          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                        Nos. 1D16-2262
                             1D17-0571
                 _____________________________

EVAN C. WILHELM,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.

                         August 10, 2018

                   ON MOTION FOR REHEARING *

PER CURIAM.

     This is a consolidated appeal from orders denying Evan C.
Wilhelm’s motion for postconviction relief and motion to correct
illegal sentence. Mr. Wilhelm asserted multiple grounds of
ineffective assistance of counsel related to the plea and sentencing
process and also asserted that his sentence was an illegal general
sentence.



    * We deny rehearing, but grant clarification, substituting this
opinion for our original opinion.
                           BACKGROUND

     At a Florida State University fraternity party in January
2011, Mr. Wilhelm was drinking and playing with a loaded AK-47
semi-automatic rifle, pointing it at various people. When he
pointed it at one young woman in the room, the firearm discharged,
striking her in the chest and killing her. Appellant was charged
with and entered an open no contest plea to three criminal charges:
manslaughter, possession of a firearm on school property, and
culpable negligence with injury.

     Because of Mr. Wilhelm’s plea, the only remaining issue was
sentencing. At a contested sentencing hearing, the State sought a
lengthy prison sentence, while Mr. Wilhelm urged the court to
downward depart from the lowest permissible sentence on the
scoresheet of 127.35 months (or 10.5 years).

    Before imposing sentence, the court discussed the
manslaughter count, but did not find a downward departure to be
appropriate. The court imposed a prison sentence of twenty years
and ten years’ probation. The clerk then inquired about count
three, whereupon the court sentenced Mr. Wilhelm to time served
on count three. There was no mention of count two (possession of
a firearm on school property). The final written judgment,
however, reflected a sentence of 20 years’ incarceration followed by
10 years’ probation for both counts one and two.

                             ANALYSIS

     In Strickland v. Washington, 466 U.S. 668 (1984), the United
States Supreme Court outlined the two-pronged test to determine
ineffective assistance of trial counsel. Spera v. State, 971 So. 2d
754, 757 (Fla. 2007). “The deficient performance prong requires . .
. acts or omissions of counsel that are ‘so serious that counsel was
not functioning as the counsel guaranteed the defendant by the
Sixth Amendment.’ The prejudice prong requires . . . ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Id. at 757-58
(quoting Strickland, 466 U.S. at 649).

     On appellate review, the court applies a mixed standard of
review. See Smith v. State, 213 So. 3d 722, 739 (Fla. 2017). This

                                 2
Court reviews the trial court’s factual findings for competent,
substantial evidence, and it reviews the trial court’s legal
conclusions de novo. Hunter v. State, 87 So. 3d 1273, 1275 (Fla. 1st
DCA 2012).

     Mr. Wilhelm raised multiple claims of ineffective assistance of
counsel in the trial court. On appeal, he asserts that his attorneys
were ineffective for failing to convey a plea offer, failing to give him
good advice regarding the offer, and miscalculating his age and not
taking advantage of the sentencing window during which he
qualified for sentencing as a youthful offender (and not owning up
to this error at the sentencing hearing).

     At the evidentiary hearing on his post-conviction motion, Mr.
Wilhelm testified that he was never advised of the State’s plea
offer of 10 years’ incarceration, and would have taken the offer if
he had known about it. Mr. Wilhelm had four attorneys, one of
whom was his father. His father and another attorney testified
that Mr. Wilhelm was not advised of this plea offer. However, Mr.
Wilhelm’s other two attorneys, Mr. Dobson and Mr. Smith,
testified that they went to the jail and advised Mr. Wilhelm of the
State’s plea offer and he rejected it. They testified that they
advised him he could potentially receive a sentence of 20 years or
more. But Mr. Wilhelm was not prepared to accept a plea offer that
included more than two or three years’ incarceration. The
attorneys told him that they did not think such an offer would be
forthcoming. The trial court credited the testimony of the two
attorneys. Thus, we find no error in the trial court’s decision to
deny relief because Mr. Wilhelm’s argument did not establish
prejudice.

     Attorneys Dobson and Smith also testified that they originally
considered seeking a youthful offender sentence for Mr. Wilhelm,
but didn’t correctly account for his age and that the window to seek
the mitigated sentence expired just a few months after the charges
were filed when Mr. Wilhelm turned 21. See § 958.04(1)(b), Fla.
Stat. (authorizing youthful offender sentencing if a defendant is
younger than 21 years of age at the time the sentence is imposed).
The attorneys admitted miscalculating Mr. Wilhelm’s age, but
testified that the overarching defense strategy was to delay
sentencing to give the victim’s family time to heal, hoping that they

                                   3
would not oppose a mitigated sentence. In addition, they contended
the originally assigned trial judge had a reputation for giving
lengthy prison sentences. And Mr. Wilhelm did not want to enter
an open plea in front of that particular trial judge. Under these
circumstances, the trial court concluded “that the failure to explore
sentencing under the Youthful Offender Act would simply not have
made any difference in the outcome.” We affirm this conclusion.
We additionally find no merit to the argument that counsel’s
failure to own up to miscalculating Mr. Wilhelm’s age at the
sentencing hearing created a conflict of interest and ineffective
assistance.

     Finally, we affirm the trial court’s decision to deny Mr.
Wilhelm’s 3.800(a) claim. Mr. Wilhelm argues that the court
imposed an unlawful general sentence for counts one and two. But
we see the issue like the trial court did. The sentencing judge’s
error on count two was not that it imposed an unlawful general
sentence, but that it entirely overlooked count two when orally
pronouncing the sentence. The written judgment suggested that
the court had imposed an unlawful general sentence, but the
written judgment was wrong. The trial court did not address count
two at sentencing. This problem, however, has been addressed.
The court issued a corrected judgment that corrected the sentence
on count two to time served. As it stands, Mr. Wilhelm has already
completed his time-served sentence on count two, and the sentence
on count one is legal.

    For these reasons, the orders are AFFIRMED.

WOLF, OSTERHAUS, and WINSOR, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________




                                 4
Wm. J. Sheppard, Elizabeth L. White, Matthew R. Kachergus,
Bryan E. DeMaggio, and Jesse B. Wilkinson, of Sheppard, White,
Kachergus, & DeMaggio, P.A., Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




                              5
