in a lesser sentence. If there is no likelihood of a different sentence, then the error must be deemed harmless. See Rogers v. State, 511 So.2d 526, 535 (Fla. 1987).

Ault, 53 So.3d at 195.

Here, the trial court found two aggravating circumstances—HAG and prior violent felony, which we have said are among the weightiest of aggravators, and gave both of them “great weight,” See Miller v. State, 161 So.3d 354, 374 (Fla. 2015); Matthews v. State, 124 So.3d 811, 818 (Fla. 2013). The trial court found that none of the statutory mitigating circumstances were proven and thereby gave them no weight. Out of the remaining nineteen non-statutory mitigators, the trial court found that fifteen were established and gave them slight weight, and the remaining four were not- proven and thereby given no weight.

Even if the trial court found that the nonstatutory mitigator regarding Kacz-mar’s emotional state of being 'torn between parental abuse and overindulgence was established and given greater weight than any other mitigator it found, there is no reasonable doubt that had the trial court noted in its sentencing order Dr. Mandoki’s testimony, the court still would have imposed the death penalty due to the extensive aggravating circumstances in this case. See Ault, 53 So.3d at 195-96; Singleton v. State, 783 So.2d 970, 977 (Fla. 2001). Accordingly, Kaczmar is not entitled to relief concerning this claim.

With regard to his sixth claim, - Kaczmar argues that his death sentence is disproportionate. We disagree and find that Kaczmar’s death sentence is proportionate.

We must conduct a comprehensive review of each death sentence to determine if the murder falls within the category of both the- most aggravated and the least mitigated murders in order to ensure uniformity in the application of the death sentence. See Anderson v. State, 841 So.2d 390, 408 (Fla. 2003). “We consider the totality of the circumstances of the case and compare the case to other capital cases.” Williams v. State, 37 So.3d 187, 205 (Fla. 2010) (citing Offord v. State, 959 So.2d 187, 191 (Fla. 2007)). This analysis does not involve a quantitative comparison between the number of. aggravating and mitigating factors; it .requires a qualitative review.-of, the underlying basis for each aggravating factor and mitigating factor. Id. Additionally, the prior violent felony aggravator and HAC are qualitatively among the weightiest aggravating circumstances. See Kocaker v. State, 119 So.3d 1214, 1232 (Fla. 2013); Hodges v. State, 55 So.3d 515, 542 (Fla. 2010).

Under the totality of the circumstances, Kaczmar’s sentence is proportionate in relation to other death sentences that we have upheld. See, e.g., Gosciminski v. State, 132 So.3d 678 (Fla. 2013), cert. denied, — U.S. —, 135 S.Ct. 57, 190 L.Ed.2d 57 (2014) (death sentence was proportionate where the victim was stabbed and bludgeoned to death; the trial court found three statutory aggravators, including HAC, few nonstatutory miti-gators, and no statutory mitigators); Pham v. State, 70 So.3d 485 (Fla. 2011) (death sentence was proportionate in a stabbing murder where the jury recommended death by a vote of ten to two, and the trial court found several aggravators, including the prior violent felony aggravator and HAC, statutory mitigation, and little non-statutory mitigation); Banks v. State, 46 So.3d 989 (Fla. 2010) (death sentence proportionate in a stabbing murder where the jury recommended death by a ten-to-two vote, and the trial court found three aggra-vators: prior violent felony,- HAC,- and CCP; and five mitigating circumstances: low IQ, brain deficit, antisocial personality traits, not the only participant, and difficult youth); Merck v. State, 975 So.2d 1054 (Fla. 2007) (death sentence proportionate for stabbing murder where trial court found prior violent felony and HAC aggra-vators, statutory age mitigator, and several nonstatutory mitigators, including a difficult family background, alcohol use the night of the murder, and a capacity to form positive relationships); Reynolds v. State, 934 So.2d 1128 (Fla. 2006) (death sentence was proportionate where one the victims was stabbed multiple times and beaten; and- the prior violent felony aggra-vator, HAC, two additional aggravators, and no statutory mitigators were found); Singleton, 783 So.2d 970 (death sentence proportionate for stabbing murder where trial court found prior violent felony and HAC aggravators as well as substantial mitigation, including1 extreme mental or emotional disturbance, impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law, and that defendant was under influence of alcohol and possibly medication at time of offense). . .

•Here, the jury unanimously recommended the death penalty. The trial court considered the following statutory aggravating factors and gave both great weight: (1) Kaczmar was previously convicted of another felony involving the use or threat of violence to the person; and (2) Kaczmar committed the murder in an especially heinous, atrocious, or cruel fashion. In mitigation, the trial court found no statutory mitigating circumstances had been established; however, it considered twenty non-statutory mitigating circumstances, gave fifteen of them slight weight, and the remaining five no weight. We find that this case meets the criteria of being aggravated with little mitigation. Thus, the death sentence is proportionate. Accordingly, Kacz-mar is not entitled to relief with regard to this claim.

CONCLUSION

Based on the foregoing analysis, we affirm Kaczmar’s'sentence of death. ’

It is so ordered.

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

CANADY and POLSTON, JJ., concur in result.

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

PERRY, Senior Justice, dissents with an opinion.

PARIENTE, J.,

concurring in part and dissenting in part.

I concur in part and dissent in part because, although I would affirm the conviction, I do not find the Hurst error to be harmless beyond a reasonable doubt. Hurst v. State, 202 So.3d 40 (Fla. 2016). Therefore, I would reverse for a new penalty phase. Id. Even though the jury unanimously recommended death in Kaczmar’s case, the jury did not hear mitigation other than the defendant’s stipulated age of 24. Instead, the mitigation was presented to the trial judge outside the presence of the jury. In fact, the trial court acknowledged that the jury did not have the benefit of the mitigation evidence that was presented to the judge alone, which included transcripts of six mitigation witnesses who testified during Kaczmar’s first penalty phase proceeding.

In Kaczmar’s first penalty phase, which we reversed for other reasons, the jury heard testimony regarding four aggravating factors coupled with mitigating circumstances. Specifically, during Kaczmar’s first penalty phase, the jury was presented with the following mitigation:

The defense presented testimony from Kaczmar’s family and friends depicting Kaczmar as a good person and respected business partner who had a troubled upbringing due to his father’s abuse. Dr. Miguel, a child psychiatrist; testified on behalf of the defense that Kaczmar was traumatized as a child by his father’s alcoholism and his own chronic drug abuse. Dr. Miguel also testified that although he believed Kaczmar to be competent during trial, he did not think Kaczmar knew what he was doing on the night of the murder and did not know right from wrong. '

Kaczmar v. State, 104 So.3d 990, 997 (Fla. 2012). After considering all the evidence, the first jury did not unanimously recommend that death was the appropriate sentence. |d.

Our opinion in Hurst clearly changed the dynamics between the judge and jury in Florida capital sentencing. Pertinent to this case, this Court’s decision in Hurst changed the calculus for waiving the presentation of some or all of the mitigating evidence to a jury. Moreover, Kaczmar did not waive a penalty phase jury altogether, as some other defendants have who were not afforded Hurst relief. See Mullens v. State, 197 So.3d 16 (Fla. 2016) (finding that Hurst is not applicable to defendants who waived the right to a penalty phase jury), cert. denied, No. 16-6773, — U.S. —, 137 S.Ct. 672, 196 L.Ed.2d 557, 2017 WL 69535 (U.S. Jan. 9, 2017).

This case in particular is distinguishable from other cases where this Court found the Hurst error harmless beyond a reasonable doubt based on a unanimous recommendation of death from the jury because the jury heard only a small portion of the mitigating evidence. See Davis v. State, 207 So.3d 142 (Fla. Nov. 10, 2016). Under Hurst, this Court cannot substitute its judgment for that of the jury and, therefore, cannot determine what weight the additional mitigation would have been assigned if it had been presented to the penalty phase jury. Nor can we speculate on the effect that the'additional mitigation, if presented to the jury, would have had on the jury’s recommendation in Kaczmar’s penalty phase. We do 'know, however, that the jury for Kaczmar’s first penalty phase heard the exact same mitigating evidence that was presented only to the judge during Kaczmar’s second penalty phase and did not unanimously recommend death. In Hurst, we emphasized the importance of unanimity in jury decisions, stating: “If death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process.” 202 So.3d at 60. Therefore, I would grant Kaczmar relief under Hurst in this case.

I also believe that it was error for the trial judge to give great weight to the jury recommendation, which was bereft of any meaningful presentation of mitigation. See Muhammad v. State, 782 So.2d 343, 361-62 (Fla. 2001). In my view, there is a critical distinction between this case and Boyd v. State, 910 So.2d 167 (Fla. 2005), and McCray v. State, 71 So.3d 848 (Fla. 2011), where we concluded that the trial court did not err in giving the jury’s recommendation great weight because the procedural safeguards of Muhammad were inapplicable because the defense at least presented some mitigation. Kaczmar’s stipulation of his age at the time of the crime is not equivalent to the limited mitigation presented by Boyd, 910 So.2d at 188-89, or McCray, 71 So.3d at 879-80. Neither in Boyd, 910 So.2d at 188, nor in McCray, 71 So.3d at 879-80, did the defendant completely waive the right to present mitigation as Kaczmar did. Accordingly, the procedural safeguards announced by this Court in Muhammad apply to this case and this case should also be remanded on that basis for a new penalty phase.

For all these reasons I would affirm the conviction but remand for a new penalty phase.

QUINCE, J., concurs.

PERRY, Senior Justice,

dissenting.

I cannot agree with the majority’s finding that the Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), error was harmless beyond a reasonable doubt simply because the jury recommendation for death was unanimous and the sentencing judge found weighty aggravating circumstances. See majority op. at 12. To the extent that I would not find the error harmless, I dissent.

In Hurst v. State, 202 So.3d 40, 69 (Fla. 2016), we declined to speculate why the jurors voted the way they did; yet, because here the jury vote was unanimous, the majority is comfortable substituting its weighing of the evidence to determine which aggravators each of the jurors found. Even though the jury unanimously recommended the death penalty, whether the jury unanimously found either aggravating factors remains unknown.

In Hurst, we held that for a defendant to be eligible for a death sentence, a jury must unanimously find the existence of each aggravating factor, that the aggravating factors are sufficient, and that the aggravating factors outweigh the mitigating circumstances. Id. at 53. Additionally, we held that the jury’.s death sentence recommendation must be unanimous. Id. While I agreed in Hurst that Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), errors are subject to harmless error review, see Hurst, 202 So.3d at 40, I believe the majority’s conclusion that the error was harmless beyond a reasonable doubt in this case is mistaken.

The jury was presented with evidence to support and instructed on two aggravating circumstances: (1) that Kaczmar was previously convicted of robbery, a violent felony; and (2) that the capital felony was especially heinous, atrocious, or cruel (HAC). The prior violent felony was established by a stipulation between Kaczmar and the State, while the primary evidence supporting the HAC aggravator.was the number and nature of the multiple stab, wounds found in the victim’s body. The HAC aggravating circumstance required factual findings that under Hurst must now be considered and weighed by a jury. The majority concludes that the error is harmless because no reasonable jury would haye failed to find the aggravating factors given the evidence.. However, we simply cannot assume that every juror found HAC beyond a reasonable doubt, much less that every juror agreed that either HAC or prior violent felony alone, or both aggravating factors together, were sufficient to impose a death sentence. This is 'especially true here, where the State introduced no evidence concerning the details of Kaczmar’s prior conviction for robbery.

The majority’s reweighing of the evidence to support its conclusion is not an appropriate harmless error review. The harmless error review is not a sufficiency of the evidence test, and the majority’s analysis should instead focus on the effect of the error-on the trier of fact. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). By concluding that both aggravators were unanimously found by the jury, the majority is engaging in the exact type of conduct the United States Supreme Court cautioned against in Hurst v. Florida. See Hurst v. Florida, 136 S.Ct. at 622.

Because the harmless error review is neither a sufficiency of the evidence review "nor a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence,” see State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986), I cannot conclude beyond a reasonable doubt that the error.here was harmless.

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

      . The trial court found the following aggravating circumstances: (1) the capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or felony probation; (2) the capital felony was committed while Kaczmar was engaged in the commission of or an attempt to commit a sexual battery; (3) the capital felony was especially HAC; and (4) the crime was committed in a cold, calculated, and premeditated (CCP) manner, without any pretense of moral or legal justification.

      . The fourteen mitigating factors were: (1) Kaczmar was raised by an alcoholic father; (2) Kaczmar was raised by a physically and emotionally abusive father; (3) Kaczmar was emotionally traumatized as a child when he witnessed his grandfather's drowning and his mother’s shooting of his father; (4) Kaczmar had been taught to lie in court; (5) Kaczmar lacked a normal mother-son bonding and relationship; (6) Kaczmar is kind to animals; (7) Kaczmar is a loyal friend; (8) Kaczmar is a good, reliable business partner; (9) Kaczmar had a loving relationship with his aunt, Cathy Casleton; (10) Kaczmar was protective of younger family members; (11) Kaczmar suffered long-term effects of illegal drug use; (12) Kaczmar was impaired by his use of illegal drugs on the evening of the murder; (13) Kaczmar suffered from an absence of professional mental health counseling and treatment; and (14) Kaczmar showed respectful behavior in court.

      . The nine issues were: (1) whether the trial court properly denied the motion for judgment of acquittal regarding attempted sexual batteiy; (2) whether the trial court abused its discretion by allowing the State to call the defendant’s wife to testify regarding a plan to fabricate evidence; (3) whether the trial court committed fundamental error by not sua sponte giving a special jury instruction on the heat of passion defense; (4) whether the trial court abused its discretion in limiting closing arguments by preventing defense counsel from reading language' of opinions to the jury; (5) whether the trial court properly denied the motion in limine to require the State not to edit the defendant’s exculpatory statements from the recordings of the undercover -meetings; (6) whether the trial court erred in finding the cold, calculated, and premeditated aggravator; (7) whether the trial court properly denied the motion for judgment of acquittal regarding premeditated murder; (8) whether the trial court properly denied the motion for judgment of acquittal regarding arson; and (9) whether Florida’s death penalty statute violates the Sixth Amendment right to a jury trial.

      . Koon v. Dugger, 619 So.2d 246 (Fla. 1993).

      . The statutory mitigating circumstances considered were; (1) the capital felony for which the defendant was to be sentenced was.committed while he was under the influence of extreme mental or emotional disturbance; (2) the capacity of the defendant to appreciate the criminality of the conduct or to conform his conduct to the-.requirements of the law. was substantially impaired; and (3) the defendant’s age at the time of the crime,

      . The nonstatutory mitigating circumstances considered were: (1) the defendant was raised by an alcoholic father—slight weight; (2) the defendant was raised by a physically and emotionally abusive father—slight weight; (3) as a child, the defendant was emotionally traumatized when he witnessed his grandfather drown and his mother shoot his father— slight weight; (4) the defendant was taught to lie in court—slight weight; (5) the defendant lacked a normal mother-son bonding and relationship—slight, weight; (6) the effect of the defendant’s adult prison sentence while still a juvenile—no weight; (7) the defendant lacked adult male mentors during his crucial preteen and teenage years—no weight; (8) the defendant was emotionally .torn by extremes of parental abuse and parental overindulgence—no weight; (9) the defendant is kind to animals—slight weight; (10) the defendant is a loyal friend—slight weight; (11) the defendant was a good, reliable business partner— slight weight; (12) the defendant is a good prison inmate—no weight; (13) the defendant ' has a loving relationship with his aunt—slight weight; (14) the defendant was protective of younger family members—slight weight; (15) the defendprt suffers long term effects.of illegal drug use—slight weight; (16) the defendant was impaired by illegal drugs on the evening of the murder—slight weight; (17) the defendant did not receive professional mental health counseling. and treatment—slight weight; (18) the defendant was respectful in court—slight weight; (19) cosuspect Christopher Ryan Modlin received a disparate .sentence—no weight; and (20) the defendant is a loving father—slight weight.

      . Kaczmar raised the following claims on direct appeal: (1) the trial court erred.in assigning great weight to the jury’s death sentence recommendation; (2) the trial court improperly interfered with the jury’s function by dismissing juror questions as "not relevant"; (3) the prosecutor engaged in .impermissible closing argument; (4) the trial court erred in failing ⅜ find and give weight to the mitigating circumstance that Kaczmar was abused; (5) Kaczmar’s death sentence is disproportionate; and (6) the death penalty was improperly imposed because Florida's death penalty statute is unconstitutional in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).