          Supreme Court of Florida
                                   ____________

                                   No. SC14-2296
                                   ____________

                               RALPH MONROE,
                                  Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  [April 28, 2016]

PER CURIAM.

      This case is before the Court to review the decision of the First District

Court of Appeal in Monroe v. State, 148 So. 3d 850 (Fla. 1st DCA 2014). In its

decision the district court ruled upon the following question, which the court

certified to be of great public importance:

      DO F.B. V. STATE, 852 So. 2d 226 (Fla. 2003), AND YOUNG V.
      STATE, 141 So. 3d 161 (Fla. 2013), REQUIRE PRESERVATION
      OF AN EVIDENTIARY DEFICIENCY WHERE THE STATE
      PROVED ONLY A LESSER INCLUDED OFFENSE AND THE
      SENTENCE REQUIRED FOR THE GREATER OFFENSE WOULD
      BE UNCONSTITUTIONAL AS APPLIED TO THE LESSER
      OFFENSE?

Id. at 861. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
                                  BACKGROUND

                                        Facts

      On May 25, 2011, Sandra Grant, a teacher at the Florida Agricultural and

Mechanical University Developmental Research School (FAMU DRS) was

speaking to another teacher in a school hallway when she noticed odd behavior by

T.J., an eight-year-old male student. T.J. had approached a restroom, but hesitated

when he saw Petitioner Ralph Monroe, then a high school senior at FAMU DRS,

knock on the restroom door from the hallway. T.J. told Grant and the other teacher

that he could not enter the restroom then because Monroe would “bother” him.

When Grant inquired further, T.J. said, “[h]e will ask me, How do I use the

bathroom? And he will tell me, Let’s play a game with it.”

      The incident was referred to Special Agent Terry Thomas of the Florida

Department of Law Enforcement, who conducted a forensic interview with T.J.

During that interview, T.J. stated that his birthday was on February 4. T.J. told

Thomas that while he was using the restroom, a “big kid” approached him in the

stall, touched his penis, inserted a finger into his anus, and asked if he wanted to

play a game. T.J. told the big kid that he did not want to play, and when the

question was repeated, T.J. replied “no” again and walked away. He also told

Thomas that this person had approached him on more than one occasion, while he




                                         -2-
was eight years old. (T.J. had turned eight years old on February 4, 2011). T.J.

identified Monroe from a photo array during the interview.

      Following that interview, Thomas traveled to Stillman College in Alabama,

where he interviewed Monroe regarding T.J.’s allegations. Monroe initially denied

the allegations, but eventually confessed that he had asked T.J. if he wanted to play

a game and touched T.J.’s penis in the restroom of the school. The State

Attorney’s Office filed a second amended information against Monroe that charged

him with the following four counts: (I) sexual battery upon T.J., a person less than

twelve years of age, by digitally penetrating his anus, and Monroe was eighteen

years of age or older; (II) lewd and lascivious molestation of T.J. by touching the

breasts, genitals, genital area, or clothing covering those areas of T.J., and Monroe

was eighteen years of age or older; (III) sexual battery upon T.J., and Monroe was

less than eighteen years of age; and (IV) lewd and lascivious molestation of T.J.,

and Monroe was less than eighteen years of age.

      During trial, the State presented testimony from Grant, Thomas, an

additional investigator, and T.J.1 T.J., who was unable to specifically identify




       1. The State also presented testimony from another alleged victim, J.T., and
his stepmother. After Monroe’s arrest became public, J.T.’s stepmother learned
that her stepson had been similarly approached in the restroom of FAMU DRS by
Monroe. Thomas also conducted a forensic interview with J.T., a recording of
which was shown to the jury. Before J.T. or his stepmother testified, the trial court

                                        -3-
Monroe during trial, testified that a person approached him in the school bathroom

after he had pulled down his pants, asked him about playing a game, touched his

penis, and then inserted a finger into his anus. During trial, T.J. testified that this

incident occurred only once, which was contrary to the information he gave

Thomas during the forensic interview. The recording of that interview, as well as

the recording of Monroe’s inculpatory statement to Thomas, were entered into

evidence.

      The central issue during trial focused on whether Monroe had approached

T.J. before or after Monroe’s eighteenth birthday on February 27, 2011. During

the direct examination of T.J., the following exchange resulted:

      Q. Did this happen more than once?

      A. Just once.

      Q. Okay. The—was this after Christmastime?

      A. Maybe. I don’t know.

      Q. Okay. Do you remember—do you know Ms. Grant?

      A. Yes.

             ....

      Q. Do you remember going and telling her about going into the
      bathroom?

read a limiting instruction reminding the jury that the State had charged Monroe
with sexual battery and lewd and lascivious molestation of only T.J.


                                          -4-
      A. Yes.

      Q. Was it—did it happen after spring break?

      A. Maybe.

      Q. Okay. Do you remember going to spring break on the beach?

      A. Yes.

      Q. Do you think it was before or after spring break?

      A. Maybe after.

      Q. Okay. And was it after the Easter bunny came and saw you?

      A. No.

      Q. Okay. The—was it after Christmas?

      A. No, I don’t—

      Q. Do you remember exactly when it happened?

      A. Yes, sir.

      Q. Okay. Did you ever see him in the bathroom another time?

      A. No.

      After the State rested, the trial court asked defense counsel if they intended

to move for judgment of acquittal. Defense counsel declined, and the court stated,

“I find there’s a prima facie case, that judgment of acquittal would be fruitless at

this time.” Defense counsel then rested without presenting any evidence.




                                         -5-
      During closing statements, both parties discussed the date that Monroe had

approached T.J. The State made the following argument:

      Ladies and gentlemen, I would suggest to you that the issue is not
      whether it happened. The real issue for this jury to decide is when did
      it happen. Obviously, eight-year-olds have a little bit different time. .
      . . So trying to ask an eight-year-old what time of year it was, they
      don’t work on a date calendar. . . . [Y]ou heard me ask him some
      questions about Spring Break and Easter bunnies and things along
      those lines. That’s probably the most challenging thing for this jury to
      determine.
             To go over the dates once again, [T.J.] turned eight on February
      the 4th, 2011, and he said this happened when he was eight. The
      defendant was 17 up until February the 27th of 2011. . . . There’s a
      different penalty if you were 18 and you do this to an eight-year-old
      versus if you’re 17 and younger. . . .
             So you have 23 days that are possible that he could have done
      this based on that window when he was still 17. The State would
      suggest to you that the most compelling evidence is that on May 25th
      of 2011, this little boy, with fear in his voice and trembling, runs up to
      a teacher and says I can’t go to the bathroom because that boy will
      come in there and mess with me. I would suggest to you that was
      fresh fear. I would suggest to you that shows that it wasn’t three
      months before, but that it was a couple of days or weeks before.

Defense counsel also addressed the date of the incident:

      With respect to . . . Element No. 3, that Mr. Monroe was 18 years or
      older, you can’t speculate. You can’t speculate that it’s possible that
      he did this during the 23 days. If it’s possible, then there’s reasonable
      doubt. If it’s possible that this occurred when he was 17 years old, the
      State has not proved its case. And I would submit that you must find
      the defendant to have been 17 years old—age at the time.

The jury instructions also explained that Counts III and IV were the lesser-included

offenses for both sexual battery and lewd and lascivious molestation.




                                        -6-
      The jury convicted Monroe of Count I, sexual battery against a child by a

person eighteen years of age or older, and Count II, lewd and lascivious

molestation on a child by a person eighteen years of age or older. The court

sentenced him to life imprisonment for Count I, forty years’ imprisonment for

Count II, and designated him a sexual predator.

                            Decision of the First District

      Monroe appealed his convictions and sentences to the First District, which

ultimately affirmed the sentences. Monroe, 148 So. 3d at 852.2 Monroe conceded

that the sufficiency issue was not preserved during trial because defense counsel

did not move for judgment of acquittal. Id. at 857-58. The First District therefore

considered whether a fundamental error, as defined by F.B. and Young, had

occurred. Id. at 858. Monroe asserted that a fundamental error resulted because

the State failed to prove his age at the time of the offenses, and the penalties for the

crimes varied drastically based on the age of the defendant. Id. A conviction for

sexual battery against a child under the age of twelve carries a mandatory sentence



       2. Monroe also appealed the denial of his motion to suppress his inculpatory
statements. Monroe, 148 So. 3d at 852. He argued that he was subject to custodial
interrogation at the time of the interview, and therefore he should have been
informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
Monroe, 148 So. 3d at 854-55. The First District extensively reviewed the
circumstances of that interview and concluded that Monroe was not in custody at
the time, rendering the Miranda warnings unnecessary. Id. at 855-57. However,
Monroe does not now assert any error regarding that matter.


                                         -7-
of life imprisonment without the possibility of parole for a defendant that is

eighteen years old, but if the defendant is under the age of eighteen, the judge has

greater discretion in sentencing. Id. (citing §§ 794.011(2)(a)(b), 775.082(1)-(3),

Fla. Stat. (2011)).

        In F.B., this Court held that the State’s failure to prove an element of a crime

beyond a reasonable doubt does not constitute fundamental error. 852 So. 2d at

227. In that case, a juvenile offender was charged with and adjudicated delinquent

for petit theft of items valued at $100 or more, but less than $300. Id. The State

did not present evidence about the value of the items, but F.B. did not object or

move for judgment of acquittal during trial; the issue of sufficiency was first raised

on appeal. Id. The Fourth District Court of Appeal held that defendants must

preserve a claim that the State failed to provide sufficient evidence of an element

of a crime for appellate review, but certified conflict with T.E.J. v. State, 749 So.

2d 557 (Fla. 2d DCA 2000). F.B., 852 So. 2d at 227-28. In T.E.J., the Second

District Court of Appeal held that the State’s failure to prove an essential element

of an offense constituted fundamental error. Id. at 228 (citing T.E.J., 749 So. 2d at

558).

        We approved the Fourth District’s analysis and rejected that of the Second

District. Id. at 231. We explained that parties must ordinarily raise a specific,

contemporaneous objection to a perceived error during trial to preserve the error


                                          -8-
for appellate review. Id. at 229 (citing J.B. v. State, 705 So. 2d 1376, 1378 (Fla.

1998); Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)). This rule serves the

interests of judicial economy and fairness by requiring errors to be addressed

immediately and preventing attorneys from subsequently using an error to gain a

tactical advantage, or “sandbag” opposing counsel. Id. (citing J.B., 705 So. 2d at

1378). Therefore, unless the evidence was insufficient to show that any crime had

been committed, claims of insufficient evidence must be properly preserved. Id. at

230.

       The First District noted that following F.B., several district courts continued

to conclude that fundamental error results when the State failed to prove that the

defendant committed the specific crime of which he or she had been convicted.

Monroe, 148 So. 3d at 858-59. However, the district court explained that this

Court clarified the F.B. exception in Young:

       Young was convicted of burglary of a dwelling. 141 So. 3d at 163.
       On appeal and before the Florida Supreme Court, Young raised the
       unpreserved argument that the structure he entered was not a dwelling
       because it was undergoing substantial renovations, and was arguably
       not suitable for lodging, at the time of the offense. Id. at 163-65. The
       court found this argument waived because the evidence suggested, “at
       the least, . . . that [the defendant] committed a burglary of a structure.”
       Id. at 165. The court explained, “As the evidence indicates that a
       crime was in fact committed by [the defendant], [his] conviction
       cannot be said to be fundamental error.” Id. (emphasis added).
               Young supports the more stringent reading of F.B. to require a
       showing that the evidence could not support the conviction of any
       crime whatsoever before an evidentiary deficiency may be held to
       constitute fundamental error. Only then will such a “complete failure

                                          -9-
      of the evidence” rise to the level of fundamental error. F.B., 852 So.
      2d at 230.

Monroe, 148 So. 3d at 859 (footnote omitted). Accordingly, the district court

concluded that there was sufficient evidence that Monroe committed a crime and

reversal was not permitted under Young or F.B. Id.

      However, the district court expressed discomfort with its holding in light of

the sentencing disparity under these circumstances:

      Monroe’s failure to preserve the issue resulted in a monumental
      disparity between the sentence the court was required to impose under
      the verdict for capital sexual battery and the sentence the court could
      have imposed under a verdict supported by competent, substantial
      evidence. The difference between preservation and silence in this
      case meant the difference between a mandatory life sentence without
      parole and the availability of a term of years. Under Graham v.
      Florida, 560 U.S. 48, 74 (2010), a mandatory sentence of life without
      parole for a nonhomicide offense is unconstitutional when imposed
      against a juvenile offender. Therefore, the State’s failure to prove that
      Monroe was an adult at the time of his offenses has constitutional
      significance.

Id. at 861. Therefore, the First District certified the following question to this

Court for review:

      DO F.B. V. STATE, 852 So. 2d 226 (Fla. 2003), AND YOUNG V.
      STATE, 141 So. 3d 161 (Fla. 2013), REQUIRE PRESERVATION
      OF AN EVIDENTIARY DEFICIENCY WHERE THE STATE
      PROVED ONLY A LESSER INCLUDED OFFENSE AND THE
      SENTENCE REQUIRED FOR THE GREATER OFFENSE WOULD
      BE UNCONSTITUTIONAL AS APPLIED TO THE LESSER
      OFFENSE?

Id. This review follows.


                                         - 10 -
                                    ANALYSIS

                Certified Question of Great Public Importance3

      A fundamental 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.” F.B., 852 So. 2d at 229 (citing Brown v. State, 124

So. 2d 481, 484 (Fla. 1960)). Accordingly, this Court has emphasized that

reviewing courts should proceed with caution when considering whether a

fundamental error has occurred. See Sanford v. Rubin, 237 So. 2d 134, 137 (Fla.

1970) (“The Appellate Court should exercise its discretion under the doctrine of

fundamental error very guardedly.”); see also Daniels v. State, 121 So. 3d 409, 417

(Fla. 2013) (addressing fundamental error in the context of jury instructions);

Farina v. State, 937 So. 2d 612, 629 (Fla. 2006) (concerning prosecutorial

statements); Hopkins v. State, 632 So. 2d 1372, 1374 (Fla. 1994) (considering

whether factual findings by the trial court constituted fundamental error).

      We have even more narrowly applied the fundamental error doctrine to

alleged errors of insufficient evidence. There are only two instances in which an

unpreserved challenge to the sufficiency of the evidence can be reviewed: (1) the




      3. The question certified by the First District presents a pure question of law
that we review de novo. See, e.g., Special v. W. Boca Med. Ctr., 160 So. 3d 1251,
1255 (Fla. 2014).


                                        - 11 -
mandatory review by this 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. See Fla. R. App. P. 9.140(i); Young, 141 So. 3d

at 165; F.B., 852 So. 2d at 230. Challenges to the sufficiency of the evidence

inherently question the conclusions of the fact-finder, a process that we, as an

appellate court, are reluctant to undertake. See Young, 141 So. 3d at 165.

Appellate courts should more closely concern themselves with the legal sufficiency

of the evidence, rather than the weight assigned to or the credibility of the evidence

before the trial court. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981).

Therefore, when an appellate court conducts a sufficiency review, it deferentially

reviews all of the evidence in the record in the light most favorable to the

government to determine whether a rational trier of fact could have reached the

verdict. See, e.g., F.B., 852 So. 2d at 230 (citing Tibbs, 397 So. 2d at 1123);

Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001).

      Monroe now asks this Court to expand the narrow confines of this doctrine

to permit review of an unpreserved sufficiency of the evidence error when a

manifest miscarriage of justice occurs. He urges the Court to adopt the standard

employed by federal courts, suggesting that the federal appellate circuits uniformly

reverse convictions unsupported by sufficient evidence where a manifest

miscarriage of justice might otherwise result.


                                        - 12 -
      However, we should not expand our jurisprudence under such a nebulous

standard. First, it offers little meaningful guidance for the appellate courts of this

State. As acknowledged by counsel for Monroe during oral argument, one knows

a manifest miscarriage of justice only when one sees it. See Jacobellis v. Ohio,

378 U.S. 184, 197 (1964) (Stewart, J., concurring). While pithy, such a standard

cannot be uniformly or clearly applied across this State. Further, the federal

standard does not appear to be nearly as uniform or straightforward as Monroe

suggests. Compare, e.g., United States v. Fries, 725 F.3d 1286, 1291 n.5 (11th Cir.

2013) (“The parties both suggest that we should review the sufficiency of the

evidence in this case for plain error, but where a defendant fails to preserve an

argument as to the sufficiency of the evidence in the trial court, the predominant

rule in this circuit—established by a long and unchallenged line of cases—is better

stated as requiring that we uphold the conviction unless to do so would work a

manifest miscarriage of justice.”) with United States v. Spinner, 152 F.3d 950, 956

(D.C. Cir. 1998) (applying the plain error standard established in Federal Rule of

Criminal Procedure 52(b) to review a challenge to the sufficiency of the evidence);

United States v. Meadows, 91 F.3d 851, 854-55 (7th Cir. 1996) (“Our court has

stated that when the defendants have failed to challenge the sufficiency of the

evidence before the district court, we review only for plain error, and defendants

must demonstrate a manifest miscarriage of justice.”). Without a clearly


                                         - 13 -
articulable and readily applicable standard, we will not expand the narrow

exceptions to the fundamental error doctrine with respect to sufficiency of the

evidence claims. Accordingly, we answer the question certified by the First

District in the affirmative.

                          Ineffective Assistance of Counsel

      However, there remains an additional issue for this Court to resolve.4 We

hold 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.5

      An attorney renders ineffective assistance of counsel through conduct that

exceeds the bounds of reasonable professional assistance, without which, there is a

reasonable probability that the client would have enjoyed a different result.



       4. Once we properly possess jurisdiction, we may consider any other error
before us. See Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 912
(Fla. 1995).
       5. Contrary to the suggestion below, the finding that counsel was ineffective
does not undermine the holding in F.B. that a sufficiency claim must ordinarily be
preserved. See Monroe, 148 So. 3d at 860 n.3. Although the factual issues
underpinning both claims may overlap, one challenges the sufficiency of the
evidence presented to the jury, and the other reviews the conduct of trial counsel,
who is charged with providing effective assistance to his or her client. Cf. Corzo
v. State, 806 So. 2d 642, 645 n.2 (Fla. 2d DCA 2002) (“There is probably a high
correlation between errors that may be corrected as fundamental error on direct
appeal in the absence of preservation by trial counsel . . . and errors that may be
corrected as ineffective assistance of counsel on direct appeal.”).


                                         - 14 -
Strickland v. Washington, 466 U.S. 668, 694 (1984). Appellate 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. E.g., Robards v. State, 112 So. 3d 1256, 1266-67 (Fla. 2013);

Stewart v. State, 420 So. 2d 862, 864 (Fla. 1982). An appellate court initially

reviewing a conviction will only grant relief for ineffective assistance of counsel

where the ineffectiveness of counsel is apparent from the face of the record before

the appellate court and a waste of judicial resources would result from remanding

the matter to the lower court for further litigation. Robards, 112 So. 3d at 1267

(citing Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987)).


      The failure to properly preserve an otherwise clear error may constitute

ineffective assistance of counsel cognizable on direct appeal. See Bracey v. State,

109 So. 3d 311, 315 (Fla. 2d DCA 2013) (failure to preserve a clear error regarding

reliance on incorrect scoring factors during sentencing); see also McComb v. State,

174 So. 3d 1111, 1112-13 (Fla. 2d DCA 2015) (citing Michel v. State, 989 So. 2d

679, 681 (Fla. 4th DCA 2008)) (failure to request or object to exclusion of

pertinent instruction); Larry v. State, 61 So. 3d 1205, 1207 (Fla. 5th DCA 2011)

(failure to raise obvious defense that would have otherwise resulted in reduced

charge). Indeed, several district courts of this State have suggested that the failure

to move for judgment of acquittal when there are serious concerns pertaining to the


                                        - 15 -
sufficiency of the evidence presented by the prosecution may constitute ineffective

assistance reviewable on direct appeal. Beazley v. State, 148 So. 3d 552, 554 (Fla.

1st DCA 2014) (citing Corzo, 806 So. 2d at 645).

      In this case, the failure of Monroe’s trial counsel to move for judgment of

acquittal of the greater offenses during or after trial was patently unreasonable.

Despite the best efforts of the State during trial, the prosecutor was unable to elicit

testimony from T.J. regarding the exact date that Monroe assaulted him. At the

close of the State’s case, the trial court specifically asked trial counsel whether

they would move for judgment of acquittal, and trial counsel declined.6 In spite of

this, defense counsel and the prosecution vigorously disputed Monroe’s age during

closing statements. Finally, trial counsel failed to move for judgment of acquittal

following Monroe’s conviction pursuant to Florida Rule of Criminal Procedure

3.380(c). We can think of no plausible justification for these decisions of trial

counsel, and during oral argument, neither could Monroe’s appellate counsel nor

the State.




       6. Although the trial court did find that the State had made a “prima facie
case,” and noted that a judgment of acquittal would be “fruitless,” this appeared to
be a generic statement by the trial court. There was no specific finding regarding
the date of the offense, and thus no finding regarding whether the State had
presented competent, substantial evidence of the greater or lesser included
offenses.


                                         - 16 -
      Additionally, the prejudice to Monroe is most obvious. First, the failure to

seek acquittal on the greater offenses caused Monroe to be sentenced to mandatory

life imprisonment without the possibility of parole following his conviction, a

sentence that would be unconstitutional if Monroe was not eighteen when this

event occurred—a factual matter that the State was unable to prove. See Graham,

560 U.S. at 74.7 Moreover, if this error had been properly preserved and the trial

court had denied the motion, the error would have been reviewed by the First

District under a de novo standard, rather than for fundamental error. See, e.g.,

Heyne v. State, 88 So. 3d 113, 120 (Fla. 2012) (explaining that denials of motions

for judgment of acquittal are reviewed de novo). In light of the obvious hesitation

of the First District in affirming Monroe’s sentence below, there is a reasonable

probability of a different result if the First District had been able to review

Monroe’s convictions under a de novo standard.

      Finally, it would be a waste of judicial resources to wait until Monroe seeks

postconviction relief for ineffective assistance of counsel when the

unreasonableness of the actions of trial counsel and the prejudice to Monroe are




        7. The decision in Graham was issued in 2010, a year before the offensive
conduct occurred and two years prior to this trial. Cf. Johnson v. State, 796 So. 2d
1227, 1228-29 (Fla. 2001) (“A reasonably effective criminal defense attorney must
keep himself or herself informed of significant developments in the criminal law . .
. .” (citing Villavicencio v. State, 719 So. 2d 322, 323 (Fla. 3d DCA 1998))).


                                         - 17 -
indisputable from the face of the record before us. Therefore, we conclude that

this case is one of the rare examples in which the ineffectiveness of trial counsel is

cognizable on direct appeal.

                                  CONCLUSION

      We answer the question certified by the First District in the affirmative.

However, we find that Monroe’s trial counsel rendered ineffective assistance of

counsel and remand this matter for further proceedings consistent with this

opinion.

      It is so ordered.

LABARGA, C.J., and LEWIS, CANADY, and PERRY, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
POLSTON, J., concurs in result.
QUINCE, J., concurs in result only.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., concurring in result.

      I concur in the majority opinion that ineffective assistance of counsel is

apparent from the face of the record. Majority op. at 14. However, I concur in

result because in this case the State’s failure to prove that Monroe was eighteen at

the time he committed the crimes of sexual battery and lewd and lascivious

molestation constituted fundamental error.




                                        - 18 -
      Monroe was charged with sexual battery against a person less than twelve

years of age by a person eighteen years of age or older, which requires the State to

prove that Monroe was over eighteen years of age when he committed the sexual

battery. § 794.011(2)(a), Fla. Stat. (2011). He was also charged with lewd and

lascivious molestation on a child less than twelve years old by a person eighteen

years and older. § 800.04(5)(b), Fla. Stat. (2011). Clearly then, if the State could

not prove that Monroe was eighteen years old at the time of the offenses, there

would be insufficient evidence to convict him of either crime because Monroe’s

age is an essential element of both crimes.

      Further, the defendant’s age determines the available penalty associated with

these crimes. The sexual battery count carries a mandatory sentence of life in

prison without the possibility of parole, while the lewd and lascivious molestation

charge carries a minimum sentence of twenty-five years imprisonment. See §

775.082(1)-(3), Fla. Stat. (2011). Significant to this case is that if Monroe was not

eighteen and over, his mandatory sentence of life without parole for a nonhomicide

offense would be unconstitutional under the Eighth Amendment. Graham v.

Florida, 560 U.S. 48, 74 (2010). Therefore, due to the State’s failure to prove

Monroe’s age, the sentence is not only unlawful on its face, but it is

unconstitutional under the Eighth Amendment. And under our application of

Graham in Henry v. State, 175 So. 3d 675 (Fla. 2015), and Gridine v. State, 175


                                        - 19 -
So. 3d 672 (Fla. 2015), the 40-year sentence imposed upon Monroe for the lewd

and lascivious molestation conviction may raise constitutional concerns as well.

      The fundamental error rule, which serves as an exception to the requirement

of a preserved error, is a stringent one indeed, and I have generally endorsed a

narrow application of the rule. I concurred in the Court’s unanimous opinion in

F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003), that “rarely will an error be deemed

fundamental.” This is that rare case.

      Unlike other cases, in this situation, age is not merely a technical element

that is easily ascertainable, which the State could supply if brought to its attention.

Instead, here, Monroe’s age was the “central issue” of the case that the State

attempted, but ultimately failed, to prove with sufficient evidence. See majority

op. at 4 (“The central issue during trial focused on whether Monroe had

approached T.J. before or after Monroe’s eighteenth birthday on February 27,

2011.”). As the majority explains, “[d]espite the best efforts of the State during

trial, the prosecutor was unable to elicit testimony from T.J. regarding the exact

date that Monroe assaulted him.” Id. at 16.

      We have applied fundamental error, albeit sparingly, to cases involving

unpreserved errors in closing argument and unpreserved errors in jury instructions

that incorrectly set forth the law on an essential element of the offense. See, e.g.,

State v. Montgomery, 39 So. 3d 252 (Fla. 2010). Generally, we have held that the


                                         - 20 -
defense must preserve a claim of insufficient evidence unless two exceptions

apply: when it is a death penalty case; and when there is insufficient evidence that

the defendant committed any crime. F.B., 852 So. 2d at 230-31. As to the second

exception, the Court in F.B. explained:

             The second exception to the requirement that claims of
      insufficiency of the evidence must be preserved occurs when the
      evidence is insufficient to show that a crime was committed at all . . . .

            Thus, an argument that the evidence is totally insufficient as a
      matter of law to establish the commission of a crime need not be
      preserved. Such complete failure of the evidence meets the
      requirements of fundamental error—i.e., an error that reaches to the
      foundation of the case and is equal to a denial of due process.

Id.

      In this case, I recognize that the State has proven the lesser offenses of

sexual battery and lewd and lascivious molestation against a person less than

twelve years of age by a person younger than eighteen years, so this case would

not fall into either of these two exceptions. However, very few crimes hinge on

whether the defendant is an adult, and I would include as an extremely rare but

exceedingly important third exception to the rule that the defense must preserve a

claim of insufficient evidence: when there is insufficient evidence to prove the

defendant was an adult and the adult status of the defendant is an essential element

of the crime. What makes this situation particularly suitable for application of the

fundamental error standard is that the factual predicate of whether Monroe is



                                          - 21 -
constitutionally eligible to receive the sentences he received for these crimes—

proof that he was eighteen or older—is absent.

      Alternatively, in the absence of this rare third exception, I would urge that

this Court consider adopting the federal standard, which permits a reviewing court

to reverse an unpreserved sufficiency of the evidence error to avoid a manifest

miscarriage of justice. See United States v. Fries, 725 F.3d 1286, 1291 (11th Cir.

2013). This standard is not an amorphous open-ended standard. As the Eleventh

Circuit explained:

      [W]here a defendant does not move for acquittal or otherwise preserve
      an argument regarding the sufficiency of the evidence in the court
      below, the defendant “must shoulder a somewhat heavier burden: we
      will reverse the conviction only where doing so is necessary to
      prevent a manifest miscarriage of justice.” United States v. Greer,
      440 F.3d 1267, 1271 (11th Cir. 2006). This standard requires us to
      find either that the record is devoid of evidence of an essential
      element of the crime or “that the evidence on a key element of the
      offense is so tenuous that a conviction would be shocking.” [United
      States v.] Milkintas, 470 F.3d [1339,] 1343 [(11th Cir. 2006)]
      (internal quotation marks omitted); see United States v. Wright, 63
      F.3d 1067, 1072 (11th Cir. 1995).
Id. Under that standard, this case cries out for a reversal.

      Accordingly, I disagree with the majority with respect to the applicability of

fundamental error to this sufficiency of the evidence claim. However, I concur to

the extent that the majority concludes that counsel was ineffective and that Monroe

is entitled to the same relief he would receive if the error was considered

fundamental. Therefore, I concur in result.


                                         - 22 -
      Either way, this case should be remanded for resentencing with directions to

vacate the sexual battery and lewd and lascivious molestation convictions and enter

judgments of conviction pursuant to sections 794.011(2)(b) and 800.04(5)(c)1,

Florida Statutes (2011). As a juvenile, in my view, Monroe would then be entitled

to be resentenced pursuant to the new juvenile sentencing legislation enacted in

chapter 2014-220, Laws of Florida. See Henry, 175 So. 3d at 680. For all these

reasons I concur with the result reached by the majority.

Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance

      First District - Case No. 1D12-3966

      (Leon County)

Michael Robert Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee,
Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Angela
Renee Hensel, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




                                       - 23 -
