        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            RODNEY SQUIRE,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                      Nos. 4D18-290 and 4D18-313

                              [ July 17, 2019 ]

   Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Bernard I. Bober, Judge; L.T. Case Nos.
09019699CF10A and 17000688 CF10A.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Georgina Jiminez-
Orosa, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   In Case Number 4D18-313, Rodney Squire appeals his convictions and
sentences for attempted first-degree murder with a firearm and possession
of a firearm by a convicted felon. 1 We affirm as to all issues except one.
We find merit in appellant’s argument that defense counsel was ineffective
on the face of the record for failing to move for a judgment of acquittal on
the issue of whether appellant’s discharge of a firearm caused great bodily
harm to the victim.

   The evidence at trial showed that appellant and his brother fired
multiple shots at the victim. When appellant and his brother started
shooting, the victim “took off and ran.” The victim was shot twice in each
leg.


1In Case Number 4D18-290, appellant appeals the revocation of his probation in
a different case based on these new law violations. We affirm without comment
on all issues raised in the appeal of the revocation of probation.
   The victim’s right leg suffered an “entry wound” and a “through and
through” wound. One of the shots to the victim’s left leg was a graze
wound; the other resulted in a bullet being lodged near the victim’s left
ankle. The bullet near the victim’s left ankle was surgically removed.

   During a search of the home where appellant and his brother lived, the
police found three firearms: (1) a revolver; (2) a 40-caliber semiautomatic
pistol; and (3) a 22-caliber semiautomatic pistol. A ballistics expert
determined that the bullet recovered from the victim’s leg had been fired
by the revolver. Additionally, a shell casing found at the scene of the
shooting had been fired by the 40-caliber semiautomatic pistol found in
appellant’s home.

  The major DNA profile on the revolver belonged to appellant’s brother.
Appellant’s DNA could not be linked to any of the firearms found in his
home.

    The jury found appellant guilty of attempted first-degree murder as
charged in the information. The jury made specific findings that appellant
actually possessed a firearm, actually discharged a firearm, and actually
inflicted great bodily harm as a result of discharging the firearm. Following
the second phase of trial, the jury also found appellant guilty of possession
of a firearm by a convicted felon.

   On the attempted first-degree murder charge, the trial court sentenced
appellant as a habitual felony offender to 25 years in prison followed by
10 years of probation, with a 25-year mandatory minimum sentence under
the 10/20/Life statute. On the charge for possession of a firearm, the trial
court sentenced appellant to a concurrent term of 25 years in prison, with
a 10-year mandatory minimum sentence under the 10/20/Life statute.
The trial court also revoked appellant’s probation and imposed sentence
in a different case. This consolidated appeal followed.

    On appeal, appellant argues that defense counsel was ineffective on the
face of the record for failing to move for a judgment of acquittal on the
10/20/Life issue of whether appellant’s discharge of a firearm caused
great bodily harm to the victim. Although appellant concedes that there
was sufficient evidence to support a finding that he actually possessed a
firearm and discharged it, he contends that there was insufficient evidence
to prove that his personal discharge of the firearm actually caused great
bodily harm to the victim. We agree with appellant’s argument.




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   A de novo standard of review applies to claims of ineffective assistance
of counsel raised on direct appeal. Curtis v. State, 204 So. 3d 463, 464
(Fla. 4th DCA 2016).

   To obtain relief on an ineffective assistance claim, a defendant must
show that his attorney’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). The first prong is established by showing that “counsel’s
representation fell below an objective standard of reasonableness” under
“prevailing professional norms.” Id. at 688. The second prong is
established by showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.

   An ineffective assistance claim may be addressed on direct appeal only
in rare cases where both prongs of Strickland—deficient performance and
prejudice—are manifest in the record. Smith v. State, 998 So. 2d 516, 522–
23 (Fla. 2008).     This rare exception applies only when a tactical
explanation for counsel’s conduct is inconceivable and the prejudice
caused by counsel’s conduct is indisputable. Bagnara v. State, 189 So. 3d
167, 171 (Fla. 4th DCA 2016).

    Trial counsel’s failure to preserve a sufficiency-of-the-evidence issue for
appellate review may constitute ineffective assistance of counsel that is
apparent from the face of the record. Monroe v. State, 191 So. 3d 395,
402–03 (Fla. 2016). When the State has not proven an essential element
of its case and the State could not reopen the case to prove that essential
element, defense counsel’s failure to move for judgment of acquittal
constitutes ineffective assistance that may sometimes be determined from
the record on direct appeal. Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d
DCA 2002).

   Turning to the instant case, we note that the 25-year mandatory
minimum sentence under the 10/20/Life statute applies only if the
defendant himself actually discharged the firearm and inflicted death or
great bodily harm upon any person because of the discharge. See §
775.087(2)(a)3., Fla. Stat. (2016).

   Vicarious liability based on a principal theory will not suffice under the
10/20/Life statute. Sims v. State, 44 So. 3d 1222, 1225 (Fla. 5th DCA
2010). For example, in Sims, the Fifth District reversed a 20-year
mandatory minimum sentence for discharge of a firearm where the State
presented no evidence to establish that the defendant, rather than the
codefendant, fired shots into an apartment. Id.

                                      3
   Here, although the State presented evidence that appellant and his
brother fired multiple shots at the victim, the State presented no evidence
establishing that any of the shots fired by appellant actually struck the
victim. Thus, there is no evidence to support the jury’s finding that
appellant’s discharge of a semiautomatic pistol caused the victim great
bodily harm. The jury’s finding must be based on mere speculation.

    The evidence showed that the victim immediately “took off and ran”
when he heard shots fired. The victim was struck four times, but only one
bullet was recovered from his body. The recovered bullet was fired from a
revolver that contained appellant’s brother’s DNA. Although a casing at
the scene showed that a semiautomatic weapon was also fired, the State’s
evidence did not eliminate the reasonable possibility that only the bullets
fired by appellant’s brother actually struck the victim. Stated another way,
the State did not prove beyond a reasonable doubt that any of the bullets
fired by appellant actually struck the victim.

    The deficient-performance prong of Strickland is satisfied in this case.
There was no strategic reason for defense counsel to fail to move for a
judgment of acquittal on this issue. Contrary to the State’s argument that
a motion for judgment of acquittal on this issue would have been
inconsistent with appellant’s misidentification defense, a motion for
judgment of acquittal on this issue would not have precluded defense
counsel from arguing to the jury that appellant was misidentified as one
of the shooters.

   The prejudice prong of Strickland is likewise indisputable on these
facts. Defense counsel’s deficient performance caused the trial court to
impose a longer mandatory minimum on the 10/20/Life portion of the
sentence. Moreover, this was not a case involving a technical deficiency of
proof that the State could have remedied by reopening its case to supply
the missing element. The eyewitness testimony and forensic evidence was
simply inconclusive on the question of whether any of the shots that struck
the victim were the result of appellant’s discharge of his firearm.

    In short, this is a rare case where ineffective assistance of counsel is
apparent on the face of the record. It would be a waste of judicial resources
for the parties to litigate this issue in postconviction proceedings.
Accordingly, we reverse on this issue and remand for the trial court to
strike the 25-year mandatory minimum sentence on Count I and replace
it with the 20-year mandatory minimum sentence for discharging a
firearm.


                                     4
   A resentencing hearing is not required on remand. We are satisfied
from the record that the trial court would have imposed the same 25-year
sentence on Count I even without the 25-year mandatory minimum on the
10/20/Life portion of the sentence, particularly where the trial court
sentenced appellant to 25 years in prison on Count II, a conviction that
the trial court knew was not subject to the 25-year mandatory minimum.

   Affirmed in part, Reversed in part, and Remanded.

GROSS and CIKLIN, JJ., concur.

                          *        *        *

   Not final until disposition of timely filed motion for rehearing.




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