author: PARIENTE, J.

text:
    Frank J. TRYTEK, et al., Petitioners, v. GALE INDUSTRIES, INC., etc., Respondent.
    No. SC07-1641.
    Supreme Court of Florida.
    Feb. 26, 2009.

      Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, and Ford, P.A., Orlando, FL, for Petitioner.
    Edward M. Baird and Mark T. Snelson of Wright, Fulford, Moorhead, and Brown, P.A., Orlando, FL, for Respondent.
    Barry Kalmanson, Maitland, FL, on behalf of Southeastern Association of Credit Management and Florida Independent Concrete and Associated Products, Inc., for Amicus Curiae.
   PARIENTE, J.

In Gale Industries, Inc. v. Trytek, 960 So.2d 805 (Fla. 5th DCA 2007), the Fifth Disti’ict Court of Appeal ruled on statutory attorneys’ fees in construction lien actions and certified a question of great public importance. We thérefore have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We rephrase the certified question as follows:

Where a lienor obtains a judgment against a property owner in an action to enforce a construction lien brought pursuant to section 718.29, Florida Statutes (2005), are trial courts required to apply the “significant issues” test articulated in Prosperi v. Code, Inc., 626 So.2d 1360 (Fla.1993), in determining which party, if any, is the “prevailing party” for the purpose of awarding attorneys’ fees?

We answer the rephrased certified question in the affirmative and hold that trial courts are required to apply the “significant issues” test of Prosperi to evaluate entitlement to prevailing party attorneys’ fees under section 713.29, even when the lienor obtains a judgment on the lien. We conclude that this Court has consistently approached the award of attorneys’ fees in lien actions as being “tempered by equitable principles.” Prosperi, 626 So.2d at 1363. In that regard, when applying Pros-peri to the facts of a case, there is no mandatory requirement that the trial court determine that one party is the “prevailing party.” We therefore quash the Fifth District’s decision that held that the trial court is required to award the lienor “prevailing party” attorneys’ fees if the lienor recovers a judgment in any amount on the lien claim that exceeds any setoff or damages claimed by the homeowner on his or her counterclaim.

FACTS AND PROCEDURAL HISTORY

In this case, the petitioners, Frank J. Trytek and his wife, Cathy L. Trytek, (hereinafter referred to as either “Trytek” or “homeowner”), were building a new residence. As part of the project, they contracted with Gale Industries, an insulation contractor, to install insulation throughout the structure (hereinafter referred to as either “Gale,” “contractor,” or “lienor”). It is undisputed that “[wjhile installing the insulation, Gale’s employees inadvertently caused some staples to be driven through some previously installed electrical wires. The parties agreed that Try-Cor Electric Company, a corporation owned by Frank Trytek that was involved in electrical contracting, would make the necessary repairs.” Gale Indus., 960 So.2d at 806. According to the invoice in the record, Trytek’s cost incurred for the electrical repair work was $11,770, including a $250 building inspection fee. Trytek delivered a check to Gale for $736, which Trytek determined was the amount due on the contract work after setting off the inspection fee and repair work done by his company. Gale refused to accept Trytek’s check and recorded a construction lien in the amount of $12,725, which did not include any offset for the damages it caused.

This case eventually proceeded to trial. As set forth in the Fifth District’s opinion:

Early in the proceedings the parties stipulated that the Gale Industries claim of lien complied procedurally with the construction lien law, Chapter 713, Florida Statutes (2001), and that all notice requirements had been met. In addition, the parties agreed that the lien accurately stated the value of the labor, services and materials provided by Gale, subject only to the Trytek counterclaim. An agreed order was rendered that established that Gale’s lien was procedurally sufficient; that no evidence would be necessary at trial on that issue; and that Gale Industries was entitled to recover the amount stated in the lien, less any damages proved by Mr. and Mrs. Trytek; and that the only issue to be resolved at trial was the value of the damages alleged in the counterclaim.

Following a nonjury trial, the trial court entered an order determining that the Tryteks were entitled to repair costs of $11,200. After setting off that figure against the agreed lien amount of $12,725, the net result was a judgment for $1,525 in favor of Gale Industries.

Thereafter, each party concluded that it was the “prevailing party” and filed cross-motions to tax attorneys’ fees and costs pursuant to section 713.29, Florida Statutes (2005). After a hearing on the motions the trial court, while expressing some concern over this court’s position on the definition of prevailing party in the construction lien context, determined that it was required to apply the “significant issues” test set forth in Prosperi v.Code, Inc., 626 So.2d 1360 (Fla.1993), in order to award fees and costs properly. The court then found that the Tryteks were the prevailing party because the only real issue in the case was how much money should be set off against the Gale Industries lien, and the Tryteks primarily prevailed on their counterclaim.

Id.

In determining that Trytek was the prevailing party, the trial court reasoned:

There was never an issue about Gale performing the insulation work at the Tryteks residence nor was there ever an issue about whether Gale was entitled to payment for its work. Early in the case, there was an agreed order on Plaintiffs Motion for Partial Summary Judgment which recognized the validity and amount of Gales’ [sic] lien. The real issue in the case was how much money should be setoff from the lien amount as compensation to the Tryteks for repairing the damage done by Gale during its installation of the insulation. The Try-teks prevailed on their counterclaim to the extent of almost extinguishing the Gale lien. It was this aspect of the case that required expert testimony, document production, document analysis and trial time. The Tryteks recovered $11,200 on their counterclaim. Gale only offered a discount of from $320 to $3200. Therefore, this Court finds that the Tryteks prevailed on the “significant issue” of this case and are the prevailing parties entitled to recover attorneys’ fees and costs pursuant to § 713.29, F.S.

Gale Indus., Inc. v. Trytek, No. 48-2004-CA-7549, order at 4 (Fla. Orange County Cir. Ct. Dec. 13, 2005).

The parties stipulated to the amount of attorneys’ fees and costs and thus the trial court entered an order awarding attorneys’ fees of $55,982.00 and costs of

$4,016.67 in favor of the homeowner, Try-tek. On appeal, the Fifth District recognized that this Court’s decisions in Moritz v. Hoyt Enterprises, 604 So.2d 807 (Fla. 1992), and Prosperi v.Code, Inc., 626 So.2d 1360 (Fla.1993), modified the “prevailing party” rule by applying the “significant issues” test. However, it concluded that the “significant issues” test of Prosperi applies only where the contractor is unsuccessful in its lien foreclosure action. The Fifth District concluded that under section 713.29, a contractor who obtains any monetary judgment pursuant to a construction lien claim would ordinarily be the prevailing party, and in this case, the contractor did receive a judgment of $1,525. The Fifth District therefore reversed and remanded for assessment of an attorneys’ fees award in favor of Gale. The Fifth District also recognized that this Court’s application of the “significant issues” test in Prosperi may have changed the legal landscape for determining the prevailing party in a construction lien case and accordingly certified a question of great public importance regarding whether the “significant issues” test of Prosperi is applicable even when the contractor obtains a judgment on its lien, no matter what the amount. Gale Indus., 960 So.2d at 807-09.

ANALYSIS

The contractor claims that because it obtained a judgment on its lien, the contractor is entitled to receive all of its attorneys’ fees connected with the litigation. The homeowner contends that by prevailing on the only issue tried before the trial court — the counterclaim based on the contractor’s damage to the electrical wiring— the trial court’s determination of prevailing party should be affirmed. Both parties assert that one or the other must be the prevailing party.

The main issue in this case is what factors enter into a determination of “prevailing party” pursuant to section 713.29. The specific issue raised by this case is whether the trial court is vested with discretion, or is even required to consider, which party prevailed on the significant issues; or whether the trial court is bound by an inflexible bright-line rule that a prevailing party must be determined and that the contractor must be considered the prevailing party if it obtains a judgment on its lien in any amount in excess of an asserted set-off or counterclaim.

It is well-settled that attorneys’ fees can derive only from either a statutory basis or an agreement between the parties. State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993). In this case, entitlement to attorneys’ fees is based on statute. We thus start with the language of the lien statute that concerns the award of attorneys’ fees in an action to enforce a lien. Section 713.29 was first enacted by the Legislature in 1963. Ch. 63-135, § 1, Laws of Fla. Section 713.29 states:

In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as pari of the prevailing party’s costs, as allowed in equitable actions.

(Emphases added.) Although the Legislature expressly defined several terms within the Construction Lien Law in a section entitled “Definitions,” it did not define the term “prevailing party,” see § 713.01, Fla. Stat. (2005), nor does a definition appear in section 713.29.

With regard to any principles of statutory construction that might be applicable, although we have generally held that attorneys’ fees statutes should be “strictly construed” because there was no common law right to attorneys’ fees, in this case, that principle does not assist the Court in construing the term. Further, in 1977, the Legislature enacted section 713.37, which states that “[the Construction Lien Law] shall not be subject to a rule of liberal construction in favor of any person to whom it applies.” Therefore, jurisprudence that has relied on the principle that the lien laws favor the contractor or laborer has no direct application when determining which party is entitled to prevailing party attorneys’ fees.

Because our rephrased certified question asks whether the “significant issues” test of Prosperi applies where a lienor has obtained a judgment on his or her lien claim, we turn to this Court’s precedent regarding lien actions and also jurisprudence regarding “prevailing party” attorneys’ fees. First, with regard to the purpose of the construction lien statute, we have stated:

[W]e note that mechanic’s lien law selves at least two purposes. First, mechanic’s liens protect suppliers who furnish labor or materials to the property by assuring them of full payment. Prosperi v.Code, Inc., 626 So.2d 1360, 1362 (Fla.1993) (citing Emery v. International Glass & Mfg., Inc., 249 So.2d 496, 500 (Fla. 2d DCA 1971)). Mechanic’s lien law also protects owners by requiring subcontractors to provide notice of possible liens, thereby allowing owners to prevent double payment to both a contractor and subcontractor, material supplier, or laborer, for provision of the same services or materials when the contractor and subcontractor are not in privity. Aetna [Cas. and Sur. Co. v. Buck], 594 So.2d [280] at 281 [(Fla. 1992) ].

Stunkel v. Gazebo Landscaping Design, Inc., 660 So.2d 623, 626 (Fla.1995). The dual purpose of the lien law in protecting both the laborer and owner seems to evidence a legislative intent to emphasize fairness and equity in actions brought pursuant to the lien law.

The notion that equitable principles should apply in determining “prevailing party” attorneys’ fees has been utilized in this Court’s opinions deciding attorneys’ fees in the context of section 713.29. For example, in C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177 (Fla.1985), the Court examined a case in which a litigant had offered an amount to settle that was equal to the amount recovered. This Court found that “in order to be a prevailing party entitled to the award of attorney’s fees pursuant to section 713.29, a litigant must have recovered an amount exceeding that which was earlier offered in settlement of the claim.” Id. at 1179. This Court explained that it based its decision on the purported policy underlying section 713.29:

The award of attorney’s fees and costs to the prevailing party in a mechanic’s lien action serves to encourage settlement of disputes before resorting to litigation. Forcing the loser to bear the costs and fees of producing the opponent’s victory engenders a more realistic appraisal of the merits of the claim and discourages dilatory or obstructive tactics. If the statute were to apply as the Third District construes it, however, the burden of fair dealing and good-faith negotiation would lie only upon the defendant. To award attorneys fees and costs when any judgment is won, without reference to earlier, bona-fide good faith offers to settle the claim, allows the plaintiff a free throw of the dice in an attempt to squeeze the last penny out of the claim.

id at 1178-79 (emphasis added). Our decision in C.U. Associates explicitly stands for the proposition that the underlying policy of section 713.29 is to “encourage settlement of disputes before resorting to litigation.” However, the case also implicitly espouses equitable principles by preventing a plaintiff who has recovered a judgment from unjustly being awarded attorneys’ fees after rejecting a good faith offer from the defendant that exceeded the amount of the judgment.

Subsequently, this Court decided Prospen, which is also based on basic principles of fairness and an interest in discouraging needless litigation. The rule of Prospen is that in determining “prevailing party” under section 713.29, the trial court should look to which party prevailed on the “significant issues,” as recognized in our case of Moritz that had been decided the previous year. Prospen, 626 So.2d at 1363. Together, Prospen and its predecessor Moritz require that the trial court’s determination of a prevailing party rest on whether the party “succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Moritz, 604 So.2d at 809-10 (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933).

In Prospen, the contractor brought an action to foreclose a lien claim, among other claims. The trial court denied relief on the lien claim and awarded damages on the homeowner’s breach of contract counterclaim. However, the trial court also found that the homeowner’s setoff from the counterclaim was less than the amount owed to the contractor under the contract. Therefore, the contractor received a judgment on its contract claim but did not prevail on the lien claim. The trial court denied both parties’ claims for fees, and on appeal the district court af&med, certifying the following question: “Does the test of Moritz v. Hoyt for determining who is the prevailing party for the purposes of awarding attorney’s fees apply to fees awarded under section 713.29, Florida Statutes?” 626 So.2d at 1361.

In concluding that the “significant issues” test adopted in Moritz was applicable to claims under section 713.29, this Court discussed what appellate courts had termed the “net judgment rule,” which in essence precluded an owner from recovering attorneys’ fees under section 713.29 where a claimant fails to foreclose a mechanic’s lien but obtains a judgment on other non-lien claims that exceeds any claim of the owner. Prosperi, 626 So.2d at 1362 n. 1. While giving deference to the long line of appellate precedent, this Court ultimately held that, in light of Moritz, the fact that a claimant recovers a net judgment is significant but does not necessarily control the determination of the “prevailing party,” and the trial court must have flexibility to consider the equities and determine which party prevailed on the significant issues. 626 So.2d at 1363. Significantly, as applied to the case, the Court observed:

As we see it, the net judgment rule itself was originated as a device to do equity. For example, under most circumstances it would be unfair to require a contractor who recovers the bulk of its claim to pay attorney’s fees for failure to meet the technical requirements of the mechanic’s lien law. In some of the later cases, however, the net judgment rule appears to have been applied mechanically without regard to the equities. We believe that Moritz now requires a more flexible application. The fact that the claimant obtains a net judgment is a significant factor but it need not always control the determination of who should be considered the prevailing party. We hold that in considering whether to apply the net judgment rule, the trial judge must have the discretion to consider the equities and determine which party has in fact prevailed on the significant issues.
In the instant case, the findings of the trial judge make it clear that he believed that the owner was the innocent party but felt constrained not to award him attorney’s fees under a strict application of the net judgment rule. Under the net judgment rule as tempered by equitable principles according to the rationale of our opinion, it is equally clear that the trial judge would have found the owner to be the prevailing party. Therefore, we quash the decision below and remand with directions that attorney’s fees be awarded to the owner. We quash the order awarding the contractor appellate attorney’s fees and direct that appellate attorney’s fees also be awarded to the owner.

Id.

While Prosperi dealt with a contractor that did not prevail on its lien action, we do not read Prosperi and our precedent so narrowly. The reasoning supporting the decision in Prosperi to replace the “net judgment rule” with the “significant issues” test conveys this Court’s preference for a flexible rule that will achieve an equitable result with respect to the determination of the “prevailing party,” irrespective of which party recovers a judgment on the lien claim. Although the fact that a contractor has obtained a “net judgment” on its lien is certainly a factor to be considered, it is not determinative of whether that party is the “prevailing party” for purposes of entitlement to attorneys’ fees. The application of an inflexible bright-line rule that a judgment in any amount on the lien claim mandates “prevailing party” attorneys’ fees disregards the fact that a claim of lien under section 713.08, Florida Statutes (2005), requires that the “contract price” or the “value” of the “labor, services or materials furnished,” and the “amount unpaid” be part of the “claim of lien.” §§ 713.08(l)(c),(g), 713.08(3), Fla. Stat. (2005). This also comports with the well-established principle that a “judgment on a construction lien requires a determination of substantial performance, not strict performance.” Kenmark Constr., Inc. v. Cronin, 765 So.2d 129, 130 (Fla. 2d DCA 2000) (citing Poranski v. Millings, 82 So.2d 675, 678 (Fla.1955)).

We conclude that the equitable analysis of Prosperi is equally applicable in this case and consistent with our jurisprudential approach favoring a flexible rule in determining which party is the prevailing party. That approach also encompasses the view that entitlement to attorneys’ fees should be consistent with encouraging settlement of disputes. We thus determine that the “significant issues” test used in Prosperi is also applicable in cases where the contractor has foreclosed on its lien against the owner.

THIS CASE

The trial court correctly utilized Prosperi in determining that the contractor was not the prevailing party. In finding that Trytek was the prevailing party, the trial court emphasized that the focus of the litigation was on the amount of damage caused by the contractor’s actions, which was the subject of the homeowner’s counterclaim. The trial court also noted that Trytek had “tried to negotiate a setoff with Gale” before the lien action was filed and that during litigation, “Gale only offered a discount of from $320 to $3200.” Thus, we agree that under Prosperi Gale is not the prevailing party in this litigation. However, we are uncertain of whether there was in fact a “prevailing party” in this case. The trial court in its order observed that it would prefer “a result where each party would bear its own fees and costs,” but felt constrained to declare one side the “prevailing party.” Even in this Court, both parties advance an all-or-nothing approach, with each claiming to be the “prevailing party” entitled to all of its attorneys’ fees.

In this case, because both parties stipulated to the amount of fees after Trytek was determined to be the prevailing party, the trial court entered an attorneys’ fees judgment of $55,982.00 in favor of Trytek. Presumably, if the Fifth District opinion is upheld, Gale would receive an attorneys’ fee judgment of approximately $41,-882.50 — the amount it asserted in its affidavit of attorneys’ fees and time, even though it lost on the only issue litigated and received a judgment on its recorded lien of $12,725 in the amount of only $1,525. We are concerned that fees may

have driven the litigation and prevented the parties from resolving the case.

The overall purpose of section 713.29 and attorneys’ fee statutes in general is to discourage rather than encourage needless litigation. Consistent with this purpose, we conclude that a trial court has the discretion to make a determination that neither party has prevailed on the significant issues in litigation after a thorough examination of all the factors, including the issues litigated, the amount of the claim of lien versus the amount recovered on the lien, the existence of setoffs and counterclaims by the homeowner, and the amounts offered by either party to resolve the issues prior to the litigation, assuming that those negotiations were not otherwise confidential either by agreement or statute. See, e.g., § 44.405(1), Fla. Stat. (2008) (“Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.”).

Our conclusion is consistent with our precedent and section 713.29. Certainly the possibility that neither party is a “prevailing party” is consistent with an application of the “significant issues” test of Moritz and Prosperi. Moreover, this conclusion is consistent with our decision in C. U. Associates, where we held that on remand the trial court could find that neither party was the “prevailing party" entitled to an award of attorneys’ fees. 472 So.2d at 1179. Finally, our decision does not conflict with section 713.29, which requires only that the “prevailing party is entitled to recover” a reasonable attorneys’ fee.

CONCLUSION

We answer the rephrased certified question in the affirmative and conclude that the “significant issues” test of Prosperi applies to determine the issue of “prevailing party.” We thus quash the decision of the Fifth District and direct that this case be remanded to the trial court to reconsider the issue of attorneys’ fees consistent with this opinion.

It is so ordered.

QUINCE, C.J., and WELLS, LEWIS, and CANADY, JJ., concur.

POLSTON and LABARGA, JJ., did not participate.

      . The question that was certified by the Fifth District states:
      When a lienor obtains a judgment against a property owner in an action to enforce a construction lien brought pursuant to section 713.29, Florida Statutes (2005), does the trial court have the discretion to apply the "significant issues” test articulated in Prosperi v. Code, Inc., 626 So.2d 1360 (Fla. 1993), instead of the net judgment rule in determining which party is the "prevailing party” for the purpose of awarding attorney's fees?

        Gale Indus., 960 So.2d at 809.

      . The net final judgment entered in favor of the Tryteks was $57,728.39, representing $55,982.00 in attorneys’ fees and $4,016.67 in costs totaling $59,998.67 offset by $2,270.28, which represented the principal amount awarded to Gale on its lien plus statutory interest.

      . At common law, each party was required to pay its own attorneys' fees in all actions and therefore we have generally adhered to the principle that statutes awarding attorneys’ fees should be strictly construed. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003).

      . Before section 713.37 was enacted, our case law emphasized the Construction Lien Law’s purpose of protecting the laborer. See United States v. Griffin-Moore Lumber Co., 62 So.2d 589, 590 (Fla.1953) (’’[T]he labor and material results in the unjust enrichment of the land owner if the laborer or the materialman is not given priority in the enforcement of his lien claim.”) (citing Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648, 651 (1947) ("Lien laws ... were designed to protect laborers and materialmen and should be liberally construed to accomplish that purpose.”)). However, in spite of this liberal construction in favor of the laborer, this Court still emphasized that the protection to the contractor or laborer must be “compatible with justice and equity.” Crane Co. v. Fine, 221 So.2d 145, 152 (Fla.1969) (“It is our duty to construe this statute liberally ‘so as to afford the laborers and materialmen the greatest protection compatible with justice and equity.' ”) (quoting Hendry Lumber Co. v. Btyant, 138 Fla. 485, 189 So. 710, 712 (1939)).

      . Moritz, a breach of contract action, adopted the "significant issues” test from the United States Supreme Court's decision Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Moritz, 604 So.2d at 809-10. The Hensley decision involved the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which provided that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 461 U.S. at 426, 103 S.Ct. 1933. Therefore, although Moritz was a breach of contract action and Hensley involved statutory attorneys' fees under a civil rights action, the "significant issues” test provided a flexible approach to prevailing party attorneys’ fees in both statutory and contractual actions.

      . The contractor filed a four-count complaint seeking (1) foreclosure of a mechanic's lien; (2) damages for breach of contract; (3) quantum meruit; and (4) account stated. 626 So.2d at 1361. The owner counterclaimed for breach of contract based on the contractor's actions of filing untrue affidavits, failure to account, and negligent performance of the contract. Id.

      . The district court also certified the following question:
      Is an owner who prevails on a complaint by a contractor or sub-contractor to enforce a mechanic's lien under Part I, Chapter 713, Florida Statutes (1989), entitled to attorney's fees under 713.29, even though, in the same suit, the contractor prevailed against the owner on a claim for money damages for breach of the contract, both claims arising out of the same transaction?

        Prosperi, 626 So.2d at 1361. However, the Court was unable to give an unqualified affirmative or negative answer to this question. Id. at 1363.

      8. We are aware of the inherent confusion in the use of "net judgment,” which the appellate courts have used to describe a situation where a homeowner defeats a lien but the contractor obtains a judgment under other causes of action such as contract or equity. In other contexts, the use of the term "net judgment" may be synonymous with "affirmative judgment,” referring to any party who obtains a judgment in its favor.

      . We acknowledge that our prior decisions have stated that " '[pjrevailing party' has previously been construed to mean the ‘one in whose favor an affirmative judgment is rendered.' " See Mainlands Constr. Co. v. Wen-Dic Constr. Co., 482 So.2d 1369, 1370 (Fla. 1986) (quoting Peter Marich & Assocs., Inc. v. Powell 365 So.2d 754, 756 (Fla. 2d DCA 1978)). However, this decision was rendered before this Court adopted the "significant issues” test in Moritz and then decided Prosperi. Moreover, the Mainlands Court did not apply ordinary principles of statutory construction to construe the term "prevailing party," but only relied on the definition set forth in Ma-rich, which itself relied on other district court decisions.

      . Trytek's breach of contract counterclaim is a compulsory counterclaim because both the lien claim and the breach of contract counterclaim arose from the same transaction or occurrence. See Fla. R. Civ. P. 1.170(a). Thus, although section 713.29 applies only to lien claims, Trytek’s judgment on its counterclaim could be considered in the trial court’s determination of the prevailing party because the counterclaim is considered as part of the lien claim. See Orix Capital Markets, LLC v. Park Avenue Assoc., Ltd., 881 So.2d 646, 650 (Fla. 1st DCA 2004) (“If compulsory ... the counterclaim cannot, in our judgment, be considered a claim independent from the suit in mortgage foreclosure.”).

      . The details of any other ongoing negotiations do not appear in the record, nor does the offer of judgment filed by Gale, which was not accepted. See Fla. R. Civ. P. 1.442(f) ("Evidence of a proposal or acceptance thereof is admissible only in proceedings to enforce an accepted proposal or to determine the imposition of sanctions.”). Although neither party objects to making the offer of judgment part of the record, as in all cases, we do not supplement the record with facts not in either the trial or appellate record.

      . Appellate courts have upheld decisions where the trial court found no prevailing party under the “significant issues” test in breach of contract litigation. See Brevard County Fair Ass’n v. Cocoa Expo, Inc., 832 So.2d 147, 151 (Fla. 5th DCA 2002) (where both parties prevail on significant issues, the trial judge has the discretion to determine neither party prevailed); Hutchinson v. Hutchinson, 687 So.2d 912, 913 (Fla. 4th DCA 1997) (recognizing that there can be "compelling circumstances” in which a trial court can determine that neither party prevailed in a contract case); KCIN, Inc. v. Canpro Investments, Ltd., 675 So.2d 222, 223 (Fla. 2d DCA 1996) (“A rule which requires an award of prevailing party attorney's fees in all cases may result in an unjust reward to a party whose conduct caused the failure of the contract.... [A]n attorney's fee award is not required each time there is litigation involving a contract providing for prevailing party fees.").

      . We do not construe any of the appellate cases concerning prevailing party attorneys’ fees to mandate that there be a prevailing party, only that where a "prevailing party” is determined, the entitlement to attorneys’ fees is mandatory. See Pennington & Assocs., Inc. v. Evans, 932 So.2d 1253, 1254 (Fla. 5th DCA 2006); Hollub Constr. Co. v. Narula, 704 So.2d 689, 690 (Fla. 3d DCA 1997); Grant v. Wester, 679 So.2d 1301, 1308 (Fla. 1st DCA 1996); Sanfilippo v. Larry Giacin Tile Co., 390 So.2d 413, 414 (Fla. 4th DCA 1980). We reject the notion that in every construction lien case the trial court is compelled to find a prevailing party. See Kenmark Constr., Inc. v. Cronin, 765 So.2d 129 (Fla. 2d DCA 2000) (declining to announce a bright-line rule that a trial court must find a prevailing party in eveiy construction lien action).


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Gerhard HOJAN, Appellant, v. STATE of Florida, Appellee.
    No. SC05-1687.
    Supreme Court of Florida.
    Feb. 27, 2009.

      John G. George of John G. George, P.A., Fort Lauderdale, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from convictions of first-degree murder and other crimes and two sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

FACTS

Gerhard Hojan was charged with armed robbery, armed kidnapping, attempted murder, and murder arising out of the events of Monday, March 11, 2002. The evidence presented at Hojan’s trial established that at approximately 4 a.m., Hojan and Jimmy Mickel entered the Waffle House where the victims, Barbara Nunn, Christina De La Rosa, and Willy Absolu worked. Hojan and Mickel had eaten at that Waffle House on several prior occasions, and the victims recognized and knew Hojan and Mickel. Mickel had also previously worked at that Waffle House. Additionally, Nunn knew Mickel and Hojan from attending a club where Mickel and Hojan worked and where they had previously admitted Nunn for free.

After eating breakfast, Mickel exited the Waffle House. He returned with a pair of bolt cutters and went toward the employee section of the restaurant. Hojan produced a handgun and ordered Nunn, De La Rosa, and Absolu into the back of the kitchen, where he directed them into a small freezer and shut them inside. While Mickel cut the locks to various cash stores, Hojan returned to the freezer a total of three times. First, Hojan returned and demanded that the victims give him any cell phones they had. Next, he returned and demanded their money. Finally, he returned and ordered the victims to turn around and kneel on the floor. Nunn protested and tried to persuade Hojan not to kill them, but Hojan nevertheless shot each of the victims. Nunn was shot in the back of the head as she attempted to move away from the weapon. Absolu was shot twice, once through the arm and neck, in what appeared to be a defensive wound, and a second time in the head. De La Rosa was shot twice as she tried to hide under a rack in the freezer. One of the bullets pierced her spine, and the other gunshot to her neck caused massive blood loss. Hojan then left the victims for dead.

Nunn survived and awoke later with Ab-solu’s legs on top of her body. She crawled out of the freezer and went next door to a gas station. There, with the help of the night attendant, she called 911 and subsequently her mother and sister. Law enforcement officers arrived and arranged for Nunn to be taken by ambulance and then helicopter for treatment of her head wound. Prior to her helicopter flight, Nunn gave law enforcement officers a taped statement, in which she identified Mickel and Hojan as being involved. She described Mickel by name and as a former Waffle House employee, and referred to Mickel’s friend as “a big Mexican” and also as “[t]he Mexican.” Hojan was soon apprehended at his parents’ house and he subsequently confessed.

Hojan was convicted of two counts of first-degree murder for the death of Abso-lu and De La Rosa; one count of attempted first-degree premeditated murder as to Nunn; one count of attempted first-degree felony murder as to Nunn; three counts of armed kidnapping; and two counts of armed robbery. State v. Hojan, No. 02-5900CF10B (Fla. 17th Cir. Ct. sentencing order filed Aug. 2, 2005) at 1 (Sentencing Order). The jury recommended death by a vote of nine to three, and the trial court followed that recommendation and imposed two death sentences for the murders of Absolu and De La Rosa. In sentencing Hojan to death, the trial court found six aggravators, one statutory mitigator, and two nonstatutory mitigators. The aggra-vators found were: (1) Hojan committed a prior capital felony — -the contemporaneous murders and attempted murder; (2) Hojan committed the murders in the course of an armed kidnapping; (3) the murders were committed to avoid arrest; (4) the murders were committed for financial gain; (5) the murders were heinous, atrocious, or cruel (HAC); and (6) the murders were cold, calculated, and premeditated (CCP). The statutory mitigator found was that Hojan had no significant prior history of criminal activity; however, the trial court found that this mitigator was undercut by Hojan’s crimes that were contemporaneous to the murders. The two nonstatutory mitigators found were: (1) the defendant was a good son, parent, and provider; and (2) the defendant showed good behavior while incarcerated and during the proceedings. The trial court gave each aggravator great weight individually and gave each mitigator little weight individually. The court found that the “aggravating circumstances in this case far outweigh the mitigating circumstances,” and that this finding would not change even if the avoid arrest and CCP aggravators were not found to exist. Sentencing Order at 16-17.

On appeal, Hojan raises five claims. He argues that (1) the surviving victim’s statement to an officer at the scene was not an excited utterance; (2) the trial court improperly treated Hojan’s waiver of the opportunity to present mitigating evidence in the penalty phase as a waiver of his opportunity to present motions challenging the death penalty; (3) his confession should have been suppressed; (4) Florida’s death penalty statute is unconstitutional; and (5) the trial court committed error under Koon v. Dugger, 619 So.2d 246 (Fla.1993), and Muhammad v. State, 782 So.2d 343 (Fla.2001). We independently assess the sufficiency of the evidence and the proportionality of Hojan’s sentence. We find no error under Hojan’s five asserted claims, find that sufficient evidence exists, and conclude that the death sentence is proportional. Accordingly, we affirm the trial court’s order sentencing Hojan to death.

ANALYSIS

Excited Utterance Exception

In Hojan’s first claim, he argues that a statement made by Nunn identifying “[t]he Mexican” as the shooter was improperly admitted as an excited utterance. The statement at issue was made after Nunn was put in a medical vehicle once the paramedics arrived and in preparation for her flight by helicopter to receive additional treatment. Nunn gave this statement to Officer Patrick Donnelly while she was in the medical vehicle and while Officer Donnelly was asking Nunn a series of questions, some of which Nunn answered with a simple “yes” or “no” and others which Nunn answered with brief factual statements.

This Court has stated “that to qualify as an excited utterance, [a] statement must be made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2) ‘before there was time to contrive or misrepresent’; and (3) ‘while the person was under the stress or excitement caused by the event.’ ” Hudson v. State, 992 So.2d 96, 107 (Fla.2008) (quoting Henyard v. State, 689 So.2d 239, 251 (Fla. 1996)), cert. denied, — U.S. -, 129 S.Ct. 1360, — L.Ed.2d -- (2009); see also § 90.803(2), Fla. Stat. “While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection.” Hutchinson v. State, 882 So.2d 943, 951 (Fla.2004); see also Rogers v. State, 660 So.2d 237, 240 (Fla.1995). “[This Court] review[s] a trial court’s decision to admit evidence under an abuse of discretion standard.” Hudson, 992 So.2d at 107 (citing Williams v. State, 967 So.2d 735, 747-48 (Fla.2007); Johnston v. State, 863 So.2d 271, 278 (Fla.2003)).

We have previously found statements given in question-and-answer exchanges by officers under similarly stressful situations to be excited utterances. See, e.g., Henyard, 689 So.2d at 251 (holding victim’s statements made to officer at scene were excited utterances); Pope v. State, 679 So.2d 710, 713 (Fla.1996) (holding victim’s statement to officer during questioning at scene was an excited utterance). However, we do not here reach the issue of whether the admission of Nunn’s statement as an excited utterance was an abuse of discretion because we conclude that any error in admitting her statement would be harmless error.

The test for harmless error is set out in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Under DiGuilio, “[t]he question [for harmless error analysis] is whether there is a reasonable possibility that the error affected the verdict.” Id. at 1139. This Court has held that where the evidence introduced in error was not the only evidence on the issue to which the improper evidence related, the introduction can be harmless. See, e.g., Hutchinson, 882 So.2d at 952-53 (finding the introduction of statements harmless where the statements were not the only evidence on the issue); Henyard, 689 So.2d at 251 (finding any error harmless in introduction of victim’s excited utterances by officer where victim also testified at trial to same information).

In this ease, there was substantial testimony by other witnesses that duplicated Nunn’s statement from the ambulance that “[t]he Mexican” was the shooter. Gas station attendant Kahn testified that Nunn told her that he should not open the door to the gas station because “two guys ... want to kill me.... One Mexican and one White.” Paramedic Steven Cacciola testified that Nunn told him in the gas station that a Mexican who was with Jimmy had shot her. Officer Donnelly testified that Nunn stated in the gas station — prior to and separate from Nunn’s statements to him in the ambulance — that an ex-employee and a Mexican had robbed the Waffle House. Nunn herself also testified in court that Hojan shot her and the two other victims. Nunn stated that she previously identified Hojan as the shooter in a photo lineup, and JoAnn Carter, a Davie police detective, also testified that Nunn identified Hojan as the shooter in a photo lineup at the hospital. Finally, Hojan confessed in his taped statement that he shot the victims, and that confession was played for the jury. Based on this other extensive evidence, we conclude that even if admission of the statement was error, it was harmless error.

Waiver of Motions

Next, Hojan argues that the trial court improperly concluded that his waiver of the right to present mitigation evidence during his penalty phase was also a waiver of presentation of post-trial motions. At his trial, Hojan waived his right to present mitigating evidence and instructed his friends and family members not to assist in any investigation into his background. Hojan also instructed his attorneys and the court to withdraw from consideration several motions filed challenging various aspects of the death penalty and of the penalty phase proceedings. Hojan appears to argue both that it was error for the trial court to permit Hojan to withdraw the penalty-phase motions and that the trial court confused Hojan by conflating waiver of the penalty phase motions with waiver of presentation of mitigating evidence. We deny this claim.

Competent defendants who are represented by counsel maintain the right to make choices in respect to their attorneys’ handling of their cases. This includes the right to either waive presentation of mitigation evidence or to choose what mitigation evidence is introduced by counsel. See, e.g., Boyd v. State, 910 So.2d 167, 189-90 (Fla.2005) (“Whether a defendant is represented by counsel or is proceeding pro se, the defendant has the right to choose what evidence, if any, the defense will present during the penalty phase.”). Defendants also have the right to proceed pro se in capital trial proceedings. See, e.g., Durocher v. Singletary, 623 So.2d 482, 483 (Fla.1993) (“Competent defendants have the constitutional right to refuse professional counsel and to represent themselves, or not, if they so choose.”) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Hamblen v. State, 527 So.2d 800 (Fla. 1988)). We have also held that a capital defendant has the right to withdraw Florida Rule of Criminal Procedure 3.850 motions filed on the defendant’s behalf. See Sanchez-Velasco v. State, 702 So.2d 224 (Fla.1997) (affirming postconviction court’s allowing defendant to withdraw his rule 3.850 motion and affirming postconviction court’s dismissal of collateral counsel). “[T]he defendant, not the attorney, is the captain of the ship.” Nixon v. Singletary, 758 So.2d 618, 625 (Fla.2000) (“Although the attorney can make some tactical decisions, the ultimate choice as to which direction to sail is left up to the defendant.”).

Hojan expressly and repeatedly waived his right to present mitigating evidence on numerous occasions. Additionally and separately, Hojan expressly informed his attorneys and the trial court that he did not want any motions filed on his behalf during the penalty phase or afterwards. Hojan also expressly informed his attorneys and the court that he wanted the motions that had been filed withdrawn. The trial court specifically asked Hojan about each motion that had been filed and whether Hojan wanted to withdraw it. During this colloquy, which filled twenty-four pages of transcript, the trial court explained each motion to Hojan to make certain he understood what he was withdrawing and then expressly asked Hojan if he wanted to withdraw the motion. Hojan answered affirmatively for every motion, every time he was asked. Hojan did not waver in his decision not to present mitigation or post-trial motions. Instead, he consistently refused to allow his attorneys to participate in any capacity on his behalf in the penalty phase.

Hojan’s refusals involved over twenty separate affirmations that occurred over the course of several months and multiple trial dates. Hojan was found to be competent to make these waivers. See, e.g., Sentencing Order at 2. Hojan was evaluated by Dr. Block-Garfield; Hojan’s attorneys stated that they never had any reason to doubt Hojan’s competency; and the trial court concluded after an extended colloquy with Hojan that he had no trouble concluding that Hojan knew what he was doing and that it was the product of “cool reflection.”

Given that (1) the defendant is captain of the ship, (2) Hojan expressly and repeatedly waived presentation of mitigation and withdrew his counsel’s various motions, and (3) Hojan was found competent, we conclude that the trial court committed no error in permitting Hojan to withdraw the motions he withdrew. As stated above, “the defendant, not the attorney, is the captain of the ship.” Nixon, 758 So.2d at 625. A defendant can control what mitigation is presented, Boyd, 910 So.2d at 189-90, or can waive the penalty phase altogether, Koon, 619 So.2d at 249. We therefore conclude that a defendant can also waive the presentation of motions filed by his counsel. “[T]here is no doubt that ‘death is different,’ but, in the final analysis, all competent defendants have a right to control their own destinies.” Hamblen, 527 So.2d at 804. Further, Ho-jan, like any competent defendant, could have discharged his counsel and proceeded pro se, Durocher, 623 So.2d at 483, at which point he could have personally withdrawn the motions. Accordingly, Hojan has not established any basis upon which this Court should conclude that it was error for the trial court to permit Hojan to withdraw motions at Hojan’s explicit, on-the-record request, and we deny relief on this issue.

Suppression of Confession

In this issue, Hojan argues that the trial court incorrectly denied his motion to suppress his taped confession. Hojan claims that there is not sufficient evidence in the record indicating that he was ever read Miranda warnings or that any such warnings given were proper. We affirm the trial court’s denial of Hojan’s motion to suppress.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Rolling v. State, 695 So.2d 278, 291 (Fla.1997) (citing McNamara v. State, 357 So.2d 410, 412 (Fla.1978)); see also Schoenwetter v. State, 931 So.2d 857, 866 (Fla.2006) (repeating this quote). In reviewing a trial court’s ruling on a motion to suppress, we have applied a two-step analysis in which courts must determine whether “(1) competent, substantial evidence supports the trial court’s findings of historical fact; and (2) [whether] the trial court reached the correct legal conclusion that [a defendant] knowingly, intelligently, and voluntarily waived his [or her] Miranda rights.” Thomas v. State, 894 So.2d 126, 136 (Fla.2004) (citing Connor v. State, 803 So.2d 598, 608 (Fla.2001)). “An invalid waiver, like an involuntary confession, can serve as a basis for suppressing [a defendant’s] statements.” Sliney v. State, 699 So.2d 662, 668 (Fla.1997).

The trial court in this case held an evi-dentiary hearing to address Hojan’s motion to suppress. After hearing the testimony of several law enforcement officers, the trial court denied Hojan’s motion. Subsequently, it issued a written order. State v. Hojan, No. 02-5900CF10B (Fla. 17th Cir. Ct. order filed Nov. 14, 2003). The trial court found that (1) Detective Anton read Hojan his Miranda rights and asked Hojan if he understood those rights; (2) Hojan replied that he was read them and understood them; and (3) after Hojan affirmed that he had been read Miranda warnings, “[t]he Defendant was still willing to talk with [Anton]” on the tape. Id. at 3. Ultimately, the trial court held that Hojan was advised of his Miranda rights prior to being questioned and that he voluntarily waived those rights.

We affirm the trial court’s ruling denying Hojan’s motion to suppress. Competent, substantial evidence supports the trial court’s finding that Hojan was read his Miranda warnings. Detective Anton of the Davie Police Department testified at the suppression hearing that he read Hojan Miranda warnings from a prepared text. Hojan also expressly stated on the tape-recorded confession that he had been read his Miranda rights and that he understood them. Immediately after stating the case number and parties present, the following exchange occurred on the tape between Detective Anton and Hojan:

Q Prior to going on tape we talked a little bit?
A Yes, sir.
Q Were you advised of your Miranda rights?
A Yes, sir.
Q And those rights that I read to you, did you understand those completely?
A Yes.
Q Having those rights in mind, are you still willing to talk to us?
A Yes.

Detective Anton then asked Hojan whether he was taking any medication, whether he was impaired, and whether his “judgment [was] messed up.” Hojan answered “no” to each question. Accordingly, we find that competent, substantial evidence supports the trial court’s findings, and we affirm the order denying Hojan’s motion to suppress. See Sliney, 699 So.2d at 668-69 (upholding admission of confession where defendant failed to sign bottom portion of written waiver but officers testified that defendant waived his rights); Hogan v. State, 330 So.2d 557 (Fla. 2d DCA 1976) (upholding a trial court’s admission of confession where defendant had not signed a written waiver of his Miranda rights because officer testified at trial that he read defendant his rights and defendant stated he understood them and was still willing to talk).

Koon v. Dugger and Muhammad v. State

In this claim, Hojan argues that (1) the trial court erroneously permitted Hojan to prevent his attorney from giving mitigation evidence to the trial court; (2) the trial court gave the jury’s recommendation improper weight since the jury did not hear mitigation evidence; (3) the trial court failed to consider certain mitigating evidence that it could have considered; (4) specially appointed counsel, Hilliard Mol-dof, did not present sufficient mitigation evidence, and the expert Moldof retained did a poor job; and (5) the trial court did not consider the presentence investigation (PSI) report. We deny relief on all five subclaims.

First, Hojan alleges that he is entitled to a new penalty phase because the trial court erroneously permitted Hojan to prevent his attorneys from proffering what mitigation evidence they had found. When Hojan’s attorneys attempted to proffer the mitigation evidence they had discovered, Hojan objected and insisted that his attorneys not proffer the evidence to the court as is required under Koon. In Koon, we established a three-part procedure for addressing a defendant’s waiver of his or her right to present mitigating evidence. First, “counsel must inform the court on the record of the defendant’s decision.” 619 So.2d at 250. Next, “[e]ounsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence tuould be.” Id. (emphasis added). Finally, “[t]he court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.” Id. Hojan seizes on the last portion of the second step of Koon where counsel must tell the court “what [the mitigating] evidence would be.” Id.

This Court’s “primary reason for requiring [the Koon ] procedure was to ensure that a defendant understood the importance of presenting mitigating testimony, discussed these issues with counsel, and confirmed in open court that he or she wished to waive presentation of mitigating evidence.” Chandler v. State, 702 So.2d 186, 199 (Fla.1997). In other words, Koon focuses on ensuring that the defendant understands his or her rights and is waiving them intelligently.

In this case, defense counsel John Cotrone informed the trial court that he had conducted an investigation of mitigation and had presented the information found to Hojan. Cotrone stated, “We have a number of witnesses here, we filed a Defense witness list and we have statements of those individuals as well.” Co-counsel Mitchell Polay then stated:

Mr. Cotrone and myself have spoken to Mr. Hojan countless times. I have spoken to his family, I’ve spoken to family friends....
We’ve discussed every aspect of what mitigation is. I’ve explained to Mr. Ho-jan that he has an absolute right to present mitigating circumstances. We’ve gone over these mitigating circumstances, we’ve gone over what each and every witness could say in front of the jury so that they can come back with a recommendation of life; however, he has ordered both myself and Mr. Co-trone ... not to present any mitigation in any way, shape or form, not to present testimony. That’s where we’re at, Judge.
Additionally, I just want to point out one thing. As soon as I got wind as soon as Mr. Hojan told me that he does not wish to present any type of mitigation, I had the Court order an evaluation [of his competency].

The trial court then asked if Hojan had reviewed that competency report, and Ho-jan stated that he did not disagree with the report’s finding that he was competent.

Next, the trial court engaged in a lengthy evaluation under Koon of whether Hojan’s waiver of mitigation was knowingly, voluntarily, and intelligently made. The court noted that Hojan had filed a document stating that he waived mitigation and that, prior to waiving it, he had been made “aware of my Penalty Phase Lawyer’s efforts to properly prepare for any penalty phase proceeding. Such efforts have included, but not limited to, interviews with my mother, and other family members, interviews with childhood friends, interviews with county jail employees, as well as various document searches and relevant records.”

The court then asked defense counsel to proffer, pursuant to Koon, what evidence they had discovered, and Hojan stated that if the court made counsel proffer evidence, he would fire his attorneys immediately. Hojan stated that “even if you appoint somebody else, sir, I’m going to ask you to relieve them again.” Defense counsel then stated that they had all of the mitigating evidence in hand at the proceeding, that Hojan had reviewed it and they had discussed mitigating evidence possibilities, and that counsel was ready to file that proffer with the court. Hojan, however, insisted that the mitigation packet not be filed with the court in any form. Hojan repeatedly affirmed that he had reviewed the packet and did not want it presented in any form — not to the jury, not to the court in camera, and not to this Court in his appeal.

Nevertheless, significant information about the defense’s preparation for presenting mitigation exists in the record. Defense counsel stated that they had “discussed every aspect of what mitigation is.... We’ve gone over these mitigating circumstances, we’ve gone over what each and every witness could say in front of the jury so that they can come back with a recommendation of life.... ” Hojan also signed a statement that noted defense counsel’s efforts “included, but [were] not limited to, interviews with [Ho-jan’s] mother, and other family members, interviews with childhood friends, interviews with county jail employees, as well as various document searches and relevant records.” The State also proffered that it had previously provided to the defense a packet addressing Hojan’s education records, employment records, financial records, statements to the police, his parents’ statements, Hojan’s divorce papers, a deposition from his ex-wife, and other documents. The State read into the record the names of the witnesses from the defense’s four witness lists that were filed at various points during the proceedings. Hojan stated on the record that he had an opportunity to review all of this information with his attorneys. Attorneys for the State and for Hojan also read into the record the names or identities of nine witnesses who were in court and ready to testify on Hojan’s behalf. Defense cocounsel Polay also stated that he had additional individuals — including three expert witnesses — ready to testify on Hojan’s behalf if Polay called them and told them that Hojan was no longer refusing to present mitigation. Based on these facts within the record, we find no error in the trial court’s determination that the defendant knowingly, intelligently, and voluntarily waived his right to mitigation, and we deny relief on this claim.

In Hojan’s second claim, he argues that the trial court erred by giving the jury’s recommendation great weight despite the fact that the jury was not presented with any mitigation evidence. We stated in Muhammad that it was error to give a jury’s advisory sentence “great weight” if the jury was not presented with evidence of mitigating circumstances. 782 So.2d at 361-62. However, contrary to Hojan’s claims, there is no evidence that the trial court gave the jury’s recommendation great weight in this case. Instead, the State specifically informed the trial court on the record that it could not give the jury’s recommendation great weight, and the sentencing order does not state that the trial court gave the recommendation great weight. Finally, the trial court told the jury in the penalty-phase instructions that it would give the jury’s recommendation “due consideration,” not “great weight.” Because there is no evidence in the record that the trial court gave the jury’s recommendation “great weight,” as was prohibited in Muhammad, we deny this claim.

In Hojan’s thii’d claim, he argues that the trial court should have required the presentation of additional mitigation evidence. Hojan alleges that the court should have used its contempt power to compel Hojan’s mother to testify to mitigation. In Muhammad, 782 So.2d 343, we stated that “the trial court has the discretion to call persons with mitigating evidence as its own witnesses.” Id. at 364. We have also stated, however, that a trial court’s discretion to call additional mitigation witnesses “is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Ocha v. State, 826 So.2d 956, 963 (Fla.2002) (internal quotation marks omitted) (quoting Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000)).

It was reasonable in this case for the trial court not to force Hojan’s mother to testify when her son had expressly asked her not to testify. Accordingly, we deny this claim. We also deny this claim because Hojan has not established what evidence his mother could have provided if she had testified. Accordingly, we cannot conclude that the failure of Hojan’s mother to testify prejudiced Hojan. We also note that the trial court carefully considered the mitigation evidence present in the record and ordered and reviewed the PSI. Finally, the trial court appointed a special public defender to research and present mitigation to the court. These facts all indicate that the trial court properly conducted its review of mitigation in this case. Hojan has not established what additional mitigation could have been presented; he has not explained how any additional mitigation would alter the balance of aggrava-tors and mitigators in this heavily aggravated case; and he has not established that he is entitled to a new penalty phase even if such mitigation exists because Ho-jan affirmatively waived his right to present mitigation and actively inhibited the trial court’s ability to gather mitigating evidence. Accordingly, we deny relief on this claim.

In Hojan’s fourth subelaim, he argues that specially appointed counsel, Hil-liard Moldof, and the psychologist Moldof retained, Dr. Michael Brannon, both did an inadequate job in obtaining and presenting mitigation evidence to the trial court. In this case, in light of Hojan’s refusal to present mitigating evidence, the trial court appointed special counsel to investigate and present mitigating evidence to assist the trial court in sentencing Hojan. This Court has held that “a defendant [who waived presentation of mitigation evidence] has no basis for claiming that special counsel’s presentation of mitigation evidence was ineffective.” Grim v. State, 971 So.2d 85, 102 (Fla.2007) (citing Muhammad, 782 So.2d at 364 n. 15); see also Muhammad, 782 So.2d at 364 n. 15 (stating that defendant who “knowingly and intelligently] waived the presentation of mitigating evidence ... [is] barred from subsequently claiming that [special] counsel’s performance was ineffective in the presentation of mitigating evidence”). Accordingly, Hojan is not entitled to relief on this claim.

In Hojan’s final claim under this issue, he argues that the trial court did not consider the PSI report as it was required to do. However, the sentencing order specifically states that a PSI was ordered, and it notes results of the presentence investigation in its consideration of mitigation. See Sentencing Order at 2 (noting PSI was ordered); Sentencing Order at 12 (noting information contained in PSI while considering mitigation evidence). Thus, there is evidence in the record that the trial court considered the contents of the PSI, contrary to Hojan’s claims on appeal. Accordingly, this claim does not entitle Hojan to relief.

In summary: (1) Hojan knowingly, intelligently, and voluntarily waived his right to mitigation, and thus Koon was satisfied; (2) there is no evidence in the record that the trial court gave the jury’s recommendation “great weight,” as was prohibited in Muhammad; (3) it was reasonable for the trial court not to force Hojan’s mother to testify when her son had expressly asked her not to testify; (4) Hojan is barred from claiming that Moldofs performance was ineffective in the presentation of mitigating evidence because Hojan waived presentation of mitigation evidence; and (5) there is evidence in the record that the trial court considered the contents of the PSI. Accordingly, we deny all five of Ho-jan’s subclaims in this issue.

Sufficiency of the Evidence

Hojan has not challenged the sufficiency of the evidence supporting his convictions. Nonetheless, this Court independently reviews the entire record to determine whether sufficient evidence exists to support Hojan’s murder convictions. See Fla. R.App. P. 9.142(a)(6); see also Jones v. State, 963 So.2d 180 (Fla.2007). “Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence.” Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). “If, after viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. at 1145.

We conclude that the evidence was sufficient in this case. Nunn identified Hojan as the shooter in a photo lineup at the hospital and also in court. Bolt cutters were found in the back seat of Hojan’s truck, and a forensic expert testified at trial that those same bolt cutters had cut two of the locks at the Waffle House. Hojan confessed to murdering the victims and shooting Nunn, and in those confessions, he demonstrated an in-depth knowledge of the crime and the crime scene. Other evidence also linked Hojan to the crime, including a bag of change and money orders found in Hojan’s parents’ house and testimony that the bullet casings and some of the bullets fired at the victims came from a gun linked to Hojan. Based on this accumulation of evidence, there was competent, substantial evidence supporting the jury’s verdicts. Accordingly, we conclude that sufficient evidence supports Ho-jan’s murder convictions.

Proportionality

“In conducting its proportionality review, this Court must compare the totality of the circumstances in a particular case with other capital cases to determine whether death is warranted in the instant case.” Rimmer v. State, 825 So.2d 304, 331 (Fla.2002) (citing Bates v. State, 750 So.2d 6 (Fla.1999)). Absent some demonstrated error, this Court “accept[s] the trial court’s findings on the aggravating and mitigating circumstances and consider[s] the totality of the circumstances of the case in comparing it to other capital cases.” Rodgers v. State, 948 So.2d 655, 670 (Fla.2006).

We conclude that Hojan’s death sentence is proportional. The trial court found that six aggravators applied in this case: (1) Hojan committed a prior capital felony-the contemporaneous murders and attempted murder, Sentencing Order at 3; (2) Hojan committed the murders in the course of an armed kidnapping, id. at 3-4; (3) the murders were committed to avoid arrest, id. at 4; (4) the murders were committed for financial gain, id. at 5; (5) the murders were HAC, id. at 6-8; and (6) the murders were CCP, id. at 8. One statutory mitigator applied, that Hojan had no significant prior history of criminal activity, but it was undercut by the contemporaneous crimes. Id. at 11-12. The two non-statutory mitigators found were: (1) Hojan was a good son, parent, and provider, id. at 15; and (2) he showed good behavior while incarcerated and during the proceedings, id. at 15. The trial court gave each aggravator “great weight” individually and gave each mitigator “little weight” individually.

This Court has found to be proportional death sentences that were similar in terms of aggravators versus mitigators, as well as sentences that involved fewer aggrava-tors and more mitigators. In Ibar v. State, 938 So.2d 451, 458 (Fla.2006), two individuals beat one victim for over twenty minutes and then murdered all three victims by shooting them in the backs of their heads and in them backs. The trial court found five aggravating factors:

(1) Ibar was previously convicted of another felony involving the use or threat of violence to the person; (2) the capital felony was committed while Ibar was engaged in the commission of a robbery or burglary; (3) the capital felony was committed for the purposes of avoiding or preventing lawful arrest; (4) the capital felony was especially heinous, atrocious, or cruel; and (5) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

Id. The trial court also found two statutory mitigating factors (Ibar had no significant prior criminal history and his age of twenty-two) and nine nonstatutory mitigating factors. Id. at 459. We held that Ibar’s death sentence was proportional. Hojan’s death sentence is similarly aggravated when compared to Ibar’s, but Hojan’s sentence involved less mitigation. Thus, Ibar demonstrates that Hojan’s death sentence is proportional.

Similarly, in Ocha, this Court held that a death sentence resulting from a strangulation murder was proportional. 826 So.2d at 965-66. Ocha involved the prior violent felony aggravator (from a prior robbery and attempted murder) and the HAC ag-gravator, weighed against fifteen nonstatu-tory mitigators stemming from Ocha’s background. Id. at 960. Ocha also involved a waiver of the defendant’s right to present mitigating evidence. Id. at 961. This Court not only concluded that Ocha’s death sentence was proportional, it stated that “[c]learly, this case presents a murder which is among the most aggravated and least mitigated reviewed by this Court.” Id. at 966. Hojan’s sentence is more aggravated and less mitigated than Ocha’s death sentence, and thus Ocha also demonstrates that Hojan’s death sentence is proportional. Accordingly, based on a comparison of Hojan’s death sentence to other similar death sentences, we conclude that Hojan’s death sentence is proportional.

CONCLUSION

For the forgoing reasons, we deny relief on all of Hojan’s asserted claims, conclude that sufficient evidence exists to support Hojan’s death sentence, find Hojan’s death sentence to be proportional, and thus affirm Hojan’s convictions and death sentence.

It is so ordered.

WELLS, LEWIS, CANADY, and POLSTON, JJ., concur.

PARIENTE, J., concurs in result only with an opinion, in which QUINCE, C.J., concurs.

LABARGA, J., did not participate.

PARIENTE, J.,

concurring in result only.

I agree with the majority’s decision to affirm Hojan’s convictions and death sentences. I concur in result only because of my concerns regarding the majority’s treatment of the merits of the excited utterance issue and its harmless error analysis. I thus write to address the issue of whether the victim’s responses to police questioning constitute excited utterances and emphasize that the harmless error test is not one based on whether there is “overwhelming” evidence.

The objectionable statements were the victim’s responses to leading questions by police during an interrogation. Although the majority states that we have “previously found statements given in question-and-answer exchanges by officers under similarly stressful statements to be excited utterances,” citing to Henyard v. State, 689 So.2d 239 (Fla.1996), Henyard involved a very different set of circumstances where there was no indication that there was an interrogation as here:

When the officer arrived, he found Ms. Lewis, who was hysterical but coherent. At trial, the officer was permitted to recount statements Ms. Lewis made to him on the front porch immediately after his arrival. The police officer testified that Ms. Lewis told him she had been raped and shot, identified her assailants as two young black males who fit the description of Henyard and Smalls, and said they had taken her children. Given these circumstances, we find that Ms. Lewis was still experiencing the trauma of the events she had just survived when she spoke to the officer and her statements were properly admitted under the excited utterance exception to the hearsay rule.

Id. at 251.

As the district courts of appeal have observed, “[statements made in response to police questioning are, by definition, not excited utterances.” Strong v. State, 947 So.2d 552, 556-57 (Fla. 3d DCA 2006); see also J.A.S. v. State, 920 So.2d 759, 763 (Fla. 2d DCA 2006); Blandenburg v. State, 890 So.2d 267, 272 (Fla. 1st DCA 2004). That is because for the most part answers to an interrogation require reflection. Here, the transcript reflects that Officer Donnelly conducted an interrogation while the victim was in an emergency vehicle after being shot. Certainly the victim would have been under the stress of having been shot, but the responses at issue were elicited during a series of questions concerning the identity and role of the participants in the crime, and the responses were one-word responses consisting of “Yeah,” “Uh-huh,” and “the Mexican.”

I concur with the result reached by the majority, however, because I agree with the bottom line that the admission of this testimony was harmless error beyond a reasonable doubt. Yet, it is always helpful to remember that the harmless error test is not one of “overwhelming” evidence:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. This rather truncated summary is not comprehensive but it does serve to warn of the more common errors which must be avoided.

DiGuilio, 491 So.2d at 1139.

In this case, when considering the brief reference to “the Mexican” as the shooter, compared with the other admissible and essentially identical testimony about the victim’s identification of the defendant as the shooter, together with the defendant’s own confession, it is clear that the error in this case was harmless beyond a reasonable doubt because there is no reasonable possibility that the admission of this evidence affected the jury’s verdict as to Ho-jan’s guilt.

QUINCE, C.J., concurs.

      . Hojan was also sentenced to consecutive life sentences on all other counts except for the attempted felony murder of Nunn, upon which sentence was withheld because Hojan was sentenced on the attempted premeditated murder count.

      . We deny Hojan's claims asserting errors under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Hojan’s case also involved convictions for multiple contemporaneous crimes. This Court has held that such facts — found unanimously by a jury — satisfy the requirements of Ring. See, e.g., Rodgers v. State, 948 So.2d 655, 673 (Fla.2006); Smith v. State, 866 So.2d 51, 68 (Fla.2004); Jones v. State, 855 So.2d 611, 619 (Fla.2003). Accordingly, we deny Hojan's Ring claims.
      Further, Hojan's Apprendi claims have also been previously rejected by this Court. First, this Court has rejected claims that the State is required to provide notice of the aggravating factors it intends to prove in the penalty phase. See, e.g., Kormondy v. State, 845 So.2d 41, 54 (Fla.2003); Lynch v. State, 841 So.2d 362, 378 (Fla.2003). Second, this Court has also rejected the claim that the jury must report its findings. See, e.g., Walker v. State, 957 So.2d 560, 569 (Fla.2007); Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003). Third, this Court has rejected the claim that a nonunani-mous jury sentencing recommendation is unconstitutional. See, e.g., Parker v. State, 904 So.2d 370, 383 (Fla.2005); Hodges v. State, 885 So.2d 338, 359 n. 9 (Fla.2004). Fourth, this Court has rejected burden-shifting claims that argue Florida’s capital sentencing statute or jury instructions unconstitutionally place the burden on the defendant to prove that sufficient mitigating circumstances exist to outweigh the aggravators. See, e.g., Griffin v. State, 866 So.2d 1, 14 (Fla.2003); Sweet v. Moore, 822 So.2d 1269, 1274 (Fla.2002). Finally, this Court has also rejected claims that telling a jury that it only recommends a sentence of life or death, while the final decision on the sentence is up to the judge unconstitutionally dilutes the jury's responsibility. See, e.g., Sochor v. State, 619 So.2d 285, 291 (Fla. 1993). Accordingly, we deny Hojan’s Apprendi claims as well.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The trial court stated in its order that Anton read Hojan his Miranda rights in their entirety on the tape recording. However, as Hojan points out, the transcript of the tape in the record indicates that Hojan was not read his rights in full on the tape recording. We find that this apparent misstatement by the trial court does not undermine the remaining evidence supporting the trial court's rejection of the motion to suppress.

      . The nine nonstatutory mitigators were:
      (1) Ibar was a good and respectful young adult; was a good, obedient and caring child; committed good deeds and had good characteristics; had a loving relationship with his mother; is a caring person (considered collectively and given medium weight);
      (2) Ibar is a good worker (given minimal weight); (3) Ibar can be rehabilitated in prison, is unlikely to endanger other prison inmates, and would make a peaceful adjustment to prison life (given very little weight);
      (4) Ibar was a good friend (given minimal weight); (5) Ibar exhibited good courtroom behavior and a good attitude (given minimal weight); (6) Ibar is religious (given minimal weight); (7) Ibar's family and friends care for and love him and he married his fiance while in jail (given minimal weight); (8) Ibar comes from a good family (given minimal weight); and (9) Ibar expressed remorse (given minimal weight).

        Id. at 459, 86 S.Ct. 1602.

      . To the extent that Hojan raises various other issues in the portion of his reply brief addressing proportionality, we deny relief on those issues because Hojan raised and we addressed them elsewhere in his appeal, and they do not alter the result of the proportionality analysis.