Berny Serrano v. State of Florida ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-3669
_____________________________
BERNY SERRANO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Levy County.
Mark W. Moseley, Judge.
August 30, 2019
RAY, C.J.
Berny Serrano appeals from an order resentencing him to
life in prison for his crimes committed as a juvenile. We affirm.
I.
In 2005, Serrano, a seventeen-year-old high school student,
and four of his friends decided to rob nineteen-year-old Jacob
Langworthy while he was at home alone. After entering
Langworthy’s home, Serrano held Langworthy at gunpoint while
the others ransacked the house looking for drugs and money.
When a car pulled up outside, Serrano fatally shot Langworthy in
the head and fled. For his part, Serrano was tried and convicted
of first-degree murder, home invasion robbery, and conspiracy to
commit home invasion robbery. He received a sentence of life
without parole for the murder, a concurrent term of life with a
twenty-five-year mandatory minimum for the home invasion
robbery, and a consecutive term of fifteen years in prison for the
conspiracy. We affirmed his convictions and sentences in 2009.
Serrano v. State, 15 So. 3d 629 (Fla. 1st DCA 2009).
In the years that followed, Serrano raised a series of
postconviction challenges based on new developments in the law
on juvenile sentencing. In 2012, following the United States
Supreme Court’s decision in Graham v. Florida, 560 U.S. 48
(2010), 1 the circuit court reduced Serrano’s life sentence for
armed robbery to forty years in prison with a mandatory-
minimum term of twenty-five years under the 10-20-Life statute.
The same year, following the decision in Miller v. Alabama, 567
U.S. 460 (2012), 2 the court resentenced Serrano on the murder
count to life in prison with the possibility of parole after twenty-
five years.
In 2017, the court granted Serrano a new resentencing
hearing on both the murder and robbery counts under chapter
2014-220, Laws of Florida, which amended Florida’s juvenile
sentencing statutes in the wake of Graham and Miller. At the
1 Graham v. Florida held that the Eighth Amendment
prohibits a sentence of life in prison without the possibility of
parole for juveniles convicted of nonhomicide crimes. 560 U.S. 48,
74 (2010). The Supreme Court explained that while “[a] State is
not required to guarantee eventual freedom” to these individuals,
it must provide them “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.” Id.
at 75.
2 Miller v. Alabama extended the reasoning of Graham and
adopted a categorical-Eighth-Amendment ban on the imposition
of a mandatory life sentence without the possibility of parole for
juveniles convicted of homicide. 567 U.S. 460, 479 (2012). The
Supreme Court did not foreclose a life-without-parole sentence in
homicide cases but required the sentencer to first “take into
account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at 480.
2
resentencing hearing, the defense presented four witnesses: the
retired prison warden, a forensic psychologist who evaluated
Serrano, Serrano’s wife, and Serrano himself. The defense
introduced Serrano’s artwork, his marriage certificate, pictures of
Serrano with his wife and stepson, letters he wrote to his stepson,
and certificates of achievement in Gospel Ministry and
completion of Biohazard Training.
The State introduced documentation of Serrano’s
disciplinary reports in prison, records showing his time in
confinement, and reports on gang-related activity. The State also
presented letters from several friends and family members of the
victim. The victim’s mother, sister, grandmother, and a friend
spoke before imposition of the sentence. The written and oral
statements described the unrelenting pain the victim’s loved ones
have been experiencing since the victim’s death and the
incredible burden of having to relive the details of the victim’s
murder through the resentencing process. Many statements
urged the court to impose the maximum sentence, not to reduce
the life sentence, or to ensure that Serrano is never released.
Following the evidentiary hearing, the court analyzed the
factors specified in section 921.1401, Florida Statutes (2014), and
concluded that a life sentence remained appropriate for the
murder conviction. The court resentenced Serrano to life in
prison, with the right to judicial review after twenty-five years
under section 921.1402(2)(a), Florida Statutes. The court also
imposed concurrent sentences of fifteen years for conspiracy and
forty years for armed robbery, with the right to judicial review
after twenty years under section 921.1402(2)(d).
This is Serrano’s appeal from the new sentencing order.
II.
We first consider Serrano’s argument that his constitutional
rights to a jury trial required the circuit court to empanel a jury
for his resentencing. He contends that allowing a judge, rather
than a jury, to determine whether a life sentence is appropriate
under the statutory factors in section 921.1401 violates Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Hurst v. State, 202 So. 3d
40 (Fla. 2016). As Serrano properly concedes in his reply brief,
3
this court rejected these arguments in Copeland v. State, 240 So.
3d 58, 59–60 (Fla. 1st DCA 2018), for the reasons expressed in
Beckman v. State, 230 So. 3d 77, 94-97 (Fla. 3d DCA 2017). We
therefore affirm on this issue without further discussion.
III.
We next address Serrano’s argument that the sentencing
court violated his Eighth Amendment right against cruel and
unusual punishment when it weighed the wishes of the victim’s
family and friends in deciding whether to sentence Serrano to life
in prison.
By way of background, section 921.1401(2) of the juvenile
sentencing statute directs the court to consider ten non-
exhaustive factors “relevant to the offense and the defendant’s
youth and attendant circumstances” when determining whether
life is an appropriate sentence for a juvenile homicide offender.
One of the designated factors is “[t]he effect of the crime on the
victim’s family and the community.” § 921.1401(2)(b), Fla. Stat.
During the evidentiary portion of the resentencing hearing,
the court heard testimony and received letters from the victim’s
family and friends. Serrano acknowledges that the court properly
considered the evidence about the emotional impact of the
murder on the victim’s loved ones. But he contends the court
crossed the line by considering their pleas for Serrano to receive
the harshest possible sentence. For support, he cites Booth v.
Maryland, which held, in part, that the Eighth Amendment
prohibits opinion testimony by a victim’s family on the
appropriate sentence in a capital sentencing proceeding. 3 482
U.S. 496, 502–03 (1987).
To prevail on this issue, Serrano faces three obstacles. First,
because there was no objection below, the claim must be
3 Although the Supreme Court receded from portions of
Booth in Payne v. Tennessee, 501 U.S. 808, 830 (1991), Booth’s
prohibition on opinions from a victim’s family members about the
appropriate sentence in capital cases remains intact. Bosse v.
Oklahoma, 137 S. Ct. 1, 2 (2016).
4
cognizable for the first time on appeal as fundamental error.
Second, there must be some indication that the court considered
the victim’s family members’ opinions on sentencing to determine
the appropriate sentence. And finally, the Eighth Amendment
must indeed prohibit courts from considering this type of victim-
impact evidence in a juvenile sentencing proceeding. None of
these conditions has been satisfied.
A. Booth Errors are Not Fundamental
Serrano argues that the sentencing court’s consideration of
the opinions from the victim’s family about the appropriate
punishment is an Eighth Amendment violation under Booth that
can be raised for the first time on appeal as fundamental error.
Bound by Florida Supreme Court precedent, we disagree.
The supreme court has held that Booth errors are not
fundamental in capital cases and procedurally barred if raised for
the first time on appeal. See, e.g., Henry v. State, 613 So. 2d 429,
431–32 (Fla. 1992) (holding that a claim of error under Booth was
“not cognizable on appeal because [it did] not involve
fundamental error and [was] not raised or objected to in the trial
court”); Brown v. State, 596 So. 2d 1026, 1028 (Fla. 1992) (holding
a Booth claim that the trial court “considered” the victim’s
daughter’s recommendation that death was appropriate was
procedurally barred because no timely objection was raised);
Carter v. State, 576 So. 2d 1291, 1293 (Fla. 1989) (holding a
“contemporaneous objection at trial is required before [the
Florida Supreme Court] will entertain any issue based on Booth”
and rejecting the claim “without reaching its merits”).
We have not overlooked another line of supreme court cases
that appears to cast doubt on the per se rule precluding
fundamental-error-review of Booth errors. See, e.g., Jordan v.
State, 176 So. 3d 920, 934 (Fla. 2015) (holding there was no
fundamental error because, in part, the victim’s aunt “did not
opine about . . . the appropriate sentence”). The cases that
analyze the admission of victim-impact evidence for fundamental
error draw from language in Payne v. Tennessee, 501 U.S. 808,
830 (1991), regarding a potential Fourteenth Amendment Due
Process violation distinct from the Eighth Amendment one
Serrano raises here. In Payne, the Supreme Court explained that
5
“[i]n the event that evidence is introduced that is so unduly
prejudicial that it renders the trial fundamentally unfair, the
Due Process Clause of the Fourteenth Amendment provides a
mechanism for relief.” 501 U.S. at 825 (1991). The analysis in
Payne provides a separate constitutional ground for relief when
the Eighth Amendment does not prohibit the underlying
evidence. See, e.g., Wheeler v. State, 4 So. 3d 599, 606 (Fla. 2009)
(recognizing “that evidence that places undue focus on victim
impact, even if not objected to, can in some cases constitute a due
process violation”); Jordan, 176 So. 3d at 934 (citing Wheeler and
determining the defendant’s due process rights were not violated
as part of a fundamental error analysis).
This variant of case law is not directly applicable when, as
here, a pure Eighth Amendment claim is raised. Because we are
mindful that the supreme court does not overrule itself sub
silentio, and we are bound to follow its holdings over contrary
dicta, we hold that Serrano’s Eighth Amendment challenge is
procedurally barred.
B. Victim-Impact Evidence on Sentencing Not Considered
Even if Serrano’s Eighth Amendment claim were properly
preserved, there is no indication that the court sentenced Serrano
based on the victim’s family members’ desires that he receive the
harshest possible sentence.
While a court’s consideration of constitutionally
impermissible factors generally rises to the level of fundamental
error, there must be some indication that the court based its
sentence on an impermissible factor before this Court will
reverse. Barlow v. State, 238 So. 3d 416, 417 (Fla. 1st DCA 2018)
(“Nevertheless, there is no indication that the trial court based its
sentence on [a potentially impermissible factor], so the exception
provides no basis to reverse.”). The mere fact that the court had
evidence of a potentially improper factor before it is insufficient
to merit reversal. See id. (collecting cases); see also Scull v. State,
533 So. 2d 1137, 1143 (Fla. 1988) (holding that a judge who
“merely sees” a victim’s family members’ sentencing
recommendation of death has committed no error absent
consideration of the request when imposing sentence).
6
Here, there is no indication that the court considered the
victim’s family members’ opinions on sentencing in determining
Serrano’s sentence. Instead, the record reflects that the court
carefully balanced the rights of the victim’s family and the rights
of Serrano, so as not to impermissibly encroach on either.
After the close of the evidentiary portion of the resentencing
hearing, the court took a moment to explain to the victim’s loved
ones why—twelve years after the murder—Serrano was entitled
to another resentencing. The court explained,
[a]nd the problem with the original sentence in this
case was that the legislative scheme for sentencing,
which judges are obligated to follow, included a
mandatory provision which did not allow for the Court
to weigh any of the factors that have been brought
before this Court today, that those were not things to be
considered. The State didn’t bother to present evidence
to the contrary because the Court had only one sentence
it could give, and because of that, we are here today and
now going through the process that I believe rightly
should be part of our process.
I rarely, in any situation, think that it is wise,
whether it be legal or not, to have mandatory sentences.
The reason for that being judges are in the best position,
I believe, to bear, not only the responsibility, but also to
be in a position to view all the things that should be
considered in rendering a sentence of any importance
whatsoever—and this is certainly important to everyone
concerned—and, to the extent possible, to strive to be
dispassionate, that is, to be objective. No one expects,
really, either side to be objective completely.
....
And it’s understandable the feelings of the family in
regard to their loss, why your input is significant and
important. But you cannot be the decision makers in the
end. Obviously, you cannot have objectivity, and no one
would expect you to. But the court should weigh that,
7
and that’s part of the weighing process of the Court;
part of it, not entirely.
Serrano argues the court’s remarks—that it should weigh
the family’s feelings and input—indicate that it took their
opinions on sentencing into account when evaluating the
appropriate sentence. We disagree. When read in context, the
court was acknowledging that the impact of the murder on the
victim’s family is relevant, while expressly informing the family
that the court is the final decisionmaker. Indeed, when the court
turned to its analysis of the statutory sentencing factors, it
analyzed the victim-impact factor as follows:
The effect of the crime on the victim’s family and on
the community is again easy to comprehend, [t]hey have
been devastated. They continue to be devastated. They
were robbed of a son, of a friend, brother. All of society
was robbed of his potential.
Based on our review, the court considered the testimony of
the victim’s family for its impact alone, which is no more than
Serrano concedes that it can do.
C. Booth Does Not Apply to Juvenile Resentencings Under Miller
Moreover, even if the court did consider the victim’s family’s
wishes on sentencing, we are not persuaded that it would have
been error. Serrano contends that Booth’s absolute prohibition on
sentencing recommendations from the victim’s family should
apply equally in the context of a juvenile resentencing under
Miller. We disagree and find Booth distinguishable in two
important ways.
First, Booth dealt with victim-impact statements in a capital
sentencing proceeding. Courts have repeatedly recognized that
“death is different”—due to its severity and finality—and
therefore demands more judicial scrutiny to ensure that the
ultimate punishment is not arbitrarily imposed. See Gardner v.
Florida, 430 U.S. 349, 357 (1977); Woodson v. North Carolina,
428 U.S. 280, 305 (1976) (recognizing that the “penalty of death is
qualitatively different from a sentence of imprisonment, however
long”). The Supreme Court in Booth explicitly noted “that [the]
8
decision today is guided by the fact death is a punishment
different from all other sanctions, and that, therefore, the
considerations that inform the sentencing decision may be
different from those that might be relevant to other liability or
punishment determinations.” 482 U.S. at 509 n.12 (internal
citations omitted).
Serrano argues that the principles of Booth are nonetheless
applicable to a Miller-type sentencing proceeding because the
Supreme Court has analogized juvenile life sentences to the
death penalty. But the Supreme Court has not compared all
juvenile life sentences to the death penalty—only life sentences
without the possibility of parole. See Miller, 567 U.S. at 474-75
(noting that death and juvenile “life-without-parole sentences”
are similar in their permanency and irrevocability). The life
sentence imposed here is neither permanent nor irrevocable
because Serrano has the right to judicial review after twenty-five
years. § 921.1402(2)(a), Fla. Stat. A juvenile life sentence with
judicial review after twenty-five years is simply not analogous to
the death penalty, even under the Supreme Court’s reasoning. Cf.
Graham, 560 U.S. at 69 (noting “life without parole sentences
share some characteristics with death sentences that are shared
by no other sentences”) (emphasis added).
Second, Booth is distinguishable because it involved victim-
impact testimony made to a jury and not a judge. The Supreme
Court’s holding in Booth was grounded on its concerns that
opinions from the victim’s family on the appropriate punishment
“serve no other purpose than to inflame the jury and divert it
from deciding the case based on the relevant evidence concerning
the crime and the defendant.” Booth, 482 U.S. at 508. The Court
reasoned that such evidence “creates a constitutionally
unacceptable risk that the jury may impose the death penalty in
an arbitrary and capricious manner.” Id. at 504. Those same
risks are not present when the information is presented to a
judge because we assume, absent evidence to the contrary, that
judges are dispassionately reviewing the evidence when imposing
a sentence. See State v. Dixon, 283 So. 2d 1, 8 (Fla. 1973) (“[T]he
inflamed emotions of jurors can no longer sentence a man to die;
the sentence is viewed in the light of judicial experience.”),
superseded by statute on other grounds as noted in State v. Dene,
9
533 So. 2d 265, 268 (Fla. 1988); see also Gulbrandson v. Ryan,
738 F.3d 976, 996 (9th Cir. 2013) (holding a “principled
distinction” may be drawn between Booth and a case in which the
testimony is presented to a judge).
For these reasons, we are not persuaded that a Miller-type
juvenile sentencing hearing is the functional equivalent of a
capital sentencing proceeding so that the categorical exclusion of
victim-impact evidence on sentencing is warranted under the
Eighth Amendment. We therefore decline to extend Booth’s
holding to noncapital sentencing proceedings conducted by a
judge and find no error in the admission or consideration of the
victim-impact evidence at issue here. See e.g., Lopez v. State, 181
A.3d 810, 828 (Md. 2018) (refusing to extend Booth to the
noncapital context and noting neither the court nor the defendant
found any court that had done so); Commonwealth v. McGonagle,
88 N.E.3d 1128, 1131 (Mass. 2018) (concluding Booth does not
apply to noncapital proceedings and noting that “[t]he dangerous
uses to which a jury in a capital murder trial may put to a
victim’s recommendation as to a particular sentence are not
present at a noncapital sentencing proceeding before a neutral,
impartial judge”).
While a judge’s discretion in sentencing is certainly not
unlimited, the record before us shows that the judge sentenced
Serrano in a dispassionate manner, with the appropriate level of
humanity and restraint. 4 We affirm on this issue.
4 Our opinion today does not foreclose the possibility of a
challenge, constitutional or otherwise, where there is affirmative
evidence in the record that a judge based his sentence solely on
victim’s family members’ recommendations, or where there is
evidence the court became inflamed and diverted from the
relevant evidence about the crime and defendant. Cf. Payne, 501
U.S. at 809 (noting the potential for a due process claim when
unduly prejudicial evidence is introduced and renders the trial
fundamentally unfair); Barnhill v. State, 140 So. 3d 1055, 1061
(Fla. 2d DCA 2014) (reversing where the trial court was neither
dispassionate nor focused on the facts specific to the defendant’s
10
IV.
Finally, we turn to Serrano’s remaining issue in which he
argues that the sentencing court committed several additional
errors that cumulatively render the sentencing decision
unreliable. Serrano asserts that the court improperly considered
juvenile charges that were dismissed; improperly considered the
sentence previously imposed by a different judge; failed to find
Serrano’s youth a significant mitigating circumstance; and made
erroneous findings on Serrano’s mental health diagnosis and the
role of peer pressure in the crimes. Because Serrano failed to
object to any of these issues below, our review is for fundamental
error. We address each argument in turn.
A. Serrano’s Prior Criminal History
As part of its determination about whether a life sentence is
appropriate, the sentencing court must consider “[t]he nature and
extent of the defendant’s prior criminal history.” § 921.1401(2)(h),
Fla. Stat. In assessing Serrano’s prior criminal history, the court
made the following remarks that Serrano now challenges:
He doesn’t have a significant criminal history, but
he has some.
I read—no one mentioned—it’s part of the record
that the state dropped numerous other cases given the
sentence of the Court. Had the Court had a different
sentence or had the State understood the importance of
other convictions in our statutory now [sic] scheme,
different decisions may have been made.
I don’t know what to make of that other than that
there were pending charges that were dropped because
of the sentence in this case.
Serrano alleges these comments suggest that the court
improperly considered conduct for which he had not been
crime, but appeared to apply a general policy against a
legislatively authorized sentencing disposition).
11
convicted, amounting to a denial of due process and fundamental
error. For support, he relies on this Court’s decision in Yisrael v.
State, where we held that “[c]onsideration of pending or
dismissed charges during sentencing results in a denial of the
defendant's due process rights.” 65 So. 3d 1177, 1178 (Fla. 1st
DCA 2011), approved sub nom. Norvil v. State, 191 So. 3d 406
(Fla. 2016). There, the sentencing court asked the defendant
about two sexual battery charges—one pending and the other
dismissed—because, according to the prosecution, the victim
would not testify. Id. The court questioned the defendant about
whether the other victims were lying, and whether he had in fact
“rape[d] these other children.” Id. Shortly after questioning, the
court commented, “there are other victims apparently that don’t
want to testify. So the Court is going to sentence you to [the
maximum possible sentence] of 30 years’ Florida State Prison[.]”
Id. We reversed and remanded for resentencing, concluding that
the court’s questions and remarks, taken in context, “strongly
indicate that the dismissed and pending charges were a factor in
the court's determination to impose the maximum allowable
sentence.” Id.; see also Williams v. State, 193 So. 3d 1017, 1019
(Fla. 1st DCA 2016) (reversing sentence after concluding that “it
is clear from the trial judge's comments at the sentencing hearing
that he accepted as true, and based his sentencing decision on,
the prosecutor's assertions [of unsubstantiated allegations of
misconduct]”).
Here, unlike in Yisrael, the record does not show that the
court improperly considered dismissed charges or
unsubstantiated conduct in determining the appropriate
sentence. While the court mentioned the dismissed charges and
briefly speculated about why the State may have dropped the
charges, the court’s follow-up statement—“I don’t know what to
make of that”—suggests equivocation and nothing more. Indeed,
the court did not discuss the nature of the charges, the details of
the charges, or suggest in any fashion that it was considering
them in determining Serrano’s sentence.
B. Intent of the Original Sentencing Judge
When a resentencing occurs, a defendant is entitled to a “de
novo sentencing hearing.” Peters v. State, 128 So. 3d 832, 840
12
(Fla. 4th DCA 2013). A successor judge may not, upon
resentencing, base a sentence entirely on the prior judge’s
determination. Id. The successor judge must review the record,
familiarize themselves with the case, and make sure that the
imposition of sentence is “his or her act of independent
judgment,” not “reliance on the decision of the original judge.” Id.
But “nothing categorically bars a successor judge from
considering the sentence imposed by a prior judge” as long as the
new sentence results from “an act of independent judgment.” Id.
at 841.
Serrano argues that the following remarks by the court show
that it improperly relied on the original sentencing judge’s intent
in determining whether life is an appropriate sentence:
So I’ve looked at everything and tried to weigh
them carefully. I looked at the judge’s sentence. The one
clue that I did get from the sentence of Judge Morris is
that he sentenced this defendant to, in Count II, 15
years consecutive to a life sentence. And that would
indicate that that was not necessary. That was not
required; that it was his desire that he spend life in
prison. That would be the indication of that sentence.
We disagree that these remarks, when viewed in the context
of the entire sentencing proceeding, amount to an abdication of
the court’s duty to make an independent judgment regarding the
sentence it imposed. In fact, the record shows that the court was
thoroughly familiar with the background and circumstances of
the case, heard evidence and argument from both sides, and
analyzed the sentencing factors of section 921.1401, providing
detailed reasons why it was imposing a life sentence. The court
also recognized that the prior judge had no choice but to impose a
life sentence and did not have the opportunity to hear any of the
evidence that it was provided under the new juvenile sentencing
guidelines. The record demonstrates that the court proceeded on
a “clean slate” for resentencing and did not merely rubber stamp
the prior judge’s decision.
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C. Serrano’s Youth
Serrano next argues that the court erred in failing to find
that Serrano’s youth alone is a mitigating circumstance entitled
to great weight. When a court decides on an adult sentence for a
juvenile offender, “the chronological age of a minor is itself a
relevant mitigating factor of great weight.” Miller, 567 U.S. at
476 (quoting Eddings v. Oklahoma, 455 U.S. 104, 116 (1982)). To
that end, section 921.1401 mandates that a sentencing court
consider “factors relevant to the offense and the defendant’s
youth and attendant circumstances.” Specifically, the court must
consider “[t]he defendant’s age, maturity, intellectual capacity,
and mental and emotional health at the time of the offense[,]”
“[t]he effect, if any, of immaturity, impetuosity, or failure to
appreciate risks and consequences on the defendant’s
participation in the offense,” and “[t]he effect, if any, of
characteristics attributable to the defendant’s youth on the
defendant’s judgment.” § 921.1401(2)(c), (e) & (i), Fla. Stat.
As to Serrano’s “age, maturity, intellectual capacity and
mental and emotional health,” the court found:
He was young. He was a juvenile when this
happened, though he was only a few months from being
18. He’s a bright young man for his age, certainly did
not lack maturity. And there’s no indication of any great
mental or emotional disease that he suffered. He had
some diagnosis, but these are not significant diagnoses
that would be atypical of someone of his age and
maturity.
The court specifically discussed the effect of immaturity,
impetuosity, and the failure to appreciate risk and consequence.
It found that Serrano’s “lack of maturity is not particularly
compelling.” The court noted that Serrano planned the crime and
took a gun and four other people with him, demonstrating that he
wanted the threat of death or bodily harm to execute his plan.
The court also found that the facts of the crime did not reflect an
impetuous act because Serrano ordered the victim to the ground,
and proceeded to shoot the victim in the head, even as his friend
urged him not do so. The court determined that Serrano knew the
consequences of his actions—that when he pulled the trigger, the
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victim would die. It reasoned that this was a far cry from a young
person who did not appreciate the risks of a situation. As to “[t]he
effect, if any, of characteristics attributable to the defendant’s
youth on the defendant’s judgment,” the court found “beyond
those that I’ve already enumerated, I don’t know of any
particular characteristic attributable to his youth that bore on his
decision.”
The record shows that the court considered Serrano’s youth
and its attendant circumstances when choosing to impose the life
sentence. Serrano is merely objecting to how the court weighed
the relevant factors. We find no error.
D. Claims of Erroneous Findings
In his final sub-issue, Serrano challenges two findings as
unsupported by the record. First, he argues there is no record
support for the court’s finding that Serrano’s mental health
diagnosis (i.e., generalized anxiety disorder) was “not atypical of
someone of his age and maturity.” Serrano is correct that there
was no evidence that his generalized anxiety disorder was typical
or atypical. Even so, there is no contention that this error alone
undermines the reliability of the court’s sentencing
determination to warrant a new sentencing hearing. Even if the
error had been preserved, the record indicates that the finding
that the generalized anxiety was not atypical was harmless.
Second, Serrano alleges the court erred by finding that the
murder was not the product of peer pressure because the
psychologist’s uncontradicted testimony suggested that for teens,
the presence of peers increases aggressive, reckless behavior,
which creates the same effect as peer pressure. This claim is
meritless. As the court noted and the evidence showed, Serrano
was the ring leader. He orchestrated the crime. And when he shot
the victim, his peers were running away. One of them even tried
to convince Serrano not to pull the trigger. The trial court’s
finding that the murder was not the product of peer pressure is
supported by competent, substantial evidence in the record.
AFFIRMED.
ROBERTS and MAKAR, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.
16