            DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                               WILL TWIGG,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D17-1694

                             [August 24, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-2014-CF-010319-
AXXX-MB.

  David F. Pleasanton of David F. Pleasanton, P.A., West Palm Beach, for
appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

                        ON MOTION FOR REHEARING

DAMOORGIAN, J.

    We grant the State’s motion for rehearing in part to correct a scrivener’s
error, withdraw our opinion dated August 1, 2018, and substitute the
following.

   Appellant, Will Twigg, appeals his conviction and sentence for one
count of battery on an emergency medical care provider and one count of
battery following an altercation between Appellant and staff members at a
Veteran’s Administration hospital (“VA”). On appeal, Appellant argues
that: 1) the State failed to prove that he committed the offense of battery
on an emergency medical care provider; and 2) Appellant’s trial counsel
was ineffective on the face of the record for failing to request a self-defense
jury instruction and failing to move for a judgment of acquittal on the
battery on an emergency medical care provider charge. We agree with
Appellant’s arguments pertaining to the battery on an emergency medical
care provider count and reverse that conviction. We affirm otherwise.
     Background

   Appellant was involuntarily brought to the emergency department of
the VA pursuant to Florida’s Baker Act 1 after his employer reported that
Appellant was exhibiting erratic behavior. Appellant was subsequently
admitted to the VA’s inpatient psychiatric unit where, after learning that
he was not being released, Appellant became combative and spit on a
nurse and a VA law enforcement officer. Based on the foregoing, the State
charged Appellant with one count of battery on an emergency medical care
provider for spitting on the nurse, one count of battery for spitting on the
VA officer, and one count of resisting an officer without violence. Appellant
pled not guilty and filed a notice of intent to rely upon insanity as a
defense.

   The matter proceeded to a jury trial where the State presented evidence
that the nurse victim was a Licensed Practical Nurse (“LPN”) who, on the
day in question, was working in the VA’s inpatient psychiatric unit. The
State’s evidence also established that the psychiatric unit was a secure
lockdown unit which was separate and distinct from the VA’s other
departments, including the emergency department. At the conclusion of
the State’s case, Appellant’s counsel declined to move for a judgment of
acquittal (“JOA”) on any of the charges. Instead, counsel focused on an
insanity defense, presenting evidence from a psychiatrist who opined that
Appellant was not able to determine whether what he did was right or
wrong when he spit on the nurse and VA officer.

    Considering the evidence, the jury rejected Appellant’s insanity
affirmative defense and found him guilty of battery on an emergency
medical care provider, guilty of battery, and not-guilty of resisting an
officer without violence. The court adjudicated Appellant per the jury’s
verdict and sentenced Appellant to time served followed by eighteen
months of probation.

     Analysis

         a) Sufficiency of the Evidence Proving Battery on an Emergency
            Medical Care Provider

  Appellant contends that the State’s evidence regarding the nurse victim
was insufficient to support a conviction for battery on an emergency
medical care provider. Appellant is correct.

1   §§ 394.451−.47892, Fla. Stat. (2015).

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    Section 784.03 of the Florida Statutes provides that the offense of
battery is a first degree misdemeanor and “occurs when a person: 1.
[a]ctually and intentionally touches or strikes another person against the
will of the other; or 2. [i]ntentionally causes bodily harm to another
person.” § 784.03(1)(a)−(b), Fla. Stat. (2015). When a battery is committed
on certain persons, including “an emergency medical care provider . . .
while the . . . emergency medical care provider . . . is engaged in the lawful
performance of his or her duties,” section 784.07 of the Florida Statutes
reclassifies the offense “of battery, from a misdemeanor of the first degree
to a felony of the third degree.” § 784.07(2), (2)(b), Fla. Stat. (2015).

    Based on the foregoing, the elements of the offense of battery on an
emergency medical care provider are: (1) the defendant intentionally
touched or struck the victim or intentionally caused bodily harm to the
victim; (2) the victim was an emergency medical care provider; (3) the
defendant knew that the victim was an emergency medical care provider;
and (4) the emergency medical care provider was engaged in the lawful
performance of his or her duties when the battery was committed. Fla.
Std. Jury Instr. (Crim.) 8.11; State v. Granner, 661 So. 2d 89, 90 (Fla. 5th
DCA 1995). Therefore, in order to prove that Appellant committed the
offense of battery on an emergency medical care provider with respect to
the alleged nurse victim, the State was required to prove that the nurse
was indeed “an emergency medical care provider.”

   The term “emergency medical care provider” is defined as:

      1) [A]n ambulance driver, emergency medical technician,
      paramedic, registered nurse, physician as defined in s.
      401.23, medical director as defined in s. 401.23, or any person
      authorized by an emergency medical service licensed under
      chapter 401 who is engaged in the performance of his or her
      duties.

      2) The term “emergency medical care provider” also includes
      physicians, employees, agents, or volunteers of hospitals as
      defined in chapter 395, who are employed, under contract, or
      otherwise authorized by a hospital to perform duties directly
      associated with the care and treatment rendered by the
      hospital’s emergency department or the security thereof.

§ 784.07(1)(a), Fla. Stat. (2015) (spacing and numbering added).



                                      3
    In Spurgeon v. State, 114 So. 3d 1042, 1045 (Fla. 5th DCA 2013), the
Fifth District clarified that because section 784.07 is penal in nature, the
definition of “emergency medical care provider” must be strictly construed
in conjunction with its plain language. Accordingly, in order to meet the
first classification of persons outlined in the definition of “emergency
medical care provider,” the State needed to establish that the nurse victim
was a “registered nurse . . . or any person authorized by an emergency
medical service license under chapter 401 who is engaged in the
performance of his or her duties.” § 784.07(1)(a), Fla. Stat. (2015).

    The definition section of chapter 401 defines a “registered nurse” as “a
practitioner who is licensed to practice professional nursing pursuant to
part I of chapter 464.” § 401.23(20), Fla. Stat. (2015) (emphasis added).
Chapter 464 governs the regulation of nursing in Florida. Part I of Chapter
464 provides that an LPN is any “person licensed in this state or holding
an active multistate license under s. 464.0095 to practice practical
nursing.” § 464.003(16), Fla. Stat. (2015) (emphasis added). It further
delineates that “the practice of practical nursing” is distinct from “the
practice of professional nursing” and that only a “registered nurse” is
licensed “to practice professional nursing.” § 464.003(19)−(20), (22), Fla.
Stat. (2015) (emphasis added). As an LPN is only licensed to practice
practical, not professional, nursing, an LPN does not meet the definition
of a “registered nurse” under either chapter 401 or 464. Therefore, as an
LPN, the nurse victim did not qualify as a “registered nurse” as used in the
definition of “emergency medical care provider.”

   Likewise, the evidence also did not establish that the nurse victim was
“any person authorized by an emergency medical service license under
chapter 401.” Chapter 401 provides for the licensure of emergency
medical transportation services such as ambulances and air ambulances.
§§ 401.25, .251, Fla. Stat. (2015). The nurse victim was working for a
hospital, not a medical transportation service. Accordingly, based on both
her license classification and who she worked for, the State did not prove
that the nurse victim fell under the first class of persons defined as an
“emergency medical care provider.”

   To fall under the second classification of persons outlined in the
definition of “emergency medical care provider,” the State was required to
prove that the nurse victim was an “employee[], agent[], or volunteer[] of
[a] hospital[] as defined in chapter 395, who [was] employed, under
contract, or otherwise authorized by [the] hospital to perform duties
directly associated with the care and treatment rendered by the hospital’s
emergency department or the security thereof.” § 784.07(1)(a), Fla. Stat.
(2015) (emphasis added). The evidence adduced at trial established that

                                     4
when she was spit upon, the nurse victim was performing LPN services in
the VA’s inpatient psychiatric unit. The evidence also established that the
VA’s inpatient psychiatric unit was separate and distinct from its
emergency department. Accordingly, the evidence submitted at trial did
not establish that the nurse victim’s duties were “directly associated with
the care and treatment rendered by the hospital’s emergency department.”
Id. Thus, the State also did not prove that the nurse victim qualified as
an “emergency medical care provider” under either classification.

   Despite the State’s failure to prove that the nurse victim qualified as an
“emergency medical care provider,” Appellant failed to move for a JOA
based on the insufficiency of the evidence and, therefore, failed to preserve
the issue for anything other than a fundamental error review. F.B. v. State,
852 So. 2d 226, 229 (Fla. 2003).

      [I]n order to be of such fundamental nature as to justify a
      reversal in the absence of timely objection the error must
      reach down into the validity of the trial itself to the extent that
      a verdict of guilty could not have been obtained without the
      assistance of the alleged error.

Id. (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). Based on
this narrow application, the Florida Supreme Court has clearly delineated
that unpreserved challenges to the sufficiency of the evidence may only be
reviewed for fundamental error in two circumstances: “(1) the mandatory
review by [the supreme court] of the evidence by which a capital defendant
was convicted and sentenced to death; and (2) when there is insufficient
evidence that a defendant committed any crime.” Monroe v. State, 191 So.
3d 395, 401 (Fla. 2016). Accordingly, the insufficiency of the evidence to
prove an element of a crime does not warrant fundamental error review.
Bagnara v. State, 189 So. 3d 167, 171 (Fla. 4th DCA 2016) (state’s failure
to prove value element of grand theft was not fundamental error).
Therefore, Appellant’s insufficiency of the evidence argument is not
cognizable on appeal. The issue is, however, cognizable as an ineffective
assistance of counsel claim.

      b) Ineffective Assistance of Counsel on the Face of the Record

   “[I]neffective assistance of counsel claims should rarely be raised on
direct appeal because they are generally fact-specific.” Michel v. State, 989
So. 2d 679, 681 (Fla. 4th DCA 2008). As a result, “[a]ppellate courts do
not ordinarily address ineffective assistance of counsel concerns until a
defendant seeks postconviction relief because such courts are limited to
reviewing the record directly before them.” Monroe, 191 So. 3d at 403.

                                      5
“On rare occasions, the appellate courts make an exception to this rule
when the ineffectiveness is obvious on the face of the appellate record, the
prejudice caused by the conduct is indisputable, and a tactical explanation
for the conduct is inconceivable.” Bagnara, 189 So. 3d at 171 (quoting
Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002)).

      i)    Failure to Move for a JOA on the Battery on an Emergency
            Medical Care Provider Count

      [F]ailure to move for a judgment of acquittal when the State
      has not proved an essential element of its case, when it is clear
      that the State could not reopen its case to prove that essential
      element, amounts to ineffective assistance of counsel that
      may sometimes be adequately assessed from the record on
      direct appeal.

Corzo, 806 So. 2d at 645.

    As discussed above, the State did not prove, and from our review of the
record could not prove, that the nurse victim qualified as an “emergency
medical care provider,” an essential element of the offense of battery on an
emergency care provider. Therefore, had counsel made a proper motion,
Appellant would have been entitled to a JOA on the battery on an
emergency medical care provider count and a reduction of the charge to
the lesser included offense of battery. The distinction between the two
offenses is significant as battery is a misdemeanor while battery on an
emergency care provider is a felony. Thus, it is plain from the face of the
record that counsel’s failure to seek a JOA on the battery on an emergency
care provider charge was prejudicial to Appellant and constituted
ineffective assistance of counsel. See Bagnara, 189 So. 3d at 172
(counsel’s failure to properly move for JOA when state did not prove value
element of grand theft constituted ineffective assistance of counsel on the
face of the record); Gordon v. State, 126 So. 3d 292, 295−96 (Fla. 3d DCA
2011) (counsel’s failure to properly move for JOA when state did not prove
all of the elements of charged crime constituted ineffective assistance of
counsel on the face of the record).

    Under these circumstances, “[i]t would be a waste of judicial resources
to postpone addressing this issue until [Appellant] seeks post-conviction
relief for ineffective assistance of counsel below.” Lesovsky v. State, 198
So. 3d 988, 992 (Fla. 4th DCA 2016). Accordingly, we reverse Appellant’s
conviction for battery on an emergency medical care provider.

      ii)   Failure to Request a Self-Defense Instruction

                                     6
   Appellant also argues that his counsel was ineffective for failing to
request a self-defense jury instruction which, according to Appellant,
would have been based on a theory that Appellant was protecting himself
from being illegally detained under Florida’s Baker Act. Appellant is
correct that self-defense is a viable defense to the crimes of battery and
battery on an emergency medical care provider. See Spurgeon, 114 So. 3d
at 1047. Further, even though Appellant also asserted insanity as a
defense, Appellant was entitled to assert self-defense as an alternate
theory of defense regardless of whether the defenses may have been
inconsistent. See Martin v. State, 110 So. 3d 936, 939 (Fla. 1st DCA 2013)
(defendant was entitled to have jury instructed on self-defense in
aggravated assault on a law enforcement officer case even though
defendant also asserted that he was insane). Thus, had Appellant’s
counsel requested a self-defense instruction, it certainly would have been
error for the court to deny the request. Spurgeon, 114 So. 3d at 1047.

   However, this does not mean that counsel was necessarily ineffective
on the face of the record for failing to make such a request. “[S]trategic
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.” Occhicone v. State,
768 So. 2d 1037, 1048 (Fla. 2000).

   Here, Appellant’s counsel primarily argued that Appellant was not
guilty by way of insanity because Appellant did not know what he was
doing or that what he was doing was wrong due to his mental condition.
Arguing self-defense as proffered would have required Appellant’s counsel
to assert that, in the alternative, Appellant knew what he was doing but
reasonably believed he needed to act to protect himself from being
unlawfully detained. It is entirely possible and reasonable that counsel
made a strategic decision not to pursue an alternate defense of self-defense
in order not to undermine the credibility of the proffered insanity defense.
Compare Cole v. State, 221 So. 3d 534, 543−44 (Fla. 2017) (counsel’s
decision to abandon duress defense and instead argue that the defendant
did not knowingly participate in the crime was strategic and reasonable),
with Kruse v. State, 222 So. 3d 13, 17 (Fla. 4th DCA 2017) (counsel was
ineffective on the face of the record for failing to request a self-defense
instruction when the evidence supported the instruction and there could
be no strategic basis for not asking for the instruction as self-defense was
the defendant’s only proffered defense). Under the facts of this case, this
issue of whether counsel was deficient for failing to request a self-defense
instruction requires explanation from counsel and is, therefore, better
suited for postconviction proceedings.

                                     7
   Conclusion

    In conclusion, we hold that the State did not and could not prove the
nurse victim was an “emergency medical care provider” and, therefore, did
not prove that Appellant committed the offense of battery on an emergency
medical care provider. Although Appellant’s trial counsel did not preserve
this error for appeal by moving for a JOA and the error is not fundamental,
counsel’s failure to move for a JOA constitutes ineffective assistance of
counsel on the face of the record. Counsel was not, however, ineffective
on the face of the record for failing to request a self-defense instruction
when counsel also proffered a potentially inconsistent insanity defense.
Based on the foregoing, we reverse Appellant’s conviction and sentence for
battery on an emergency medical care provider and, on remand, direct the
trial court to enter a judgment of guilt for the lesser-included offense of
battery and proceed with a resentencing on that count. We otherwise
affirm without prejudice for Appellant to file a motion for postconviction
relief on the self-defense issue.

   Affirmed in part, reversed in part and remanded.

LEVINE, J., concurs.
KUNTZ, J., concurs specially with opinion.

KUNTZ, J., concurring specially.

   As Judge Winokur explains in his concurring opinion in Latson v. State,
193 So. 3d 1070, 1071-75 (Fla. 1st DCA 2016), direct appellate review of
a criminal judgment should be limited to preserved arguments and
fundamental error. Section 924.051(2), Florida Statutes (2017), states
that “[t]he right to direct appeal . . . may only be implemented in strict
accordance with the terms and conditions of this section,” and section
924.051(3) limits review on direct appeal to “prejudicial error” that “is
properly preserved or, if not properly preserved, would constitute
fundamental error.” So “[i]t seems clear that fundamental error is the ‘sole
exception’ to the general rule that a party must preserve errors to raise
them on appeal.” Latson, 193 So. 3d at 1072 (Winokur, J., concurring).
Despite this statutory limit on our authority, a Florida Supreme Court
decision compels reversal. Thus, I fully concur in the Court’s opinion.

   In this case, the State failed to prove each element of the crime for
which the Defendant was convicted. At the close of the State’s case, the
circuit court asked defense counsel whether he intended to assert any


                                     8
motions. In response, defense counsel represented that the Defendant
was not seeking a judgment of acquittal.

   Similarly, in Monroe v. State, 191 So. 3d 395, 398 (Fla. 2016), “[a]fter
the State rested, the trial court asked defense counsel if they intended to
move for judgment of acquittal. Defense counsel declined.” The defendant
argued on appeal that the state failed to introduce evidence to establish
an element of the crime. Id. at 399-400. Conceding the issue was not
preserved, the defendant argued it was fundamental error to convict him
when the State failed to prove each element of the crime. Id.

    Our supreme court reaffirmed its prior decisions, holding that
unpreserved challenges to the sufficiency of the evidence cannot be
reviewed on direct appeal when there is sufficient evidence to establish the
defendant committed a crime. Id. at 401-02. Such unpreserved claims
are only cognizable as fundamental error on direct appeal when the State
fails to prove the defendant committed any crime at all. Id.

    But the lack of preservation or fundamental error did not result in an
affirmance. Id. The court continued and held “that the failure of Monroe’s
trial counsel to preserve the sufficiency of the evidence issue for appellate
review constitutes ineffective assistance of counsel that is apparent from
the face of this record.” Id. at 402. Based upon the finding of ineffective
assistance of counsel on the face of the record, the court reversed. Id. at
404.

   The question presented in this case is nearly identical to that answered
in Monroe. In both cases, the State failed to prove each element of the
crime, but the defendant did not preserve the issue by moving for a
judgment of acquittal. Further, in both, the State presented sufficient
evidence to establish a lesser included offense thereby precluding
fundamental error.

   Based on Monroe, I agree that we must reverse the Defendant’s
conviction for ineffective assistance of counsel on the face of the record.
The circumstances are too similar. But absent the controlling opinion
from the supreme court, I would question our authority to do so. The
legislature limited direct appeal of a criminal judgment to preserved issues
and fundamental error. Notwithstanding the statutory limits, claims of
ineffective assistance of counsel on direct appeal are now commonly
asserted. As Judge Winokur concluded, “the practice of permitting claims
of ineffective assistance of counsel on direct appeal stemmed from a
misreading of case law, and is directly contrary to controlling statutory
law.” Latson, 193 So. 3d at 1074. Allowing a defendant to assert claims

                                     9
of ineffective assistance of counsel on direct appeal, absent fundamental
error, allows the defendant to evade the strict requirements for
fundamental error and “deprives trial counsel of the opportunity to defend
themselves against allegations of unprofessional conduct.” Id. In the
future, we should be careful to limit our review to that authorized by
statute or, as here, mandated by supreme court precedent.

                           *        *        *

    FINAL UPON RELEASE; NO MOTION FOR REHEARING WILL BE
 ENTERTAINED; MANDATE ISSUED SIMULTANEOUSLY WITH OPINION.




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