author: EISNAUGLE, J.

text:
    Jeffry R. DICKERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3316
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 6, 2017
    Debra B. Tuomey, of Debra B. Tuoiney, Attorney at Law, LLC, Spring Hill, and Charlie P. Vaughn, Law Office of Charles P. Vaughn, Inverness, for Appellant.
    Pamela Jo Bondi, Attorney General,, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EISNAUGLE, J.

Appellant, Jeffry Roy Dickerson, appeals his convictions for aggravated stalking with a firearm, burglary of a dwelling with' a firearm, false imprisonment, and aggravated, assault with a firearm against his ex-wife. We .reverse.

Before trial, the State filed a Williams rule notice that it intended to offer evidence- of similar acts that Appellant allegedly committed against a different ex-wife. Appellant “fired” counsel the day before the Williams rule hearing, after counsel admittedly told Appellant that he planned to withdraw. At the hearing, Appellant’s counsel moved to withdraw, stating that the relationship with his client had deteriorated to the point that he could not represent Appellant “in good conscience.”

After granting counsel’s motion to withdraw, the trial court asked Appellant how he wanted to proceed, and Appellant stated, “I’m going to hire a new lawyer,” but indicated he had not yet done so. The State announced that it was.prepared to proceed with the Williams rule hearing and argued that Appellant had intentionally caused his counsel to withdraw for purposes. of delay.

The trial court did not make any finding that Appellant was intentionally delaying the proceedings, but. instead asked Appellant, “Do you have any problems with going forward with the Williams rule hearing, today?” Appellant answered, “No, I don’t.” The trial court then swore in Appellant, and asked him again if “it’s okay to go ahead with the Williams rule hearing today?” Appellant again answered in the affirmative. The Williams rule hearing then commenced with testimony from both of Appellant’s ex-wives. The State concedes that the trial court did not conduct a Faretta inquiry.

On - appeal, Appellant argues the trial court’s failure to conduct any Faretta inquiry prior to permitting him to represent himself at the pre-trial Williams rule hearing—a critical stage of the proceeding—constitutes per se reversible error. We agree.

In Faretta, the United States Supreme Court held that an accused’s right to self-representation at trial is protected by the Sixth and Fourteenth Amendments, See Tennis v. State, 997 So.2d 375, 377 (Fla. 2008). Once a defendant makes an unequivocal request for self-representation, the trial court must “hold a hearing[ ] to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.” Id. at 378.

Our supreme court has codified Faretta in Florida Rule of Criminal Procedure 3.111(d)(2). “Rule 3.111(d)(2) precludes a trial court from finding a valid waiver ‘until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to-make an intelligent and understanding waiver.’ ” Hill v. State, 688 So.2d 901, 904 (Fla. 1996) (quoting Fla. R. Crim. P. 3.111(d)). “[A] trial court’s failure to take the preliminary step of holding a hearing on a defendant’s unequivocal pro se request results in per se reversible error.” McCray v. State, 71 So.3d 848, 864 (Fla. 2011) (citing Tennis, 997 So.2d at 379). An appellate court’s review of a per se Faretta violation is not amenable to a harmless error- analysis. See Laramee v. State, 90 So.3d 341, 344 n.6 (Fla. 5th DCA 2012).

We find that two of the State’s arguments against reversal merit discussion. First, the State argues that a Williams rule hearing is not a crucial stage in the proceedings. In Traylor v. State, 596 So.2d 957 (Fla. 1992), the supreme court referenced article I, section 16 of Florida’s Constitution in explaining that “[o]nce the defendant is charged—and the Section 16 rights attach—the defendant is entitled to decide at each crucial stage of the proceedings whether he, or she requires the assistance of counsel.” 596 So.2d at 968; see also Smith v. State, 845 So.2d 937, 938 (Fla. 5th DCA 2003) (“[A] criminal defendant facing incarceration has the right to counsel at each critical stage of the proceedings.”).

While this issue appears to be one of first impression in Florida, we have little difficulty concluding that the Williams rule hearing in this case, was a crucial stage of the proceedings. A crucial stage “is any stage that may significantly affect the outcome of the proceedings.” Traylor, 596 So.2d at 968. The opinion of our sister court in Kearse v. State, 858 So.2d 348 (Fla. 1st DCA 2003), is instructive here. In Kearse, the defendant unequivocally requested self-representation before a pre-trial hearing on his motion to suppress evidence. Id. at 348. The trial court denied his request and proceeded with the suppression hearing without conducting a Faretta inquiry. Id. On appeal, the first district held that “[t]he hearing on [the defendant’s] suppression motion was a ‘crucial stage’ in the proceedings below.” Id. at 349; see also Wilson v. State, 76 So.3d 1085, 1089 (Fla. 2d DCA 2011) (“A hearing on a motion to suppress is in and of itself a crucial stage of the proceedings.”). As such, the district court reversed, reasoning that the defendant “had a right to ‘choose his manner of representation’ absent a finding that 'his waiver of counsel was not competent or voluntary.” Kearse, 858 So.2d at 349.

We can detect no substantive difference, at least for purposes of a defendant’s constitutional right to counsel, between a suppression hearing and a Williams rule hearing. Indeed, if a suppression hearing “can significantly affect the outcome of the proceedings,” as it undoubtedly can, then it necessarily follows that a Williams rule hearing can as well. See Traylor, 596 So.2d at 968. Perhaps it is possible, in theory, that the evidence at a Williams rule hearing could be so innocuous that the right to counsel is not implicated. However, we need not decide that today. The evidence presented at the Williams rule hearing in the instant case was powerful, and included numerous prior acts by Appellant which were strikingly similar to the conduct with which he was charged. This evidence was, without a doubt, sufficient to “significantly affect the outcome of the proceedings.” See id. Therefore, a Faretta colloquy, was required once Appellant agreed to move forward without counsel, and the failure to do so amounts to reversible error.

Second, the State argues that even if a Williams rule hearing is a crucial stage of the proceedings, Appellant was nevertheless “sufficiently sophisticated in his knowledge of the courts and the law that a formal hearing was not required,” citing to this court’s opinion in Davis v. State, 10 So.3d 176 (Fla. 5th DCA 2009). In Davis, this court observed that “[tjhose occasions where no reversible error results from failure to conduct a Faretta inquiry, following an unequivocal request for self-representation, are few and far between and must be supported with findings of fact.” 10 So.3d at 179. Here, as in Davis, the record of the Williams rule hearing contains no findings at all regarding Appellant’s knowledge or sophistication. Moreover, the record merely demonstrates that Appellant was asked under oath whether he had “any problem going forward” with the Williams rule hearing without counsel. In short, the record here falls far short of meeting the narrow exception identified in Davis.

Therefore, we reverse and remand for a new trial. We do not reach the additional issues raised by Appellant.

REVERSED and REMANDED.

LAMBERT and EDWARDS,' JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975).

      . "Under the state constitution, a defendant’s right to counsel’s presence applies at each crucial stage of the proceedings; under the federal constitution, defendant is entitled to counsel at each critical stage of the proceeding,” Ibar v. State, 938 So.2d 451, 469 (Fla. 2006) (citation omitted).


source: Caselaw Access Project

author: LEWIS, J. ROBERTS, J., WINSOR, J.,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Cedric PLUMMER, Appellee.
    CASE NO. 1D16-5736
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.

      Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellant. =
    Andy Thomas, Public Defender, Laurel Cornell Niles, Assistant Public’ Defender, Tallahassee, for Appellee.
   LEWIS, J.

Appellant, the State of' Florida (“the State”), seeks review of an order granting postconviction relief on one of the claims filed by Appellee, Cedric Plummer, in his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. For the following reasons, we affirm the order on appeal.

The State charged Appellee with attempted armed robbery with a deadly weapon (Count I) and robbery with a non-deadly weapon (Count II) for acts that occurred on or about April 8, 2011. In Count II, the State alleged that Appellee carried a BB gun in the course of the robbery.

During Appellee’s trial, Sergeant Brian Pearson was asked whether he was able to determine whether the guli at issue was in fact a handgun, to which he reph'ed, “Well, it was a BB gun is what'it turned out to be.” When asked what it was about the gun that told him that it was not an actual firearm, Pearson replied:

Well, it says, be careful, you know, don’t point it at anybody. But on the tip of it it has got where the red circle used to be as far as to indicate that this is a BB gun. And that’s been removed. Because most BB guns, if you look,' will have a red tip on the end to identify that this is not an actual firearm. It has got a clip area where a magazine or a clip, if you want to say, goes into the grip. And that the chamber is small, BB gun. , .
During his closing arguments, trial counsel argued in part;
The problem is, if you recall, I asked the sergeant, well, where does it say it is a BB gun? He looked at it, kind of flipped it here, turned it to the left, tuped it to the right, He asked permission to look inside it. That was granted. He looked at it with his own hand and it doesn’t say that.
So, in other words, ladies and gentlemen, we don’t know what this- is. • The sergeant is assuming this is a BB gun. But, ladies and gentlemen, in our legal system we don’t assume. These are very serious charges. We don’t assume someone is guilty,...
As you recall, I asked the sergeant, well, where are the BBs? There wasn’t [sic] any BBs in the item. Okay. Well, what about the chamber? You will take this back. You will notice there is no clip here. I said, well, was there one with BBs in it when you found it? No. Did anybody find any BBs anywhere? No.
So the only thing .we’re based on, the only reason why this is called a BB gun, is because the sergeant said it was. We don’t know what this is. Is it a dart gun? Is it a water gun? We don’t know what it is. And just because something is labeled, not a toy, I would submit to you, ladies and gentlemen,, that doesn’t mean anything. In our litigious society almost everything is labeled with a warning because nobody wants .to be sued. That doesn’t make this a weapon,
A nerf dart set, ladies and gentlemen, has a warning to it. I certainly don’t think a , nerf dart set is- considered .a weapon. I would not be persuaded one bit by that.
Ladies and gentlemen, I will agree with Ms, Walters on one thing. Please do not leave your common sense. Obviously, everything that’s labeled as this is,- not a toy, does not mean it is a weapon....
And, again, it is important, ladies and gentlemen, that’s what [Appellee] is charged, with. He is charged with having a weapon. This, ladies and gentlemen, as far as I can tell, it is not a weapon. We don’t know what it is because there is no evidence other than one sergeant saying, yeah, it is a BB gun. Well, where are the BBs? There is no chamber in it. It doesn’t say that. We don’t, know what it is. It is just an object,
. I remember-jotting this, down as Ms. Walters was giving part of her closing. It is not what the witness thinks, but what the object is. The. reason I say that is because if the sergeant or anyone else says, oh, this is a. 9-millimeter Glock, that doesn’t make .this a 9-millimeter Glock. It is not what the witness.thinks it is, it is -what the object is.
This object is plastic, as the sergeant admitted. It has no BBs. It doesn’t even have the red mark, as he pointed out. It is not even chambered. .We don’t know what it does. It is just an object that the robber allegedly had;
And based on essentially an assumption, we have a charge of robbery with a non-deadly weapon. And' I submit - to you, ladies and gentlemen, that simply cannot -stand beyond, and to the exclusion of every reasonable doubt because we don’t know what this is, outside of an opinion.
Now, on page 3 ... a weapon,, quote, unquote, is defined to mean any object that could, be used to cause death. or inflict serious bodily harm. .
Ladies and gentlemen, I don’t believe that object :can cause death’ or inflict serious bodily harm. We have no testimony that it can, first of all_There was no evidence, testimonial or otherwise, that this object could cause death or inflict serious bodily harm.
This exhibit, I believe it is Exhibit 7, which you will have in your deliberation room, the State has painted it to be— well, as a variety of things, but I suppose now it is a BB gun. The problem is we have no evidence outside of the opinion of the sergeant of what it is. No one tested it. It is just a plastic object with markings on it ....

The prosecutor argued in response:

He said it is what it is. That it is not what I think, it is not what the sergeant thinks, it is not what he thinks. Correct. He’s absolutely correct. It is what you think. You are the triers of fact.
So you take this item back, and you take the evidence that is presented in front of you, including the sergeant’s testimony, that he is familiar with BB guns, he is familiar with firearms. This is not a firearm. We have never alleged that it was. But the sergeant said, I am familiar with BB guns and this has every indication to him that it is a BB gun.
And if you believe the sergeant’s testimony, that is enough. That is absolutely enough for you to say, this is a BB gun, and we think it is a weapon, and we’re going to find him guilty. This is enough.

The jury found Appellee guilty as charged on both counts. This Court per curiam affirmed Appellee’s judgment and sentences. See Plummer v. State, 113 So.3d 3, 3 (Fla. 1st DCA 2013).

In his Amended Rule 3.850 Motion for Postconviction Relief, Appellee raised eights claims, only one of which is at issue in this appeal. In Ground 6, Appellee alleged that his trial counsel was ineffective in failing to investigate and make a determination that the alleged BB gun was actually an air pistol only capable of firing rubber darts.

During the evidentiary hearing on Ap-pellee’s claim, postconviction counsel called Josh Wright, a forensic consultant in the area of ballistics, who testified that he reviewed several photos of the gun at issue in this case, as well as the actual gun. When asked if the gun was a firearm, he replied, “It’s what’s referred to as an air-soft gun. An airsoft gun is not a firearm.” When asked to describe an airsoft gun, he replied, “An airsoft gun is, essentially, it’s a toy.... [I]t shoots plastic pellets and it’s used for training exercises with law enforcement and military. And it’s also used kind of like paintball where—and anybody can buy one of these guns and then they can kind of have battles against each other .... ” When asked if he considered the airsoft gun to be a deadly weapon, Wright replied, “It is not a deadly weapon.” When asked what led him to that opinion, he replied, “Just my familiarity with firearms, airsoft guns, the research I did on this particular airsoft gun. And being able to determine how much the projectiles weigh and how many feet per second they’re moving, I can determine that there’s ... they don’t do much damage to bare skin if you’re fired point blank. And so, therefore, it’s not a deadly weapon in my opinion.” When asked if it was a BB gun, he replied, “It is not a BB gun. A BB gun fires steel either pellets ... or copper BBs, whereas a pellet gun can shoot either BBs or lead pellets.” He explained that the airsoft gun shoots plastic pellets with a lighter mass than the projectiles fired from BB guns. When asked if he determined the gun to be a weapon “at all,” he replied, “I determined that it was not a weapon. You can do—you can injure somebody. If you shoot them point blank in the eye, you would probably send them to the hospital. I would also say that there’s some powerful squirt guns that if you take a shot straight in the eye that it would do the same thing.” He described the airsoft gun as a “high end toy” that could not cause death. When asked if it could inflict serious bodily injury, he replied, “Not in my opinion.... [M]aybe if you got shot right in the eye and it was at a pretty close range, say within ten feet, then you could possibly get sent to the hospital. But, you know, besides that or possibly taking one down the windpipe, I don’t think you’re going to be seriously injured by one of these airsoft guns.” Wright testified on cross-examination that “[i]f you took one right on the retina directly on the eye, maybe you would have blindness.” He further testified, “I don’t know of any cases where somebody’s been blinded by an airsoft gun.”

Trial counsel was asked during the evi-dentiary hearing what type of gun was involved in Appellee’s case, to which he replied, “I’m trying to remember this from memory. But I believe it was a—I want to say it was a—not necessarily a BB gun but like an airsoft sort of pellet gun, something of that—something of that nature.” He believed both parties referred to the gun as a BB gun at trial. When asked if there was a difference between an airsoft gun and a BB gun, trial counsel replied in part, “My understanding and, again, that was— I believe understanding on both parties was that this was a—I want to say a pellet or a BB gun and I realize there are differences because of the projectile. One is a BB which is slightly different than what a pellet is. And the reason I say layman’s terms or offhand because I think that was easier for everyone to understand including jurors. I am aware there is a—there are technical differences between the two.”

Following the attorneys’ arguments, the trial court set forth in part:

I think the evidence that could have been presented here about what an air-soft gun is and what an airsoft gun is capable of doing would have benefitted [Appellee] greatly in refuting that aspect of the—the charge against him.
There is a distinction between a BB gun and an airsoft gun. A BB gun can break your skin and cause problems other than in your eye. There is-no evidence here that this gun was pointed at anybody’s eye. So, as I read the definition ... a non-deadly weapon would have to be used in such a way that it could cause death or permanent disfigurement. Used in such a way to cause those things. And if it was pointed at your eye from a foot- and-a-half away, it may qualify as that. But if it’s held at your waist and pointed at the ground I don’t know if it does.
I think that his defense could have benefitted from testimony similar to what I heard today regarding the type— the exact type of object we had here. I want to say weapon but it’s not a weapon, it’s a—I think it is a toy.
I think a jury would have to determine that an airsoft gun—because this was referred to as a, BB gun even under [trial counsel’s] testimony. There’s a distinction there that might make a difference in the eyes of a jury, especially .when you have a.guy that comes up and says, you know, the difference between a BB gun and an airsoft gun is BB guns travel between 600 feet per second and 1200 feet per second and airsoft gun is under 600 feet per second and won’t break your skin and the only way it ever hurts you is if it hits you right in the middle of your pupil ...;
But I think that there is a potential here and there is—I think you have satisfied both prongs under Strickland to convince me that that should be an issue that is put before a jury whether this is indeed a weapon under the statutes. So I do think you have a basis for a new trial on that issue.
I do think that the jury could properly consider whether there was—the problem is the evidence here, if presented in the same fashion, would probably result in a conviction for a robbery but I’m not certain that it would be a robbery -with—with a non-deadly weapon....

In the 'Order Granting Ground VI of Defendant’s 3.850 Motion for Postconviction Relief, the trial court set forth the following with respect to Ground 6:

The Defendant claims that trial counsel rendered ineffective' assistance of counsel for failure to investigate and present evidence that the alleged BB gun was actually an air soft pistol only capable of firing rubber darts at a very slow speed. [Trial counsel] testified during the evidentiary hearing that he and the Assistant State Attorney were aware the gun in evidence, State’s Exhibit 7, was not a “real” firearm. However, [he] also testified that he did not hire or consult with an expert to determine if the gun in evidence was a weapon. The trial record refers to the gun as a BB gun. There was no evidence during the trial to refute this description. Although [trial counsel] made an argument during his closing statements regarding how the gun was defined, stating that “we don’t really know what kind of gun it is[ ]” there was no evidence presented during the trial by trial counsel to describe the gun, although it was in evidence and could have been more accurately described for the jury. In fact, Joshua Wright, a Ballistics expert, testified during the evidentiary hearing that in his expert opinion, the gun was a toy and could not cause death or serious bodily injury. Mr, Wright did acknowledge that if someone were shot directly in.the eye, that may cause some injury to the person’s eye. However, there is nothing in the trial record that indicates the gun was ever used in this manner, or threatened to be used in that manner. . The Court finds the testimony of Mr. Joshua Wright credible, and believes • that such evidence might have been sufficient to persuade a jury that no weapon was used during the robbery. Had such evidence been presented, it may have changed the jury’s verdict, thus demonstrating prejudice to Defendant. The Court finds that the Defendant has met his burden in proving that [trial counsel] was ineffective as to Ground VI,

The trial court ordered that Appellee was entitled to a new trial on Count II. This appeal followed.

In order to establish a successful ineffective assistance of counsel claim, a defendant must show that counsel’s actions or omissions were deficient and that the deficiency so affected the proceeding that confidence in the outcome is undermined. Johnston v. State, 70 So.3d 472, 477 (Fla. 2011) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). When assessing alleged deficiency, a court must determiné whether the identified acts or omissions were outside the wide range of professionally competent assistance. Johnston, 70 So.3d at 477. There is a strong presumption that counsel’s actions were reasonable. Id. “ ‘[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.’” Id. (Citation omitted). “[C]ourts should make ‘every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’” Pennington v. State, 34 So.3d 151, 155 (Fla. 1st DCA 2010) (quoting Evans v. State, 975 So.2d 1035, 1043 (Fla. 2007)). The defendant “ ‘must establish that no competent counsel, would have taken the action that his counsel did take.’ ” Putman v. Head, 268 F.3d 1223, 1243-44 (11th Cir. 2001) (citation • omitted). The prejudice requirement is satisfied if there is a reasonable probability that but for counsel’s unprofessional-errors, the result of the. proceeding would have been different. Id. A reasonable probability-is “one sufficient to undermine this Court’s confidence in the outcome of the trial....” Simmons v. State, 105 So.3d 475, 498 (Fla. 2012). In reviewing a decision of the postconviction court denying claims after an evidentiary hearing, an appellate court reviews the trial court’s findings of fact, credibility of evidence, and weight of the evidence under the competent, substantial evidence standard of review. Reynolds v. State, 99 So.3d 459, 486 (Fla. 2012). A trial court’s application of the law to the facts is reviewed de novo. Id.

Appellee was charged with a violation of section 812.13(2)(b), Florida Statutes, which provides that an offense is a first-degree felony if in the course of committing a robbery, the offender carried a weapon. If no firearm, deadly weapon, or other weapon is used during a robbery, then the offense is a second-degree felony. § 812.13(2)(c), Fla. Stat. The trial court in this case instructed the jury in accordance with the Florida Standard Jury Instructions, which define “weapon” as “any object that could be used to cause death or inflict serious bodily harm.” Fla. Std. Jury Instr. (Crim.) 15.1.

The State argues on appeal with respect to the deficiency prong of Strickland that the trial court improperly employed a hindsight analysis, failed to give deference to trial counsel’s strategic decisions, and failed to make a finding on how trial counsel’s performance fell outside the “wide range standards standard.” According to the State, trial counsel’s testimony, his cross-examination of Sergeant Pearson, and his closing argument demonstrate that his performance was not deficient. The problem with the State’s argument, however, is that while trial counsel may have chosen to undertake a strategy where he would use “layman’s terms,” that strategy led to a situation where the only evidence before the jury about the gun was that it was a BB gun. Rather than investigating and determining what the gun actually was, counsel repeatedly told the jury that no one knew what the plastic item was. Yet, the jury heard testimony from.a law enforcement officer that the item was a BB gun. While counsel testified at the evidentiary hearing that it was “easier” for everyone to understand by simply using layman’s terms, Mr. Wright testified during the evidentiary hearing that, a BB gun is not the same thing as an airsoft gun. Thus, this was not a situation where Sergeant Pearson simply used another name for what the. item was. Instead, he testified that it was an item that, according to the ballistics expert, it was not. Had an expert been called, the jury would have heard that the gun, contrary, to what Sergeant Pearson testified to, was not a BB gun. Moreover, while trial counsel testified that he did not think the technical issue concerning the gun was an issue that was necessary to . address, he spent a considerable amount of time during closing arguments discussing the nature of the gun and whether , it could be considered a weapon. Although trial counsel is correct that it was a jury question as to whether the gun was a weapon, the jury did not havé all of the information before it necessary to make that determination because of the defense’s failure to investigate the gun at issue. - '

The State alternatively contends that even if it could be said that trial counsel’s performance. was deficient, the trial court erred in determining that the deficiency prejudiced Appellee. According to the State, trial counsel made a strong argument, without Wright’s testimony, that the gun did not qualify as a weapon. However, as we stated, the jury heard testimony from a law enforcement officer that the gun was, in fact, a BB gun. There was no conflicting evidence on that point. Had Mr. Wright or another expert testified on behalf of the defense that the gun was an airsoft gun and explained, as Mr. Wright did, the nature of that item and the difference between it and other guns, the jury, as the trial court found, may have determined that the item was not a weapon. While the dissent relies upon Mr. Wright’s testimony that the airsoft gun could injure someone’s eye in support of the conclusion that Appellee failed to demonstrate prejudice, Wright also testified that, in his opinion, the airsoft gun was “not a weapon,” and he likened the potential injury that the “high end to/’ could cause to that of a powerful squirt gun. He also testified that he knew of no cases where someone had been blinded by an airsoft gun. Given such, we are unable to determine, as does the dissent, that no prejudice has been shown in this case. As did the trial court, we conclude that Appel-lee has demonstrated prejudice given that our confidence in the outcome of the trial has been undermined - by trial ■ counsel’s deficient performance. We, therefore, affirm the order on appeal.

AFFIRMED.

ROBERTS, J., SPECIALLY CONCURS WITH OPINION; WINSOR, J., DISSENTS WITH OPINION.

ROBERTS, J.,

specially concurring.

It is well known to mothers and teachers that “BB guns are dangerous. You’ll shoot your eye out.” A BB gun is a gun that relies on either á spring or compressed gas to propel a .177 caliber' (4.5 millimeter) steel sphere out the barrel and downrange to the target. The BBs weigh one-third of a gram and have muzzle velocities between 350 and 600 feet per second. At these velocities, the relatively dense BB can easily penetrate an eyeball and has been known to penetrate some victims’ skulls producing brain injury or even death.

This airsoft gun, on the other hand, fired a six millimeter (.243 caliber) plastic projectile “anywhere between 290 and 315 feet per second.” These projectiles are typically less than one-fourth of a gram. The lighter weight, lower velocity, and larger size of the airsoft projectiles consequently have much less striking and penetrating power than a BB fired from a BB gun.

Other than welts on the skin, the only serious injuries ever reported for airsoft guns are eye injuries. Most of these eye injuries are non-penetrating and usually result in full recovery; however,, penetration with loss of eyesight has occurred.

The jury was required to determine whether the gun used in this case was a weapon as defined in the Florida Standard Jury Instruction. Dale v. State, 703 So.2d 1045, 1046 n.1 (Fla. 1997). A weapon is defined as “any object that could be used to cause death or inflict serious bodily harm.” Id. at 1047; Fla. Std. Jury Instr. (Crim.) 15.1. Defense counsel’s failure to determine that the gun used in this crime was an airsoft gun rather than a BB gun and to present that information to the jury was deficient. Given the significant difference in energy and wounding potential between a BB gun and an airsoft gun, it is likely that the jury would have reached a different result. If counsel had thoroughly investigated the weapon used, he may have been able to effectively bring out these differences through cross-examination and show that the weapon was not being used in a way that would inflict serious bodily harm.

WINSOR, J.,

dissenting.

Even if the court were correct—even if any competent attorney would have rounded up an expert to say Plummer’s “weapon” was not a BB gun but an airsoft pistol—we should reverse. Deficient performance gets you only halfway there. Plummer had to also show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and he didn’t.

I.

A jury convicted Plummer of robbing a Circle K with a weapon. At trial, the State presented the “weapon,” which a police officer testified was a BB gun. Plummer’s trial attorney challenged this testimony, extensively cross-examining the officer and arguing to the jury that the officer was simply making an assumption. In closing, counsel argued that “[w]e don’t know what this is. Is it a dart gun? Is it a water gun? We don’t know what it is.”

The court instructed the jury that a “weapon” was “any object that could be used to cause death or inflict serious bodily harm.” See also Fla. Std. Jury Instr. (Crim.) 15.1. Plummer argued the gun didn’t meet this definition, the State argued it did, and the jury sided with the State.

Plummer then filed a postconviction motion, claiming (among other things) that counsel should have investigated whether the gun was in fact a BB gun. At the postconviction hearing, Plummer’s ballistics expert said the pistol was not a BB gun but an airsoft gun, essentially a toy. The expert explained that the gun shoots plastic pellets, unlike BB guns, which shoot metal projectiles (otherwise known as BBs). He opined that the gun was not a weapon and would not likely cause serious injury. But he then acknowledged “maybe if you got shot right in the eye and it was at a pretty close range, say within ten feet, then you could possibly get sent to the hospital.” Similarly, he said that “[ijf you took one right on the retina directly on the eye, maybe you would have blindness.” At the same evidentiary hearing, Plummer’s trial attorney testified that he did not think an expert was - necessary; he believed the jury could decide whether the gun was a “weapon” as defined in the jury instructions.

The lower court found that evidence that the “weapon” was an airsoft pistol and not a BB gun might have been enough to persuade the jury that Plummer did not carry a “weapon” when he robbed the Circle K. The court concluded Plummer had'met his Strickland burden, and it ordered a new trial. This court reaches the samé wrong conclusion.

II.

To show sufficient prejudice, Plummer had to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. As already noted, Plummer’s own expert testified that an airsoft gun could cause permanent injury: he acknowledged that it could cause blindness or other hospital-worthy injuries. Even if counsel were deficient for not finding someone to offer that very opinion, we should not say there is a reasonable probability that the verdict would have, been different. In other words, we should not say there, is a reasonable probability that the jury would have found the gun could not inflict serious bodily harm after hearing Plummer’s own expert admit the gun could inflict serious bodily harm. Because Plummer failed Strickland’s prejudice prong, we should reverse.

      . A Christmas Story (MGM/UA Entertainment Co. 1983).

      . Wikipedia, http://en.wikipedia.org/wiki/BB_ gun (last visited Aug. 2, 2017).

      . Id.

      . See BB and Pellet Gun-Related Injuries— U.S., June 1992-May 1994, Morbidity and Mortality Weekly Report (December 15, 1995) http://www.cdc.gov/mmwr/preview/ mmwrhtml/00039773.htm (sixteen year old sustained a severe midbrain injury after shooting the BB through the roof of his mouth); Boy, 10, dies after his brother accidentally shoots him in the head with a BB gun at close range; Daily Mail Reporter (March 21, 2013, 5:31 PM) http://www.dailymail.co.ult/ news/article-2297127/Boy-10-dies-brother accidentally-shot-head-BB-gun.html (boy dies after being shot from six inches away, above his right ear, which penetrated his skull).

      . This was testified to by Josh Wright.

      . Wikipedia, https://en.wildpedia.org/wiki/ Airsofi—pellets (last visited August 3, 2017).

      . Tarek A. Shazly, MD, & A. K. Al-Hussaini, MD, Pediatric Ocular Injuries From Airsoft Toy Guns, 49 J. of Pediatric Ophthalmology & Strabismus 54, 54-57 (2012) (review of ocular injuries to children from airsoft guns).

      . Florida’s robbery statute enhances the offense degree when the offender "carried a weapon,” but the statute does not define what qualifies as a weapon. § 812.13 (2)(b), Fla. Stat. (2010). Plummer does not challenge the instruction on what constitutes a "weapon” for these purposes, and the supreme court has called the definition used here "a correct statement of the law,” Dale v. State, 703 So.2d 1045, 1046 (Fla. 1997).

      . As the jury heard, the gun said right on it: "Not a toy, 6-millimeter caliber model. Wear eye protection to prevent serious injury to the eyes.”

      . Although we should limit our review to the record, it is noteworthy that the expert’s acknowledgment is consistent with the wide-ranging, extra-record materials the special concurrence marshaled. See Concurring Op. of Roberts, J., at 2 & n.7 (noting that airsoft guns have caused “penetration with loss of eyesight" (citing Tarek A. Shdzly, MD, & A. K. Al-Hussaini, MD, Pediatric Ocular Injuries From Airsoft Toy Guns, 49 J. of Pediatric Ophthalmology & Strabismus 54, 54-57 (2012))), ’


author: OSTERHAUS, J.

text:
    Brenda L. MORRIS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-552
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.

      Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Holly N. Simcox, Assistant Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   OSTERHAUS, J.

Teacher’s aide Brenda L. Morris appeals her misdemeanor battery conviction arising from the discipline of a combative young student outside a pre-kindergarten classroom in Pensacola. We reverse because the jury acquitted Ms. Morris" of child abuse, and it wasn’t" otherwise a crime for Ms. Morris to have non-abusively touched the student during this incident.

I.

In March 2016, an ESE teacher at -Lincoln Park Elementary School could, not get a combative four-year-old student to stop acting out. The student stood on top of a table inside the classroom, kicked, spat, threw blows, and called the teacher the “B word.” The teacher asked Ms. Morris for help. Ms. Morris was a- 68-year-old teacher’s aide who’d been at the school- for a couple years and had a history of working with troubled, youth. She responded to the teacher’s request for help by escorting the young student out, of the classroom into the hallway to talk to him and calm him down. See § 1003.32(l)(c), Fla. Stat. (authorizing school, staff, to remove- ‘Violent, abusive, uncontrollable, or disruptive students” from the. .classroom for behavior management intervention). After a minute in the hallway, the student proceeded to spit and kick at Ms. Morris, who reacted by slapping her hand down toward his face and catching his leg, causing him to fall down. According to Ms. Morris, any contact with the student was to block him from spitting on her and to block his kick. After the,student’s fall, he and Ms. Morris remained in the hallway for another minute before going back into the classroom. There was no evidence of any injury to the student.'

Meanwhile, another teacher’s aide at the school passed by during the incident, and peered from around a corner to see what was going on. From her vantage point behind Ms. Morris’s back, she testified to seeing Ms. Morris “slap” the student’s face and pull his leg. She reported the incident to a school guidance counselor and to the principal. She also wrote up an incident statement and called the Florida Department of Children and Families to report it. By the time the principal responded to the scene, Ms. Morris and the student were back in the classroom, with the student working at a computer and “happy.”

The State proceeded to press two child abuse charges against Ms. Morris based on the alleged slap and leg-grab in the hallway. The case went to trial where the court included lesser-included battery offenses for both child abuse counts and the State argued that Ms. Morris committed “an intentional touching that went against the will of the child [at] a very minimum.” Ms. Morris moved for a judgment of acquittal during the trial (and post-verdict) on the basis that she was acting in the role of a teacher and couldn’t be convicted of child abuse or battery under these circumstances. The trial court first reserved ruling upon her JOA motion, but ultimately denied it. The jury returned a verdict rejecting the two child abuse counts charged by the State, but convicting Ms. Morris of one count of lesser-included simple battery for intentionally touching or striking the student against his will on the face. Ms. Morris ultimately appealed her misdemeanor battery conviction.

II.

“A trial court’s denial of a motion for judgment of acquittal is reviewed de novo.” Perez v. State, 187 So.3d 1279, 1281 (Fla. 1st DCA 2016). In this case, we agree with Ms. Morris that her conviction must be reversed. The jury acquitted Ms. Morris of both of the charged child abuse offenses, rejecting the State’s argument that she struck the student in the face or grabbed his leg in a manner “that could reasonably be expected to result in a physical or mental injury to a child.” See § 827.03(1)(b)(2), Fla. Stat. And having committed no act of child abuse, Ms. Morris’s conviction cannot stand simply on the basis of the jury’s decision that she intentionally touched the student against his will. See § 784.03, Fla. Stat. (defining simple battery as when a person “actually and intentionally touches or strikes another person against the will of the other; or [i]ntentionally causes bodily harm”).

Teaching personnel stand in loco parentis, “in the place of a parent,” with respect to students in their classrooms who they must supervise and control. State v. Lanier, 979 So.2d 365, 369 (Fla. 4th DCA 2008) (citing State v. D.T.W., 425 So.2d 1383, 1386 (Fla. 1st DCA 1983)). They owe “a general duty of supervision to the students placed within [their] care ... based on the school employee standing partially in place of the student’s parents ... [and are responsible] to protect children during school activity.” Rupp v. Bryant, 417 So.2d 658, 666 (Fla. 1982). This parent-like role encompasses authority to discipline children who display combative behavior of the sort that occurred in this case.

Parents in Florida may discipline their childien using reasonable physical punishments. G.C. v. R.S., 71 So.3d 164, 166 (Fla. 1st DCA 2011) (citing Raford v. State, 828 So.2d 1012, 1015, n. 5 (Fla. 2002)) (finding a spanking to constitute “reasonable parental discipline”); A.A. v. Dep’t of Children & Families, 908 So.2d 585, 587 (Fla. 5th DCA 2005) (recognizing that parents may administer corporal discipline); Kama v. State, 507 So.2d 154, 156 (Fla. 1st DCA 1987) (“Although a person who spanks a child technically commits a battery .. . a parent, or one acting in loco parentis, does not commit a crime by inflicting corporal punishment on a child subject to his authority, if he remains within the legal limits of the exercise of that authority.”) (partly superseded by statute on other grounds, as acknowledged in Raford v. State, 828 So.2d 1012, 1020 (Fla. 2002)). See also § 39.01(2), Fla. Stat. (drawing a distinction between non-abusive corporal discipline and child abuse); § 984.03(2), Fla. Stat. (same). Just as.parents are privileged to administer corporal discipline to their children and touch them non-abusively against their will, “the law permits, by privilege, a simple battery in the administration of discipline by [other persons with] authority over a child.” Kama, 507 So.2d at 158. This parental corporal discipline privilege extends specifically to teachers and school personnel acting in loco parentis, negating their potential liability for committing simple battery. See Lanier, 979 So.2d at 368 (affirming the dismissal of charges against a teacher who stomped on a four-year-old’s foot in response to that student’s having stomped on another child’s foot); King v. State, 903 So.2d 954 (Fla. 2d DCA 2005) (reversing a conviction where a child received a school-administered spanking with a wooden paddle that left welts and bruises). See also § 1003.32(1)(k), Fla. Stat. (authorizing schools to -administer corporal discipline).

The legal privilege of teachers to chastise students under their care controls the outcome in this case. Here, even if Ms. Morris’s actions in the hallway did not stem from defending herself against being struck with the student’s spittle and kick, they were privileged acts. She had supervisory responsibility for the student’s care and discipline at the time of the incident and was acting in the place of the child’s parent. In other words, she had “the right ‘to moderately chastise for correction [the] child under ... her control and authority,’” which included touching him in the non-abusive manner that she did. Lanier, 979 So.2d at 369 (quoting Raford, 828 So.2d at 1015 n.5). Under these circumstances, Ms. Morris’s motion for judgment of acquittal should have been granted.

Finally, we reject the State’s contention that Ms. Morris’s judgment of acquittal motions failed to sufficiently.preserve the parental privilege argument for appeal. In JOA motions asserted after the State rested its case and post-trial, Ms. Moms argued for acquittal based upon her role as a teacher and cited the same Lanier and King cases that we rely upon here. Moreover, the record doesn’t support the State’s argument that Ms, Morris waived the right to assert a parental discipline privilege by requesting inclusion of .the lesser-included battery offenses herself. See Nixon v. State, 773 So.2d 1213, 1215 (Fla. 1st DCA 2000). Nor did Ms. Morris affirmatively rely, on the inclusion of the lesser-included offenses as a trial strategy, or encourage the use of the jury’s pardon power via the lesser-included offenses. See State v. Espinosa, 686 So.2d 1345, 1348-49 (Fla. 1996).

For these reasons, Ms. Morris’s battery conviction is REVERSED and REMANDED with directions to enter a judgment of acquittal.

ROBERTS and M.K. THOMAS, JJ., CONCUR.

      . In the course of ruling on the motions, the trial court reviewed a choppy hall video of the incident and considered the JOA motion a close call due to the nature of the alleged "slap”:
      [FJrom what I could see, I mean, there wasn't a slap in the conventional sense. When I read the arrest report, I assumed it was going to be a conventional slap. But from the video ... there was an upward hand.
      Ms. Morris' hand goes down. It could have struck the top of his head. You can’t really tell from the video. His head doesn’t like, physically react, like from a strong downward force. ... So assuming that the hand slapped, tapped, whatever the head [it was] a force insufficient to cause the head to jerk or move around.
      The court also struggled with the completeness of the eyewitness’s description of the alleged slap:
      [W]e have the testimony of the teacher or teacher’s aide who said [the student] was slapped. She didn't go into any details, kind of conclusory. So it didn’t really with specificity, describe the slap. So the evidence is not extremely strong .... ”

      . This opinion does not speak to whether Ms. Morris’s actions violated the state’s education code, school board policies, or some other school standard. Those are separate issues that do not bear directly upon whether she was rightfully convicted for violating Florida's criminal law. See Lanier, 979 So.2d at 368-69 (warning against conflating Florida's criminal code with education code-related discipline polices).


author: WINOKUR, J.

text:
    Leslie Richard HENDRIX, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2924
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.

      Andy Thomas, Public Defender, and Steven L. Seliger,. Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Leslie Richard Hendrix appeals the judgment and sentence imposed after pleading guilty to felony battery. He argues that the trial court failed to follow the proper competency procedures and failed to enter a written’ order finding him competent to proceed before permitting'him to enter a guilty plea. We remand for the trial ’ court to enter a written order of competency nunc pro nunc, but otherwise affirm.

Three experts, Drs. Doenlen, Benson, and Gilgun, evaluated Hendrix’s competency to proceed. Dr. Benson and Dr. Gilgun found Hendrix competent to proceed. On May 4, 2016, the trial court accepted Hendrix’s open plea to felony battery. At the outset of Hendrix’s sentencing hearing on June 16, 2016, the trial court stated the following:

Before we proceed, I realized when I was preparing for sentencing that I did not specifically state on the record at the time I accepted [Hendrix’s] plea that there have been evaluations completed by both Dr. Gilgun and Dr. Benson. The Court has read them and both" doctors find [Hendrix] competent.
. I do find based upon the information in the reports that, their opinions are based on competent,, substantial evidence. So the Court does find that [Appellant] is competent and was competent at the time' that I accepted his plea.

The trial court asked defense counsel, “Anything else on that issue?” and defense counsel replied, “No,. judge.” The trial court did not enter a written order adjudicating Hendrix competent. Hendrix was then sentenced to five years imprisonment.

Hendrix’s challenge to the adequacy of the competency procedures is raised for the first time on appeal, and is subject to review for fundamental error. See Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014). Error is fundamental if it “goes to the foundation of a case” and amounts to a denial of due process. D’Oleo-Valdez v. State, 531 So.2d 1347, 1348 (Fla. 1988).

.Under Florida Rule of Criminal Procedure 3.210, “[o]nce a defendant. is declared incompetent, no material stage of a criminal prosecution, including entry of a plea and sentencing, may proceed.” Lewis v. State, 190 So.3d 208, 209 (Fla. 1st DCA 2016). Once the court has reasonable grounds to question the defendant’s competency, the court has no choice but to conduct a hearing. Brooks v. State, 180 So.3d 1094, 1096 (Fla. 1st DCA 2015) (quoting Cotton v. State, 177 So.3d 666, 668 (Fla. 1st DCA 2015)). The trial court is required to make an independent determination that the defendant is competent to proceed, and cannot rely on a stipulation of the defendant or his counsel that defendant is competent to proceed. Dougherty, 149 So.3d at 678. The trial court’s order must also be reduced to writing. Fla. R. Crim. P. 3.212(b); Mullens v. State, 197 So.3d 16, 37-38 (Fla. 2016).

“ ‘[W]here the parties and the judge agree, the trial Court may decide the issue of competency on the basis of the written reports alone.’” Dougherty, 149 So.3d at 677-78 (quoting Fowler v. State, 255 So.2d 513, 515 (Fla. 1971)). However, “reports of experts are ‘merely advisory to the [trial court], which itself retains the responsibility of the decision.’ ” Hunter v. State, 660 So.2d 244, 247 (Fla. 1995) (quoting Muhammad v. State, 494 So.2d 969, 973 (Fla. 1986)). “[W]hen the experts’ reports or testimony conflict regarding competency to proceed, it is the trial court’s responsibility to consider all the relevant evidence and resolve such factual disputes.” Alston v. State, 894 So.2d 46, 54 (Fla. 2004).

The trial court cannot accept a stipulation of competency. Dougherty, 149 So.3d at 678. “The parties may stipulate to deciding competency based on the written expert reports rather than live expert testimony, but the defendant and the other parties may not stipulate to competency itself, particularly when the defendant was previously adjudicated incompetent, as the trial court must make an independent determination on the issue.” Rumph v. State, 217 So.3d 1092, 1095 (Fla. 5th DCA 2017). However, a new trial “is required only if the trial court is unable to conduct a nunc pro tunc evaluation of the defendant’s competency at the time of the original trial or hearing.” Reynolds v. State, 177 So.3d 296, 298 (Fla. 1st DCA 2015).

Hendrix argues that the trial court could not rely on the reports of Dr. Gilgun and Dr. Benson because they were nevér admitted into evidence. His failure to object to the court’s consideration of the reports, Hendrix argues, does not bar relief because Hendrix’s counsel could not stipulate to his competency. We disagree. Hendrix is correct that he has a right to a competency détermination that cannot be defeated by his failure to object to a lack of a hearing. See e.g. Deferrell v. State, 199 So.3d 1056, 1061 (Fla. 4th DCA 2016). But this right does not relieve him of the responsibility to make evidentiary objections relating to the competency determination. As long as the trial court held a competency hearing, and made an independent determination of competency, the lack of a proper foundation for the consideration of the reports is not fundamental error. The trial court gave Hendrix a specific opportunity to challenge its nunc pro tunc competency determination, and Hendrix declined.

We find that the trial court properly determined that Hendrix was competent. See e.g. Merriell v. State, 169 So.3d 1287, 1288 (Fla. 1st DCA 2015) (holding that competency hearing was sufficient where the issue was raised at a status hearing, the court noted that it had reviewed the evaluation, and the court specifically stated that the defendant was competent to proceed). We affirm Hendrix’s judgment and sentence, but remand for the trial court to enter an order nunc pro tunc finding him competent to enter a guilty plea.

Affirmed and remanded with instructions.

ROBERTS and M.K. THOMAS, JJ., CONCUR.


author: CASANUEVA, Judge.

text:
    Mynor MATIAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-971
    District Court of Appeal of Florida, Second District.
    Opinion filed October 11, 2017
    Howard L. Dimmig, II, Public Defender, and Márie-Louise Samuels. Parmer, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Mynor Mafias appeals' his judgments and sentences for sexual battery on a person less than twelve years old, attempted sexual battery on a person less than twelve years old, and lewd molestation. We affirm his judgments and sentences but remand his case with instructions to the trial court to amend the sentencing documents to provide that Mr. Mafias is entitled to judicial review of his sentences after he has served twenty years in prison.

Mr. Matías, who was a juvenile when thé offenses were committed, was sentenced to thirty years in prison followed by ten years of probation for the sexual battery, which is a life felony, see § 794.011, Fla. Stat. (2003), twenty years in prison followed by ten years of probation for the attempted sexual battery, a first-degree felony, see § 794.011, and fifteen years of probation for the lewd molestation, .a second-degree felony, see § 800.04, Fla. Stat. (2003). The prison sentences were ordered to run consecutive, totaling fifty years in prison. . .

We find merit only in Mr. Matias’s argument that the trial court should have specified in Mr. Matias’s sentencing documents that he was entitled to judicial review of his sentences after twenty years. Section 775.082(3)(c), Florida Statutes (2017), provides that “[a] person who is sentenced to a term of imprisonment of more than 20 years is entitled to a review of his or her sentence in. accordance with s. 921.1402(2)(d)” if the offense was committed before the defendant was eighteen years old. In Kelsey v. State, 206 So.3d 5, 8 (Fla. 2016), the Florida Supreme Court also recognized that “all juvenile offenders whos,e sentences meet the standard defined by the Legislature in chapter. 2014-220, a sentence longer than twenty years, are entitled to judicial review.”

In the present case, the trial court correctly found that Mr. Matías will be entitled to review of his sentences because the sentences exceed twenty years in prison: “The Court further finds -that [t]he Defendant is entitled to judicial review of his sentence pursuant to Fla. Stat. 921.1402.” Nonetheless, the trial court found that it was not required to delineate the right to such review in a -written order, noting that section 921.1402(3), Florida Statutes (2016), “states that the Department of Corrections shall notify the juvenile offender of his or her eligibility to request a sentence review hearing 18 months before the juvenile offender is entitled to a sentence review hearing. It is then up to the juvenile offender to submit an application to the court.”

We agree with the trial court that it usually may be unnecessary for a court to include language in a sentencing document providing for the right to judicial review of a sentence, as subsection (4) provides that the offender initiates the sentence review by submitting an application to the trial court requesting that a sentence review hearing be held. After receiving this application, it is mandatory for a trial court to conduct the review. § 921.1402(6).

However, as noted by Mr. Matías, the problem in the present case is that section 921.1402(1) specifically provides that it applies only to offenses that were committed after July 1, 2014, and, Mr. Matias’s offenses were committed in 2002 and 2003. Therefore, based on a strict reading of section 921.1402, Mr. Matías may not receive a judicial review of his sentence if his right to such, is not specifically noted in his sentences.

To ensure that Mr. Matias’s sentences comply with the dictates of section 775.082(3)(c) and Kelsey, we remand with directions to the trial court to amend'the sentencing documents to provide that Mr. Matías is entitled to a judicial review hearing pursuant to section 921.1402 after Mr. Matías has served twenty years, in prisón.

Accordingly, we affirm Mr. Matias’s judgments' and sentences and remand the case to the trial court with directions to amend the sentencing documents to provide that Mr. Matías has a fight to seek judicial review of the sentences after he has served twenty years in prison.

Affirmed; remanded with directions.

LUCAS and BADALAMENTI, JJ., Concur.

      . We do not find merit in Mr. Matias’s challenge to the length of his sentence. As the Florida Supreme Court held in Kelsey v. State, 206 So.3d 5, 11 (Fla. 2016), a sentence of forty-five years in prison "was unconstitutional not because of the length of his sentence, but because it did not provide [the appellant] a meaningful opportunity for early release based on maturation and rehabilitation.’’

      . Because the issue on appeal involves a purely legal question, the appropriate, standard of review is de novo. Kelsey, 206 So.3d at 8.


author: PER CURIAM.

text:
    Christina PAYLAN, Appellant, v. Darrell DIRKS, Christine Brown, and Mark Ober, Appellees.
    Case Nos. 2D15-2962, 2D15-4972
    District Court of Appeal of Florida, Second District.
    Opinion filed October 11, 2017.
    Christina Paylan, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, Diana R. Esposito and Katelyn B. Wright, Assistant Attorneys General, Tampa, for Appellees.
   PER CURIAM.

Christina Paylan appeals the dismissal with prejudice of her first amended and second amended complaints against State Attorney (SA) Mark Ober and Assistant State Attorneys (ASAs) Darrell Dirks and Christine Brown. The complaints arise out of the State Attorney’s Office’s investigation and prosecution of Paylan for narcotics violations.

After a de hovo review and the benefit of oral argument, we affirm without comment the trial court’s dismissal with prejudice of-Counts III (intentional infliction of emotional distress), IV (negative entrustment and hiring), V (malicious prosecution), and VI (abuse of process) of the first amended complaint; Counts II (42 U.S.C. § 1983/Fifth and Fourteenth Amendments), III (42 U.S.C. § 1983/negligent supervision and failure to train), V (defamation), and VI (defamation by implication) of the second amended complaint; and all other claims against SA Ober.

Although we affirm the trial court’s dismissal with prejudice of Counts I (42 U.S.C. § 1983/Fourth Amendment) and IV (tortious interference with a business relationship) of the second amended complaint as they pertain to SA Ober,. we reverse the dismissal of those counts as they pertain to ASAs Dirks and Brown, individually. Paylan sufficiently alleged deprivation of her civil rights under the Fourth Amendment and tortious interference with her business relationships. Although she did not sufficiently attribute specific improper conduct to a specific ASA in every instance, she did raise some specific allegations against both ASA Dirks and ASA Brown. Thus, the trial court abused its discretion in determining that allowing Paylan to amend her claims would be futile and dismissing Counts I and IV against ASAs Dirks and Brown without leave to amend. See Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998) (“A dismissal with prejudice should not be ordered without giving the party offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action.”); cf. Gerentine v. Coastal Sec. Sys., 529 So.2d 1191, 1194 (Fla. 5th DCA 1988) (“Because the second amended complaint did not provide short and plain statements of the ultimate facts as required by the rules of pleading, the court correctly dismissed it. However, because a cause of action can be gleaned from said second amended complaint, the court should have permitted the plaintiffs another opportunity to amend it .... ”).

Moreover, Paylan’s allegations against the ASAs in their individual capacities fall within Florida’s limited waiver of sovereign immunity, see § 768.28(9)(a), Fla. Stat. (2010), and the face of her complaint does not. otherwise conclusively establish that the ASAs are entitled either to sovereign immunity or to qualified immunity. See Peak v. Outward Bound, Inc., 57 So.3d 997, 999 (Fla. 2d DCA 2011) (“Sovereign immunity generally is an affirmative defense that may justify granting a motion to dismiss only when the complaint itself conclusively establishes its applicability.” (quoting Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 590 (Fla. 2d DCA 2003))); Becker v. Clark, 722 So.2d 232, 233 (Fla. 2d DCA 1998) (“On a motion to dismiss based on a qualified immunity defense, a trial court must examine the complaint to determine whether the allegations themselves reveal the existence of the qualified immunity defense; that is, whether, under the most favorable version of facts alleged, the defendant’s action violated clearly established law.”); Town of Southwest Ranches v. Kalam, 980 So.2d 1121, 1122 (Fla. 4th DCA 2008) (“[A] qualified immunity defense may be resolved on a motion to dismiss where ... the facts supporting the defense are clear from the complaint.”).

Therefore,'the trial court erred in dismissing with prejudice Counts I and IV as to ASAs Dirks and Brown. On remand, Paylan must be given the opportunity to amend Counts I and IV to clearly identify the particular defendant to which she attributes a particular improper act.

Affirmed in part; reversed in part; remanded with instructions.

NORTHCUTT, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Don Earle MORGAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-342
    District Court of Appeal of Florida, Second District.
    Opinion filed October 13, 2017
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Don Earle Morgan appeals his convictions and sentences for one count of criminal mischief in violation of section 806.13(1)(b)(1), Florida Statutes (2014), and one count of burglary of a dwelling in violation of section 810.02(3)(a). The written judgment improperly identifies the criminal mischief as a first-degree misdemeanor, rather than a second-degree misdemeanor. Accordingly, we remand with instructions for the trial court to correct that scrivener’s error in the written judgment. See Jackson v. State, 192 So.3d 649 (Fla. 2d DCA 2016); Riley v. State, 622 So.2d 94 (Fla. 2d DCA 1993); Culbertson v. State, 547 So.2d 725 (Fla. 2d DCA 1989). We affirm Mr. Morgan’s convictions and sentences in all other respects.

Affirmed; remanded with instruction to correct scrivener’s error.

LaROSE, C.J., and CRENSHAW and LUCAS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Ciera Monique ALLEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-910
    District Court of Appeal of Florida, Second District.
    Opinion filed October 18, 2017
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SILBERMAN, Judge.

In this Anders appeal, we affirm the revocation of Ciera Monique Allen’s drug offender probation and resulting sentence for possession of hydrocodone. We remand only for the trial court to correct the revocation order to conform to the trial court’s oral pronouncement. See Jones v. State, 221 So.3d 736, 736 (Fla. 2d DCA 2017); Symes v. State, 193 So.3d 1067, 1067 (Fla. 2d DCA 2016).

An amended affidavit of violation of probation (VOP) was filed in January 2017 that alleged one violation of condition 2, two violations of condition 7, two violations of special condition 3, one violation' of special condition 7, and one violation of special condition 8. At the revocation hearing, the trial court stated that it would delete the violation of special condition 7, and Allen then admitted to violating the conditions in the amended VOP affidavit. But the written revocation order states that Allen admitted all conditions stated in the January 2017 amended VOP affidavit. Therefore, we remand for the trial court to correct the revocation order to indicate that Allen did not admit to a violation of special condition 7.

Affirmed and remanded.

LaROSE, C.J., and MORRIS, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS as Trustee FOR RALI 2005QA8, Appellant, v. Becki Ruth MAAS and Ryan David Maas, Appellees.
    Case No. 2D15-898
    District Court of Appeal of Florida, Second District.
    October 18, 2017
   BY ORDER OF THE COURT:

Appellees seek rehearing or clarification of our decision dated July 14, 2017. We deny rehearing but grant- clarification. The prior opinion is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

Attachment

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE FOR RALI 2005QA8, Appellant,

v.

BECKI RUTH MAAS and RYAN DAVID MAAS, Appellees.

Case No. 2D15-898

Opinion filed October 18,2017.

Appeal from the Circuit Court for Pasco County; W. Douglas Baird, Judge.'

Jeremy W: Harris and David F. Knobel of Morris, Laing, Evans, Brock & Kennedy, Chartered, West Palm Beach, for Appellant.

Michael Alex Wasylik of Ricardo & Wasy-lik, PL, Dade City, for Appellees.

KELLY, Judge.'

Deutsche Bank Trust Company Americas appeals from the final order involuntarily dismissing its foreclosure complaint against Becki and Ryan Maas on the ground that the Bank’s attorney failed to appear at a hearing. Because the trial court abused its discretion in denying the attorney’s motion for reconsideration based on excushble neglect and its motion for relief from admissions, we reverse.

The involuntary dismissal was predicated on technical admissions resulting from the Bank’s failure to timely respond to requests for admissions. Pursuant to Florida Rule of Civil Procedure 1.370(b),- the Bank filed a verified motion seeking relief from the admissions, and it scheduled the matter for a hearing. The Bank’s attorney, who was scheduled to appear telephonically, did not telephone at the designated time, although a court reporter that the Maases’ counsel thought was sent by the Bank did appear. Nevertheless, when the trial judge asked how he wanted to proceed, the Maases’ counsel asked the court to “dismiss” the motion without giving the Bank an opportunity to be heard. The judge obliged, and he denied the motion.

On receiving the order denying its motion based on its failure to appear at the hearing, the Bank promptly moved for re consideration citing excusable neglect. Its motion was supported by the affidavit of the attorney who had been' tasked' with covering the hearing. In it she explained her failure to appear was due to an error on the part of her firm?s scheduling department. She explainéd that she had been sick, that she had advised the scheduler of Her illness, that she had asked not to be scheduled,- and that she had not been notified that she had nevertheless been assigned to cover the hearing. The trial court denied the motion -for reconsideration saying the affidavit was inadequate to show excusable neglect. At trial, the court again refused to grant relief from 'the admissions, and it also refused to allow the Bank to put on evidence, or even proffer the evidence, that would have established its entitlement to foreclose. The Masses’ counsel sought and was granted an involuntary dismissal.

The trial court erred in two respects. First, it should have granted the Bank’s motion for reconsideration. The Bank provided a sworn, affidavit establishing that its attorney’s failure to appear, at the motion hearing was inadvertent. This type of mistake has routinely been found to amount to excusable neglect, and it was error for the trial court to find otherwise. See Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985) (“[Wjhere inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, -then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted' to be heard on the merits.”).

Further, the trial court abused its discretion in refusing the Bank’s request for relief from the technical admissions. Reflecting Florida courts’ longstanding preference to decide cases on the merits, this court and others have repeatedly held that relief from technical admissions is to be liberally granted. See, e.g., Wells Fargo Bank, Nat’l Ass’n v. Voorhees, 194 So.3d 448, 451 (Fla. 2d DCA 2016); Pennymac Corp. v. Labeau, 180 So.3d 1216, 1219 (Fla. 3d DCA 2015); Habib v. Maison Du Vin Francais, Inc., 528 So.2d 553, 553 (Fla. 4th DCA 1988). Where the record before the court contradicts the admissions and the opposing party has not shown it will be prejudiced by the withdrawal of the admissions, we have held it is an abuse of discretion for the trial court to deny relief. Voorhees, 194 So.3d at 451.

Here, the Bank’s technical admissions were contradicted by the record, and the Maases did not demonstrate any prejudice to their ability to defend the foreclosure action. See Fla. R. Civ. P. 1.370(b) (“[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.”). Under these circumstances, the Bank should have been afforded relief from the admissions.

Accordingly, we reverse the order dismissing the Bank’s complaint and remand for further proceedings consistent with this opinion.

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.