source: Caselaw Access Project

author:
PER CURIAM.
      POLSTON, J.,

license: Public Domain

text:
    Cornelius O. BAKER, Appellant, v. STATE of Florida, Appellee. Cornelius O. Baker, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC13-2331
    No. SC14-873
    Supreme Court of Florida.
    [March 23, 2017]

      James V. Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region, and Ann Marie Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellani/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Vivian Singleton, Assistant Attorney General, Daytona Beach, Florida, for Appellee/Respondent
   PER CURIAM.

Cornelius Baker, a prisoner under sentence of death, appeals an order of the circuit court denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons stated below, we reverse the trial court’s denial of post-conviction relief as to Baker’s claim relating to the constitutionality of his penalty phase, vacate Baker’s death sentence, and remand for a new penalty phase. We deny, however, Baker’s petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Baker was convicted by a jury and sentenced to death for the January 2007 robbery, kidnapping, and murder of Elizabeth Uptagrafft. This Court summarized the case in greater detail on direct appeal. The relevant facts here are as follows:

At the time of the offenses, Baker was living in Daytona Beach, Florida, with his girlfriend, Patricia Roosa. Baker had recently been released from jail, where he had been incarcerated for several months for selling drugs. Baker and Roosa decided that they wanted to move to New York. To get extra money for their move, they decided to rob a house using a pistol that Baker had recently stolen. On the morning of January 7, 2007, they walked around a Daytona Beach neighborhood until they found a house they could rob. Baker later told police that he and Roosa selected the Uptagrafft residence because it looked nice and they thought there might be money inside. Baker and Roosa walked to the front door. Baker told Roosa to ring the doorbell and that he would do the rest.
Inside the house, Elizabeth Uptagrafft and her mother, Charlene Burns, had just finished eating breakfast. The only occupants of the house at the time were Elizabeth, Burns, and Elizabeth’s adult son Joel Uptagrafft. Burns later stated that she thought they finished eating at approximately 8:30 or 9:00 a.m., and that Joel was still asleep at that time. After breakfast, Burns went to her bedroom to take a nap, while Elizabeth sat down on the couch in the living room to read. The doorbell rang a few moments later. When Elizabeth opened it, Baker came through the door and immediately hit her with his gun. The gun discharged and the bullet grazed Elizabeth’s head.
At trial, Burns testified that she heard a noise that sounded like someone kicking in the door, followed by a gunshot. Burns stated that after she entered the hallway outside her room that was connected to the living room, she was attacked by Baker, who beat, choked and kicked her. Burns said that Baker then told her to sit on the couch next to Elizabeth. When Burns saw Elizabeth’s head wound, she yelled for her grandson, Joel. Joel came out of his room and was attacked by Baker, who beat Joel with the gun.
Burns estimated that the family was held at gunpoint for between two-and-a-half and three hours while Baker and Roosa searched the house for valuables. Burns stated that there was no money in the house, but said that Baker and Roo-sa found some jewelry and placed it in a bag. Elizabeth eventually offered Baker her ATM card and PIN code if they would leave. Baker did not believe that the PIN was real and told Elizabeth that she would have to come with them. According to Burns, Baker then said that if Elizabeth did not come with him, he would kill all three members of the family. Because Elizabeth was covered in blood from her head wound, Baker told her that she would have to change clothes before they left. Baker also told her to find a hat to cover the wound. Baker collected Elizabeth’s cell phone and all other phones in the house. Before she left the house, Elizabeth whispered to her mother to call the police once Baker and Roosa were gone. Baker then placed Elizabeth, the phones, and the stolen jewelry into Elizabeth’s car, and he and Roosa drove away from the house. Joel then walked to a neighbor’s house and called the police.
... Baker decided to drive to a rural area of Flagler County known as the Mondex. Baker told police that it was his intention to drop Elizabeth off in a remote area where it would take her some time to find a phone that she could use to call the police. When they arrived at a spot that Baker thought was sufficiently isolated, Baker told Elizabeth to get out of the car, which she did. He also told her that she was going to live. According to Baker’s statement to police, he then drove approximately fifteen feet before stopping the car and getting out. Baker said that Roosa told him, “Don’t do it. Don’t do it.” Baker told the officers, “I felt like I done came this far.” Baker said that Elizabeth started to run and that he ran after her. She ran into some nearby bushes, then tripped and fell. Baker fired two shots at her. He then went back to the car and drove away.

Baker v. State, 71 So.3d 802, 808-09 (Fla. 2011). Baker was indicted on charges of first-degree murder, home invasion robbery with a firearm, kidnapping, conspiracy, burglary of a structure or conveyance, and aggravated fleeing and eluding a law enforcement officer. Id. at 811. The jury found Baker guilty of one count each of first-degree murder, home invasion robbery, kidnapping, and aggravated fleeing and eluding a law enforcement officer. Id.

At the penalty phase, Baker’s attorney, Matthew Phillips, presented testimony from psychologist Dr. Harry Krop, Baker’s mother and two sisters, and Baker himself. At the conclusion of the penalty phase, the jury returned a recommendation in favor of death by a vote of nine to three. Id. at 812. The trial court sentenced Baker to death, making the following findings as to the aggravating and mitigating circumstances:

[T]he court found that the following aggravating factors had been proven beyond a reasonable doubt: (1) the crime was committed while the defendant was engaged in the commission of, or an attempt to commit, the crime of home invasion robbery or kidnapping; (2) the capital felony was committed for pecuniary gain (great weight); (3) the capital felony was especially heinous, atrocious, or cruel (great weight); and (4) the capital felony was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification (great weight).
As statutory mitigation, the court found: (1) the crime was committed while the defendant was under the influence of extreme -mental or emotional disturbance (some weight); and (2) the age of the defendant (twenty years old) at the time of the crime (some weight). As nonstatutory mitigation, the court found: (1) the defendant suffers from brain damage, low intellectual functioning, drug abuse and that those factors are compounded by each other (some weight); (2) the defendant was born into an abusive household and was neglected as a child (some weight); (3) the defendant is remorseful (little weight); (4) the defendant was well behaved and displayed appropriate demeanor during all court proceedings (little weight); and (5) the defendant’s confession and cooperation with police (some weight).

Id. at 813 (footnotes omitted). In addition to its death sentence, the trial court sentenced Baker to life imprisonment for the charge of home invasion with a firearm, life imprisonment for the charge of kidnapping, and fifteen years’ imprisonment for the charge of aggravated fleeing and eluding a law enforcement officer. Id.

On direct appeal, Baker raised seven claims. This Court affirmed Baker’s convictions and sentences. Id. at 825. The United States Supreme Court denied cer-tiorari. Baker v. Florida, 565 U.S. 1237, 132 S.Ct. 1639, 182 L.Ed.2d 238 (2012). Baker filed an initial postconviction motion pursuant to Florida Rule of Criminal Procedure 3.851, raising six claims. On September 16, 2013, the trial court conducted an evidentiary hearing on Baker’s ineffective assistance claim. At the evidentiary hearing, Baker called trial counsel to testify regarding his twenty years of experience as a public defender, his recollection of Baker’s examination during the penalty phase, and Baker’s letter of remorse. Phillips was the only witness called to testify at the hearing. On October 14, 2013, the trial court denied all relief.

Baker has appealed the denial of his postconviction motion to this Court. He has also filed a petition for a writ of habeas corpus with this Court.

RULE 3.851 MOTION ON APPEAL

Baker has raised the following six issues in this appeal: (1) trial counsel rendered ineffective assistance of counsel during the penalty phase of the trial by failing to proffer Baker’s letter of apology; (2) the trial court erred in denying Baker’s claim that Florida’s rule prohibiting defense counsel from interviewing jurors is .unconstitutional under the federal and state constitutions; (3) section 921.141 is facially vague and overbroad, the trial court’s instruction to the jury that its role was advisory was unconstitutional, and trial counsel provided ineffective assistance for failing to litigate these claims; , (4) Florida’s death sentence statute is unconstitutional as applied; (5) Florida’s capital sentencing statute does not prevent the arbitrary and capricious imposition of the death penalty, Florida’s method of execution is cruel and unusual under the Eighth Amendment, and trial counsel was ineffective for failing to litigate these claims; and (6) cumulative error.

Penalty Phase Issues

First, Baker claims that because the capital sentencing scheme utilizes aggravating factors to operate as the functional equivalent of an element of a greater offense, they must be found by a unanimous jury under Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556. During the pen-dency of Baker’s case, the United States Supreme Court found Florida’s death penalty scheme unconstitutional in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). We have interpreted Hurst v. Florida, an extension of Ring, to require a jury to unanimously find each aggravating factor, that the aggravating factors are, sufficient to warrant death, and that the aggravating factors outweigh the mitigation. See Hurst v. State, 202 So.3d 40, 57, 66 (Fla. 2016). We have also determined that most defendants sentenced to death after the Ring decision should receive the benefit of Hurst. See Mosley v. State, 41 Fla. L. Weekly S629, S642, 209 So.3d 1248, 1253 (Fla. Dec. 22, 2016). Baker, whose sentence was final in 2011, is one such defendant.

Because Hurst applies to Baker, we must consider whether it is clear beyond a reasonable doubt that a rational jury would have unanimously found all the facts necessary for imposition of death and unanimously recommended death, such that any Hurst error is harmless. See Mosley, 41 Fla. L. Weekly at S641, 209 So.3d at 1248. In this case, the jury’s recommendations of death were not unanimous, and the jury made no findings concerning the aggravating and mitigating circumstances. The jury recommended death for the murder of Elizabeth Uptagrafft by a vote of nine to three. Therefore, we cannot conclude that the error in Baker’s penalty phase was harmless beyond a reasonable doubt. Accordingly, Baker is entitled to a new penalty phase.

PETITION FOR WRIT OF HABEAS CORPUS

Baker raises two claims in his petition for habeas corpus filed with this Court. He contends that (1) appellate counsel rendered ineffective assistance by failing to supplement the record on appeal; and (2) appellate counsel rendered ineffective assistance by failing to supplement the record on appeal with the full April 24, 2002 ACT Corporation Evaluation Report. As explained below, Baker is not entitled to habeas relief on either claim.

Record on Appeal

For his first habeas corpus claim, Baker argues appellate counsel was ineffective for failing to supplement the record on appeal. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla. 2000). Consistent with the standard set forth by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to grant habeas relief based on ineffective assistance of counsel this Court must determine:

first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla. 1986); see Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla. 2000). In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see Knight v. State, 394 So.2d 997, 1001 (Fla. 1981). Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000). “If a legal issue Svould in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Id. (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla. 1994)).

Baker claims that appellate counsel was ineffective for failing to supplement the record on appeal with an exhibit that contained the medical records that defense psychologist, Dr. Harry Krop, relied on during his testimony during Baker’s penalty phase. Baker takes issue with the trial court’s finding that he was not under the influence of extreme mental or emotional disturbance when the crime was committed. As part of the court’s reasoning, it stated that Dr. Krop believed that Baker “suffers from significant brain damage,” yet noted “no other of the numerous reports even suggested the possibility of brain damage.” Baker argues that this Court was unable to review the trial court’s determination of Baker’s sentence adequately without these records, which further prevented this Court from performing a competent proportionality review. The State argues that the absence of the exhibit from the record on appeal did not undermine confidence in the result reached in Baker’s direct appeal in light of the extensive testimony of defense witnesses that established all of the relevant facts and findings contained within the exhibit.

During the penalty phase, defense counsel presented the testimony of Dr. Krop. Dr. Krop’s testimony provided this Court with extensive detail about Baker’s difficult childhood as well as all of the medical, psychological, and educational issues that were documented in the exhibit. Dr. Krop explained in detail the dynamics of Baker’s difficult childhood as well as his medical and developmental challenges. Dr. Krop also described the findings Contained in the psychological evaluation conducted by J. Jeff Oatley, Ph.D., on April 6, 1994, and the ACT Corporation Psychiatric Evaluation conducted by Sharon Winters, M.D., on April 22,1994.

Dr. Krop then summarized and explained the relevant portions of the psychological evaluation by James D. Upson, Ph.D., dated June 24, 1994, and the ACT Corporation Psychiatric Evaluation by Ann Mian, M.D., dated April 30, 1998. Dr. Krop’s testimony then addressed the psychological report by Peter Larkin, M.A., N.C.S.P., dated April 14, 2000. Next, Dr. Krop summarized the findings contained in his two reports dated July 6, 2007, and September 7, 2007. After explaining the fundamentals of MRI and PET scans, Dr. Krop then explained the results of Baker’s PET scan dated February 8, 2008, and Baker’s MRI dated September 10, 2007. Finally, Dr. Krop’s testimony on direct examination concluded with his overall opinion and diagnoses regarding Baker’s mental state.

Dr. Krop’s testimony regarding the medical records established that Baker had an inability to concentrate, borderline intelligence, and learning disabilities. Baker also exhibited poor behavior in school, was not learning, and had a serious impairment of social and school functioning. Regarding his own opinion and diagnoses, Dr. Krop testified that Baker had attention deficit disorder and a cognitive disorder due to a frontal lobe brain impairment. None of the other medical records or evaluations found that Baker suffered from brain damage.

The State’s cross-examination of Dr. Krop was brief. The State questioned Dr. Krop about his experience serving primarily as an expert witness for the defense. The State then challenged Dr. Krop’s opinion that Baker suffered from brain damage, but receded from the line of questioning once Dr. Krop explained that he based his opinion on his own neuropsychological testing and the findings of Baker’s PET scan. The State challenged Dr. Krop’s findings of brain damage and borderline intelligence but left the bulk of Dr. Krop’s testimony unrefuted. Dr. Krop’s conclusions and testimony concerning the contents of the documents within the Exhibit were unimpeached and did not need documentary support or augmentation.

This Court has routinely affirmed death sentences despite there being an incomplete record on appeal. Darling v. State, 808 So.2d 145, 163 (Fla. 2002) (“Darling has failed to demonstrate what specific prejudice, if any, has been incurred because of the missing transcripts. The missing portion of the transcript has not been shown to be necessary for a complete review of this appeal.”); Armstrong v. State, 862 So.2d 705, 721 (Fla. 2003) (“Armstrong has failed to link a meritorious appellate issue to the allegedly missing record and thus cannot establish that he was prejudiced by its absence,”). Baker fails to show how he was prejudiced by the omissions in the record, or how consideration of new information contained within the exhibit would change the result of Baker’s- direct appeal or otherwise undermine confidence therein. The trial court’s finding that only Dr. Krop believed Baker suffered from brain damage was correct. Contrary to Baker’s claim, neither the PET scan nor any other defense exhibit submitted into evidence tendered the conclusion that Baker suffered from brain damage.

Furthermore, counsel is not ineffective for failing to present duplicative or cumulative evidence of a single mitigating factor. See Darling v. State, 966 So.2d 366, 378 (Fla. 2007) (citing Gudinas v. State, 816 So.2d 1095, 1106 (Fla. 2002)); see also Sweet v. State, 810 So.2d 854, 863-64 (Fla. 2002). Dr. Krop’s extensive testimony regarding Baker’s medical reports established all of the relevant facts and findings contained within the exhibit. Dr. Krop’s testimony concerning the relevant facts and findings contained in the exhibit was a part of the record on appeal and the State never impeached any defense witness testimony concerning the exhibit’s content. The exhibit adds no substantial mitigating evidence to the record.

Baker’s appellate counsel did not commit serious error by failing to supplement the record to include the missing exhibit in light of its cumulative nature and relatively minor import. Even if appellate counsel should have supplemented the record, Baker has failed to establish that he was prejudiced by the omission of an exhibit from the record on appeal. For these reasons, we deny Baker relief as to this claim.

ACT Corporation Evaluation Report

As the second claim in his petition for writ of habeas corpus, Baker argues that his appellate counsel rendered ineffective assistance by failing to supplement the record on appeal with the full April 24, 2002, ACT Corporation Evaluation Report. Again, in order to determine whether Baker is entitled to habeas relief, this Gourt must determine (1) “whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling outside the range of professionally acceptable performance,” and (2) “whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Cox v. State, 966 So.2d 337, 365 (Fla. 2007) (quoting Pope, 496 So.2d at 800). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Anderson v. State, 18 So.3d 501, 520 (Fla. 2009) (quoting Freeman, 761 So.2d at 1069). “Appellate counsel is not ineffective for failing to raise issues not preserved for appeal.” Medina v. Dugger, 586 So.2d 317, 318 (Fla. 1991).

Baker argues that an April 24, 2002, history and assessment of Baker prepared by a social worker for the ACT Corporation was discussed during witness testimony but never submitted into evidence. Baker takes exception with the trial court’s reference to information contained in the report in its Sentencing Order. Since Baker did not object to the Sentencing Order on this basis, he is procedurally barred from seeking relief for this trial court error. Schoenwetter v. State, 46 So.3d 535, 563 (Fla. 2010) (“Claims of ineffective assistance of counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postcon-viction motion.”), (citations omitted).

Baker also fails to establish how he was prejudiced by appellate counsel’s failure to supplement the record on appeal with this report. Baker argues that the prognosis that he was at a low to moderate risk of suicide shows proof that Baker suffered from extreme emotional disturbances. This argument is meritless. While the report was made because Baker was allegedly seen tying a sheet around his neck, Baker denied that he ever did so and specifically claimed that the report was false. Moreover, the report indicates that Baker denied any depression, reported that he had a couple of class friends, attended church, denied feeling suicidal, appeared to the evaluator to have normal intelligence and a strong street sense, and liked listening to music. Finally, the relevant portion of the report that the trial court cited in its Sentencing Order that Baker had a “strong street sense” was a part of Dr. Krop’s testimony.

This report did little to support Baker’s claim of extreme emotional distress and actually contradicted Baker’s claim of borderline intelligence. For this reason, appellate counsel cannot be found to have committed serious error by failing to supplement the record on appeal to include the report. Further, Baker has failed to demonstrate how he was prejudiced by the omission of this report from the record on appeal. Consequently, we deny relief as to this claim.

CONCLUSION

For the reasons stated above, we reverse the trial court’s denial of Baker’s claim related to the constitutionality of Florida’s death penalty scheme, and we deny habeas relief. Accordingly, we vacate Baker’s death sentence as unconstitutional under Hurst and remand to the trial court for a new penalty phase.

It is so ordered.

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

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

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . Baker asserted that: (1) the trial court erred in denying his motion to suppress the recording of his post-arrest interrogation; (2) the trial court erred in refusing to allow Baker to read a letter of apology during the penalty phase; (3) the trial court erred in admitting portions of two victim impact statements; (4) the trial court erred in finding that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal -justification (CCP); (5) the trial court erred in finding that the murder was especially heinous, atrocious, or cruel (HAC); (6) death is a disproportionate punishment; and (7) Florida’s death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Baker, 71 So.3d 802 at 814-24.

      . Baker asserted that: (1) trial counsel rendered ineffective assistance of counsel for failing to proffer Baker’s letter of apology; (2) the Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibits party attorneys from interviewing jurors after the conclusion of the case, violated Baker’s right to equal protection; (3) the trial court’s instructions to the jury during the penalty phase diminished the jury’s sense of responsibility in determining the proper sentence and trial counsel was ineffective for failing to litigate this issue; (4) Florida's sentencing statute is unconstitutional based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556; (5) Florida’s capital sentencing statutes and rules unconstitutionally fail to prevent the arbitrary and capricious imposition of the death penalty and Florida’s use of lethal injection constitutes cruel and unusual punishment; and (6) cumulative error.

      . Because we find that Baker is entitled to a new penalty phase, we do not address the other penalty phase issues raised.

      . Both parties agree that an exhibit was admitted into evidence, omitted from the record on appeal, and contained the following documents:
      Psychological Evaluation by J. Jeff Oatley, Ph.D., dated April 6, 1994; ACT Corporation Psychiatric Evaluation by Sharon Winters, M.D., dated April 22, 1994; Psychological Evaluation by James D. Upson, Ph.D., dated June 24, 1994; ACT Corporation Psychiatric Evaluation by Ann Mian, M.D., dated April 30, 1998; Psychological Report by Peter Lar-kin, M.A., N.C.S.P., dated April 14, 2000; two reports of Harry Krop, Ph.D., dated July 6, 2007 and September 7, 2007; PET scan dated February 8, 2008, and an MRI dated September 10, 2007; composite records from Shands Hospital from Baker’s 1992 eye surgery; composite of Flagler County school health records from Baker; composite of Flagler County school' system assessment reports for Baker; and composite of Flagler County school "other” reports for Baker.

      . Dr. Krop’s direct examination testimony exceeded fifty pages of trial transcript. The State’s cross-examination comprised less than seven pages of trial transcript.


author: PER CURIAM. QUINCE, J.,

text:
    Rafael YEE, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-1925
    Supreme Court of Florida.
    [March 30, 2017]
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Richard L. Polin, Bureau Chief, and Keri T. Joseph, Assistant Attorney General, Miami, Florida, for Respondent ■ •
   PER CURIAM.

We initially accepted review of the decision in State v. Yee, 177 So.3d 72, 73-74 (Fla. 3d DCA 2015), based on conflict jurisdiction. See art. V, § 3(b)(3), Fla. Const. After hearing oral argument, we conclude that jurisdiction was improvidently granted and dismiss the petition.

It is so ordered.

LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur. QUINCE, J., dissents with an opinion, in which PARIENTE and LEWIS, JJ., concur.

NO MOTION FOR REHEARING WILL BE ALLOWED.

QUINCE, J.,

dissenting.

Jurisdiction was properly granted to address the express and direct conflict between the Third District’s decision in State v. Yee, 177 So.3d 72, 73-74 (Fla. 3d DCA 2015), and this Court’s decisions in Seibert v. State, 923 So.2d 460, 468 (Fla. 2006); Riggs v. State, 918 So.2d 274, 278-79 (Fla. 2005); and Rolling v. State, 695 So.2d 278, 293-94 (Fla. 1997). The Third District majority failed to make the findings necessary to determine that exigent circumstances justified a warrantless search. To demonstrate exigent circumstances, the State must show the following: (1) an objectively l-easonable basis for the officers in this case to believe that there is an immediate need for police assistance to protect life or substantial property interests, Seibert, 923 So.2d at 468, or a grave emergency making a warrantless search imperative to police and community safety, Riggs, 918 So.2d at 278-29; and (2) police lacked time to secure a warrant, Rolling, 695 So.2d at 293.

A trial court’s ruling on a motion to suppress is “clothed with a presumption of correctness,” and the appellate courts must interpret the evidence and inferences made about that evidence in a manner most favorable to sustaining the ruling. Terry v. State, 668 So.2d 954, 958 (Fla. 1996). Appellate courts must defer to the trial court’s factual findings where supported by competent, substantial evidence. See State v. Hankerson, 65 So.3d 502, 506 (Fla. 2011). The legal question is reviewed de novo in the totality of the circumstances. Id.; see Rodriguez v. State, 187 So.3d 841, 845 (Fla. 2015); Seibert, 923 So.2d at 468; Fitzpatrick v. State, 900 So.2d 495, 510 (Fla. 2005).

The Third District majority omitted trial court findings and facts without disputing them as unsupported by competent, substantial evidence. By omitting this evidence, the majority was able to liken its chosen facts to those in other Florida district court decisions in which the exigency exception was found in the context of a potential burglary. Yee, 177 So.3d at 75-76. Effectively, the Third District treated an apparent burglary as an independent exception to the warrant requirement. No such exception exists. See Mincey v. Arizona, 437 U.S. 385, 393-95, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (noting that a war-rantless search is presumptively unreasonable on “the scene of a rape, a robbery, or a burglary”).

Based on the foregoing, I would retain this case and address the issues on the merits.

PARIENTE and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Corey Jamaine DOZIER, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-2092
    Supreme Court of Florida.
    [March 30, 2017]
    Candice K. Brower, Criminal Conflict and Civil Regional Counsel, and S. Nicole Jamieson, Assistant Regional Conflict Counsel, Yulee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, and Matthew Pavese and Robert “Charlie” Lee, Assistant Attorneys General, Tallahassee, Florida, for Respondent
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the First District Court of Appeal in Dozier v. State, 175 So.3d 322 (Fla. 1st DCA 2015), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we exercise our discretion and discharge jurisdiction.

It is so ordered.

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

CANADY, J., concurs in result.

LEWIS, J., dissents.


text:
    Dwayne F. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. SC15-625
    Supreme Court of Florida.
    [March 30, 2017]

      James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Vivian Singleton, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Dwayne F. White, who was forty-one years old at the time of the offense, was convicted of first-degree murder in the death of his estranged wife, Sarah Yvonne Rucker, who was forty-three years old at the time of her death. By a vote of eight to four, the jury recommended that White be sentenced to death, and the trial court imposed a death sentence. This is White’s direct appeal of his conviction of first-degree murder and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

For the reasons that follow, we affirm White’s conviction of first-degree murder but vacate his death sentence because we cannot conclude that the Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), error is harmless beyond a reasonable doubt. Accordingly, we remand his case to the circuit court for a new penalty phase.

FACTS

The evidence introduced at trial during the guilt phase established the following facts. Dwayne Fitzgerald White and the victim, Sarah Yvonne Rucker, had been involved in a romantic relationship since 1988. Although White and the victim were married at the time of the murder, they had become estranged and lived in separate houses. White lived in Orlando, Florida, with his girlfriend of eight years. The victim lived in a house she owned with White in Deltona, Florida, with their four children.

At approximately two a.m. on August 29, 2011, White unexpectedly arrived at the victim’s home. Dwayne White, Jr. (“Dwayne”), the couple’s eldest son, who was approximately seventeen years old at the time of the incident, awoke to the sound of the dog barking and went to the window, where he saw his father, White, walking up the driveway.

Dwayne called to his mother to alert her that White was outside, but White walked into the house and told Dwayne-he wanted to speak with him. White spoke with Dwayne in his room for a few minutes while the victim went outside.

At the end of the conversation with White, Dwayne stayed in his room while White walked outside to see the victim. Dwayne then heard his younger sister yelling for him. Dwayne went outside in response and observed a beer bottle flying toward the victim. He saw the victim on her back, with her hands up holding her cell phone, and White attempting to pry her phone from her hands. White eventually was able to take the phone and then got in his car and drove away. Dwayne had to restrain his mother from going after White as he left with her phone.

Throughout the altercation the victim was on the phone with an emergency dispatcher, who was reached by dialing 911. She made five calls to 911 between 1:56 and 2:01 a.m. A recording of the calls was entered into evidence and played for the jury at trial. The victim can be heard on the calls telling White: “Don’t hit Dwayne, stop the violence. You are so violent. Stop. Just stop,” She also stated: “He scared me. I’m tired of this. He is always doing this.... I just need to get my phone back.”

The victim told the 911 operator that White came over to the house that night because he was mad that the victim was no longer romantically interested in him. At one point, ■ the victim told the operator: “I’m going to have to get me a gun and blow his head off for coming into my yard.” She continually emphasized how badly she needed to get her phone back and ■ how, important it was to her, even stating at one point, “I’m going to go find him myself.” She told the operator that it was critical that she have her phone because she worked at a surgical center and was on call that night. She could be called in at a moment’s notice and could be fired if she did not have her phone. The victim told the 911 operator this was not the first time this had happened. White had stolen two other phones from her and gone through all of her phone calls and text messages.

Dwayne also saw White’s pocket knife, which he often carried with him, clipped to his pants pocket that night. After White left, Dwayne left the house intending to go down the street to his neighbor’s house to get a shotgun for protection in the event that White might return. Dwayne did not make it, however, as the victim went after him and was able to bring him home. Shortly thereafter, the police arrived at the victim’s residence. White called Dwayne’s phone while the police were there. Dwayne handed the phone to the officer, who intended to convince White to come back to the victim’s house and return her phone; however, White immediately hung up.

After the police left, White called Dwayne’s phone again. When Dwayne answered the phone, White told him to go in to the bathroom by himself. White then told Dwayne that it was not Dwayne’s place to be involved in his parents’ business. White told Dwayne that he needed the victim to take back her report of the crime. At that point, the victim came into the bathroom, snatched Dwayne’s phone, and began yelling at White that she needed her phone back. The victim then walked out the front door with Dwayne’s phone, and that was the last time Dwayne saw his mother alive.

The evidence is unclear as to exactly what transpired between 2:30 a.m., when White left the victim’s house, and approximately four a.m., when her body was found outside of a Miami Subs near the intersection of Interstate 4 and exit 434 in Orlando. However, the State introduced evidence indicating the relative locations of White’s phone, the victim’s phone, and Dwayne’s phone during that time.

Cell phone records indicate that White’s phone and the victim’s phone, which White had in his possession, were tracked from the victim’s home in Deltona to the vicinity of White’s girlfriend’s home in Orlando, reaching that location sometime around 2:47 a.m. At 3:32 a.m., White received a call from Dwayne’s phone, which was in the victim’s possession, that lasted approximately nine minutes. By the end of this call, White’s phone was tracked from his girlfriend’s house toward the location of where the victim’s body was found. By 3:46 a.m. White’s phone was in the vicinity of the cell phone tower serving the Miami Subs where the victim’s body was found. Dwayne’s phone was also in the vicinity of the cell phone tower serving the Miami Subs location at 3:46 a.m. At 3:52 a.m., Dwayne’s phone received a five-second call from White’s phone. The victim’s car was first spotted in the Miami Subs parking lot by a passerby at approximately 4:10 a.m.

The victim’s body was discovered outside of the Miami Subs location between four a.m. and five a.m. by two men meeting there to carpool to work. Her car was located at the scene, parked, with one door left open. The men called 911, and the Seminole County Sheriffs Office crime scene analysts reported to the scene. The victim was found lying face down on the ground in a pool of her own blood. White’s palm print was found in the victim’s blood just above the victim’s head on an exterior window ledge of the Miami Subs.

The victim had been stabbed seven times around her upper chin and neck. Her throat had also been cut so deeply that her trachea, esophagus, and carotid artery had been completely severed. The medical examiner testified that it would have taken at least four separate passes with a knife or similar object to create such a “gaping wound.” The victim’s body also had several defensive wounds to the palms of her left and right hands, indicating that some sort of struggle had taken place that morning. The medical examiner determined the victim’s manner of death to be homicide and cause of death to be sharp-force injuries to the neck.

Later that day, the police first made contact with White. When White was informed that Sarah Rucker had been involved in an “incident” and was “deceased,” his immediate reaction was: “It wasn’t me.”

Detective Jennifer Spears testified that when she entered White’s home to question him about the victim’s death, she saw a bottle of household bleach on the bathroom counter and smelled the strong odor of bleach coming from the bathtub itself. She also observed some red scratches on White’s chest, which she described during the trial as consistent with fingernail scratches. When questioned about his pocket knives that he was known to carry with him, "White told Spears that they would either be in his bedroom or in his van. However, after a thorough search, the knives were never located.

Investigator William Maxwell transported White from his girlfriend’s house in Orlando to the Volusia County Sheriffs Office for questioning. Maxwell testified that on the way there, when driving by the location of the crime scene, White hung his head low and appeared to be in distress, stating he had a lot on his mind. A video recording of White’s interview with the Volusia County Sheriffs Department was played during trial for the jury. He consistently denied having any involvement in the crime or being at the crime scene, even when confronted with evidence that .his palm print was found at the scene in the victim’s blood.

White took the stand at his trial. He admitted that he had five previous felony convictions. He claimed that he went to the victim’s house that morning with the intention of speaking with his son, not of causing a fight. When White went outside, he got into a scuffle with the victim and she lost her footing and fell to the ground. When the victim was on the ground, he grabbed her phone and then left. Though he had a bottle of beer in his possession and had been drinking that night, he stated he did not throw a beer bottle at the victim. When White left the victim’s home, he went to his girlfriend’s home in Orlando. He spoke with the victim on his way back and she seemed angry and irritated with him. They had planned to meet at the Miami Subs location so he could return her phone. Before they met, White looked through the victim’s phone and saw that she had been having romantic relationships and “angry conversations” with a variety of men' through text messaging. When he got to the Miami Subs location, he found the victim’s body in front of the store and saw a lot of blood. White testified that he went to the location with the intention only of returning her phone and testified that he did not have any intention to harm or get in a fight with the victim, as evidenced, he claimed, by the fact that he did not bring a weapon with him. When he saw the victim’s body, he went to her and yelled her name trying to elicit a response. When he realized she was dead,. he panicked and then left and went back home. White did not- call the police or tell the detectives during his interview about discovering the victim’s body or being present at the crime scene because he did not trust them and knew he would be the prime suspect in the case. The jury found the defendant guilty of first-degree murder.

At the penalty phase, the State presented four witnesses: fingerprint analyst Jerri Cabral; medical examiner Marie Herr-mann; Investigator Don Maxwell; and victim advocate Pam Theiss. The fingerprint analyst testified that the fingerprints she obtained from White matched fingerprints on three certified prior violent felony convictions. The medical examiner testified again during the penalty phase of the trial, adding to her previous testimony information regarding the victim’s physical and emotional pain, consciousness during the attack, and defensive wounds. The medical examiner testified that the victim had a total of five defensive, wounds on her hands. She also testified that the.victim would have experienced extreme emotional and physical pain and could have been conscious for up to sixty seconds after she was first attacked. The investigator, Don Maxwell, testified that he had reported to the victim’s home in February of 2011, after she had gotten into an altercation with White. White was charged with felony battery and domestic violent strangulation following the February 2011 incident. Finally, the victim advocate read a victim impact statement written by the victim’s and White’s eldest daughter, Kiara Ruck-er.

The defense presented three witnesses: White’s brother, Lee White, his sister Felicia White, and a close family friend and counselor, Richard Danner. White’s family testified that he had a great personality, was a comedian, played instruments in middle school, was involved in the Police Explorers, and loved and spent time with his children. White’s sister testified that their father was absent in their lives, though they knew who he was. White’s brother testified that their mother was strict and used corporal punishment. The defense also introduced family photos of White growing up. Richard Danner testified that he had known White for a long time. He had counseled White and convinced him to marry the victim. White often helped Danner counsel young men to keep them from going down the same path taken by White; Danner also testified that White loved his children very much and was very involved in their lives. The State questioned Danner regarding White’s three previous felony convictions: a 1988 aggravated assault conviction, in which White pulled a shotgun on a woman in a laundry room; a 1992 aggravated assault conviction, in which White pulled a gun on a roommate over an argument; and a 1993 aggravated battery conviction, in which White hit the victim in this case, Sarah Rucker, over the head with a bottle while she was pregnant with her and White’s eldest son.

The trial court instructed the jury on three aggravating factors: (1) that White had a prior violent felony; (2) that the murder was especially heinous, atrocious, or cruel (HAC); (3) and that White committed the murder to. avoid arrest. Additionally, the, trial’ court instructed the jury on two statutory mitigating circumstances: (1) extreme emotional disturbance; and (2) other factors in the defendant’s background that would mitigate against imposition of the death penalty, and seven non-statutory mitigating circumstances based on White’s character, background, life, and other circumstances of the offense. The jury recommended death by a vote of eight to four.

At the Spencer hearing, which took place on January 6, 2015, White waived his right to present any new evidence and to make a statement. The State also did not present additional evidence.

In sentencing White, the trial court found two of the three aggravating factors on which it instructed the jury: (1) the crime was committed by a person previously convicted of a prior violent felony (great weight); and (2) the murder was especially heinous, atrocious, or cruel (great weight). The trial court noted in particular that White’s prior violent felonies were three separate events, one of which involved the victim in this case, and one of which the evidence showed that but for the intervention of White’s brother, he would have shot that victim. The trial court found that the State failed to prove that the murder was committed for the purpose of avoiding arrest, and therefore gave that aggravating factor no weight.

The trial court rejected the statutory-mitigating circumstance that the crime was committed while the defendant was under the influence of extreme emotional or mental disturbance. However, the court did find the nonstatutory mitigating circumstance of mental or emotional disturbance, but did not deem the emotional disturbance “extreme,” and gave it little weight. The trial court found that the statutory mitigating circumstance that there were other factors in the defendant’s background that would mitigate against imposition of the death penalty was proven and gave it little weight.

In addition, the trial court found that White had proven the following nonstatu-tory mitigating circumstances and gave each little weight: (1) the defendant was abandoned at an early age by his father; (2) the defendant grew up without his father and was raised by his mother; (3) the defendant was a good student and member of the Police Explorers; (4) the defendant has family and friends who care for him and love him; (5) the defendant participated in the lives of his children; (6) the defendant helped to counsel young men; (7) the defendant manifested appropriate courtroom behavior throughout the pen-dency of the penalty and guilt phases of the trial. The trial court concluded that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the trial court sentenced White to death.

ANALYSIS

White’s counsel raises four claims on appeal: (1) White’s sentence of death should be reversed based on Hurst v. Florida (Hurst v. Florida), — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016); (2) the State presented insufficient' evidence to support his conviction; (3) the HAC jury instruction is unconstitutional; and (4) White’s sentence of death is disproportionate. We address the sufficiency of the evidence and then address White’s claim under Hurst v. Florida. Because we conclude that White’s sentence should be reversed under Hurst, we do not address the other penalty phase arguments.

I. Sufficiency of the Evidence

White argues that the evidence presented by the State was insufficient to support his first-degree murder conviction. “In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Simmons v. State, 934 So.2d 1100, 1111 (Fla. 2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla. 2001)). Here, where the evidence presented by the State is wholly circumstantial, the Court “must determine not only whether the State has proven the ‘elements of the crime beyond a reasonable doubt,’ but also whether the record contains ‘competent substantial evidence which is inconsistent with the defendant’s theory of events.’” Hodgkins v. State, 175 So.3d 741, 751 (Fla. 2015) (quoting Johnston v. State, 863 So.2d 271, 283 (Fla. 2003)).

White argues the State did not present a single piece of evidence that clearly negates White’s hypothesis of innocence that someone else committed the crime and that he merely found the victim after she was already deceased. He asserts that this case is analogous to Hodgkins, where the Court reversed Hodgkins’ murder conviction when the circumstantial evidence of Hodgkins’ DNA being under the victim’s fingernails was insufficient to overcome Hodgkins’ reasonable hypothesis of innocence that someone else killed the victim. 175 So.3d at 750. The defense’s theory of events is that White was at the murder scene, but, as he testified at trial, only after the victim was already deceased. White fled and did not call the police because he knew he would be the prime suspect and did not trust the police. White testified that when he stole the victim’s phone, he saw “angry conversations” with other men she had been dating, and the defense offered the theory that perhaps when the victim left her house that morning she was going to meet another man, who killed her.

The State has produced competent, substantial evidence that is inconsistent with White’s theory of events. The State presented evidence that White went to the victim’s home around two a.m. on the date of the offense. At her home, White got in an altercation with the victim and stole her cell phone. The victim left the home with her son’s phone, traveling towards White’s residence in Orlando, after emphasizing to the 911 operator how important it was that she have her phone and that she needed to get it back. Around three a.m., White spoke with the victim in a call that lasted more than nine minutes and then began traveling towards the Miami Subs location, which would ultimately be the crime scene. Further, White admitted to being at the crime scene. White’s palm print was found in the victim’s blood on a window sill directly above the victim’s head. White always carried a pocket knife with him, which the police could not find after arresting him. Upon entering White’s home to interview him, a female detective noticed a bottle of bleach on the counter in the bathroom and smelled the odor of bleach coming from the bathroom. White consistently denied being at the crime scene to police during his interview, and did not admit he was there until trial. Finally, White and the victim had a history of violence in their relationship.

Taken together, this circumstantial evidence rebuts White’s presumption that the victim was murdered by an angry lover. There was simply no evidence adduced at trial, other than White’s testimony, that he saw “angry conversations” on the victim’s phone that would tend to corroborate White’s theory of the murder. By contrast, the State presented, as White characterizes it, a “large volume” of circumstantial evidence that points to White as the murderer, and in doing so, rebuts his theory. The relationship between White and the victim, the history of violence, the altercation within hours of the victim’s death, and the cell phone records showing calls between White and the victim just minutes before her death all indicate that it was White, and not some other angry lover, who murdered the victim.

Hodgkins is distinguishable from this case. In Hodgkins, this Court found that the evidence under the victim’s fingernails pointed only to the fact that the defendant had been with the victim at some point before she was murdered. 175 So.3d at 748. There was, however, no other evidence to put the defendant at the crime scene around the time of victim’s death or any evidence of animosity between the defendant and the victim. Id at 748-49. By contrast, in this case, there was a pattern of previous violence between White and the victim. Further, White admits to being at the crime scene in close proximity to the time when the victim was killed, which is supported by the fact that his palm print was found in her blood directly above her head. Thus, this ease is distinguishable from the facts in Hodgkins.

II. Hurst v. Florida and Hurst

The next issue addressed is whether White is entitled to Hurst relief. New rules of law announced by this Court or the United States Supreme Court generally apply to all cases that are pending on direct review or are otherwise not final. State v. Johnson, 122 So.3d 856, 861 (Fla. 2013) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992)). Therefore, Hurst applies to this case, which is before this Court on direct appeal.

White filed a pretrial motion seeking relief based on Ring, which the trial court denied. He now argues that his death sentence was imposed in violation of Hurst v. Florida, and, as a result, his death sentence must be commuted to a life sentence pursuant to section 775.082(2), Florida Statutes (2011). Alternatively, White argues that he must be sentenced to life imprisonment because Hurst v. Florida error is structural and therefore not amenable to harmless error review. The State argues that no error occurred at all in this case, but if it did, it was harmless.

In Hurst, this Court determined that, in order for the trial court to constitutionally impose a sentence of death, the jury must unanimously find all facts necessary to impose a sentence of death and unanimously recommend a sentence of death. Hurst, 202 So.3d at 44. Thus, there is no question whether there was Hurst error in White’s case because the jury issued only an advisory recommendation of death by a vote of eight to four and did not make any of the factual findings required by this Court in Hurst. Accordingly, the issue before this Court is whether the Hurst error in White’s case was harmless. On remand, in Hurst, we held that Hurst error is capable of harmless error review. Id. at 66. As applied to the right to a jury trial, it must be clear 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 White’s death sentence. See id at 65-67.

We cannot conclude that the Hurst error in White’s case was harmless beyond a reasonable doubt. The jury in this case did not make any of the requisite factual findings and recommended death by only a vote of eight to four. Additionally, it should be noted that even though White had three prior violent felony convictions, all of these convictions were between 18 and 24 years prior to the date of the offense in this case. White was 18,22, and 23 years old, respectively, when he committed the previous crimes, and the prior felonies involved three separate incidents. Although we can conclude that the prior violent felony aggravating factor was found unanimously, this Court has no way of knowing if the jury unanimously found HAC, whether the aggravating factors were sufficient to impose death, or whether the aggravating factors outweighed the mitigating eircum-stances. Also of significance in this case is that the trial court submitted the avoid arrest aggravator to the jury but then did not “find” that the aggravator was proven and therefore did not consider it, so there is no way of knowing if the jury found that aggravator because there was no special verdict form.

Simply put, any attempt by this Court to determine why four jurors voted for life and eight jurors voted for death is mere speculation without more information and certainly does not rise to the level of proof beyond a reasonable doubt. For these reasons, we conclude that the Hurst error in this case was not harmless beyond a reasonable doubt and, therefore, White’s case should be remanded for a new penalty phase.

CONCLUSION

Accordingly, we affirm White’s first-degree murder conviction but vacate his sentence of death and remand the case to the circuit court for a new penalty phase.

It is so ordered.

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

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

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

      . White filed numerous pretrial motions, including one to declare Florida's death penalty unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).-


text:
    Alan OSTERHOUDT, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. SC16-303
    Supreme Court of Florida.
    [March 30, 2017]
    Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Heidt, Bureau Chief, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   PER CURIAM.

Alan Osterhoudt, Jr., seeks review of the decision of the Fifth District Court of Appeal in Osterhoudt v. State, 182 So.3d 16 (Fla. 5th DCA 2015), on the ground that it expressly and directly conflicts, with decisions of the Second District Court of Appeal in Williams v. State, 198 So.3d 778 (Fla. 2d DCA 2016), and the First District Court of Appeal in Nix v. State, 84 So.3d 424 (Fla. 1st DCA 2012), regarding whether trial courts must individually pronounce discretionary fees, costs, and fines at sentencing. As explained below, we approve the. decisions in Williams and Nix and quash the decision in Osterhoudt to the extent it is inconsistent with this decision.

Osterhoudt was convicted of manslaughter with a firearm and sentenced to 30 years’ imprisonment for the killing of his wife. At his sentencing hearing, the trial judge imposed a lump sum of “approximately $956” in fines and court costs. The written order showed that the total included a $300 discretionary fine and $15 surcharge, which were not individually pronounced at sentencing. Osterhoudt filed a motion under Florida Rule of Criminal Procedure 3.800(b) and appealed his judgement and sentence to the Fifth District, arguing that the trial court erred by denying his motion for mistrial and by not individually pronouncing the discretionary fine and surcharge at sentencing. Osterhoudt, 182 So.3d at 17. The Fifth District affirmed the trial court’s denial of the motion for mistrial and held that the challenge to the discretionary fine and surcharge was not preserved because it was only a procedural challenge. Id.

Conversely, the First and Second Districts have held that trial courts must individually pronounce discretionary fees, costs, and fines at sentencing. In Williams, 198 So.3d at 778, the Second District addressed a situation where the trial court orally pronounced the imposition of an aggregate fine but only later clarified in the written judgement that “the $1002 aggregate fine was, in part, made up of a discretionary fine and 5 percent surcharge, totaling $333.” The Second District held that, “[b]ecause the trial court did not make [an] oral pronouncement at the sentencing hearing, the discretionary fine and 5 percent surcharge totaling $333 cannot stand.” Id. at 779.

Similarly, the First District concluded that “discretionary costs must be orally pronounced at sentencing because such costs may not be imposed without affording the defendant notice and an opportunity to be heard.” Nix, 84 So.3d at 426. The First District held that, on remand, the unpronounced discretionary fees, costs, and fines may be reimposed “after providing notice to [a]ppellant and following the proper procedure.” Id.

Consistent with the rulings of the First and Second Districts, we hold that trial courts must individually pronounce discretionary fees, costs, and fines during a sentencing hearing to comply with due process requirements. Accordingly, we quash the Fifth District’s decision insofar as it conflicts with this decision. We remand this case for resentencing where the trial court may reimpose the discretionary fine and surcharge after providing notice to Osterhoudt and following the proper procedure.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We decline to address the non-conflict issue.


text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 16-01.
    No. SC16-323
    Supreme Court of Florida.
    [April 6, 2017]
    Rebecca Mercier Vargas, Chair, Supreme Court Committee on Standard Jury Instructions in Civil Cases, West Palm Beach, Florida: and Laura K. Whitmore, Vice Chair and Subcommittee Chair, Filing Subcommittee of the Supreme Court Committee on Standard Jury Instructions in Civil Cases, Tampa, Florida, for Petitioner
    Jennifer Daley on behalf of The Florida Chapter of the National Employment Lawyers Association, Fort Lauderdale, Florida: Chris Kleppin of Glasser & Kleppin, PA., Plantation, Florida: Robert J. Snif-fen, President, Academy of Florida Management Attorneys, Sniffen & Spellman, P.A., Tallahassee, Florida: April Boyer and Yamilet Hurtado of K & L Gates LLP, Miami, Florida: Frank E. Brown, B.C.S., and Amanda L. Neff of the Reemployment Assistance Appeals Commission, Tallahassee, Florida: and Cathleen Scott, Lindsey Wagner, Deborah S. Baker, Chelsea Bellew, and Michelle T. Murray of Scott Wagner & Associates, P.A., Jupiter, Florida, Responding with Comments
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes the following new instructions under new Section 417, Unlawful Discrimination, based upon the Florida Civil Rights Act (FCRA), sections 760.01-760.11, Florida Statutes (2016): 417.1 (Introduction); 417.2 (Summary of Claims and Defenses): 417.3 (Greater Weight of the Evidence): 417.4 (Discrimination—Disparate Treatment): 417.5 (Legal Cause—Discrimination): 417.6 (Legal Cause—Damage): 417.7 (Issues on Plaintiffs Claim): 417.8 (Burden of Proof on Claim): 417.9 (Unlawful Discrimination Damages): 417.10 (Affirmative Defense— Failure to Mitigate Lost Wages): 417.11 (Affirmative Defense—After-Acquired Evidence): and 417.12 (Reduction of Damages to Present Value). Following publication by the Court, the Court received comments from the Academy of Florida Management Attorneys, April Boyer, Esq., Frank E. Brown, B.C.S., and Amanda L. Neff, Esq., the Florida Chapter of the National Employment Lawyers Association, Chris Kleppin, Esq., and Scott Wagner & Associates, P.A.

The unlawful discrimination instructions are in a format and style consistent to that approved by the Court in 2010 when the Court authorized for publication and use the reorganization of the civil jury instructions. See In re Std. Jury Instr. in Civil Cases—Report No. 09-01 (Reorganization of Civil Jury Instructions), 35 So.3d 666 (Fla. 2010). Having considered the Committee’s report, the comments filed with the Court, and the Committee’s responses to the comments, we authorize the Committee’s proposals for publication and use as set forth in the appendix to this opinion. New language is indicated by underlining. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interestéd parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

APPENDIX

417 UNLAWFUL DISCRIMINATION

417.1 Introduction

417.2 Summary of Claims and Defenses

417.3 Greater Weight of the Evidence

417.4 Discrimination—Disparate Treatment

417.5 Legal Cause—Discrimination

417.6 Legal Cause—Damage

417.7 Issues on Plaintiffs Claim

417.8 Burden of Proof on Claim

417.9 Unlawful Discrimination Damages

417.10 Affirmative Defense—Failure to Mitigate Lost Wages

417.11 Affirmative Defense—After-Acquired Evidence

417.12 Reduction of Damages to Present Value

NOTES ON USE

The instructions in this section are based upon the Florida Civil Rights Act of 1992 (FCRA), which makes it unlawful for an employer to discriminate based upon race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. F.S. 760.01-760.11.

417.1 INTRODUCTION

Members of the jury, you have now heard and received all of the evidence in this case. I am now going to tell you about the rules of law that you must use in reaching your verdict. [You will recall at the beginning of the case I told you that if, at the end of the case I decided that different law applies, I would tell you so. These instructions are (slightly) different from what I gave you at the beginning, and it is these rules of law that you must now follow.] When I finish telling you about the rules of law, the attorneys will present their final arguments and you will then retire to decide your verdict.

NOTES ON USE FOR’417.1

Y. When instructing the jury before taking evidence, use instruction 202.1 in lieu of instruction 417.1. See Model Instruction 1. Instruction 417.1 is for instructing the .jury after the evidence has been concluded. Use the bracketed language in instruction 417.1 when the final instructions are different from the instructions given at the beginning of the case. If the instructions at the end of the case are different from those given at the beginning of the case, the committee recommends that the court point out the differences with appropriate language in the- final instructions, including an explanation for the difference, such as when the court has directed a verdict on an issue.

2. Fla.R.Civ.P. 1.470(b) authorizes instructing the .jury during trial or before or after final argument. The timing of instructions is within the sound discretion of the trial judge, to be determined on a case-by-case basis, but the committee strongly recommends instructing the jury before final argument.

3. Each juror must be provided with a full set of jury instructions for use during their deliberations. Fla.R.Civ.P. 1.470(b). The trial judge may find it useful to provide these instructions to the jurors when the judge reads the instructions in open court so that jurors can read along with the judge, as the judge reads the instructions aloud.

417.2 SUMMARY OF CLAIMS AND DEFENSES

The claimts] [and defenses] in this case [is] [are] as follows: (claimant) claims that (defendant) discriminated against [him] [her] by [discharging] [failing to hire] [ (describe discriminatory treatment) ] (claimant) because of (claimant’s) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status], and that the (describe discriminatory treatment) caused [him] [her] damage.

(Defendant) denies that claim [and also claims that (claimant) (describe any affirmative defenses) ].

[ (Claimant) ] [The parties] must prove [his] [her] [their] claim(s) [and defense(s) ] by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case.

417.3 GREATER WEIGHT OF THE EVIDENCE

“Greater weight of the evidence” means the more persuasive and convine-ing force and effect of the entire evidence in the case.

NOTES ON USE FOR 417.3

1. Greater or lesser number of witnesses. The committee recommends that no charge be given regarding the relationship (or lack of relationship) between the greater weight of the evidence and the greater or lesser number of witnesses.

2. Circumstantial evidence. The committee recommends that no charge generally be given distinguishing circumstantial from direct evidence. See Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960).

3. “Preponderance of evidence" and “burden of proof. ” The committee recommends that no charge be given using these terms, which are considered not helpful to a jury and not necessary in a charge that otherwise defines “greater weight of the evidence” and instructs the jury on the consequences of its determining that the greater weight of the evidence supports or does not support the claim or defense of a party.

417.4 DISCRIMINATION— DISPARATE TREATMENT

To “discriminate” means to treat an [employee] [applicant] differently with regard to compensation, terms, conditions, or privileges of employment because of the [employee’s] [applicant’s] [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status].

NOTES ON USE FOR 417.4

1. This instruction is for disparate treatment claims, as opposed to hostile environment, pattern and practice, or disparate impact claims. See, e.g., EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000) (explaining differences among disparate treatment, pattern and practice, and disparate impact claims of discrimination).

2. This instruction is based upon F.S. 760.10(1), which makes it an unlawful employment practice for an employer “(a) [t]o discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of .employment” or “(b) [t]o limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee” when those employment practices taken are “because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” This instruction can be modified to reflect the particular type of discriminatory treatment at issue.

417.5 LEGAL CAUSE— DISCRIMINATION

(Claimant’s) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status] is the legal cause of (defendant’s) decision to [discharge] [fail to hire] [ (describe discriminatory treatment)] (claimant) if (defendant) made the decision because of (claimant’s) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status].

(If necessary, clarify the causation standard further.)

NOTES ON USE FOR 417.5

1. This instruction uses “because of,” the causation language in F.S. 760.10(1). The committee takes no position on whether additional clarification is needed. We note that “because of’ in employment statutes has been interpreted to mean numerous types of causation. See generally, “Gross Disunity,” 114 Penn. State L. Rev. 857 (2010) (“because of’ can mean at least four different types of causation). Courts have focused on three possible meanings: “sole,” “but for,” and “motivating factor.” If an additional instruction is needed, it may vary depending on which protected factor is involved, as explained below.

2. Race, color, reliqion, sex, national origin. No Florida appellate court has stated which causation standard should be used for a Florida Civil Rights Act (“FCRA”) discrimination claim based on one of the five factors enumerated in Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Florida courts have endorsed the general rule that, because the FCRA was patterned after Title VII, the Florida statute should be given the same construction as the federal courts give the federal act. See, e.q., Carsillo v. City of Lake Worth, 995 So.2d 1118, 1119 (Fla. 4th DCA 2008). In 1991, Congress added the “motivating factor” causation standard to Title VTI and added a “same decision” defense limiting damages. The Florida legislature never amended the FCRA to add the “motivating factor” causation standard and the “same decision” defense limiting damages.

3. Preqnancy. Title VII does not in-elude “pregnancy” as a specifically enumerated factor. However, Title VII, as amended by the Pregnancy Discrimination Act, defines “[t]he terms ‘because of sex’ or ‘on the basis of sex’” to include “because of or on the basis of pregnancy, childbirth, or related medical conditionst.]” 42 U.S.C. § 2000e(k). “Under Title VII, a plaintiff may prevail on a [pregnancy discrimination] claim by showing that her pregnancy ‘was a motivating factor’ for an employment decision.” Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (citing 42 U.S.C. § 2000e-2(m)): Torres-Skair v. Medco Health Solutions, Inc., 595 Fed.Appx. 847, 852 (11th Cir. 2014) (same).

The Florida Legislature amended the FCRA to include pregnancy as a specifically enumerated factor, effective July 1, 2015. F.S. 760.10: Laws 2015, c. 2015-68, § 6. Prior to that amendment, the Florida Supreme Court held that the FCRA’s prescription against discrimination because of “sex” includes discrimination based on pregnancy. Delva v. Continental Group, Inc., 137 So.3d 371, 375 (Fla. 2014). No Florida appellate court has stated which causation standard should be used for an FCRA discrimination claim based on pregnancy. However, the “motivating factor” causation standard has been utilized in pregnancy discrimination claims brought concurrently under the FCRA and Title VIL See, e.g.. Gee, 677 F.3d at 1054-1055, 1058-1059, 1062-1063 (noting that decisions construing Title VII guide the analysis of the plaintiff-employee’s pregnancy discrimination claim under the FCRA): Torres-Skair, 595 Fed.Appx. at 852-853.

4. Ape. Courts have held that decisions construing the federal Age Discrimination in Employment Act (APEA) apply to the FCRA’s age discrimination provision. See, e.g., Fla. State Univ. v. Sondel, 685 So.2d 923 (Fla. 1st DCA 1996). The U.S. Supreme Court interpreted the APEA to require “but for” causation. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

5. Handicap. Courts have held that decisions construing the federal Americans with Disabilities Act (ADA) apply to FCRA’s handicap discrimination provision. See, e.g., Byrd v. BT Foods, Inc., 26 So.3d 600 (Fla. 4th DCA 2010). There is a split among the federal circuits as to whether the ADA requires “motivating factor” or “but for” causation. Compare Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (“motivating factor”), with Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 322 (6th Cir. 2012) (“but for”).

6. Marital Status. Marital status discrimination cases decided under the FCRA do not provide clear guidance on the causation standard to be applied. See Sanders v. Mayor’s Jewelers, Inc., 942 F.Supp. 571 (S.D. Fla. 1996) (holding that complaint alleging “discriminatory intent” or marital status “as motivating factor” was sufficient to state a claim): Nat’l Indus., Inc. v. Comm’n on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988) (holding that, because no record of the hearing was provided, the agency could not reject the hearing officer’s finding that marital status was not “a motivating factor” and that no “discriminatory intent” was present).

The Florida Supreme Court has held that the term “marital status,” as used in the FCRA section prohibiting discrimination based on marital status, “means the state of being married, single, divorced, widowed or separated, and does not include the specific identity or actions of an individual’s spouse.” Donato v. American Tel. & Tel Co., 767 So.2d 1146, 1154-1155 (Fla. 2000).

7.The committee takes no position as to whether a trial court should instruct on a permissive inference of pretext, that is, the employer’s stated reason for the adverse employment action was not the real reason but was given to hide a discriminatory reason. No Florida appellate decision has addressed the issue in a trial context. At least one Florida appellate decision has employed the pretext consideration in the context of a summary judgment motion. See generally Feizi v. Dep’t of Mgmt. Sevs., 988 So.2d 1192 (Fla. 1st DCA 2008) (reversing summary judgment where evidence was susceptible to a reasonable inference that the explanation offered by the defendant for eliminating plaintiffs job was pretextual). There is disagreement among the federal circuits as to whether a pretext instruction is required in employment discrimination cases under Title VII. See Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir. 2001) (error not to give pretext inference instruction), with Palmer v. Bd. of Repents, 208 F.3d 969 (11th Cir. 2000) (no error in refusing to instruct jury that it could infer discrimination if it believed plaintiffs prima facie case and disbelieved defendant’s reason for adverse employment action).

8. Cat’s Paw. There is an additional theory of causation in federal discrimination cases referred to as the “cat’s paw.” This theory recognizes that, in certain situations, a biased supervisor’s discriminatory animus may be the cause of the adverse employment action even though the actual decision-maker did not possess that discriminatory animus. See Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011): Fla. Dep’t of Children & Families v. Shapiro, 68 So.3d 298, 306 (Fla. 4th DCA 2011). If the cat’s paw theory of causation applies, additional instructions may be necessary. See,, e.p., Eleventh Circuit Pattern Jury Instruction 4.5.

9. Same Actor Inference. The law recognizes a permissible inference that discriminatory animus was not the cause of an adverse employment action when the person who hired the claimant is the same person who made the decision to take the adverse employment action. See Brown Distributing Co. of West Palm Beach v. Marcell, 890 So.2d 1227, 1232 (Fla. 4th DCA 2005): see also Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1442-43 (11th Cir. 1998). A Florida appellate court has held it is reversible error to refuse to give an instruction on the “same actor” inference when it has been requested and applies to the circumstances of the case. See, e.g., Brown Distributing Co., 890 So.2d at 1232. Additional instructions may thus be necessary based on the circumstances of a particular case.

417.6 LEGAL CAUSE—DAMAGE

The [discharge] [failure to hire] [ (describe discriminatory treatment alleged) ] is the legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such damage, so that it can reasonably be said that, but for the [discharge] [failure to hire] [ (describe discriminatory treatment) ], the [loss] [injury] [or] [damage] would not have occurred.

NOTE ON USE FOR 417.6

This instruction is based upon F.S. 760.10(1).

417.7 ISSUES ON PLAINTIFF’S CLAIM

The issues you must decide on the claim of (claimant) against (defendant) are whether (defendant) discriminated against (claimant) by [discharging] [failing to hire] [ (describe discriminatory treatment alleged) ] (claimant) because of (claimant’s) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status] and, if so, whether the [discharge] [failure to hire] [ (describe discriminatory treatment) ] was a legal cause of [loss] [injury] or [damage] to (claimant).

NOTE ON USE FOR 417.7

This instruction is based upon F.S. 760.10(1).

417.8 BURDEN OF PROOF ON CLAIM

If the greater weight of the evidence does not support the claim of (claimant), then your verdict should be for (defendant).

However, if the greater weight of the evidence supports the claim of (claimant), [then your verdict should be for (claimant) and against (defendant) ] [then you shall consider the defense[s] raised by (defendant) ].

[If the greater weight of the evidence supports the defense, your verdict should be for (defendant). However, if the greater weight of the evidence does not support the defense, your verdict should be for (claimant) and against (defendant).]

417.9 UNLAWFUL DISCRIMINATION DAMAGES

If you find for (defendant), you will not consider the matter of damages. But if you find for (claimant), you should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate [him] [her] for such damage, including any such damage as (claimant) is reasonably certain to incur in the future. You shall consider the following elements of damages:

[any] [the difference between] lost wages and benefits to the date of trial [and what (claimant) earned during that time].

[any mental anguish] [loss of dignity] and [ (describe other intangible injuries) ] experienced in the past or to be experienced in the future. There is no exact standard for measuring such damages. The amount should be fair and just in the light of the evidence.

[any punitive damages warranted.] (insert applicable punitive. damages instruction).

NOTES ON USE FOR 417.9

1. Lost wages and benefits. The court may issue an order “providing affirmative relief from the effects of the discriminatory practice, including back pay.” F.S. 760.11(5). Under Florida law, back pay is a legal remedy decided by the jury, and front pay is an equitable remedy that does not include a right to jury determination. O’Neal v. Fla. A&M Univ., 989 So.2d 6 (Fla. 1st DCA 2008) (decided under Florida’s Whistle-blower’s Act). Some federal courts submit front pay issues to the jury for an advisory verdict. See, e.g., Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1438 (11th Cir. 1991): Hudson v. Chertoff, 473 F.Supp.2d 1279 (S.D. Fla. 2007): Hill v. Xerox Corp., 998 F.Supp. 1378, 1385 n. 9 (N.D. Fla. 1998): Quitto v. Bay Colony Golf Club, Inc., 2007 WL 4098847, *1-2 (M.D. Fla. 2007). The Committee takes no position on instructing the jury to determine front pay or on the use of an advisory verdict.

2. Compensatory Damages. The court may award “compensatory damages, in-eluding, but not limited to, damages for mental anguish, loss of dignity, and other intangible injuries....” F.S. 760.11(5). Ex-ampies of “other intangible injuries” for which damages have been awarded under the FCRA include “emotional distress,” Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1348-49 (11th Cir. 2000): “emotional injury,” City of Hollywood v. Hogan, 986 So.2d 634, 649-50 (4th DCA 2008): “humiliation and embarrassment,” Melluzzo v. Pub. Advocate, 2006 WL 5159197, at *3 (M.D. Fla. 2006): “pain and suffering” and “loss of capacity for enjoyment of life experienced in the past or to be experienced in the future,” Moses v. K-Mart Corp., 905 F.Supp. 1054, 1060 n.7 (S.D. Fla.1995), aff'd 119 F.3d 10 (11th Cir. 1997).

3. Punitive Damages. The court may award punitive damages not to exceed $100,000. F.S. 760.11(5). Pending further development of the law, the committee takes no position as to whether the Florida standard or the heightened federal standard for holding an employer vicariously liable for punitive damages for the conduct of its employee should apply. See Speedway SuperAmerica, LLC v. DuPont, 933 So.2d 75 (Fla. 5th DCA 2006) (certifying the question of whether the state or federal standard applies), review dismissed 955 So.2d 533 (Fla. 2007).

“Under Florida law, the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future.” Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999). However, “it is not clear what the standard is for punitive damages awarded under section 760.10,” DuPont, 933 So.2d at 89, and the committee takes no position as to the standard for determining whether punitive damages are warranted. The FCRA, unlike Title VII, “simply provides that punitive damages may be awarded,” without any express requirement as to what action is appropriate for punitive damage. Id. at 89-90.

Some federal courts have applied Title VIPs punitive damages standard to claims for punitive damages under the FCRA. See, e.g., Hipp v. Liberty Nat. Life Ins. Co., 65 F.Supp.2d 1314 (M.D. Fla. 1999), aff'd in part, rev’d in part on other grounds 252 F.3d 1208 (11th Cir. 2001), “To recover punitive damages under Title VII, a plaintiff must prove that defendant has ‘engaged in discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’” Richardson v. Tricom Pictures & Productions, Inc., 334 F.Supp.2d 1303, 1319 (S.D. Fla. 2004) (quoting 42 U.S.C. § 1981a(b)(1)). “Malice or reckless indifference is shown when the employer knowingly violates federal law....” Id. at 1319-1320 (citing Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999)). “[A]n employer must at least discriminate in the face of a perceived risk that its actions will violate federal law.” Kolstad, 527 U.S. at 535, 119 S.Ct. 2118: Richardson, 334 F.Supp.2d at 1320.

417.10 AFFIRMATIVE DEFENSE-FAILURE TO MITIGATE LOST WAGES

[As a defense to (claimant’s) damages claim for lost wages and benefits, (defendant) claims that (claimant) could have reduced [his] [her] damages by making a reasonable effort to [seek] [retain] comparable employment. Comparable employment means alternative employment similar to (claimant’s) former job in the nature of the work, responsibilities and skills required. (Claimant) need not accept employment that is unsuitable or demeaning when compared with (claimant’s) former job.

If the greater weight of the evidence supports (defendant’s) claim that there was comparable employment available to (claimant) and that (claimant) failed to make a reasonable effort to [seek] [retain] such employment, then you should reduce any lost wages and benefits you award to (claimant) by the amount that (claimant) could have earned from the comparable employment.

If, however, the greater weight of the evidence does not support (defendant’s) claim that there was comparable employment available to (claimant) and that (claimant) failed to make a reasonable effort to [seek] [retain] that employment, then your verdict should be for (claimant) in the total amount of [his] [her] damages for lost wages and benefits.]

NOTES ON USE FOR 417.10

1, This instruction is given only if the defendant raised the affirmative defense of failure to mitigate in a discharge or failure to hire case.

2. As to plaintiffs “duty to mitigate” damages in cases involving wrongful discharge, see generally Zayre Corp. v. Creech, 497 So.2d 706, 708 (Fla. 4th DCA 1986): Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33, 36 (Fla. 3d DCA 1979): Punkar v. King Plastic Corp., 290 So.2d 505, 508 (Fla. 2d DCA 1974). This instruction does not use the term “duty to mitigate” because this is more accurately an application of the doctrine of avoidable consequences. See System Components Corp. v. Fla. Dept. of Transp., 14 So.3d 967, 982 (Fla. 2009).

3. Failure to Mitigate Lost Wages. With respect to the defendants burden on this defense, federal courts have held that if the defendant proves the claimant did not make a reasonable effort to seek out comparable employment, the defendant has met its burden on this defense without the need to prove that comparable employment was available to the claimant. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1527-28 (11th Cir. 1991): accord Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 54 (2d Cir. 1998): Sellers v. Delgado Cmty. College, 839 F.2d 1132, 1139 (5th Cir. 1988): N.L.R.B. v, Madison Courier, Inc., 472 F.2d 1307, 1319 (D.C. Cir. 1972) (quoting Am. Bottling Co., 116 NLRB 1303, 1307 (1956)). No Florida appellate court has addressed this issue. The committee takes no position on this issue, pending further development in Florida law.

417.11 AFFIRMATIVE DEFENSE-AFTER-ACQUIRED EVIDENCE

As a defense to (claimant’s) damages claim for (defendant’s) decision to [discharge] [fail to hire] [ (describe discriminatory treatment) ] (claimant), (defendant) claims that (claimant) engaged in wrongdoing or misconduct during [his] [her] [employment] [job application process], which was of such severity that if then known by (defendant) would have resulted in [his] [her] [discharge] [failure to be hired] [ (describe discriminatory treatment) ].

If the greater weight of the evidence supports (defendant’s) claim that (claimant) engaged in wrongdoing or misconduct that (defendant) did not discover until after it [discharged] [failed to hire] [ (describe discriminatory treatment) ] (claimant), you should reduce any damages for lost wages and benefits that you award to (claimant) and calculate the total amount of [his] [her] damages for lost wages and benefits from date of unlawful [discharge] [failure to hire] [ (describe discriminatory treatment) ] to the date (defendant) discovered the wrongdoing or misconduct.

(Claimant’s) wrongful conduct must have been of such severity that [he] [she] in fact would have been [discharged] [not hired] [ (describe discriminatory treatment) ] on those grounds alone if (defendant) had known of it at the time of the [discharge] [failure to hire] [ (describe discriminatory treatment) ].

If, however, the greater weight of the evidence does not support (defendant’s) claim that (claimant) engaged in wrongdoing or misconduct that was discovered after the [discharge] [failure to hire] [ (describe discriminatory treatment) ], then your verdict should be for (claimant) in the total amount of [his] [her] damages for lost wages and benefits.

NOTES ON USE FOR 417.11

1. The doctrine of after-acquired evidence was established by the Supreme Court in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), a case that arose under the APEA. The after-acquired evidence defense also applies to claims under the FCRA. See Brown Distributing Co. of West Palm Beach v. Marcell, 890 So.2d 1227 (Fla. 4th DCA 2005) (finding that the trial court erred by not giving the defendant-employer’s proposed jury instruction on after-acquired evidence, which was “a fair reading of the holding in McKennon and therefore appropriate as it accurately states the law and is necessary for the jury to properly resolve the issues of the case”): Torres v. TPUSA, Inc., No. 2:08-cv-618-FtM-29DNF, 2009 WL 764466, at *1-2 (M.D. Fla., March 19, 2009) (holding that the doctrine of after-acquired evidence can be a valid defense to a plaintiffs claims of damages for violations of the FCRA): Neal v. Manpower Intern., Inc., No. 3:00-CV-277/LAC, 2001 WL 1923127, at *14 (N.D. Fla., Sept. 17, 2001) (applying the after-acquired evidence defense to claims under the FCRA).

2. The after-acquired evidence doctrine is a defense only to a claimant’s damages claim: it has no bearing on liability. After-acquired evidence should not be used to determine liability because “[t]he employer could not have been motivated by the knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 360, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). See also Crapp v. City of Miami Beach, 242 F.3d 1017, 1021 (11th Cir. 2001).

3. Misconduct in job application process. The Eleventh Circuit has held “that the after-acquired evidence rule announced in McKennon applies to cases in which the after-acquired evidence concerns the employee’s misrepresentations in a job application or resume, as well as cases in which the after-acquired evidence relates to employee wrongdoing during employment.” Wallace v. Dunn Const. Co., Inc., 62 F.3d 374, 379 (11th Cir. 1995). See also Neal 2001 WL 1923127, at *14 (applying the after-acquired evidence defense where the plaintiff intentionally falsified her' employment application): Yeary v. Florida Dept. of Corrections, No. 95-0583-CIV-J-21-C, 1997 WL 284648, at *3 (MJD. Fla., May. 13,1997) (the after acquired evidence “doctrine is equally applicable to instances of misrepresentations and omissions by the employee in his or her job application”).

4. Reinstatement and front pay. Where the after-acquired evidence defense would reduce a claimant’s damages for lost wages and benefits, “neither reinstatement nor front pay is an appropriate remedy.” McKennon, 513 U.S. at 362-363, 115 S.Ct. 879. See also Kovelesky v. First Data Corp., 534 Fed.Appx. 811, 814 (11th Cir. 2013): Wallace, 62 F.3d at 380.

5. Comyensatory damages. After-acquired evidence does not reduce or preclude an award of compensatory damages even where such evidence reduces or precludes back pay and reinstatement. Crapp, 242 F.3d at 1021 (holding that the court’s decision to deny the plaintiff “backpay for a discriminatory termination and yet award him compensatory damages for that termination” was appropriate and consistent with McKennon). “Resolution of the [problem of after-acquired evidence] must give proper recognition to the fact that [unlawful discrimination] has occurred which must be deterred and compensated without undue infringement upon the employer’s rights and prerogatives.” McKennon, 513 U.S. at 362, 115 S.Ct. 879.

417.12 REDUCTION OF DAMAGES TO PRESENT VALUE

Any amount of damages that you allow for wages and benefits to be lost in the future should be reduced to its present money value and only the present money value of those future economic damages should be included in your verdict.

The present money value of future economic damages is the sum of money needed now which, together with what that sum will earn in the future, will compensate (claimant) for these losses as they are actually experienced in future years..

NOTES ON USE FOR 417.12

1. Front pay is an equitable remedy that does not include a right to jury determination. If the judge presents the issue to a jury with the other damages in 417.9, then this instruction should be given.

2. Designing a standard instruction for reduction of damages to present value is complicated by the fact that there are several different methods used by economists and courts to arrive at a present value determination. Cf., e.g., Delta Air Lines, Inc. v. Ageloff, 552 So.2d 1089 (Fla. 1989): Bould v. Touchette, 349 So.2d 1181 (Fla. 1977) (even without evidence, juries may consider effects of inflation): Loftin v. Wilson, 67 So.2d 185 (Fla. 1953) (lost stream of income approach): Renuart Lumber Yards v. Levine, 49 So.2d 97 (Fla. 1950) (using approach similar to calculation of cost of annuity): Seaboard Coast Line R.R. Co. v. Garrison, 336 So.2d 423 (Fla. 2d DCA 1976) (discussing real interest rate discount method and inflation/market rate discount methods): see also Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983): Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir. 1982): Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967) (total offset method).

3.Until the Florida Supreme Court or the legislature adopts one approach to the exclusion of other methods of calculating present money value, the committee assumes that the present value of future economic damages is a finding to be made by the .jury on the evidence: or, if the parties offer no evidence to control the finding, that the jury will properly resort to its own common knowledge and by argument. See Seaboard Coast Line R.R. Co. v. Burdi, 427 So.2d 1048 (Fla. 3d DCA 1983).

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