State v. Petagine

290 So.3d 1106 (Mem)

STATE of Florida, Appellant/Cross-Appellee,

v.Anthony PETAGINE, Appellee/Cross-Appellant.

No. 1D18-2086

District Court of Appeal of Florida, First District.

March 10, 2020

ON MOTION FOR REHEARING EN BANC

On the motion of a party, a judge in regular active service on the Court requested that a vote be taken on the motion in accordance with Florida Rule of Appellate Procedure 9.331(d)(1). All judges in regular active service that have not been recused voted on the motion. Less than a majority of those judges voted in favor of rehearing en banc. Accordingly, the motion for rehearing en banc is denied.

Ray, C.J., and Wolf, Lewis, B.L. Thomas, Roberts, Rowe, Osterhaus, Winokur, Jay, Nordby, and Tanenbaum, JJ., concur.

Makar, Bilbrey, and M.K. Thomas, JJ., dissent.

B.L. Thomas, J., concurs with opinion, in which Osterhaus, J., joins.

Tanenbaum, J., concurs with opinion, in which Osterhaus, J., joins; and in which B.L. Thomas, J., joins as to Part II only.

Makar, J., dissents with opinion, in which Bilbrey, J., joins.

Kelsey, J., recused.

B.L. Thomas, J., concurring in the denial of rehearing en banc.

The opinion dissenting from our decision to deny rehearing en banc mandates a response, given its meritless assertion that judges who disagree have failed to "stand down" to the relevant statutory text, or worse, have judicially "expanded" the statute. Ironically enough, it is the opinion dissenting from the denial of the rehearing en banc that fails to rely on the text of the statute. That opinion contains long passages explaining the en banc process, several secondary sources, quotes from the legislative history and a subsequently amended statute, and citations from only one relevant precedent, which upheld the statute against constitutional challenge, Martin v. State , 259 So. 3d 733 (Fla. 2018).

In addition to avoiding the relevant statutory text, the opinion dissenting from the denial of rehearing en banc also lacks a discussion of the legal standard of review on a motion to dismiss a criminal charge, which the majority opinion here extensively discussed:

A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. Allen v. State , 463 So. 2d 351 (Fla. 1st DCA 1985). Both should be granted sparingly. State v. Fuller , 463 So. 2d 1252 (Fla. 5th DCA 1985). The trial court should not decide factual issues, determine the weight to be given to conflicting evidence or assess the credibility of witnesses. State v. Feagle , 600 So. 2d 1236 (Fla. 1st DCA 1992). In considering such a motion, the trial court must construe all evidence and inferences in a light most favorable to the state. Vanhoosen v. State , 469 So. 2d 230 (Fla. 1st DCA 1985). The state is not obliged to produce evidence sufficient to sustain a conviction. Feagle , 600 So. 2d at 1239. "As long as the State shows the barest prima facie case, it should not be prevented from prosecuting." Vanhoosen , 469 So. 2d at 232. Moreover, if the state's evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial, after all of the evidence has been presented. State v. Upton , 392 So. 2d 1013 (Fla. 5th DCA 1981). State v. Bonebright , 742 So. 2d 290, 291 (Fla. 1st DCA 1998)... "[T]he [S]tate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant." Ramsey v. State , 124 So. 3d 444, 446 (Fla. 1st DCA 2013) (citing State v. Ortiz , 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000) ). This standard of review does not change because Appellee filed his motion pursuant to Florida Rule of Criminal Procedure 3.190(c), rather than 3.190(c)(4). In fact, it is arguable that the State is entitled to even greater deference under 3.190(c), which does not require the movant to acknowledge undisputed facts in a sworn motion. Here, the unsworn motion fails to acknowledge relevant and undisputed facts.

Addressing the statute's actual text, along with the definition of the statute defining criminal liability as a principal, the majority opinion stated the following:

When viewed in a light most favorable to the State, with all inferences being resolved against the defendant, the State's statement of particulars alleged sufficient facts to show that a reasonable jury could find that Mr. Petagine committed felony hazing under the principal theory. SeeParks , 96 So. 3d at 476 (rejecting appellant's argument that the State failed to allege a prima facie case of failure to register as a sex offender); seeRamsey , 124 So. 3d at 446 (same regarding motion to dismiss theft charge); § 777.011, Fla. Stat. (2017).

Section 1006.63(1), Florida Statutes, defines hazing as "any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution." (Emphasis added.) A person commits felony hazing by "intentionally or recklessly commit[ting] any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing results in serious bodily injury or death of such other person." § 1006.63(2), Fla. Stat. In addition, the consent of the victim is not a defense to a charge of hazing. § 1006.63(5), Fla. Stat.

The State alleged that Mr. Petagine violated the statute as a principal. Section 777.011, Florida Statutes, states:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed , and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

(Emphasis added).

Whether prosecuted as a principal or considered a person who was "constructively present," is irrelevant. SeeState v. Dene , 533 So. 2d 265, 269-70 (Fla. 1988). A correct reading of the statement of particulars, applying the proper standard of review, established that it was legally sufficient to charge a count of felony hazing.

Thus, the majority opinion correctly reversed the trial court's erroneous dismissal of the felony hazing charge. Therefore, I concur in the Court's decision to deny rehearing en banc.

Tanenbaum, J., concurring in the denial of rehearing en banc.

Believe it or not, we as a full court cannot override a panel decision simply because a majority of us disagree with it. I vote to deny the appellee's request for rehearing en banc because both the Florida Constitution and the applicable appellate rule tell me that we have no authority to grant it.

I write here to explain two aspects of my vote.¹ Initially, I discuss my concern that the Florida Constitution does not authorize a district court of appeal to decide a case—let alone to re-decide a case—in any manner except through a majority vote of one of its three-judge panels. That is, the constitution does not appear to allow our en banc determination of a case at all. This abiding constitutional concern naturally will color my consideration of any en banc motion, and it certainly does here.

Even if such constitutional authority somehow exists in article V's penumbra, though, it will be the rare and extraordinary case or issue that will justify our collectively re-deciding what a constitutionally authorized two-judge majority already has decided. So, I also discuss why an appeal like this, which merely deals with a basic principle of criminal procedure, does not come close to hurdling the "exceptional importance" requirement set by the supreme court's en banc rule.

I. Constitutional Concerns About Our En Banc Authority

Article V of the Florida Constitution vests the judicial power in "a supreme court, district courts of appeal, circuit courts and county courts." Art. V, § 1, Fla. Const. The same article specifies how the appellate courts in that list exercise this judicial power. Five of seven supreme court justices "constitute a quorum," and the "concurrence of four justices shall be necessary to a decision." Art. V, § 3(a), Fla. Const. For a district court of appeal, "[t]hree [district] judges shall consider each case and the concurrence of two shall be necessary to a decision." Art. V, § 4(a), Fla. Const. (emphasis supplied). The constitution mentions no other manner by which a Florida appellate court may exercise judicial power. It is entirely silent regarding a district court of appeal's deciding a case en banc.

It is fair to ask, then, how a district court of appeal could sit as a whole to decide, or re-decide, a case when the Florida Constitution stands silent on the matter. Cf. In re Fla. Rules of Appellate Procedure , 374 So. 2d 992, 995 (Fla. 1979) (Boyd, J., dissenting) ("Because the constitution specifically provides that three judges shall consider each case heard by the district courts, a different procedure cannot be authorized by the promulgation of a court rule."); see also State v. Georgoudiou , 560 So. 2d 1241, 1248 (Fla. 5th DCA 1990) (en banc) (Cowart, J., dissenting) (noting how en banc consideration supplants the original panel and thereby subverts a litigant's "constitutional right to have his case on appeal heard and decided by the three judge panel to which it was duly, and constitutionally, assigned for decision"); In Interest of K.A.F. , 442 So. 2d 365, 369 (Fla. 5th DCA 1983) (en banc) (Cowart, J., dissenting) (observing that article V, section 4(a) "has absolutely no meaning if a majority of the judges on a district court of appeal, disagreeing with the view of some proposed panel majority decision, can ... act under Florida Appellate Rule 9.331 to wrestle...