       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 14, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-189
                        Lower Tribunal No. 04-11283-B
                             ________________


                               Javor Williams,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Jose L.
Fernandez, Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, and Daniel Tibbitt, for appellant.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Assistant
Attorney General, for appellee.


Before SHEPHERD, C.J., and WELLS, SUAREZ, ROTHENBERG, LAGOA,
SALTER, EMAS, FERNANDEZ, LOGUE, and SCALES, JJ.

                         En Banc (Court’s Own Motion)
      PER CURIAM.

      Javor Williams appeals a circuit court order vacating his open plea and all of

his convictions and sentences under a three-count information originally filed in

2004. Williams maintains that the trial court was required to vacate only the plea

of guilt, judgment, and sentence on count 1 of the three original counts, based on a

claim of ineffective assistance of counsel, and that the trial court erred when,

instead, it vacated the plea as to all three counts.

      We have jurisdiction to consider this appeal. See Taylor v. State, 140 So. 3d

526 (Fla. 2014). We recede from this Court’s earlier opinion in Williams v. State,

83 So. 3d 906 (Williams II) (Fla. 3d DCA 2012), and our analysis in that opinion

regarding the prejudice alleged to have resulted from the claimed ineffectiveness

of Williams’ counsel.

      The Criminal Incidents

      The State’s proffer at the time of Williams’ plea, the stipulation by Williams

during his colloquy, and the victim’s testimony at a deposition and at the

sentencing hearing established the operative facts. In April 2004, Williams and his

two co-defendants followed the victim’s car in their own vehicle as the victim

drove from her grandfather’s store to her home. When the victim entered her

driveway, the defendants blocked her car with their own car.

      Williams and one of the co-defendants got out of their car, and Williams



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placed a firearm next to the victim’s face. Williams repeatedly demanded that she

surrender her bag, but the victim did not have the bag in her hand and did not

understand what was being demanded. The victim attempted to push back, and

Williams then intentionally shot the victim in her abdomen.

      The Charges, Plea, and Post-Conviction Procedural History

      Williams and the two co-defendants were charged by information in 2004

with attempted felony murder, attempted armed robbery, and conspiracy to commit

armed robbery. The attempted felony murder charge, count 1, later became the

focus of the post-conviction pleadings. In pertinent part, count 1 alleged:

       [Co-defendants and Williams, on or about the crime date, in Miami-
       Dade County, Florida] did unlawfully and feloniously perpetrate or
       attempt to perpetrate a felony, to wit: robbery, and did commit, aid or
       abet an intentional act that is not an essential element of the felony
       and that could, but does not cause the death of another, to wit: [the
       victim], by POINTING A FIREARM AT [the victim], and during the
       course of the commission of the offense, said defendant discharged a
       firearm or destructive device and as a result of the discharge, death or
       great bodily harm was inflicted upon [the victim], a human being in
       violation of 782.051(1) and 775.087 & 777.011, Florida Statutes . . . .

Attempted armed robbery was alleged to be the underlying felony for the

attempted felony murder charge. Williams entered an open plea to all three counts

in 2008 and was sentenced to: 50 years, with a minimum mandatory term of 25

years, followed by ten years of probation, on the attempted felony murder charge

(count 1); and fifteen years each, to be served concurrently with the sentence on




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count 1 and each other, on the attempted armed robbery and conspiracy to commit

armed robbery charges (counts 2 and 3). As noted previously, Williams’ counsel

stipulated to a factual basis for the plea based on his discovery and investigation in

the case. Additionally, at the time of the sentencing the State proffered expert

testimony that Williams’ firearm was purposefully discharged, based on the

injuries to her abdomen and her internal organs.

      Williams’ plea and sentence were affirmed on direct appeal. Williams v.

State, 36 So. 3d 109 (Williams I) (Fla. 3d DCA 2009). In 2010, Williams filed a

pro se post-conviction motion under Florida Rule of Criminal Procedure 3.850

alleging, among other things, ineffective assistance of counsel for allowing him to

plead guilty to an illegal information. Williams asserted that the intentional act

relied upon for the attempted felony murder charge in count 1 (i.e., that Williams

pointed a firearm at the victim), was the same act alleged in (and an essential

element of) the attempted armed robbery in count 2.

      Williams’ pro se motion was denied by the trial court, but on appeal (in

Williams II), this Court reversed and remanded. We concluded that Williams’

claim of ineffectiveness was well taken “[b]ecause the information filed against

[Williams] and the facts proffered to support the information used the same act for

both attempted felony murder and the underlying attempted armed robbery.”

Williams II, 83 So. 3d at 907; see also § 782.051(1), Fla. Stat. (2004) (Attempted



                                          4
felony murder statute provides that “[a]ny person who perpetrates or attempts to

perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets

an intentional act that is not an essential element of the felony and that could, but

does not, cause the death of another commits a felony of the first degree,

punishable by imprisonment for a term of years not exceeding life . . . .”); Battle v.

State, 837 So. 2d 1063 (Fla. 2d DCA 2003), approved, 911 So. 2d 85 (Fla. 2005)

(holding that the offense of attempted felony murder requires proof of an

intentional act that is not an essential element of the underlying felony).

      The analysis in Williams II did not clearly differentiate between the two

perceived problems in the original information against Williams: (1) count 1,

attempted felony murder, was arguably deficient because it failed to allege an

intentional criminal act that was not an essential element of the attempted armed

robbery charge (count 2),1 and (2) the information arguably violated double

jeopardy on its face in charging counts 1 and 2.2 The analysis concluded:


1 Our analysis on this issue in Williams II cited Coicou v. State, 867 So. 2d 409
(Fla. 3d DCA 2003). Coicou was quashed and remanded on other grounds in
Coicou v. State, 39 So. 3d 237 (Fla. 2010).
2  Our opinion in Williams II addressed double jeopardy only tangentially: “Also,
unbargained-for pleas do not waive double jeopardy violations. See Novaton v.
State, 634 So. 2d 607 (Fla. 1994).” Williams II, 83 So. 3d at 907. On remand, and
in this appeal, Williams has not argued a double jeopardy claim. Instead, he has
argued that the information is fatally defective as to count 1 because it does not
allege, and the State could not prove, an intentional act that is not an essential
element of the robbery. Williams has asked the trial court and this Court to


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              Finally, the State contends that [Williams] suffered no
       prejudice from his counsel’s failure, if any, because the State could
       simply have amended the information to correct any defect. This
       argument is unpersuasive. The facts presented below cannot support
       both a charge of attempted felony murder and attempted armed
       robbery, and no amendment of the information can correct this
       defect.

Williams, 83 So. 3d at 908.

      We then remanded for a determination of whether, and the extent to which,

Williams was prejudiced by his counsel’s ineffectiveness. Id. We appointed the

public defender for the proceedings on remand.

      On remand, the trial court determined:

            Based therefore on the evidence presented and the argument of
      counsel, this Court finds that [Williams] was prejudiced by his
      counsel’s ineffectiveness. The Court further finds on the authority of
      Abbate v. State, 82 So. 3d 886 (Fla. 4th DCA 2011), that the proper
      remedy here is to vacate the judgment and sentence on all counts. The
      prosecutor may resume its prosecution of the Defendant on any
      charges deemed appropriate and legal.

      Williams’ original pro se post-conviction motion did not specify that the

relief sought was limited to the vacation of the judgment and sentence on count 1

alone, nor did he specifically request that the plea, judgments and sentences on

counts 2 and 3 remain in force. In the present appeal, however, and throughout the

2012 evidentiary hearing in the trial court on remand following Williams II,

Williams’ appointed counsel has maintained that the open plea, judgments, and


uphold, and not to alter, his plea, conviction, and sentences for counts 2 and 3.


                                          6
sentences should not have been vacated on all three counts, and that only the

judgment and sentence on count 1 should have been vacated.

      Following oral argument in the present appeal, and on our own motion, we

are addressing the post-conviction issues in Williams’ case en banc.

      Analysis

      This is an unusual case with an unusual post-conviction history. Williams’

plea was open to the court on all three of the charges in the original information.

He was colloquied in detail regarding the charges, the State’s proffered proof, and

his legal representation. The victim testified in a deposition and again at the

sentencing hearing, providing a detailed account of the crimes committed by

Williams and his co-defendants.

      Although the information failed to allege an intentional act in count 1 that is

not an essential element of the robbery, at best this made the information defective

and subject to a motion to dismiss under Florida Rule of Criminal Procedure

3.190(c)(4), or a demand for a bill of particulars under Rule 3.140(n).         Had

Williams’ counsel taken such steps, however, the State could have amended the

information3 or supplied the particulars to support sufficient charges. Count 1,

which gratuitously alleged that Williams pointed a firearm at the victim,4 could


3  Rule 3.140(j) permits the amendment of an information at any time prior to trial
to correct formal defects.



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have been deleted or could have been replaced by an allegation that he

intentionally shot the victim with a firearm.5 Either of these measures would have

been sufficient to state a valid charge supported by the victim’s testimony and the

State’s proffered evidence at the plea colloquy, which included an expert’s opinion

that the discharge of the firearm was intentional and not accidental.

      The gratuitous allegation in count 1 that Williams pointed a firearm at the

victim does not vitiate the legally sufficient allegations in that count of attempted

felony murder under section 782.051(1), Florida Statutes (2004):

      Attempted felony murder.—
      (1) Any person who perpetrates or attempts to perpetrate any felony
      enumerated in s. 782.04(3) and who commits, aids, or abets an
      intentional act that is not an essential element of the felony and that
      could, but does not, cause the death of another commits a felony of the
      first degree . . . .

      The attempted armed robbery charged in count 2 is a felony enumerated in

section 782.04(3), and the later act of shooting the victim in the abdomen is an

intentional act separate and distinct from that of pointing the firearm at the victim’s

head and demanding that she hand over her bag. State v. Blanton, 821 So. 2d 440


4  Although the allegation of “pointing a firearm at [the victim],” was an essential
element of the attempted robbery charge (count 2), the State was not required, in
charging attempted felony murder, to allege the specific intentional act that was not
an essential element of the attempted robbery. See infra at 9.
5 Count 1 alleges that Williams “discharged a firearm or destructive device and as
a result of the discharge, death or great bodily harm was inflicted on [the victim],”
but it does not allege that Williams intentionally shot the victim with the firearm.


                                          8
(Fla. 5th DCA 2002). This allegation satisfies the “not an essential element of the

felony” requirement of the attempted felony murder statute quoted above.

        The sufficiency of count 1 is also demonstrated by the standard jury

instruction regarding attempted felony murder. The three requisite elements of the

crime are detailed in Florida Standard Jury Instruction (Criminal) 6.3, as approved

by the Supreme Court of Florida in 2007:6

              To prove the crime of Attempted Felony Murder, the State must
        prove the following three elements beyond a reasonable doubt:

              1.     (Defendant) [committed] [attempted to commit] a (crime
        alleged).

              2.     While engaged in the [commission] [attempted
        commission] . . . of (crime alleged), the defendant [committed] [aided
        or abetted] an intentional act that is not an essential element of (crime
        alleged).

              3.     This intentional act could have but did not cause the
        death of (victim).

        Williams was on notice that the State intended to prove that he shot the

victim, as that is alleged in the same count 1 and was also elicited from the victim

at her deposition and at the sentencing hearing. This record conclusively refutes

the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984).

        At the sentencing hearing, the State also proffered a basis upon which it

could have proven attempted felony murder, including expert testimony that


6   Battle v. State, 911 So. 2d 85 (Fla. 2005).


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Williams shot his firearm intentionally and not accidentally. Williams and his

counsel stipulated that the proffer, if proven, provided a factual basis for the plea,

and the trial court then found the proffered factual basis sufficient to establish the

crime of attempted felony murder.

      Finally, the burden of establishing fundamental error in a defective

information cannot be met in Williams’ case, because the information did not

“wholly fail to state a crime.” Count 1 of the information not only tracked the

statutory language (though including the unnecessary phrase, “by pointing a

firearm at the [victim]”), it also cited the specific statute placing Williams on

notice of the nature and elements of the charge of attempted felony murder. See

Duarte v. State, 59 So. 3d 313, 315 (Fla. 3d DCA 2011); Lawshea v. State, 99 So.

3d 603, 606 (Fla. 2d DCA 2012); Figueroa v. State, 84 So. 3d 1158, 1161 (Fla. 2d

DCA 2012).

      Conclusion

      We recede from our conclusion in Williams II that “no amendment of the

information can correct this defect,” and from our remand to provide Williams “an

opportunity to prove that he was prejudiced by his counsel’s ineffectiveness.” We

vacate the trial court order finding prejudice and vacating Williams’ plea on all

three counts. Even if trial counsel’s failure to challenge the attempted felony

murder count could be deemed deficient performance under the Strickland



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standard, Williams cannot establish the requisite prejudice. Under the facts and

procedural posture of the case, there is no “reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 695. Indeed, had trial counsel properly and

timely challenged the improperly-pled attempted felony murder count (the failure

of which Williams claims constitutes trial counsel’s deficient performance), it is

clear that the outcome would have been the same—an open plea to an amended

charge of attempted felony murder that alleged Williams’ intentional act of

shooting the victim, an allegation that is not an essential element of the attempted

robbery and is fully supported by the record.

          We thus affirm the denial of Williams’ original motion for post-conviction

relief.




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