       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            WESLEY BROWN,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-1110

                           [December 12, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No. 50-2015-CF-
011550-AXXX-MB.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

KLINGENSMITH, J.

   Wesley Brown appeals his conviction and sentence in adult court for
crimes committed as a juvenile. He specifically appeals the jurisdiction of
the lower court and, alternatively, asserts a claim of ineffective assistance
of trial counsel. For the reasons set forth below, we affirm Brown’s
conviction.

   Brown faced numerous charges, including vehicular homicide; fleeing
and eluding; and driving while license canceled, suspended, or revoked
causing serious bodily injury or death. At the time of the incident that
gave rise to these charges, Brown was fifteen years old; however, the case
was direct-filed in adult court. At the time of the direct-file, Brown raised
no objection; instead, the defense filed a Waiver of Arraignment, Plea of
Not Guilty, and Demand for Jury Trial. Brown also filed a motion for bond
reduction, which requested that he be released to “a maximum security
juvenile commitment program” of the Department of Juvenile Justice.
(Emphasis added). The court granted that motion. When the state filed
an amended information on Brown’s charges, defense counsel again
demanded jury trial. There was still no objection filed with the trial court,
nor was one made after a request for a continuance and the filing of a
second amended information thirteen months after Brown was initially
charged.

   As he previously requested, Brown took his case to trial, which resulted
in a hung-jury and mistrial. At no time during that trial did Brown raise
any jurisdictional objections. The court reconvened for a second trial on
Brown’s charges soon thereafter. As with the first trial, no objection was
ever made regarding divisional jurisdiction. However, unlike the first trial,
the second resulted in an outcome unfavorable to Brown—he received
guilty verdicts on all three charges. A sentencing hearing was scheduled
for six weeks later, and Brown waived a Pre-Sentence Investigation. As
before, Brown raised no objection to proceeding in adult court.

   The sentencing hearing began as scheduled, but due to the illness of
the defense’s expert witness, the trial court rescheduled the hearing for a
week later to allow the expert to return and testify. Once again, no
objection to the court’s jurisdiction was made.

    It was not until just prior to the rescheduled sentencing hearing when—
for the first time—Brown’s counsel raised the issue of jurisdiction by filing
a motion to vacate the verdict and return the case to juvenile court. That
motion asserted that the adult trial court lacked divisional jurisdiction
over the case when it initially proceeded to trial. Particularly, it noted that
vehicular homicide was not a criminal act for which a fifteen-year-old
defendant’s case could be direct-filed in adult court, pursuant to section
985.557(1)(a), Florida Statutes (2016). The motion also argued that Brown
did not waive juvenile division jurisdiction by proceeding to trial.

    Immediately prior to sentencing, a brief hearing was held on Brown’s
motion. The state asserted that the filing of Brown’s charges in adult court
was proper because they were lesser-included felony offenses of those
enumerated in the direct-file statute. Further, it argued that Brown had
indeed waived juvenile division jurisdiction by proceeding to trial in the
adult division. While reiterating her position on the matter, defense
counsel countered that nothing in section 985.557 indicated that lesser-
included offenses were part of the statutory provision allowing for direct-
file.

   On the issue of Brown’s waiver of juvenile court jurisdiction, the trial
judge explained:


                                      2
      You know, and I do think there’s something to be said for
      going through not one, but two trials and having a jury reach
      a verdict and then, you know, I’m not suggesting, of course,
      there was any shady behavior and I’m certainly not suggesting
      this was your strategy or anything else, I mean that would be
      ridiculous, but I think it can cover those situations as well.
      And so I just think in this case a waiver has been established,
      and I’m sure that’s something the appellate court will deal
      with, and so I deny your motion.

    The court considered Brown’s fourteen prior felony convictions, rejected
the defense’s request for juvenile sanctions, and sentenced Brown to
fifteen years in prison for vehicular homicide, plus a consecutive term of
five years for fleeing or attempting to elude. 1 This appeal followed.

   “The Juvenile Justice Act vests the juvenile division with exclusive
jurisdiction over all proceedings in which a child allegedly violates the law
unless, in compliance with the Act, juvenile jurisdiction is waived or the
juvenile falls under a statutory exception.” State v. Griffith, 675 So. 2d
911, 913 (Fla. 1996). “Accordingly, in certain circumstances, children may
be tried as adults and exposed to adult sanctions.” Id.

   “[L]egislative intent is the polestar that guides a court’s statutory
construction analysis.” State v. J.M., 824 So. 2d 105, 109 (Fla. 2002).
“Further, . . . when [a court] construes a statute, ‘[it should] look first at
the statute’s plain meaning.’” Id. at 110 (alterations added) (quoting
Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla.
1996)); accord Stoletz v. State, 875 So. 2d 572, 575 (Fla. 2004). “When the
language of the statute is clear and unambiguous and conveys a clear and
definite meaning, there is no occasion for resorting to the rules of statutory
interpretation and construction; the statute must be given its plain and
obvious meaning.” A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla.
1931). Courts are “‘without power to construe an unambiguous statute in
a way which would extend, modify, or limit, its express terms or its
reasonable and obvious implications. To do so would be an abrogation of
legislative power.’” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)
(emphasis removed) (quoting Am. Bankers Life Assurance Co. of Fla. v.
Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)).

   “‘Under the principle of statutory construction, expressio unius est
exclusio alterius, the mention of one thing implies the exclusion of

1The trial court vacated Brown’s conviction for driving while license canceled,
suspended, or revoked causing serious bodily injury or death.

                                      3
another.’” Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80, 85
(Fla. 2000) (quoting Moonlit Waters, 666 So. 2d at 900); accord Thayer v.
State, 335 So. 2d 815, 817 (Fla. 1976). Put even simpler, “when a statute
. . . lists the areas to which it applies, it will be construed as excluding
from its reach any areas not expressly listed.” Siegle v. Lee Cty., 198 So.
3d 773, 775 (Fla. 2d DCA 2016); see also State v. Hearns, 961 So. 2d 211,
219 (Fla. 2007) (“[T]he forcible felony statute specifically enumerates two
types of battery . . . . BOLEO is not among them. . . . Had the Legislature
intended to include all types of battery as forcible felonies, it would have
listed simply ‘battery’ rather than only the specific types enumerated.”);
see e.g., Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So. 2d 1244,
1258 (Fla. 2008) (“Had the Legislature intended for a commercial tenant
[in this situation] to suffer an instantaneous default, it would have
explicitly provided for such a severe sanction.”); Am. Bankers Life, 212 So.
2d at 778 (“Had the legislature intended the statute to import a more
specific and definite meaning, it could easily have chosen words to express
any limitation it wished to impose.”).

   According to section 985.557(1)(a):

       With respect to any child who was 14 or 15 years of age at the
       time the alleged offense was committed, the state attorney
       may file an information when in the state attorney’s judgment
       and discretion the public interest requires that adult
       sanctions be considered or imposed and when the offense
       charged is for the commission of, attempt to commit, or
       conspiracy to commit:

....

       8. Murder;

       9. Manslaughter;

....

(Emphasis added).

   Lesser-included offenses are not included by silent incorporation into
section 985.557(1)(a). For example, while vehicular homicide is a lesser-
included offense of manslaughter, see Luzardo v. State, 147 So. 3d 1083,
1085 (Fla. 3d DCA 2014), under the plain language of the statute,
vehicular homicide was not included by the legislature within the list of
crimes providing the state with divisional prosecutorial discretion. See §

                                     4
985.557(1)(a). Likewise, there are a number of offenses listed in section
985.557(1)(a) with lesser-included offenses also expressly enumerated in
the statute. 2 See Siegle, 198 So. 3d at 775; Pro-Art Dental, 986 So. 2d at
1258; Hearns, 961 So. 2d at 219; Young, 753 So. 2d at 85; Thayer, 335
So. 2d at 817; Am. Bankers Life, 212 So. 2d at 778.

    Taking the state’s argument to its logical conclusion, any lesser-
included offense to one of the enumerated crimes under the statute would
qualify for direct-filing. For instance, simple assault is a lesser-included
offense of aggravated assault; yet under that theory, the state could
proceed with a direct-file in any simple assault case. Accepting this
argument would run counter to the clear legislative intent found in the
statute and would subject juveniles to direct-filing for a host of
unenumerated offenses.

    Given that the state improperly direct-filed Brown’s case because a
statutory exception does not apply to Brown’s juvenile jurisdiction, we
consider whether he waived any challenge to defending the case in adult
court. “The right to be prosecuted as a juvenile is one that can be waived.”
Williams v. State, 754 So. 2d 67, 69 (Fla. 4th DCA 2000). In fact, courts
have held that a defendant can waive his statutory right to be treated as a
juvenile by silence. See id.; see also Smith v. State, 345 So. 2d 1080, 1081
(Fla. 3d DCA 1977) (“[The defendant] lied under oath about her name, age
and arrest record . . . for the specific purpose of being placed on probation.
Thus, she voluntarily submitted herself to the jurisdiction of the circuit
court’s adult division and pled guilty to a felony.”). Additionally, challenges
to adult court jurisdiction can be waived if raised for the first time on direct
appeal rather than in the trial proceedings. See State v. King, 426 So. 2d
12, 14-15 (Fla. 1982). Therefore, the right to proceed by trial in juvenile
court is not a substantive fundamental right guaranteed to a defendant,
but is one that can be waived by mere inaction. See, e.g., Snider v.

2 Illustratively, manslaughter is a lesser-included offense to the charge of murder,
as are the crimes of aggravated assault and aggravated battery. See §
985.557(1)(a)(6), (8), (9), and (12); Fla. Std. Jury Instr. (Crim.) 7.2. Similarly,
aggravated assault is also a lesser of manslaughter, yet both crimes are listed
separately in the statute. See § 985.557(1)(a)(6) and (9). Additionally, a lewd and
lascivious offense on a victim under the age of 16 is a lesser included offense of
sexual battery; both crimes are also separately included in the enumerated list.
See § 985.557(1)(a)(2) and (13); Fla. Std. Jury Instr. (Crim.) 11.4. Robbery is a
lesser of home invasion robbery, yet both are enumerated. See § 985.557(1)(a)(3)
and (17); Fla. Std. Jury Instr. (Crim.) 15.3. Finally, grand theft in the first degree
is a lesser of home invasion robbery, and both are specifically enumerated. See
§ 985.557(1)(a)(15) and (17); Fla. Std. Jury Instr. (Crim.) 15.3.


                                          5
Metcalfe, 157 So. 3d 422, 424 (Fla. 4th DCA 2015) (“Lack of personal
jurisdiction is a waivable defense that must be raised at the ‘first
opportunity’ and before the defendant takes any steps in the proceeding
constituting submission to the court’s jurisdiction.”); Bryant v. State, 650
So. 2d 68, 69-70 (Fla. 5th DCA 1995) (holding that where the state files an
information against a defendant after the speedy trial period, a defendant
waives the speedy trial right without taking timely action). Not all
structural defects in the framework of the trial process amount to
fundamental, non-waivable error. See Alvarez v. State, 827 So. 2d 269,
274 (Fla. 4th DCA 2002) (“We hold that failure to object to the closure of a
trial constitutes a waiver of the right to a public trial.”).

   In Griffith, the Florida Supreme Court explained:

      “There is good reason for requiring defendants to register their
      objections with the trial court. A defendant should not be
      allowed to subject himself to a court’s jurisdiction and defend
      his case in hope of an acquittal and then, if convicted, challenge
      the court’s jurisdiction on the basis of a defect that could have
      been easily remedied if it had been brought to the court’s
      attention earlier. Neither the common law nor our statutes
      favor allowing a defendant to use the resources of the court
      and then wait until the last minute to unravel the whole
      proceeding. Sawyer v. State, 94 Fla. 60, 113 So. 736 (1927).
      In this case, if the court had realized that respondent had
      been improperly charged by an indictment, the defect could
      have been remedied quite easily by the filing of an information
      under section 39.04(2)(e)4, or the transfer of the case to the
      juvenile division.”

Griffith, 675 So. 2d at 913-14 (emphasis added) (quoting King, 426 So. 2d
at 15). That is precisely what happened in this case.

   Other cases have held that the right to be treated as a juvenile is not
waived provided it is brought to the trial court’s attention, even belatedly.
See Miller v. State, 702 So. 2d 617, 618 (Fla. 4th DCA 1997); T.W. v. Jenne,
826 So. 2d 536, 538 (Fla. 4th DCA 2002); Turner v. State, 769 So. 2d 1108,
1109 (Fla. 2d DCA 2000).

    In Miller, the defendant appealed his conviction and sentence on two
counts of sexual battery on a minor and five counts of lewd assault. 702
So. 2d at 618. The information filed against him was improperly direct-
filed in the adult criminal division rather than in the juvenile division
“because he may have been fifteen years old when the crimes took place.”

                                      6
Id. The defendant “did not object to the court’s exercise of [divisional]
jurisdiction . . . until after the state rested its case on five of the seven
counts[;]” even though he had been aware of the jurisdictional mistake
several months prior. Id. (alteration added). 3 This court found that
although the defendant’s motion was belated in the trial proceedings, the
issue was nonetheless timely raised with the trial court. Id.

    In T.W., the petitioner sought a writ of habeas corpus due to being held
in jail without bond. 826 So. 2d at 536. When he was initially arrested at
fifteen years old, he presented himself as eighteen “in order to be
immediately released on bond because otherwise he could have been
retained in juvenile detention up to twenty-one days.” Id. As a result of
this misrepresentation, he was released on bond as desired; however, he
was rearrested after he failed to appear at his arraignment and was jailed
without bond. Id. Thereafter, the defendant filed an emergency motion
for the court to determine that he was a juvenile, which was denied. Id. at
536-37. On appeal, this court noted that the petitioner did not waive his
right to be treated as a juvenile because he attempted “to correct his
misrepresented age early in the proceedings, rather than after receiving
the benefit of a more lenient sentence as an adult than he might have
received as a juvenile.” Id. at 537.

    In Turner, the defendant was charged as an adult for crimes committed
when he was fourteen. 769 So. 2d at 1109. Prior to trial, defense counsel
filed a “motion to dismiss for lack of subject matter jurisdiction because
the State erroneously charged him as an adult despite the fact that he was
a juvenile at the time the offense was committed.” Id. The trial court
denied the motion and the defendant was convicted. Id. He appealed on
the issue of juvenile jurisdiction and the Second District reversed his
conviction and remanded with directions that any future proceedings on
the charges be commenced in juvenile court. Id.

    Each of the above-cited cases are distinguishable in that the question
of juvenile jurisdiction was brought to the respective court’s attention
before the jury’s verdict. We allow such late requests in deference to a
defendant’s right to have his case heard in the juvenile division pursuant
to the Juvenile Justice Act. Moreover, this makes sense from a practical
standpoint. Before either acquittal or conviction is determined, both the
state and the defendant are equally positioned since neither knows for
sure what the outcome of the contest will be. A defendant who makes a

3Initially, the Miller court discussed this issue as one of personal jurisdiction,
but we recognize that is not the case. See Williams v. State, 737 So. 2d 1141,
1142 n.1 (Fla. 4th DCA 1999).

                                        7
belated request to move his case to the juvenile division gains little benefit
by doing so before the jury reaches its verdict.

    But once the jury either acquits or convicts the defendant, the relative
position of the parties—and their knowledge about the outcome—changes.
A defendant who is permitted to make a belated challenge to jurisdiction
after being found guilty effectively seeks to substantially benefit from
sitting on his hands, “confident that an unvoiced objection will garner a
new trial if the verdict is unfavorable.” Hargrove v. CSX Transp., Inc., 631
So. 2d 345, 346 (Fla. 2d DCA 1994). That would be improper. A defendant
simply cannot allow error to occur without objection, hope they will win
despite the error, and be confident of a new trial when the trial court has
not been afforded the opportunity to cure it. Here, Brown failed to request
a transfer to juvenile court and instead “rolled the dice” with a jury trial in
the adult division and lost. After the verdict was announced, it was too
late to cry foul.

   We take no position on whether electing to have this case proceed in
adult court—thereby permitting the case to be heard by a jury rather than
a judge—was a matter of trial strategy. Similarly, we do not decide on
when defense counsel knew or should have known that the case could be
heard in the juvenile court. Instead, we note only that allowing a
defendant to escape the consequences of a jury verdict by waiting to raise
this issue until after he is convicted would be tantamount to the loser of a
football game waiting until the final second of regulation expires before
raising issue with the coin toss. The time to raise the issue of divisional
jurisdiction in this case was before the jury found Brown guilty, not after.

   As to Brown’s claim of ineffective assistance of counsel, this court has
stated, in general, that a claim of ineffective assistance of counsel cannot
be raised for the first time on appeal; instead, such a claim is properly
made in a motion for post-conviction relief under Florida Rule of Criminal
Procedure 3.850. See Odeh v. State, 82 So. 3d 915, 923-24 (Fla. 4th DCA
2011). An appellate court may review an ineffective assistance of counsel
claim on direct appeal when the alleged ineffectiveness is apparent on the
face of the record. See Kidd v. State, 978 So. 2d 868, 869 (Fla. 4th DCA
2008). This exception is rarely applicable, see Boyd v. State, 45 So. 3d
557, 560 (Fla. 4th DCA 2010), because “[s]uch claims ordinarily turn on
issues of fact and both sides are entitled to present relevant evidence to
the trial court to resolve those issues.” Gordon v. State, 469 So. 2d 795,
798 (Fla. 4th DCA 1985) (Anstead, J., concurring specially). Here, we are
unable to conclude that the alleged 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.”

                                      8
Larry v. State, 61 So. 3d 1205, 1207 (Fla. 5th DCA 2011) (quoting Corzo v.
State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002)).

   We affirm Brown’s judgment and sentence and deny his claim of
ineffective assistance of counsel without prejudice to file a rule 3.850
motion for postconviction relief in the trial court.

   Affirmed.

KUNTZ, J., concurs.

TAYLOR, J., dissents with opinion.

TAYLOR, J., dissenting.

   I respectfully dissent and would reverse and remand this case for
further proceedings in the juvenile division of the circuit court. The
juvenile division has exclusive jurisdiction over juvenile offenders unless
the offender waives juvenile jurisdiction or a statutory exception applies.
As explained below, appellant did not waive juvenile jurisdiction and, as
the majority acknowledges, no statutory exception applies to his vehicular
homicide charge. Vehicular homicide is not included in the list of criminal
charges that may be direct-filed in adult court under section 985.557(1)(a),
Florida Statutes.

   Appellant cannot be said to have waived his right to be treated as a
juvenile, because, here, the trial court was made aware of the improper
direct-filing of his case at the trial level before sentencing. As the majority
points out, “[o]ther cases have held that the right to be treated as a juvenile
is not waived provided it is brought to the trial court’s attention, even
belatedly.” In Miller v. State, 702 So. 2d 617 (Fla. 4th DCA 1997), the
defendant did not object to the adult court’s exercise of jurisdiction over
his case until after the state rested its case on several counts of sexual
battery. We reversed the trial court’s order that found waiver and denied
the defendant’s motion to transfer his case to juvenile court. We ruled
that State v. Griffith, 675 So. 2d 911 (Fla. 1996), did not apply:

      As in State v. King, 426 So. 2d 12 (Fla. 1982), Griffith never
      raised the jurisdictional issue at the trial level, thus waiving
      it. Here, although belated in the trial proceedings, the issue
      was raised. . . . The conviction in Griffith, to us, was upheld
      solely because appellant waived the jurisdictional issue at the
      trial level, which is not the case here.


                                      9
Miller, 702 So. 2d at 618.

    Similarly, that is not the case here. Unlike the defendants in King and
Griffith, the juvenile in this case did not raise his right to be treated as a
juvenile for the first time on direct appeal. Instead, he challenged the adult
court’s jurisdiction at the trial level before sentencing. According to the
record, his attorney first became aware that he was being improperly tried
in adult court on the morning of sentencing and moved to transfer his case
to juvenile court. In my view, by proceeding to a jury verdict in adult court
and raising the jurisdictional issue before sentencing, appellant could at
most be deemed to have waived his right to an adjudicatory hearing in
juvenile court. But appellant cannot be deemed to have waived his right
to a disposition hearing in juvenile court.

   Even if a finding of waiver could be considered appropriate in this case,
alternatively we should reverse appellant’s conviction and sentence
because of ineffective assistance of counsel. It is apparent on the face of
the record that trial counsel was ineffective by proceeding to trial in adult
court, and appellant was prejudiced by that ineffectiveness with a lengthy
adult prison term rather than juvenile sanctions.

   Although claims of ineffective assistance of counsel are usually
addressed during postconviction proceedings, this case compels review on
direct appeal. Here, 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.” See Bagnara v.
State, 189 So. 3d 167, 171 (Fla. 4th DCA 2016) (quoting Corzo v. State,
806 So. 2d 642, 645 (Fla. 2d DCA 2002)).

   To prove a claim of ineffective assistance of counsel, a petitioner must
show that counsel’s performance fell below an objective standard of
reasonableness, Strickland v. Washington, 466 U.S. 668, 688 (1984).
Under Strickland, a petitioner must show that: (1) counsel’s performance
was deficient and (2) that the deficient performance resulted in prejudice.
Id. at 686. Citing the National Juvenile Defender Center’s Florida
Guidelines of Practice for Attorneys Who Represent Children, appellant
argues that his trial counsel was required to act with the same zealousness
as adult counsel, have a working knowledge of juvenile law and practice,
and promptly pursue procedural steps to protect the child’s interests.
Here, trial counsel’s failure to recognize early in the trial proceedings that
this case was improperly filed in adult court and to move to transfer it to
juvenile court fell below the objective standard of reasonableness.



                                     10
    As to the prejudice prong of Strickland, appellant was obviously
prejudiced by being subjected to a substantially harsher penalty than one
which he would have faced had he been found delinquent in juvenile court.
Appellant received an aggregate sentence of twenty years in prison, as
compared to a maximum six-year term in a residential juvenile program.
“[T]he Legislature created the juvenile justice system as a separate, distinct
rehabilitative alternative to the more punitive, incapacitation-oriented
criminal justice system.” E.A.R. v. State, 4 So. 3d 614, 617 (Fla. 2009).
Sentenced as an adult, appellant was denied the rehabilitative services
offered in the juvenile court system and deprived of the opportunity to
achieve rehabilitation through supervision, counseling, and treatment.

   I strongly disagree with the majority’s view that we are unable to decide
appellant’s claim of ineffective assistance of counsel in this appeal. It is
clear from the face of the record that counsel’s performance was deficient
and that appellant suffered prejudice as a result. In my view, it would be
a waste of time and judicial resources to require appellant to seek relief
through postconviction proceedings. No evidentiary hearing is needed
because, based on the record before us, there is no reasonable strategic
reason for counsel’s failure to move to transfer this case to juvenile court.
Defense counsel stated on the record in open court that she did not realize
that this case was improperly filed until just a few hours before sentencing.
The trial court found her credible and apparently agreed that her failure
to raise this issue until late in the proceedings was a mistake, not a
strategy decision. The court stated: “I’m not suggesting this was your
strategy or anything else, I mean that would be ridiculous.”

    For the above reasons, I would reverse appellant’s conviction and
sentence, and remand with directions to transfer his case to juvenile court
for further proceedings.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     11
