author: PER CURIAM. CANADY, J.,

text:
    Larry Darnell PERRY, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-547.
    Supreme Court of Florida.
    Oct. 14, 2016.

      J. Edwin Mills and Frank J. Bankowitz, III, Orlando, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL; and Vivian Ann Singleton, Assistant Attorney General, Daytona Beach, FL, for Respondent.
    Martin J. McClain and Linda McDer-mott of McClain & McDermott, P.A., Wilton Manors, FL; Todd Gerald Scher of the Law Offices of Todd G. Scher, P.L., Dania Beach, FL; John Paul Abatecola of John Abatecola, P.A., Estero, FL; and Neal Andre Dupree, Capital Collateral Regional Counsel—Southern Region, Suzanne Myers Keffer, Chief Assistant Capital Collateral Regional Counsel—Southern Region, and Michael Chance Meyer, Staff Attorney, Capital Collateral Regional Counsel—Southern Region, Fort Lauder-dale, FL, for Amici Curiae Capital Law Offices Specializing in Capital Appeals and Capital Collateral Regional Counsel— Southern Region.

      Robert Ralph Berry of Eisenmenger, Berry, Blaue & Peters, P.A., Viera, FL, for Amicus Curiae William Woodward.
    Howard L. Dimmig, II, Public Defender, Robert Arthur Young, General Counsel, Steven L. Bolotin and Peter Mills, Assistant Public Defenders, Tenth Judicial Circuit, Bartow, FL; Sonya Rudenstine, Gainesville, FL; Karen Marcia Gottlieb, Florida International University College of Law’s Center for Capital Representation; and Julianne M. Holt, Public Defender, Thirteenth Judicial Circuit, and President of the Florida Public Defender Association, Tampa, FL, for Amici Curiae Tenth Judicial Circuit Public Defender, Florida Association of Criminal Defense Lawyers, Florida Capital Resource Center, Florida International University College of Law’s Center for Capital Representation, and Florida Public Defender Association.
    Elliot H. Scherker of Greenberg Trau-rig, P.A., Miami, FL, for Amicus Curiae The Constitution Project.
    Nancy Gbana Abudu, American Civil Liberties Union Foundation of Florida, Inc., Miami, FL; and Norman Adam Te-brugge, American Civil Liberties Union Foundation of Florida, Inc., Tampa, FL, for Amici Curiae American Civil Liberties Union Foundation, and American Civil Liberties Union of Florida.
   PER CURIAM.

The issue before this Court is whether the newly enacted death penalty law, passed after the United States Supreme Court held a portion of Florida’s capital sentencing scheme unconstitutional in Hurst v. Florida, _ U.S. _, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) (“Hurst v. Florida ”), may be constitutionally applied to pending prosecutions for capital offenses that occurred prior to the new law’s effective date. The Fifth District Court of Appeal concluded in State v. Perry, 192 So.3d 70 (Fla. 5th DCA 2016), that chapter 2016-13, Laws of Florida (2016) (“the Act”), could apply to pending prosecutions without constitutional impediment.

In its decision, the Fifth District passed on the following questions, which the court certified to be of great public importance:

1) DID HURST V. FLORIDA, _ U.S. _, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), DECLARE FLORIDA’S DEATH PENALTY UNCONSTITUTIONAL?
2) IF NOT, DOES CHAPTER 2016-13, LAWS OF FLORIDA, APPLY TO PENDING PROSECUTIONS FOR CAPITAL OFFENSES THAT OCCURRED PRIOR TO ITS EFFECTIVE DATE?

Id. at 76. Perry filed his Notice to Invoke Discretionary Jurisdiction in this Court based upon the two certified questions. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We have addressed the first certified question in our opinion on remand in Hurst v. State, 202 So.3d 40, (Fla. 2016) (“Hurst”). Based on that decision, in which we concluded that the death penalty was not declared unconstitutional, we answer the first certified question in the negative. See Hurst, 202 So.3d at 65-66. Further, by its own terms, section 775.082(2), Florida Statutes (2013), is limited to those cases in which the defendant was “previously sentenced to death ” Because this case involves a pending prosecution where the death penalty is sought, section 775.082(2) is inapplicable.

In addressing the second certified question of whether the Act may be applied to pending prosecutions, we necessarily review the constitutionality of the Act in light of our opinion in Hurst. In that opinion, we held that as a result of the longstanding adherence to unanimity in criminal jury trials in Florida, the right to a jury trial set forth in article I, section 22 of the Florida Constitution requires that in cases in which the penalty phase jury is not waived, the findings necessary to increase the penalty from a mandatory life sentence to death must be found beyond a reasonable doubt by a unanimous jury. Hurst, 202 So.3d at 44-45. Those findings specifically include unanimity as to all aggravating factors to be considered, unanimity that sufficient aggravating factors exist for the imposition of the death penalty, unanimity that the aggravating factors outweigh the mitigating circumstances, and unanimity in the final jury recommendation for death. Id. at 53-54, 59-60.

While most of the provisions of the Act can be construed constitutionally in accordance with Hurst, the Act’s requirement that only ten jurors, rather than all twelve, must recommend a death sentence is contrary to our holding in Hurst. See id. at 639, at 35 (“[W]e conclude under the commandments of Hurst v. Florida, [_ U.S. _, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) ], Florida’s state constitutional right to trial by jury, and our Florida jurisprudence, the penalty phase jury must be unanimous in making the critical findings and recommendation that are necessary before a sentence of death may be considered by the judge or imposed.”). Therefore, we answer the second certified question in the negative, holding that the Act cannot be applied constitutionally to pending prosecutions because the Act does not require unanimity in the jury’s final recommendation as to whether the defendant should be sentenced to death.

BACKGROUND

In State v. Perry, the Fifth District Court of Appeal addressed two cases involving defendants awaiting trial for charges of first-degree murder, in which the State filed notices of intent to seek the death penalty prior to the United States Supreme Court issuing its decision in Hurst v. Florida on January 12, 2016. Perry, 192 So.3d at 73 n. 2. In Hurst v. Florida, the United States Supreme Court held that Florida’s capital “sentencing scheme [was] unconstitutional.” 136 S.Ct. at 619. On March 7, 2016, the Florida Legislature, in response to Hurst v. Florida, amended Florida’s capital sentencing scheme (“the Act”). See ch.2016-13, Fla. Laws (2016). When the Act went into effect, the State had already filed its petition in the Fifth District. Perry, 192 So.3d at 73.

The first case addressed by the Fifth District involves Larry Darnell Perry, who was indicted for first-degree murder and aggravated child abuse for the 2013 death of his son. Id. at 72. After Hurst v. Florida was issued, Perry moved to strike the State’s notice of intent to seek the death penalty. Id. The second case concerns William Theodore Woodward, who was charged with two counts of first-degree murder for the 2012 deaths of his two neighbors. Id. After Hurst v. Florida, Woodward moved to prohibit the death qualification of the jury. Id.

The trial courts in both cases granted the defendants’ respective motions and, in both cases, the State filed petitions for writs of prohibition in the Fifth District seeking to prohibit the trial courts from striking its notice of intent to seek the death penalty in Perry’s case and refusing to death qualify the jury in Woodward’s case. Id. The Fifth District consolidated the cases for the purposes of disposition only. Id. at n. 2.

The Fifth District first determined that prohibition is appropriate when a trial court strikes a notice of intent to seek the death penalty or refuses to death qualify a jury in a capital case. Id. Then the Fifth District determined that the United States Supreme Court’s decision in Hurst v. Florida did not leave Florida without a death penalty, as contended by Perry and Woodward, but rather “struck [only] the process of imposing a sentence of death.” Id. at 73. Thus, the Fifth District rejected Petitioners’ arguments that the Act does not apply because section 775.082(2), Florida Statutes (2015), provides for a mandatory, alternative sentence of life imprisonment when the death penalty is stricken. Id. We rejected the same arguments in Hurst, reasoning, first, that section 775.082(2) specifically applied only to “individuals ‘previously sentenced to death,” and, second, as stated above, that Hurst v. Florida did not hold the death penalty unconstitutional. 202 So.3d at 59-67.

The Fifth District next turned to the argument that application of the new law to pending cases would constitute an ex post facto violation under the United States and Florida Constitutions. Perry, 192 So.3d at 74 (citing U.S. Const. art. I, § 10; art. I, § 10, Fla. Const.). The Fifth District concluded that since ex post facto principles generally do not bar the application of procedural changes to pending criminal proceedings, and because it determined that the new law is procedural rather than substantive, there was no ex post facto violation. Id. at 75. The court likened the situation to that in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), in which the United States Supreme Court determined that Florida’s newly enacted death sentencing law, passed in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), did not constitute an ex post facto violation when it was applied to capital defendants who had not yet been sentenced because it “simply altered the methods employed in determining whether the death penalty was imposed.” Perry, 192 So.3d at 75 (quoting Dobbert, 432 U.S. at 293-94, 97 S.Ct. 2290). The Fifth District also found guidance in this Court’s decision in Horsley v. State, 160 So.3d 393 (Fla.2015), which held that the new juvenile sentencing law, enacted in response to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), would apply to juvenile offenders whose offenses predated the new law. Perry, 192 So.3d at 75. After determining that the Act applies to pending prosecutions, the Fifth District certified the two questions regarding the applicability of the Act. Id. at 76.

ANALYSIS

We now address the important question of whether the Act, chapter 2016-13, Laws of Florida, applies to cases in which the underlying crime was committed prior to the Act’s effective date (March 7, 2016). We begin our analysis with an explanation of the statutory changes and how we construe these changes consistent with the United States Supreme Court’s decision in Hurst v. Florida and our decision in Hurst. Ultimately, we conclude that while most of the provisions of the Act can be construed constitutionally and could otherwise be validly applied to pending prosecutions, because the Act requires that only ten jurors, rather than all twelve, recommend a final sentence of death for death to be imposed, the Act is unconstitutional to that extent pursuant to Hurst and requires us to answer the second certified question in the negative.

I. STATUTORY CHANGES

We begin with a discussion of the Act’s changes to Florida’s capital sentencing scheme. The most important changes made to the previously existing statutes appear in sections 775.082, 782.04, and 921.141. Ch.2016-13, Laws of Fla. (2016). This Act was adopted shortly after the United States Supreme Court held in Hurst v. Florida that Florida’s capital sentencing scheme was unconstitutional because it did not require the jury to determine the facts necessary for the imposition of the death penalty. _ U.S. _, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). As we explained in Hurst:

The Supreme Court emphasized that under Florida law, before the sentence of death may be imposed, the trial court alone must find “ ‘the facts ... [t]hat sufficient aggravating circumstances exist’ and ‘[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.’ ” Id. (quoting § 921.141(3), Fla. Stat. (2012)). The Supreme Court was explicit in Hurst v. Florida that the constitutional right to an impartial jury “required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfind-ing.” Id. at 624.

202 So.3d at 53.

Section 1 of the Act amends section 775.082(l)(a), Florida Statutes, from referring to the results of the sentencing procedure set forth in section 921.141 as “findings by the court” to “a determination” that such person shall be punished by death. Ch.2016-13, § 1. Section 2 of the Act amends section 782.04(1) to create a notice requirement whereby prosecutors must notify the defendant within forty-five days after arraignment of the aggravating factors the State intends to prove at trial. Id. at § 2. Though not required by the United State Supreme Court’s decision in Hurst v. Florida, by providing notice of aggravating factors, this change in section 2 provides a benefit to capital defendants that they were not previously afforded. State v. Steele, 921 So.2d 538, 543 (Fla.2005) (finding that no statute, rule of procedure, or decision of the Florida Supreme Court or United States Supreme Court compelled a trial court to require advance notice of aggravating factors).

Section 3 of the Act defines the facts required to be found by the jury for a sentence of death to be imposed. Section 3 contains the most substantial changes, significantly amending section 921.141, Florida Statutes. Ch.2016-13, § 3. Specifically, it changes the expression “aggravating circumstances” to “aggravating factors” throughout section 921.141. The amended section 921.141(1) limits the State to presenting evidence of only those aggravating factors of which it provided notice to the defendant pursuant to section 782.04(l)(b), as amended by section 2 of the law. Id.

The amended section 921.141(2) now expressly provides that the requirements in the statute apply to cases in which the defendant has not waived his or her right to a sentencing proceeding by a jury. Section 921.141(2)(a) now requires the jury to determine whether at least one aggravating factor has been proven beyond a reasonable doubt, and section 921.141(2)(b) requires the jury to find the aggravating factors unanimously and to specify which aggravating factors have been found unanimously:

(2) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY....
(a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least one aggravating factor set forth in subsection (6).
(b) The jury shall return findings identifying each aggravating factor found to exist. A finding that an aggravating factor exists must be unanimous.

§ 921.141(2), Fla. Stat. (2016).

The revised statute also now states that if the jury does not unanimously find at least one aggravating factor, the defendant is “ineligible for a sentence of death.” Id. § 921.141(2)(b)l. The significance of this change is that the statute now expressly indicates that a death sentence cannot be considered unless at least one aggravating factor has been proven beyond a reasonable doubt. Of course, this change is consistent with preexisting case law. See, e.g., Steele, 921 So.2d at 543 (“To obtain a death sentence, the State must prove beyond a reasonable doubt at least one aggravating circumstance, whereas to obtain a life sentence the defendant need not prove any mitigating circumstances at all”).

Next, section 3 changes former subsection (3) of section 921.141, which required the court to find whether sufficient aggravating circumstances existed to impose death and to determine that “there are insufficient mitigating circumstances to outweigh the aggravating circumstances,” to subsection (2)(b)2. of the new section 921.141, now requiring the jury to make a sentencing recommendation based on the weighing of whether sufficient aggravating factors exist, whether those aggravating factors outweigh the mitigating circumstances found to exist, and based on those two considerations, whether the defendant should be sentenced to life or death:

(2) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY....
(b) ... If the jury:
2. Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without the possibility of parole or to death. The recommendation shall be based on a weighing of all of the following:
a. Whether sufficient aggravating factors exist.
b. Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.
c.Based on the considerations in sub-subparagraphs a. and b., whether the defendant should be sentenced to life imprisonment without the possibility of parole or to death.

§ 921.141(2)(b) 2., Fla. Stat. (2016).

The change from a finding “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances” in section 921,141(3), Florida Statutes (2015), to the jury considering whether “aggravating factors exist which outweigh the mitigating circumstances found to exist” in section 921.141(2)(b) 2. b., Florida Statutes (2016), is a change to a reciprocal, synonymous statement. The previous version of the statute also indicated that the jury’s advisory recommendation would be based on “[wjhether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist.” § 921.141(2)(b), Fla. Stat. (2015). It has always been that death can be imposed only when the aggravating factors outweigh the mitigating circumstances, rather than the opposite.

Under the amended statute, the jury may recommend a death sentence so long as at least ten jurors agree that the defendant should be sentenced to death, whereas under the previous statute, a bare majority of the twelve-member jury was sufficient. Compare § 921.141(2)(c), Fla. Stat. (2016) (“If at least 10 jurors determine that the defendant should be sentenced to death ...”), with § 921.141(3), Fla. Stat. (2015) (“Notwithstanding the recommendation of a majority of the jury ...”). The new statute provides in pertinent part:

If at least 10 jurors determine that the defendant should be sentenced to death, the jury’s recommendation to the court shall be a sentence of death. If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury’s recommendation to the court shall be a sentence of life imprisonment without the possibility of parole.

§ 921.141(2)(c), Fla. Stat. (2016).

Finally, the law expressly eliminates the ability of the court to override a jury’s recommendation for a life sentence with the imposition of a sentence of death, while expressly allowing the court to impose a life sentence even where the jury recommends death. Id. § 921.141(3)(a) 1. (setting forth that if the jury recommends “[l]ife imprisonment without the possibility of parole, the court shall impose the recommended sentence.”); id. § 921.141(3)(a) 2. (setting forth that if the jury recommends death, “the court, after considering each aggravating factor found by the jury and all mitigating circumstances, may impose a sentence of life....”). Section 3 also removes all reference to the jury playing an “advisory” role in the sentencing process. Ch.2016-13, § 3.

As to the effective date, the Act provides, “[t]his act shall take effect upon becoming a law.” Id. § 7. The Act became a law on March 7, 2016.

The amendments to section 921.141 clearly require the jury to explicitly find at least one aggravating factor unanimously. Additionally, they require unanimity as to each aggravating factor that may be considered by the jury and trial court in determining the appropriate sentence. The changes also require the jury to consider whether there are sufficient aggravating factors to outweigh the mitigating circumstances in order to impose death. The changes further mandate that a life sentence be imposed unless ten or more jurors vote for death.

We reject Perry’s argument that the burden of proof is inverted. The burden of proof is not inverted—the State still must prove the requisite facts beyond a reasonable doubt to establish the same elements as were previously required under the prior statute. The Act did not change the list of aggravating factors and mitigating circumstances that affect the weighing process. The prior statute, which is mirrored in the jury instructions, stated that “after hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters: ... Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist.” § 921.141(2), Fla. Stat. (2015); In re Std. Jury Instrs. in Crim. Cases-Report No. 2013-03, 146 So.3d 1110, 1120 (Fla.2014). The statute, as well as this Court’s precedent, then required that “if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts[, including] [t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” § 921.141(3), Fla. Stat. (2015).

The changes made by the Act, enacted in response to the United States Supreme Court’s declaration in Hurst v. Florida, that Florida’s prior statute was unconstitutional in not requiring the jury to make all findings necessary to render the defendant eligible for the death penalty, clearly place the jury in the all-important and constitutionally required factfinding role.

II. WHETHER THE AMENDED STATUTE COMPLIES WITH HURST

We next construe the statutes amended by the Act to ensure that the Act is consistent with the United States Supreme Court’s decision in Hurst v. Florida, as we interpreted that decision in Hurst. This Court has an obligation to construe a statute in a way that preserves its constitutionality. See State v. Harris, 356 So.2d 315, 316-17 (Fla.1978) (construing section 812.021(3), in a constitutional manner where the statute was procedurally flawed); see also Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 609 (Fla.2004) (stating that the Court has an obligation to construe a statute in a way that preserves its constitutionality). It is this Court’s duty to “save Florida statutes from the constitutional dustbin whenever possible.” Doe v. Mortham, 708 So.2d 929, 934 (Fla.1998). This Court is bound to “resolve all doubts as to the validity of the statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with legislative intent.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 207 (Fla.2007) (citation omitted). However, this Court may only do so, if “to do so does not effectively rewrite the enactment.” State v. Stalder, 630 So.2d 1072, 1076 (Fla.1994) (quoting Firestone v. News-Press Publ’g Co., 538 So.2d 457, 459-60 (Fla.1989)).

In Hurst, we held that the United States Supreme Court’s decision in Hurst v. Florida and Florida’s right to a jury trial provided under article I, section 22 of the Florida Constitution require the jury’s findings of the aggravating factors, that there are sufficient aggravating factors to impose death, that those aggravating factors outweigh the mitigation, and that death is the appropriate sentence are all required to be found unanimously by the jury for the defendant to be sentenced to death. Hurst, 202 So.3d at 53-54. We also held that, based on Florida’s requirement for unanimity in jury verdicts and on the Eighth Amendment to the United States Constitution, a jury’s ultimate recommendation of the death sentence must be unanimous. Id. at 44-45. We interpret the Act consistent with those opinions defining the parameters of a defendant’s right to a jury trial before the maximum penalty—a death sentence—may be constitutionally imposed. See id. at 54-56.

The Act amends Florida’s death penalty statute to provide that the jury must make a recommendation that is “based on” the “considerations” of whether sufficient aggravating factors exist and whether they outweigh the mitigating circumstances found to exist, but it does not specify whether these findings themselves must be unanimous or explicit. § 921.141(2)(b) 2., Fla. Stat. (2016). We recognize that the amended statute also provides that the death recommendation must be made by only ten jurors. See id. The statute is not explicit as to whether the requirement of a ten-to-two vote applies to the factual findings that there are sufficient aggravators and that the aggravating factors outweigh the mitigating circumstances or to the ultimate death recommendation. Compare § 921.141(2)(b), Fla. Stat. (2016), with § 921,141(2)(c), Fla. Stat. (2016). Consistent with our decision in Hurst, we construe section 921.141(2)(b) 2. to require the penalty phase jury to unanimously find beyond a reasonable doubt that each aggravating factor exists, that sufficient aggravating factors exist to impose death, and that they outweigh the mitigating circumstances found to exist. Hurst, at 53-54. Clearly, if the intent was to apply a non-unanimous vote requirement to those separate factual findings, this would be unconstitutional as inconsistent with Hurst, where we have held that those findings must be made unanimously. See id.

However, we determine that the sentencing recommendation is a separate conclusion distinct from the jury’s findings of whether sufficient aggravating factors exist and whether the aggravating factors outweigh the mitigation. It has long been true that a juror is not required to recommend the death sentence even if the jury concludes that the aggravating factors outweigh the mitigating circumstances. See, e.g., Cox v. State, 819 So.2d 705, 717 (Fla.2002) (“[W]e have declared many times that ‘a jury is neither compelled nor required to recommend death where aggravating factors outweigh mitigating factors.’” (quoting Henyard v. State, 689 So.2d 239, 249-50 (Fla.1996))). That instruction is contained in the jury instructions used before Hurst v. Florida:

If, after weighing the aggravating and mitigating circumstances, you determine that at least one aggravating circumstance is found to exist and that the mitigating circumstances do not outweigh the aggravating circumstances, or, in the absence of mitigating factors, that the aggravating factors alone are sufficient, you may recommend that a sentence of death be imposed rather than a sentence of life in prison without the possibility of parole. Regardless of your findings in this respect, however, you are neither compelled nor required to recommend a sentence of death.

In re Std. Jury Instrs. in Crim. Cases-Report No. 2013-03, 146 So.3d at 1127-28 (emphasis added). This final jury recommendation, apart from the findings that sufficient aggravating factors exist and that the aggravating factors outweigh the mitigating circumstances, has sometimes been referred to as the “mercy” recommendation. See, e.g., Alvord v. State, 322 So.2d 533, 540 (Fla.1975), receded from on other grounds, Caso v. State, 524 So.2d 422 (Fla.1988) (explaining that the jury and judge may exercise mercy in their recommendation even if the factual situations may warrant capital punishment).

This provision of the Act not requiring that the jury’s ultimate recommendation for death be unanimous is unconstitutional under this Court’s holding in Hurst, and we are unable to construe that provision to be consistent with Hurst. As we held in Hurst, “under the commandments of Hurst v. Florida, Florida’s state constitutional right to trial by jury, and our Florida jurisprudence, the penalty phase jury must be unanimous in making the critical findings and recommendation that are necessary before a sentence of death may be considered by the judge or imposed.” 202 So.3d at 59.

In conclusion, we resolve any ambiguity in the Act consistent with our decision in Hurst. Namely, to increase the penalty from a life sentence to a sentence of death, the jury must unanimously find the existence of any aggravating factor, that the aggravating factors are sufficient to warrant a sentence of death, that the aggravating factors outweigh the mitigating circumstances, and must unanimously recommend a sentence of death. Id. at 53-54. While most of the Act can be construed constitutionally under our holding in Hurst, the Act’s 10-2 jury recommendation requirement renders the Act unconstitutional.

CONCLUSION

Based on the reasoning of our opinion in Hurst, we answer both certified questions in the negative. As to the second question, we construe the fact-finding provisions of the revised section 921.141, Florida Statutes, constitutionally in conformance with Hurst to require unanimous findings on all statutory elements required to impose death. The Act, however, is unconstitutional because it requires that only ten jurors recommend death as opposed to the constitutionally required unanimous, twelve-member jury. Accordingly, it cannot be applied to pending prosecutions.

It is so ordered.

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

CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

concurring in part and dissenting in part.

I agree with the majority in approving the Fifth District’s rejection of Perry’s argument that the Supreme Court’s decision in Hurst v. Florida, “leave[s] Florida without a death penalty.” I therefore concur with the majority in answering the first certified question in the negative.

But I dissent from the negative answer to the second certified question. Although I agree with the majority that the Fifth District correctly rejected Perry’s argument that application of Florida’s new death penalty statute to his case would be an ex post facto violation, I strongly disagree with the majority’s conclusion that the new statute is unconstitutional under Hurst v. Florida. As I explained in my dissent in Hurst, 202 So.3d at 77 (Canady, J., dissenting), the Supreme Court “repeatedly] identified]” “Florida’s failure to require a jury finding of an aggravator as the flaw that renders Florida’s death penalty law unconstitutional.” See, e.g., Hurst v. Florida, 136 S.Ct. at 624 (“Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.”). The new statute has remedied that flaw. See § 921.141(2)(a)-(b), Fla. Stat. (2016).

The Legislature’s work in enacting the new statute reflects careful attention to the holding of Hurst v. Florida, which does not require jury sentencing. In rejecting the new statute, the majority has “fundamentally misapprehend[ed] and misuse[d] Hurst v. Florida,” Hurst, 202 So.3d at 77 (Canady, J., dissenting).

POLSTON, J., concurs.

      . Two trial courts in two different circuits have recently held the Act unconstitutional as to pending prosecutions because unanimity was not required in the final vote for death or in the jury fact-finding, State v. Keetley, No. 10-CF-018429 (Fla. 13th Jud. Cir. Ct., June 9, 2016) (pending before the Second District Court of Appeal in Case No. 2D16-2717); State v. Gaiter, No. F01-128535 (Fla. 11th Jud.Cir.Ct. May 9, 2016) (pending before the Third District Court of Appeal in Case No. 3D16-1174),

      . After accepting jurisdiction and during merits briefing, this Court ordered that Perry and the State "address whether the provision within section 921.141 (2)(c), Florida Statutes (2016), Chapter 2016-13, Laws of Florida, requiring that 'at least 10 jurors determine that the defendant should be sentenced to death’ is unconstitutional.” Perry v. State, SC 16-547 (Fla. Sup.Ct. Order filed May 5, 2016).

      . William T. Woodward, the other defendant whose case was considered by the Fifth District, moved for a motion for rehearing in the Fifth District, which was still pending at the time Perry sought review in this Court. Woodward did not move for joinder in this case, but instead filed a motion for leave to appear as amicus curiae, which this Court granted on April 18, 2016. After the Fifth District denied Woodward’s motion for rehearing on April 21, 2016, Woodward filed his Notice to Invoke Discretionary Jurisdiction in this Court. On April 29, 2016, this Court stayed that case pending disposition of this case. See Woodward v. State, No. SC16-696 (Fla. Sup.Ct. Order accepting jurisdiction filed April 29, 2016).
      William T. Woodward and McClain & McDermott, P.A., the Law Offices of Todd G. Scher, P.L. and the Law Offices of John Aba-tecola, filed amicus curiae briefs on the certified questions in which they explain that they do not take the positions of either party. Capital Collateral Regional Counsel-South was granted leave to appear as amicus curiae by joining in the brief filed by McClain & McDermott, P.A., the Law Offices of Todd G. Scher, P.L., and the Law Offices of John Abatecola.
      The Tenth Judicial Circuit Public Defender, Howard L. "Rex” Dimmig, II, the Constitution Project (TCP), and the American Civil Liberties Union Capital Punishment Project (ACLU-CPP) and the American Civil Liberties Union of Florida (ACLU-FL) filed amicus curiae briefs in support of Perry on the issue of whether section 921.141(2)(c), Florida Statutes (2016), chapter 2016-13, Laws of Florida, requiring that at least ten jurors determine that the defendant should be sentenced to death is unconstitutional under the Florida or United States Constitution. The Florida Association of Criminal Defense Lawyers (FACDL), Florida Capital Resource Center (FCRC), Florida International University College of Law’s Center for Capital Representation (FIU CCR), and the Florida Public Defender Association (FPDA) were granted leave to join as amici curiae and adopted Mr. Dim-mig's amicus brief on the issue of the constitutionality of the ten-juror recommendation.

      . In Hurst, we also decided the requirements of unanimity under both the Sixth and Eighth Amendments to the United States Constitution, but our basic reasoning rests on Florida’s independent constitutional right to trial by jury. Art. I, § 22, Fla. Const.

      . The statutory provision requiring "at least 10 jurors recommend death” was a result of compromise after the Florida House of Representatives and the Florida Senate promulgated two separate proposals, the House’s proposing a final recommendation of nine to three and the Senate requiring a unanimous recommendation. Fla. S.B. 7068, § 3 (Feb. 3, 2016); Fla. H.B. 7101, § 2 (Feb. 5, 2016).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rasheem Diquoine DUBOSE, Appellant, v. STATE of Florida, Appellee.
    No. SC10-2363
    Supreme Court of Florida.
    February 9, 2017

      Richard Randall Kuritz, Jacksonville, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Carolyn Marie Snurkowski, Associate Deputy Attorney General, and Berdene Be-vione Beckles, Assistant Attorney General, Tallahassee, Florida; and Lisa-Marie Krause Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

On January 3, 2007, Rasheem Dubose was charged by indictment in Duval County with first-degree murder for the killing of Drewshawna Washington-Davis and with shooting into a building. The charge of one count of possession of a firearm by a convicted felon was later added. The State sought the death penalty. The State originally tried Dubose along with his two brothers, who were charged with the same crimes stemming from the same incident. Though the three brothers were tried together, Dubose had a separate jury. Du-bose’s first trial resulted in a hung jury and a mistrial was declared. His brothers were convicted on all counts and sentenced to life in prison.

Dubose’s second trial began in February 2010. The jury found Dubose guilty of both first-degree premeditated murder and felony murder, with burglary as the underlying felony. He was also found guilty of shooting into a building. The jury voted for imposition of the death penalty by a vote of eight to four. On December 9, 2010, the trial court followed the jury’s recommendation and sentenced Dubose to death.

Dubose now appeals his convictions and sentences. We have jurisdiction. See art. V § 3(b)(1), Fla. Const. For the reasons set forth in this opinion, we affirm Dubose’s convictions and vacate his sentence of death.

I. STATEMENT OF THE CASE & FACTS

On July 26, 2006, at approximately 4:00 p.m., Willie Davis, Jr., drove his girlfriend, Cinee Tinsley, to the home where she lived with her mother and siblings. As Davis turned onto Tinsley’s street, he noticed Dubose’s younger brother walking in the street. Davis swerved in an attempt to hit Dubose’s younger brother with the car, but was unsuccessful. Dubose’s younger brother continued down the street, away from Tinsley’s home. Dubose had been on Tinsley’s porch with Tinsley’s brother and had witnessed the incident. When Davis pulled into Tinsley’s yard, Dubose walked toward the car, speaking to Davis through the car window. Davis got out of the car and argued with Dubose for approximately one minute and then returned to the car. Davis quickly drove away from Tinsley’s home with Tinsley still inside the car. Davis drove to his father’s house, retrieved a gun, and drove back toward Tinsley’s home. On the way back to Tinsley’s home, Davis told Tinsley “I’m going to make him get naked in the street.”

Davis returned to Tinsley’s home and saw Dubose still in the front yard with Tinsley’s older brother. Davis got out of the car, grabbed Dubose by his shirt, pushed him against a wall, put the gun to the back of his head, and screamed at him to empty his pockets. Dubose complied and emptied his pockets as commanded, after which Davis ridiculed him for not having any money in his pockets. Davis then ordered Dubose to pull his pants down; again, Dubose complied. Tinsley’s mother came out of the house and asked Davis to stop what he was doing. He stopped, but Dubose said something that caused Davis to re-engage with him. Tinsley’s mother grabbed Dubose and pulled him into her home. Davis and Tinsley left the scene in Davis’s car. Dubose left the Tinsley home a short time later on foot.

Dubose went home and told his two younger brothers that Davis had attempted to rob him. After Dubose made a phone call, he threw and shattered his brother’s phone and said, “I’m going to kill this nigger.” Dubose left his home shortly thereafter. Dubose’s younger brother continuously made phone calls to Maxie Wilson, the brothers’ cousin, who is a known drug dealer. That day, Maxie Wilson was driving a white Impala rental car, with his friend Sherman Eley in the passenger seat. After finally answering the phone and speaking with Dubose’s younger brother, Maxie Wilson drove to the home of the Dubose brothers. Upon arrival, Dubose’s brothers got into the back seat of Wilson’s car. One of them was armed with a nine-millimeter firearm. Maxie Wilson drove around the corner where Dubose was standing in front of a house. Dubose got into the back seat of the car.

Then, Dubose instructed Maxie Wilson to drive around the corner to where Davis’s mother lived. Once they arrived at the house, they saw Davis’s car parked in the front yard. One of the brothers initially prepared to shoot at Davis’s car, but was instructed not to by Sherman Eley. The brothers circled the house again and pulled onto a dirt road behind the house. Maxie Wilson parked the car near the backyard fence line of the victim’s house and provided the brothers with two more guns, a .45 caliber pistol and a Glock-nine with an extended magazine, which were both in the car with him prior to the incident. Du-bose’s brothers armed themselves with the nine-millimeter gun and the .45 caliber gun. Dubose armed himself with the Glock-nine. The Dubose brothers exited the vehicle then jumped a fence to enter Davis’s mother’s backyard.

Davis and Tinsley had gone to his mother’s house after the incident. When they arrived, Davis’s mother and stepfather were in the dining area of the residence. Davis was seated on a couch by the window on the side of the house. Three children, including Davis’s eight-year-old niece, Drewshawna, were in the bedroom. When the gunfire began, the initial shots were sporadic and then became more continuous. Immediately after the shooting stopped, Tinsley ran to the bedroom to check on the welfare of the children. Drewshawna, who had been shot in the back, lay on top of her younger cousins in a protective position.

After the shooting, the Dubose brothers returned to Maxie Wilson’s white Impala. During the car ride, one of the brothers received a phone call that a child had been killed in the shooting. With Sherman Eley still in the passenger seat, Maxie Wilson drove the brothers to a house owned by David Craighton in a secluded, wooded area. Maxie Wilson had previously requested permission to reside at Craigh-ton’s home, under the auspices that he needed a place to live with his girlfriend and young child. While at the house, the brothers gave their clothing and weapons to Maxie Williams. Maxie Williams left the brothers at the house, drove Sherman Eley back to his car, which had been parked at an apartment complex in a different neighborhood, and disposed of the clothes and weapons in a dumpster at that apartment complex. The firearms were never recovered. On the evening of July 30, 2006, Craighton came to his house to find the Dubose brothers occupying it. Craighton used a large stick to hold the brothers in the house until the police arrived and arrested them.

Reconstruction of the bullet trajectories revealed that twenty-nine bullets struck the residence, some from the side and some from the rear. Twenty-three of these shots were fired from Dubose’s Glock-nine, including the gunshot that killed Drew-shawna. The fatal bullet entered the residence through the window on the side of the house, traveled through at least two walls, and entered the bedroom. Someone looking through this window would not have seen the victim in the bedroom, but possibly would have seen someone sitting on the couch near the dining area.

Penalty Phase: State’s Witnesses

The penalty phase began on March 9, 2010. The State offered victim impact statements from the victim’s grandmothers, the victim’s aunt, and the victim’s third-grade teacher. The State also offered testimony from Officer Scott Medlock, the officer involved in Dubose’s conviction for resisting arrest with violence. Officer Med-lock explained his pursuit and subsequent physical altercation with Dubose after he fled following a suspicious person stop. The officer also explained that Dubose apologized and stated that he was not attempting to harm the officer, he just wanted to be free. The officer testified that in hindsight he believed that the defendant was not attempting to harm him, but that belief does not, however, lessen the seriousness of Dubose’s actions.

Penalty Phase: Defense Witnesses

In addition to Dubose’s family members, who testified on his behalf, Clinical Psychologist and Neurologist, Dr. Hyman Eisenstein, testified as an expert. Dr. Eisenstein testified that Dubose’s results on the Comprehensive Test of Basic Skills (CTBS) from first through eighth grade indicate that he scored between the 2nd and 18th percentile (on the low end, 98 percent of the population scored better than him, and on the high end, 82 percent of the population scored better than him). He testified Dubose had academic impairment disability from the first grade through the ninth grade. The doctor also testified that Dubose quit school in the ninth grade but prior to that may have been promoted through special programs or simply promoted despite the fact that he had been failing. Dr. Eisenstein stated there was no indication at all that Dubose was malingering.

Dr. Eisenstein indicated that at the age of 25 years and 11 months, Dubose received an IQ Score of 73 on the Peabody Picture Vocabulary, which is equivalent to a ten year old child. He also testified that Dubose received a grade equivalent to a four year old on the WRAT4 (Wide Range Achievement Test, Fourth Edition); he scored in the sixty-ninth percentile on the reading comprehension portion, with anything below the seventieth percentile being considered mild mental retardation. Du-bose’s verbal comprehension scores on the WAIS-IV (Wechsler Adult Intelligence Scale, Fourth Edition) equaled 70. A new feature of the WAIS-IV is the GAI (general ability index), upon which the defendant scored a 75, in the borderline range. Dr. Eisenstein concluded that Dubose’s full scale IQ score was 82, which placed him in the low average range. A PET scan was not conducted, but Dr. Eisenstein stated that other factors present in Dubose’s life indicated the possibility that he has sustained some brain damage. Dr. Eisenstein assumed that Dubose has frontal lobe damage, which may have made it difficult for him to get over being humiliated by Davis. On cross-examination, Dr. Eisenstein acknowledged that Dubose actually began the tenth grade before he dropped out, and that there were various behavior problem reports in elementary school. On redirect, Dr. Eisenstein opined that Du-bose’s three-year participation in football and his participation in boxing could have caused brain impairment.

Dr. Alan Fox, professor at Northeastern University, also testified as an expert for the defense. Dr. Fox explained that poor neighborhoods such as the one where Du-bose was raised sometimes have a “code,” which is the idea of being respected and important, despite the lack of education or employment. He further explained that in this type of environment, “violence is seen as an appropriate, virtually a required response to being disrespected, being humiliated.” Dr. Fox reviewed the thirteen DCF reports which contained information that Dubose’s father was arrested for abuse; he determined that Dubose always tried to protect the rest of the family from their father. Dr. Fox testified that because Du-bose had no positive role models in his life and because his grandmother worked so much, he modeled himself after other young men in the neighborhood. Associating himself with the people in his neighborhood, opined Dr. Fox, is what taught Dubose the necessity of fighting.

On cross-examination, Dr. Fox acknowledged that on the date of the shooting, Dubose knew right from wrong, he knew that killing was wrong, and that at every step in the events of the day, he could have made different decisions. He also explained that the code of the street may have a different definition of right from wrong than the conventional meaning. Dr. Fox further acknowledged that persons who grow up in rough neighborhoods, may have a better appreciation for the consequences of violence. Dr. Fox stated that the combination of the risk factors in Du-bose’s life were “tremendous.” Dr. Fox opined that the message Dubose may have intended to send was one of deterrence, “Don’t mess with us. We’re not weak. We won’t take it lying down[,]” as opposed to retribution which could have been accomplished by finding Davis and doing something to him personally, one-on-one. Dr. Fox acknowledged that he met with Du-bose for a total of forty-five minutes to an hour.

Spencer Hearing

At the conclusion of the penalty phase, the jury recommended by a vote of eight to four that Dubose be sentenced to death for the murder of Drewshawna. Prior to sentencing, the court held a Spencer hearing on November 10, 2010. In consideration of the time between the penalty phase and the Spencer hearing, some of the witnesses repeated their testimony from the penalty phase. Multiple family members and mental health experts testified at the Spencer hearing, including Dr. Eisenstein and Dr. Waldman.

Dr. Eisenstein and Dr. Waldman restated their conclusions that Dubose suffered from frontal lobe damage that significantly impaired his ability to control his impulses. As further mitigation, the defense offered a report that evaluated the results of Dubose’s PET scan. Dubose was administered the PET scan in anticipation of the Spencer hearing. Dr. Ruben C. Gur, who evaluated the results and wrote the report that was admitted into evidence, concluded that Dubose suffered abnormalities in regions of the brain that play a significant role in regulating behavior.

II. ANALYSIS

Juror Misconduct

Dubose argues that the trial court erred in denying his motion for a mistrial based on juror misconduct. On April 23, 2010, Dubose filed a motion for a mistrial based on alleged juror misconduct. Attached to the motion was an affidavit from a juror. The motion alleged that the jurors had conducted internet research regarding the meaning of the defendant’s facial tattoo during the penalty phase deliberations. Also attached were' numerous articles regarding the meaning and definition of a teardrop tattoo. The juror’s affidavit also stated that the jurors used their cell phones to Google “tear drop tattoos on gang members” to find out what that tattoo meant. Allegedly, they learned that the tattoo is what gang members receive after they kill someone. In addition, the juror alleged that racial references were also made during the deliberations.

The trial judge held a hearing during which he questioned the juror about some of the allegations made in her affidavit. Much of the testimony that the affiant juror provided was related to unauthorized cell phone usage during the trial. She stated that she did not observe anyone using a cell phone during the guilt phase deliberations, but recalled the jury foreperson using his cell phone on breaks and during sidebars, although she could not see what he was doing on his cell phone. The affiant juror also observed the foreperson on the phone during the penalty phase, but she could not hear his conversation. She also admitted that she used her iPod touch device during the breaks, but she stated that she only played games on it because she could not access the internet in the courthouse.

The affiant juror told the judge that no one appeared to be conducting internet research during deliberations. She also testified that another juror, whom she identified by seat and physical description, used his phone during penalty phase deliberations, but was not observed making a phone call. She further alleged that the jury was not reminded that they were not allowed to have their cell phones during the penalty phase deliberations, and that the phones were not confiscated prior to deliberations.

When questioned regarding her statement that other jurors conducted internet research regarding the meaning of Du-bose’s facial tattoo, the affiant juror explained that the discussion of Dubose’s tattoo occurred during a break and resulted from the defendant cutting his dreadlocks after the guilt phase, thereby making his facial tattoo more visible in the penalty phase. Further, in consideration of the juror’s testimony that she could not see what the two jurors who had used their phones were actually doing, the court found her not to be credible on this issue.

When questioned regarding her responses during the polling of the jury in the guilt and penalty phases, the affiant juror inquired as to whether she could be subjected to perjury charges, and ultimately refused to state whether she agreed that the announced verdict reflected her vote. She stated that she did not have a problem with the answer that she gave to the polling question during the guilt phase, but that her answer during the penalty phase bothered her. She explained that she went along with the verdict because she has three children and she did not want to be singled out in a courtroom filled with spectators and media. She further expressed some concern for her children because gang members were involved.

She stated that after the guilt phase, but before the penalty phase, she attempted to contact the trial judge by email, because she did not want to address her concerns in front of the other jury members. She admitted that her emails did not mention that she was a juror in the case and did not state her name or the purpose of her request for an appointment with the judge. She admitted to contacting the Public Defender’s Office, a private attorney, and Du-bose’s defense counsel, claiming to be a friend of a juror in the Dubose case. She was unclear as to who drafted the finalized affidavit that was presented to the trial court. She explained that a private attorney helped her draft her affidavit, typed it, and emailed it to her. She then explained that she spoke on the phone with Dubose’s counsel and ultimately met him for lunch to discuss what she perceived to be juror misconduct. Following this initial meeting, she briefly met Dubose’s counsel in a parking lot to sign the affidavit that had already been printed and notarized. When the trial judge attempted to gain some clarity on the drafting of the affidavit, the juror refused to answer any more questions,

After the juror interview, the defense made additional arguments in support of a new trial. The trial court entered a written order denying a mistrial and a request for a new trial. The trial court determined that allegations in the juror’s affidavit and the defense counsel’s motions were contradicted by the information that the juror provided at the hearing. The trial court compared the allegations set forth in the juror’s affidavit, those raised in the defendant’s motions, and the testimony provided by the juror at the hearing, and ultimately found, based in part on the juror’s demeanor, that the juror was biased in favor of the defendant and unreliable.

This Court heard oral argument in this case on October 8, 2013. Thereafter, we remanded the case to the trial court for further inquiry of the remaining jurors on the juror misconduct issue, specifically regarding allegations of racial remarks made by jurors; jurors’ knowledge of the victim’s great-grandmother’s burned down house; and cell phone/internet research conducted by the jurors. The trial court subpoenaed the twelve jurors and two alternates. Twelve of the fourteen jurors responded by appearing and giving testimony. One juror had relocated to Georgia and was unable to be served. The affiant juror is the only juror who was served and refused to appear. A significant portion of the proceedings on remand was used to coordinate a date, time and method to interview the affiant juror. The trial court offered to interview her in person, by telephone, and by video; she refused all methods.

Consistent with its initial denial of a mistrial and the request for a new trial, the trial court ultimately found that the affiant juror was not credible and that the examination of the other jurors did not support the allegations made in the motions and the affidavit. Additionally, the trial judge found that the affidavit submitted to the court alleging juror misconduct was not drafted by the juror, but was drafted by Dubose’s counsel and that following Dubose’s second trial, which is the subject of this appeal, Dubose’s attorney formed an attorney-client relationship with the affiant juror. There is competent, substantial evidence in the record to support the trial court’s finding, and we, therefore, deny relief on this issue.

The evidence from the jurors interviewed supports the conclusion that some of the jurors had cell phones and tablet devices during the guilt and penalty phases and during breaks, but not during deliberations. None of the interviewed jurors testified that any of the jurors actually used their electronic devices to conduct research related to the case or made disparaging racial remarks about the defendant. There is evidence that the complaining juror improperly used her electronic device to contact Assistant Public Defender Fred Gazaleh, apparently while court was in session. Gazaleh testified that he assumed that court was in session, based on the time of day that he received the messages, and therefore did not feel comfortable responding to the messages. Despite the misconduct on the part of the complaining juror, there is no evidence that the use of the electronic devices contributed to the jury verdict.

At the hearing on remand from this Court, none of the jurors recalled any racial remarks or any remarks about the defendant’s hair. Some of the jurors had some knowledge of someone involved in the case or the victim’s great-grandmother’s housing burning down. Others said they had no knowledge of this event or anyone involved in the case. None of the jurors saw any other juror conducting internet research, although several of the jurors had cell phones and other electronic devices. Several of the jurors indicated that remarks were made about the quality of the video and that the defendant’s voice was mumbled as he did not speak clearly into the microphone. The testimony on remand did produce evidence that during the penalty phase, one member of the jury stated that a teardrop tattoo indicated that someone had been to jail or was remembering somebody who died. This was not evidence adduced at trial. Furthermore, the evidence indicates that this remark was not made during the course of deliberations nor to the entire jury panel.

Following the trial court’s decision on remand, Dubose filed a motion in this Court for additional briefing, alleging that the trial judge had asked the jurors improper questions regarding how the juror misconduct allegations affected their individual verdicts. Although the trial court indeed conducted an improper inquiry as to matters that inhere to the jury verdict, we find that this error was harmless.

In State v. Hamilton, 574 So.2d 124 (Fla. 1991), this Court agreed with the test formulated by the Fifth Circuit Court of Appeals and adopted by the Eleventh Circuit Court of Appeals that when questioning jurors regarding allegations of juror misconduct, a judge or counsel is to limit the inquiry to an “objective demonstration of extrinsic factual matter disclosed in the jury room,” and “must not inquire into matters relating to the jurors’ thought processes.” Id. at 129. “Having determined the precise quality of the jury breach, if any, the [trial] court must then determine whether there was a reasonable possibility that the breach was prejudicial to the defendant.” Id. (quoting United States v. Howard, 506 F.2d 865, 869 (5th Cir. 1975) (emphasis added)). This test was reiterated by this Court in Keen v. State, 639 So.2d 597 (Fla. 1994).

During the inquiry of the jurors in Keen, the trial judge asked them whether an article concerning the tactics of defense attorneys in criminal cases found in the jury room influenced their decisions; the jurors stated that it did not. Id. at 599. The trial judge denied the defendant’s motion for a new trial, but this Court reversed. Id. at 599-600. We found that the trial judge erred in questioning jurors about the items which factored into their decision-making process. Id. at 599. We also found that we could not say beyond a reasonable doubt that the trial court error was harmless, and we concluded that the defendant was entitled to a new trial. Id. at 600 (citing State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986)); see also Devoney v. State, 717 So.2d 501 (Fla. 1998).

The trial judge in this case also made an inquiry into matters that factored into the jury’s decision-making process; such an inquiry was error. Nonetheless, it does not appear that the trial court relied on the improper inquiry to deny the motions for mistrial and for a new trial on remand. The trial judge instead found that none of the other jurors committed juror misconduct, and he denied the motions on this basis. Therefore, the asking of the improper question was not the basis of the denial of the motions. Under the circumstances of this case, the trial court’s error was harmless beyond a reasonable doubt. See DiGuilio, 491 So.2d at 1139.

Additionally, regarding any allegation that racial remarks, unauthorized materials, or outside research affected the verdict, relief is not warranted. No juror testified that any racial remarks were made. While the evidence from the jurors interviewed supports the conclusion that some of the jurors had cell phones and tablet devices during breaks and lunch in the guilt and penalty phases, no juror recalled anyone’s use of electronic devices during deliberations. Further, each of the jurors denied using his or her cell phone to access the internet or to conduct outside research. To the extent that cell phones were inside the jury room and could be considered unauthorized materials in the jury room, based on the evidence in this case, “it is not reasonable to assume that jurors derived any prejudicial legal or factual conclusions” from these devices. Hamilton, 574 So.2d at 130-31.

Assuming that one juror educated the other jurors on the meaning of a teardrop tattoo during the penalty phase after observing a tattoo on the defendant’s face—which apparently was not a teardrop—there was conflicting testimony as to the brevity of the discussion and the source of the juror’s knowledge is unclear. Whether or not it could be considered to be improper discussion and not a matter inhering in the verdict, there is no reasonable probability that this breach was prejudicial during the penalty phase of his trial. See id. Dubose had already been convicted of murder and during the penalty phase, the jury was informed that Du-bose had a prior violent felony. In addition, through the testimony of Dubose’s own witness, the jury learned that Dubose had been incarcerated awaiting the trial of this case.

Sufficiency of the Evidence

The evidence in a capital case is judged to be sufficient when it is both competent and substantial. See Phillips v. State, 39 So.3d 296, 308 (Fla. 2010). In conducting its review, this Court looks at the evidence in the light most favorable to the State to determine if a rational trier of fact could find the elements of the crime were proven beyond a reasonable doubt. See Rodgers v. State, 948 So.2d 655, 674 (Fla. 2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla. 2001)). Furthermore, when a general verdict is rendered by the jury after the jury was instructed on both premeditated first-degree murder and first-degree felony murder, this Court will affirm the conviction if either form of first-degree murder is supported by competent, substantial evidence. See Crain v. State, 894 So.2d 59, 73 (Fla. 2004). Here, the jury was instructed on both first-degree premeditated murder and first-degree felony murder, with burglary being the underlying felony. The defendant was convicted of first-degree murder under either theory.

First, there is sufficient evidence in this case to support a conviction for first-degree premeditated murder. This Court has stated that

Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.

Bradley, 787 So.2d at 738 (quoting Woods v. State, 733 So.2d 980, 985 (Fla. 1999)). Premeditation may be inferred from such facts as “the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Id. (quoting Norton v. State, 709 So.2d 87, 92 (Fla. 1997)).

The State introduced competent, substantial evidence of Dubose’s guilt. The State proved that the Dubose brothers stealthily drove around the back of Vonnie Frazier’s home, jumped a fence to get closer to the house and stood in the yard while relentlessly spraying the house with bullets. Dubose’s premeditated design to kill is evidenced by the fact that he armed himself with a weapon, went to the victim’s home with the weapon displayed, and shot that weapon, a Glock-nine with the capability to travel through at least two walls, into an open window of an occupied home. One of these bullets ultimately killed Drewshawna. Therefore, we find that the facts of this case provide competent, substantial evidence to support Dubose’s first-degree premeditated murder conviction.

Additionally, the State presented sufficient evidence to support the first-degree felony murder conviction. The jury found Dubose guilty of first-degree felony murder, with burglary as the underlying felony. Burglary is a qualifying felony that supports a conviction for first-degree felony murder. See § 782.04(l)(a)2.e., Fla. Stat. (2006). As discussed below, the State’s evidence demonstrated that the Dubose brothers unlawfully entered the curtilage of Vonnie Frazier’s home, committing burglary, when they shot Drew-shawna. Therefore, because we find that Dubose had premeditated intent to kill, and that he committed a burglary during the shooting, we affirm his conviction for first-degree murder.

Burglary

Dubose argues that the underlying felony, burglary, was not proven at trial, and he therefore cannot be convicted of felony murder. In Dubose’s first trial, defense counsel filed a motion in limine with a memorandum of law to prohibit the State from arguing felony murder on the theory of burglary, arguing that the gap in the fence allowing for the driveway prevents the yard from being considered cur-tilage under this Court’s decision in State v. Hamilton, 660 So.2d 1038 (Fla. 1995). This motion was denied. The defense renewed this motion at the beginning of the second trial. The trial court once again denied this motion. Therefore, this claim was preserved. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (“in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”) (emphasis added).

During the jury charge conference, the State moved the trial court to add a sentence to the verdict form at the end of the definition of a structure, to read: “The space of ground immediately surrounding the structure does not have to be totally enclosed.” In objecting to the State’s motion, defense counsel argued the standard jury instruction is sufficient. Defense counsel then generally argued that the victim’s home did not have a gate and was not capable of being totally enclosed. Relying on this Court’s decision in Hamilton, the trial court denied the State’s motion. •

Dubose’s brother raised this same argument in his appeal to the First District Court of Appeal. Dubose v. State, 75 So.3d 383, 384-85 (Fla. 1st DCA 2011). In finding that “the fencing around the residential yard in the instant case ... satisfies the enclosure requirement in Hamilton!,]” the First District stated:

The area surrounding a dwelling or structure must lie within “some form of an enclosure” to be considered part of the curtilage. State v. Hamilton, 660 So.2d 1038, 1044-45 (Fla. 1995). In this case, the yard of the home Appellant and his brothers fired upon had a chain link fence around it, with an opening in front for the driveway. This court recently held that the enclosure “need not be continuous[,] and an ungated opening for ingress and egress does not preclude a determination that the yard is included in the curtilage of the house.”

Id. at 385. We approve the reasoning and decision of the First District in Dubose, and find that the trial court did not commit reversible error by allowing the instruction on felony murder based on burglary to go to the jury.

Motion for Change of Venue

Dubose argues that the trial court should have granted his motion for change of venue. We find that the trial judge did not err in denying Dubose’s motion. Section 47.121, Florida Statutes (2010), states that “[a] change of venue shall be granted when it appears impracticable to obtain a qualified jury in the county where the action is pending.” This Court has determined that some knowledge of the case by potential jurors is not sufficient reason standing alone to require a change of venue. In McCaskill v. State, 344 So.2d 1276 (Fla. 1977), we articulated the test as follows:

Knowledge of the incident because of its notoriety is not, in and of itself, grounds for a change of venue. The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely upon the evidence presented in the courtroom.

Id. at 1278 (quoting Kelley v. State, 212 So.2d 27, 28 (Fla. 2d DCA 1968)); accord Manning v. State, 378 So.2d 274, 276 (Fla. 1979).

As this Court made clear in Rolling v. State, 695 So.2d 278, 285 (Fla. 1997), in ruling on a motion for a change of venue, the trial court should consider: “(1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury.” In evaluating the first prong,

the trial court must consider numerous factors, such as: (1) the length of time that has passed from the crime to the trial and when, within this time, the publicity occurred; (2) whether the publicity consisted of straight, factual news stories or inflammatory stories; (3) whether the news stories consisted of the police or prosecutor’s version of the offense to the exclusion of the defendant’s version; (4) the size of the community in question; and (5) whether the defendant exhausted all of his peremptory challenges.

Id. at 285 (citations omitted).

The first three factors of the first prong can best be addressed collectively. The shooting in this case occurred on July 26, 2006. The first trial, involving all three defendants, occurred in January 2010. Jury selection in the second trial began on February 8, 2010. Prior to the first trial, the defense filed a pretrial motion to change venue, citing extensive pretrial publicity. The defense attached a study regarding the effects of pretrial publicity on juror verdicts, along with numerous news articles addressing the story. Most of the news articles attached to the defendant’s motion are dated the same week that the crime occurred and contained basic facts obtained as the story developed. The major basis for many of the news articles was the fact that the Mayor of Jacksonville funded a task force to allow the Sheriff to pay police officers more overtime, in order to patrol “high risk” areas in Jacksonville, to deal with the widespread murders in the areas. In these articles, the mayor and the sheriff urged the community to assist in decreasing the crime rate and generally warned all of the criminals that they would be caught.

The news articles published close in time to the crimes also provided information such as who the persons of interest were and the reason for the shooting, as alleged by neighbors. Many of the news reports cited the basis for the shooting as a retaliatory or “respect shooting,” indicating that the suspects at that time shot into the house in retaliation for a robbery that occurred earlier that day. The news reports attached to the motion detail the court appearances of the brothers, as well as the person that the brothers were allegedly aiming for, Willie Davis, Jr. On the one-year anniversary of the victim’s death, there was an article advertising a memorial service, which a few of the jurors remembered seeing. There were two articles attached, dated early February 2008, which detailed the disciplinary files of all three brothers since they were arrested for the crimes.

In one of these articles, a representative of the Jacksonville Sheriffs Department made multiple disparaging remarks about all three defendants, referring to them as “miscreants,” “a menace to society,” calling their behavior “despicable,” and stating that “they are in the right place.” The articles attached that were written in 2009 (the latest dated May 2009) provided information about court hearings and indicated that the state sought to have separate trials, and seek the death penalty for Du-bose and life sentences for the other two defendants. The latest dated article attached to the motion was dated the same week as the trial, and included a detailed timeline of events since the incident and a diagram of the home where the victim was shot.

The attached articles do not indicate that the entire community was biased against Dubose in a manner that would make it impossible to choose an impartial jury. Additionally, the attached articles do not exclude the defendants’ version of events; some of the articles even include excerpts from the police interrogation where the defendant denies any involvement in the crime. Further, even considering the disparaging remarks made by the representative of the Sheriffs Department, there was no indication that any of the jurors read that article, or adopted those views to the point that the jurors’ ability to be impartial was jeopardized. Although the defense renewed its motion for a change of venue at the beginning of the second trial, there is no evidence that the defense supplemented the record with news reports that occurred after the first trial, but before the second trial.

As to the fourth factor of the first prong, there were no arguments made that the defendants could not receive a fair trial in Duval County, based on the size of the county. During the individual voir dire process, each juror indicated that, if chosen for the jury, he or she could be fair and impartial and only decide the case based on the evidence presented in the trial. Finally, the defense used all ten of its peremptory challenges, along with three additional challenges that were requested and granted. A fourth additional peremptory challenge was requested, but denied.

As to the second prong, the defense and the State were able to agree on a jury panel and two alternates with approximately five jurors remaining who had not been stricken. The defense counsel did not appear to have any difficulty in selecting jurors who indicated that they could be fair and impartial in this case. In fact, even the potential jurors who had extensive pri- or knowledge of the case indicated that their knowledge did not result in any bias toward the defendant.

This case is distinguishable from Manning v. State, 378 So.2d 274 (Fla. 1979), where this Court determined that the trial court abused its discretion in denying the defendant’s motion to change the venue of the trial. Manning was a young, Black male from a different county who was arrested in a rural county and charged with murdering two Caucasian sheriffs deputies. Id. at 276. The pretrial publicity included information provided to the media regarding the version of events represented by the state attorney’s office and the local sheriffs department, which contradicted the version of events given by the appellant shortly after his arrest. Id. at 275. Every person on Manning’s perspective jury “had prior knowledge of the alleged crimes through news media accounts and community discussion.” Id.

The defense attached various newspaper articles to the motion, as well as affidavits of fifteen persons, including the defendant, stating that because of bad feelings and prejudice against the defendant and because of the adverse publicity concerning the case, the affiants were convinced by reason of personal observations and knowledge of the conduct and statements by various persons in Columbia County that the defendant could not receive a fair and impartial trial in.that county. In addition, the defendant alleged that local police officers made various threats against his life, physically and verbally abused him, and harassed his mother when she came to visit him in jail.

Id. The jury found the appellant guilty and recommended imposition of the death penalty.

In this case, the defendant lived in the same county where the crime occurred. As expected, the death of an innocent child may draw just as much emotion and media attention as the killing of two police officers. Here, fifty-three of the sixty-nine potential jurors admitted to seeing or hearing media coverage of the case. The individual voir dire sessions revealed that while few potential jurors knew intricate details of the case or had followed the first trial, many of the potential jurors only read or heard from the media reports that a child was killed in a “drive by” shooting, where she was not the target, which is essentially the same information that was provided to the potential jurors during the court’s summary at the beginning of jury selection. One of the alternate jurors had the most information about the case, and was able to recite the basic facts and procedural posture of the case.

Of the 53 jurors who admitted to previously hearing some information about the case, six were chosen to serve on the jury and two were chosen as alternates. The other six jurors indicated that they had not previously heard about the case before reporting for jury duty. Although Dubose claims that the media attention surrounding the incident portrayed Dubose and his brothers in a very negative light, none of the potential or actual jurors indicated that the media attention caused them to view Dubose or his brothers with any preconceived bias or hostile feelings. Therefore, the trial court properly denied Dubose’s motion for change of venue.

Cumulative Error

The defense argues that it was denied a fair trial based upon the trial court’s failure to grant its motion for change of venue and its motion for mistrial based on juror misconduct. However, where the individual claims of error are without merit, the claim of cumulative error must fail. Griffin v. State, 866 So.2d 1, 22 (Fla. 2003). It does not appear that the trial court committed error in denying the defendant’s motions for change of venue and for mistrial. Therefore, the defense is not entitled to relief on this claim.

Constitutionality of the Sentencing Statute

Dubose contends that his death sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). During the pendency of Dubose’s direct appeal, the United States Supreme Court found Florida’s capital sentencing scheme unconstitutional in violation of the Sixth Amendment right to a jury trial. Hurst v. Florida, _ U.S. _, 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016). In Hurst v. State, we explained that the jury in a capital case must find the following facts unanimously: “the existence of the aggravating factors proven beyond a reasonable doubt, that the aggravating factors are sufficient to impose death, and that the aggravating factors outweigh the mitigating circumstances.” 202 So.3d 40, 53 (Fla. 2016). We have determined that section 775.082(2), Florida Statutes, does not require us to remand all death penalty cases for the imposition of a life sentence. See id. at 63-66. See also Franklin v. State, 209 So.3d 1241, 41 Fla. L. Weekly S573, 2016 WL 6901498 (Fla. Nov. 23, 2016). We have also determined that in cases where the jury makes a non-unanimous recommendation of death, the Hurst error is not harmless. See Id. at _, at S575.

Because the recommendation of death in this case was not unanimous, we cannot find beyond a reasonable doubt that the error did not contribute to Dubose’s sentence. Accordingly, Dubose is entitled to relief, and we need not address the proportionality of his sentence or his other claims relating to the penalty phase.

III. CONCLUSION

For the above stated reasons, we affirm Dubose’s convictions, vacate Dubose’s death sentence, and remand for a new penalty phase proceeding.

It is so ordered.

LAWSON, J., did not participate.

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

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

      . Dubose's motion informed the trial court that Dubose's facial tattoo was actually a dollar sign, not a tear drop,

      . At the hearing, the juror was not questioned concerning her allegations of racial refer-enees and that the video of the defendant's police interview needed subtitles in order for the jury to understand Dubose’s English.

      . See United States v. Howard, 506 F.2d 865 (5th Cir. 1975).

      . See United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984).

      . The jury additionally found that the defendant discharged a firearm causing death or great bodily harm during the commission of the offense.

      . Based on the statements of the prosecutors, two previous juries had asked this same question. It is not clear from the record whether the prosecutors are referring to the juries that found the other Dubose brothers guilty, or if one of the referenced juries includes the jury in Dubose's first trial, where a mistrial was declared.

      . The defense raised a standing objection to any juror that had knowledge that there was a mistrial in Dubose’s previous trial. The court consistently denied this motion, reasoning that the jurors are qualified as long as they do not share the information with another juror and as long as the juror states that the knowledge of the previous mistrial will not affect his or her impartiality. The defense sought additional peremptory challenges, reasoning that it used at least three of its peremptory challenges on potential jurors that the defense argues should have been stricken for cause. In recognizing that the trial court had the authority to grant the peremptory challenges "free and liberally,” the court granted both sides three additional peremptory challenges, following individual requests by the defense. The court denied the defense's request for a fourth additional peremptory challenge.

      . Dubose also claimed the following related to his penalty phase: (1) trial court erred in refusing to consider as mitigation Dubose’s attempt to enter into a plea agreement; and (2) the trial court erred in denying Dubose’s motions for continuance based on the defense's request for a PET scan amid suspicions of brain injuries and in denying a continuance of the Spencer hearing to allow a continuance to have testimony regarding the PET scan that was done between the penalty phase hearing and the Spencer hearing.


author: POLSTON, J.

text:
    STATE of Florida, Petitioner, v. Adrea Vernique WILEY, Respondent.
    No. SC15-2389
    Supreme Court of Florida.
    February 9, 2017
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, Florida, for Petitioner
    Clinton Andrew Thomas, Public Defender, and Steven Lauren Seliger, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Respondent
   POLSTON, J.

In State v. Wiley, 179 So.3d 481 (Fla. 1st DCA 2015), the First District Court of Appeal certified conflict with State v. Ayere, 901 So.2d 942 (Fla. 2d DCA 2005), regarding whether the State must object to a downward departure sentence after it is imposed to preserve the issue for appellate review where the State had argued in opposition immediately before the sentence was imposed and during the same sentencing hearing. For the reasons explained below, we hold that apprising the trial court of the State’s opposition during the same proceeding is sufficient to preserve the issue as to the legal grounds argued.

I. Background

In Wiley, 179 So.3d at 482, the First District affirmed the trial court’s decision to impose a downward departure sentence, ruling that the State failed to preserve the issue for appeal even though the State argued in opposition during the same proceeding in which the sentence was imposed. The First District explained the facts as follows:

[Wiley] pled no contest to multiple offenses arising out of a “road rage” incident that started when she and the victim exchanged words in a Whatabur-ger drive-thru line. The trial court adjudicated [Wiley] guilty and imposed a downward departure sentence pursuant to section 921.0026(2)(d), Florida Statutes (2013), finding that [Wiley] required and was amenable to specialized treatment for her bipolar disorder.

Id. at 481-82.

“At the sentencing hearing, the prosecutor argued against a downward departure sentence, both generally and with specificity.” Id. at 482 (footnote omitted). However, relying on its decision in State v. Stephens, 128 So.3d 209 (Fla. 1st DCA 2018), the First District ruled that, “[although the prosecutor’s argument clearly put the trial court on notice of the State’s opposition to a downward departure sentence, it was not sufficient ... to preserve the issue for appellate review because the prosecutor did not also object to the sentence after it was imposed.” 179 So.3d at 482.

Additionally, the First District in Wiley certified conflict with the Second District’s decision in Ayers. Id. at 483. In Ayers, 901 So.2d at 944, the Second District held that the State’s objection to a downward departure at the sentencing hearing that “I don’t see a legal reason to depart” was sufficient to preserve the issue for appellate review. The Second District explained that “[t]he State’s objection made clear that the State sought imposition of a nondeparture sentence because there was no legal reason justifying a downward departure.” Id.

II. Analysis

In Harrell v. State, 894 So.2d 935, 940 (Fla. 2005) (emphasis omitted), this Court “stated that proper preservation entails three components!;]”

First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) (emphasis added); accord Rodriguez v. State, 609 So.2d 493, 499 (Fla. 1992) (stating that “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal”).

“The purpose of this rule is to ‘placet j the trial judge on notice that error may have been committed, and provide! ] him an opportunity to correct it at an early stage of the proceedings.’ ” Id. (alterations in original) (quoting Castor v. State, 365 So.2d 701, 703 (Fla. 1978)).

Similarly, section 924.051(3), Florida Statutes (2014), provides that “[a]n appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.” And section 924.051(l)(b), Florida Statutes (2014), explains that “ ‘[preserved’ means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.”

In this case, at the sentencing hearing, the State clearly expressed its objection to a downward departure sentence for Wiley as well as the legal grounds for its objection. “The prosecutor generally asserted that ‘[t]here is not sufficient evidence to justify any departure.’ ” Wiley, 179 So.3d at 482 n.1 (quoting sentencing hearing transcript). Then, “[t]he prosecutor specifically addressed both steps required for a departure sentence under Banks v. State, 732 So.2d 1065 (Fla. 1999)[:]”

As to step 1 (whether there was a valid legal ground on which the trial court could depart), the prosecutor argued that “[t]he evidence is that [Wiley’s] specialized treatment is nothing more than taking her prescription, and I don’t believe ... that is the type of specialized treatment that [section 921.0026(2)(d)] is designed to address.” And, as to step 2 (whether the trial court should depart), the prosecutor argued that the court should not do so because
in this case, we’re talking about a defendant with a lengthy criminal record, who’s been to prison twice before, who made numerous decisions leading up to this event and the day of this event. It could have ended a lot differently, a lot worse for [the victim]. Luckily it didn’t [because] she fought [Wiley] off. ...

Id. at 482 n.2 (emphasis omitted) (quoting sentencing hearing transcript).

Because the prosecutor timely objected to the imposition of a downward departure sentence at the same proceeding in which Wiley was sentenced and stated the legal grounds for the objection, the issue was properly preserved for appellate review as to the legal grounds asserted. See Harrell, 894 So.2d at 940; see also State v. Murray, 161 So.3d 1287, 1289 (Fla. 4th DCA 2015).

III. Conclusion

The State’s timely opposition to Wiley’s downward departure during the same proceeding in which the sentence was imposed fairly apprised the trial court of the State’s objection as to the legal grounds asserted. Accordingly, the issue was preserved, and we quash the First District’s decision in Wiley and approve the Second District’s decision in Ayers.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and CANADY, 33., concur. LAWSON, J., did not participate.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const


text:
    DISTRICT COURTS OF APPEAL FIRST DISTRICT
    Daniels v. State
    1D14-1463
    07/02/2015
   Aff.

Cir. Ct. (Duval)


text:
    Ewell v. State
    1D14-5159
    06/30/2015
   Belated App. den.


text:
    Fann v. State
    1D14-5025
    07/02/2015
   Aff.

Cir. Ct. (Duval)


text:
    Hughlon v. State
    1D14-3837
    01/26/2016
   Aff.

Cir. Ct. (Duval)


text:
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    06/30/2015
   Aff.

Cir. Ct. (Santa Rosa)


text:
    Joppy v. State
    1D15-2995
    10/27/2015
   Mand.den.


text:
    Maines v. State
    1D14-3856
    01/28/2016
   Aff.

Cir. Ct. (Walton)


text:
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    1D15-0052
    06/30/2015
   Cert.den.


text:
    Pierce v. Pierce
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    06/30/2015
   Proh.den.


text:
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    1D14-5203
    06/30/2015
   Aff.

Cir. Ct. (Columbia)


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    07/02/2015
   Aff.

Cir. Ct. (Okaloo-sa)


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    Spring v. Florida Dept. of Corrections
    1D15-1251
    01/28/2016
   Cert.den.


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    21 Asset Management Holding, LLC. v. Trussell
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    12/10/2015
   Cert.dism.


text:
    SECOND DISTRICT
    A.M. v. Department of Children and Families
    2D16-74
    04/28/2016
   App.dism.


text:
    A.W. v. State
    2D15-4680
    04/14/2016
   App.dism.


text:
    Adams v. Bank of New York Mellon
    2D16-730
    04/27/2016
   App.dism.


text:
    Adib-Razavi v. Department of Revenue
    2D16-1233
    05/27/2016
   App.dism.


text:
    Al-Hakim v. State
    2D15-4447
    04/01/2016
   Mand.den.


text:
    Allison v. State
    2D16-1105, 2D16-1100
    04/01/2016
   Belated App. dism.


text:
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    2D15-2698
    04/04/2016
   App.dism.


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    Andrews v. Katz Baskies, LLC
    2D15-5694
    04/28/2016
   App.dism.


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    Andrews v. Regions Bank, N.A.
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    04/28/2016
   App.dism.


text:
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    04/22/2016
   App.dism.


text:
    B.S. v. Department of Children & Families
    2D16-677
    05/18/2016
   App.dism.


text:
    Baker v. State
    2D15-3707
    04/01/2016
   Mand.den.


text:
    Baldwin v. State
    2D16-54
    07/20/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Barrosdias v. State
    2D16-1719
    05/23/2016
   Pet. dism.


text:
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    2D15-5626
    05/11/2016
   App.dism.


text:
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    2D14-3866
    07/06/2016
   Aff.

Cir. Ct. (Collier)


text:
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    2D16-84
    07/20/2016
   Aff.

Cir. Ct. (Pinel-las)


text:
    Bigelow v. Federal Nat. Mortg. Ass’n
    2D16-1767
    05/05/2016
   App.dism.


text:
    Black v. State
    2D15-4063
    04/26/2016
   Mand.den.


text:
    Bonney v. State
    2D16-1909
    05/24/2016
   Hab.Corp.den.


text:
    Booska v. State
    2D15-5593
    04/01/2016
   Mand.den.


text:
    Borrego v. State
    2D16-1925
    05/25/2016
   Mand.dism.


text:
    Bowie v. State
    2D15-4507
    06/02/2016
   App.dism.


text:
    Brennan v. State
    2D16-1824
    05/09/2016
   Hab.Corp.den.


text:
    Bronson v. State
    2D16-423
    07/22/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Brown v. State
    2D16-1242
    03/31/2016
   Hab.Corp.gr.


text:
    Burgos v. State
    2D16-949
    04/13/2016
   App.dism.


text:
    Burns v. State
    2D16-1331
    05/02/2016
   Hab.Corp.den.


text:
    Burns v. State
    2D16-477
    04/25/2016
   Mand.dism.


text:
    Burton v. State
    2D16-1934
    06/03/2016
   Dism.


text:
    Butler v. State
    2D15-5519
    04/01/2016
   Mand.den.


text:
    Butler v. State
    2D15-3379
    05/11/2016
   Pet. den.


text:
    Butler v. State
    2D15-3373
    05/11/2016
   Pet. den.


text:
    Butler v. State
    2D15-3374
    05/11/2016
   Pet.den.


text:
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    2D16-1131
    05/16/2016
   App.dism.


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    2D16-759
    06/03/2016
   App.dism.


text:
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    2D16-744
    06/01/2016
   App.dism.


text:
    C.E. v. Department of Children & Families
    2D16-562
    06/02/2016
   App.dism.


text:
    Caliste v. State
    2D16-255
    04/22/2016
   App.dism.


text:
    Cappelletti v. State
    2D16-493
    05/24/2016
   Pet. dism.


text:
    Carreras v. Federated Nat. Ins. Co.
    2D14-4220
    05/25/2016
   App.dism.


text:
    Chance v. State
    2D16-670
    04/01/2016
   Belated App. dism.


text:
    Chastain v. State
    2D16-1853
    05/24/2016
   Hab.Corp.den.


text:
    Chihocky v. Lee
    2D16-1816
    05/19/2016
   Cert.dism.


text:
    Christensen v. State
    2D16-1406
    05/19/2016
   Motion stricken


text:
    Christensen v. State
    2D16-1406
    04/12/2016
   Hab.Corp.den.


text:
    City of Arcadia v. Air-Cadia, Inc.
    2D16-1502
    06/03/2016
   App.dism.


text:
    Clark v. Coates
    2D16-34
    02/24/2016
   Mand.den.


text:
    Clayton v. Department of Business and Professional Regulation
    2D15-5414
    05/16/2016
   Den.


text:
    Clements v. State
    2D16-1648
    05/23/2016
   Hab.Corp.den.


text:
    Clemmons v. Jayal, LLC
    2D16-1321
    05/23/2016
   Cert.den.


text:
    Concepcion v. Concepcion
    2D15-3489
    05/19/2016
   App.dism.


text:
    Coney v. State
    2D16-577
    04/26/2016
   Mand.dism.


text:
    Covington v. State
    2D15-2464
    04/12/2016
   Mand.den.


text:
    Covington v. State
    2D16-1087
    05/06/2016
   App.dism.


text:
    Cox v. State
    2D15-4834
    04/27/2016
   Belated App.gr.


text:
    Craft v. State
    2D16-187
    05/03/2016
   App.dism.


text:
    Cromartie v. State
    2D16-984
    04/22/2016
   Dism.


text:
    Cummings v. State
    2D14-1070
    06/24/2016
   Aff.

Cir. Ct. (Manatee)


text:
    Cunningham v. State
    2D16-1271
    05/24/2016
   Hab.Corp.den.


text:
    Currie v. State
    2D16-863
    04/14/2016
   Belated App. den.


text:
    D.C. v. Department of Children & Families
    2D16-599
    05/18/2016
   App.dism.


text:
    D.H. v. Department of Children & Families
    2D16-152
    04/14/2016
   App.dism.


text:
    D.P. v. Department of Children & Families
    2D16-596
    06/08/2016
   App.dism.


text:
    Davis v. State
    2D15-4528
    06/03/2016
   App.dism.


text:
    Dawn Vista Trust v. Wells Fargo Bank, N.A.
    2D15-2477
    05/25/2016
   App.dism.


text:
    De Bose v. State
    2D16-1424
    05/24/2016
   Pet, den.


text:
    De Celles v. Parenteau
    2D14-3769
    05/04/2016
   App.dism.


text:
    De Jesus v. State
    2D16-720
    03/29/2016
   Hab.Corp.den.


text:
    Department of Children and Families v. Guardian Ad Litem
    2D16-1668
    04/26/2016
   Den.


text:
    Department of Children and Families v. Guardian Ad Litem
    2D16-1668
    05/03/2016
   App.dism.


text:
    Dept. of Revenue ex rel. Brown v. Robinson
    2D16-1883

      06/09/2016

   App.dism.


text:
    Desocio v. Desocio
    2D15-5556
    05/03/2016
   App.dism.


text:
    Devine v. State
    2D15-3963
    04/01/2016
   Mand.den.


text:
    Dewar v. Dough Boy Pizza, Inc.
    2D15-2124
    04/01/2016
   App.dism.


text:
    Dickerson v. State
    2D15-2816
    05/20/2016
   App.dism,


text:
    Dilorenzo v. NCH Healthcare System, Inc.
    2D16-1483
    05/18/2016
   App.dism.


text:
    Dingel v. Tartaglio
    2D16-1341
    04/22/2016
   App.dism.


text:
    Dixon v. State
    2D16-779
    03/30/2016
   Pet. den.


text:
    Dominion Research Group, LLC v. Federal Nat. Mortg. Ass’n
    2D16-680
    04/22/2016
   App.dism.


text:
    Douglas v. State
    2D15-2439
    07/22/2016
   Aff.

Cir. Ct. (Polk)


text:
    Doval v. State
    2D15-3283
    05/05/2016
   App.dism.


text:
    Dratler v. Ford Motor Co.
    2D16-922
    05/25/2016
   App.dism.


text:
    Edwards v. State
    2D16-924
    04/27/2016
   Belated App.gr.


text:
    Metellus v. HSBC Bank USA, Nat. Ass’n
    2D16-2049
    05/24/2016
   Proh.den.


text:
    Estep v. R&R Turf Farms, LLP
    2D15-3542
    05/03/2016
   App.dism.


text:
    EEP-WRS, LLC v. Clark
    2D15-5334
    05/18/2016
   App.dism.


text:
    Felker v. Wells Fargo Bank, N.A.
    2D16-1209
    05/12/2016
   App.dism.


text:
    Fernandez v. State
    2D15-4349
    04/25/2016
   Mand.dism.


text:
    Fichter v. State
    2D15-3387
    05/03/2016
   App.dism.


text:
    Fichter v. State
    2D15-3393
    05/03/2016
   App.dism.


text:
    Fink v. State
    2D16-1098
    05/12/2016
   Proh.den.


text:
    First Choice Care Chiropractic and Rehabilitation Center, Inc. v. State Farm Mut. Auto. Ins. Co.
    2D15-1046
    07/15/2016
   Aff.

Cir. Ct. (Polk)


text:
    Fisher v. State
    2D16-1470
    05/24/2016
   Pet. den.


text:
    Florida Farm Bureau General Ins. Co. v. Fuller
    2D15-380
    06/09/2016
   Vol.dism.


text:
    Florida First Escrow Co. v. Deutsche Bank Nat. Trust
    2D15-3042
    05/16/2016
   App.dism.


text:
    Ford Motor Co. v. Gothard
    2D16-646
    05/16/2016
   App.dism.


text:
    Fu v. Fu
    2D15-4076
    06/29/2016
   Aff.

Cir. Ct. (Lee)


text:
    G.P. ex rel. T.P. v. Naoom
    2D16-2150
    05/23/2016
   Hab.Corp.den.


text:
    Gaffney v. Baumann
    2D16-882
    04/14/2016
   Mand.den.


text:
    Garcia v. State
    2D16-645
    05/30/2016
   Pet.dism.


text:
    Gaskins v. Gaskins
    2D13-5952
    05/18/2016
   App.dism.


text:
    Gator Boring & Trenching, Inc. v. Westra Const. Corp.
    2D16-1404
    05/04/2016
   App.dism.


text:
    Gay v. State
    2D15-5229
    04/01/2016
   Mand.dism.