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


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


TRACY ALLEN PETHTEL,                         )
                                             )
              Appellant,                     )
                                             )
v.                                           )          Case No. 2D13-4629
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed September 9, 2015.

Appeal from the Circuit Court for Pinellas
County; Michael F. Andrews, Judge.

Howard L. Dimmig, II, Public Defender, and
Thomas Matthew McLaughlin, Special
Assistant Public Defender, Bartow,
for Appellant.

Pamela Jo Bondi, Attorney General, and
Brandon R. Christian, Assistant Attorney
General, Tampa, for Appellee.


LUCAS, Judge.

              Tracy Pethtel appeals his judgment and sentence for aggravated

manslaughter of a child. On appeal, Mr. Pethtel raises five issues. In his first issue, Mr.

Pethtel argues that the trial court erred in entering a judgment of conviction against him

for the first-degree felony of aggravated manslaughter of a child based upon the jury's
guilty verdict of the second-degree felony of manslaughter and its special findings. We

agree with Mr. Pethtel that the trial court erred, and thus we reverse and remand for

resentencing. We affirm on the remaining issues raised in this appeal without further

comment.

                                       BACKGROUND

               This case stems from the tragic death of Austin, Mr. Pethtel's ten-week old

son. On May 29, 2011, while in Mr. Pethtel's care, Austin stopped breathing. In spite of

protracted efforts by first responders and medical doctors to resuscitate him, Austin was

ultimately declared brain dead and taken off of life support. Mr. Pethtel was later

charged with one count of first-degree felony murder predicated on an act of aggravated

child abuse.

               Much of the evidence presented at trial revolved around competing

theories of the cause of Austin's death. The State argued that Austin had suffered

internal injuries, the result, its experts contended, of Mr. Pethtel's inflicting some form of

physical trauma on Austin, such as throwing or dropping the child against a pillow or

crib bedding. The defense's expert disputed the State's theories about the existence or

extent of the child's physical injuries and opined that the victim died from respiratory

arrest caused by either apnea, a choking event, or a lung infection.

               At the conclusion of the trial, the trial court instructed the jury on the

elements of felony murder predicated on aggravated child abuse as well as the lesser-

included offense of manslaughter. In the latter regard, the trial court further instructed

the jury on the separate theories of voluntary and involuntary manslaughter; however,

the verdict form agreed upon by the State and the defense did not differentiate between



                                               2
the two forms of manslaughter. The jury returned a verdict acquitting Mr. Pethtel of the

felony murder charge but finding him guilty of manslaughter. The jury also made

special findings that Mr. Pethtel was the victim's caregiver and that the victim was under

the age of eighteen. Because of the verdict form that was used, the jury did not specify

whether the manslaughter was the result of Mr. Pethtel's culpable negligence or his

intentional act. Nevertheless, based on the jury's special findings and the assumption

that it was permitted to "enhance" Mr. Pethtel's conviction, the trial court entered a

judgment of conviction against Mr. Pethtel for aggravated manslaughter of a child and

sentenced him to twenty-five years in prison.

              Following his conviction and sentence, Mr. Pethtel filed a Florida Rule of

Criminal Procedure 3.800(b)(2) motion in which he argued that he could not be

convicted of aggravated manslaughter of a child unless the jury's verdict specifically

found him guilty of manslaughter by culpable negligence. The court disagreed and

denied his motion. Although the court recognized that the statute defining aggravated

manslaughter of a child is indeed premised on culpable negligence, the court concluded

that the jury's verdict, when read as a whole, appeared to convict Mr. Pethtel of

manslaughter on that basis. As explained below, that assumption was erroneous and

compels us to reverse the trial court's judgment and sentence.

                                        ANALYSIS

              We will address two issues in turn. The first–whether Mr. Pethtel could be

convicted of a crime without a jury's finding on each and every element of that crime–is

fairly narrow and resolves the case at bar. The second, broader issue was not raised

below or on appeal. Nevertheless, it warrants some explanation, because it concerns



                                             3
what may have been a fundamental misconception by the trial court, the State, and the

defendant about how the crime of aggravated manslaughter of a child is properly

presented and adjudicated.

I.     Standard of Review

              Questions of law, such as whether an adjudication of guilt conforms to a

jury verdict, are reviewed de novo. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.

2d 317, 329 (Fla. 2005) (holding that pure questions of law are reviewed de novo); cf.

Williams v. State, 511 So. 2d 1017, 1019 (Fla. 2d DCA 1987) (reversing a trial court's

adjudication of guilt where it violated the established rule of law that the judgment of the

trial court must conform to the jury's verdict). Likewise, our review of the legality of a

sentence is de novo. State v. Valera, 75 So. 3d 330, 331-32 (Fla. 4th DCA 2011).

II.    The Jury's Findings did not Support the Judgment of Conviction

              We begin by comparing the statutory offenses and the elements of the

crimes at issue. Mr. Pethtel was charged with first-degree felony murder predicated on

an act of aggravated child abuse. As the court instructed the jury in this case,

aggravated child abuse under section 827.03(1)(a)(3), Florida Statutes (2010), occurs

when a person:

              Knowingly and willfully abuses a child and in so doing
              causes great bodily harm, permanent disability, or
              permanent disfigurement to the child.

              Child abuse is then defined under section 827.03(1)(b) as:

              1. Intentional infliction of physical or mental injury upon a
                 child;
              2. An intentional act that could reasonably be expected to
                 result in physical or mental injury to a child; or




                                              4
              3. Active encouragement of any person to commit an act
                 that results or could reasonably be expected to result in
                 physical or mental injury to a child.

              The trial court also instructed the jury on the lesser-included offense of

manslaughter. Section 782.07(1), Florida Statutes (2010), defines manslaughter, in

relevant part, as "[t]he killing of a human being by the act, procurement, or culpable

negligence of another." Florida law thus creates two general categories of

manslaughter: voluntary manslaughter, which arises from a voluntary act or

procurement, and involuntary manslaughter, which is premised on culpable negligence.

See Bolin v. State, 8 So. 3d 428, 430 (Fla. 2d DCA 2009). The two categories of

manslaughter differ markedly with respect to criminal intent. Id. "Whereas voluntary

manslaughter is a crime of intent, involuntary manslaughter is not." Id. The trial court

properly instructed the jury on both voluntary and involuntary manslaughter, finding that

the facts of the case could be interpreted to support a conviction under either theory.

              Finally, the offense that the trial court entered its judgment and conviction

on, aggravated manslaughter of a child, is defined under section 782.07(3) as: "A

person who causes the death of any person under the age of 18 by culpable negligence

under s. 827.03(2)(b) commits aggravated manslaughter of a child, a felony in the first-

degree . . . ." (emphasis added). As is clear from the statute's language, guilt of this

crime is predicated on the death of a child caused by the defendant's culpable

negligence. § 782.07(3); cf. Ibeagwa v. State, 141 So. 3d 246, 247 (Fla. 1st DCA 2014)

(explaining that aggravated manslaughter of a child requires a finding of culpable

negligence that must be determined upon the facts and the totality of the circumstances




                                             5
in each particular case). Thus, the crime of aggravated manslaughter of a child is

premised on involuntary, not voluntary, manslaughter.

              While finding Mr. Pethtel guilty of manslaughter, the jury could not indicate

which type of manslaughter Mr. Pethtel had committed on the verdict form they were

provided. The trial court nonetheless entered a judgment of conviction against Mr.

Pethtel for the offense of aggravated manslaughter of a child based upon the jury's

special findings that the victim was a child and Mr. Pethtel was his caregiver.

Recognizing there was no finding of Mr. Pethtel's negligence anywhere within the

verdict, the trial court upon review of Mr. Pethtel's 3.800(b)(2) motion nevertheless

reasoned that since the jury had acquitted Mr. Pethtel of his felony murder charge, a

crime which required an element of intent, but convicted him of manslaughter, a crime

that may hinge on either intent or culpable negligence, the jury must have ruled out

voluntary manslaughter and based their manslaughter verdict on culpable negligence.

That conclusion, while perhaps intuitive, was erroneous for two reasons.

              First, it is a fundamental tenet of criminal law that a defendant's criminal

conviction can only be sustained if the jury has found all of the elements of the crime.

See State v. Sigler, 967 So. 2d 835, 843 (Fla. 2007). The jury's findings must be

explicit. It is improper for a court to infer that a jury determined a criminal element that

was not expressed within a verdict. Cf. Apprendi v. New Jersey, 530 U.S. 466 (2000)

(holding that every fact necessary for a conviction, other than criminal history, must be

submitted to a jury and determined by the jury beyond a reasonable doubt); Santana v.

State, 931 So. 2d 954, 956 (Fla. 3d DCA 2006) (reversing the trial court's imposition of a

twenty-year minimum sentence for discharge of a firearm during an aggravated battery



                                              6
where the trial court inferred that the defendant discharged a firearm from the verdict's

additional finding of guilt for a separate count of shooting or throwing a deadly missile).

That is precisely the proscribed course of reasoning that the trial court engaged in here.

Faced with a verdict that was silent about the element of culpable negligence, the court

inferred that element from the verdict's findings. Such a conviction by deduction

violates the fundamental principles of Apprendi, Sigler, and Santana, and cannot stand.

              Secondly, the inference the trial court utilized was fallacious. The trial

court's underlying assumption that acquittal of the felony murder charge constituted

some finding about Mr. Pethtel's intent for purposes of manslaughter conflated differing

kinds of intent between different crimes. With respect to the felony that predicated Mr.

Pethtel's murder charge, aggravated child abuse, the requisite intent underlying the

offense of child abuse turns on the "[i]ntentional infliction of physical or mental injury,"

"[a]n intentional act that could reasonably be expected to result in physical or mental

injury," or "[a]ctive encouragement of any person to commit an act that results or could

reasonably be expected to result in physical or mental injury" to a child. § 827.03(1)(b),

Fla. Stat. (2010). Voluntary manslaughter, on the other hand, carries a much broader

ambit of intent. To be guilty of this kind of manslaughter, a defendant need not actually

intend to kill or injure a victim. State v. Montgomery, 39 So. 3d 252, 255-57 (Fla. 2010);

Mueller v. State, 100 So. 3d 47, 49 (Fla. 2d DCA 2011). Nor does manslaughter by

intentional act require an element of foreseeability between the defendant's act and the

resulting death. Cf. Maynard v. State, 660 So. 2d 293, 294 (Fla. 2d DCA 1995) (holding

that defendant was not entitled to instruction that to be convicted of manslaughter, "the

act must be of such a nature that a reasonably prudent person could foresee its



                                              7
resulting in the death of [the victim]"). Thus, while the crimes of aggravated child abuse

and voluntary manslaughter each include an element of intent, the object of the intent is

different for each crime. It was by no means an inescapable conclusion that the jury's

acquittal of the one crime clarified the category of the other.

              The jury found Mr. Pethtel guilty of manslaughter without clarifying which

kind. Even with the additional findings that Austin was under eighteen, and that Mr.

Pethtel was his caregiver, it is clear from the plain language of section 782.07(3) that

Mr. Pethtel could only be guilty of aggravated manslaughter of a child if Austin's death

was the result of Mr. Pethtel's culpable negligence. The jury made no such finding.1

His judgment and sentence must, therefore, be reversed.

III.  Whether Aggravated Manslaughter of a Child is an Enhancement, a
Reclassification, or its own Criminal Offense

              There is another problem, an errant strand of reasoning, that seems to

bind the present controversy. Because it was neither raised nor argued at trial or on

appeal, we are precluded from resolving it here. See Haverty v. State, 258 So. 2d 18,




              1
                 Indeed, Mr. Pethtel was never charged with aggravated manslaughter of
a child. His indictment included only the charge of first-degree felony murder predicated
on aggravated child abuse. As will be explained more fully in the next section,
aggravated manslaughter of a child appears to be a separate, substantive criminal
offense, not, as the parties and the trial court assumed, an "enhancement" of the crime
of involuntary manslaughter. It would then follow that if Mr. Pethtel was never charged
with aggravated manslaughter of a child (and it was not a lesser included offense for
felony murder), he could not have been convicted of that crime, regardless of any
additional findings made by the jury. See State v. Gray, 435 So. 2d 816, 818 (Fla.
1983); Mauldin v. State, 696 So. 2d 801, 801 (Fla. 2d DCA 1997). Interestingly, the trial
judge mentioned this incongruity in the charging instrument during the proceedings
below, but neither party chose to discuss it or assert a position on it, either before the
trial court or in this appeal. Much like the question of reclassification we will discuss
next, their silence on this issue places it beyond our ability to decide in the appeal
before us.
                                              8
19-20 (Fla. 2d DCA 1972) (holding that questions can only be heard and considered by

an appellate court if properly reserved in lower court and assigned as error upon

appeal); Lightsee v. First. Nat'l. Bank of Melbourne, 132 So. 2d 776, 778 (Fla. 2d DCA

1961) (holding that an appellate court cannot pass upon issues other than those

properly presented on appeal). Nevertheless, the issue certainly merits attention.

              Throughout the proceedings below and in this appeal, the parties have

broached their arguments over Mr. Pethtel's conviction of aggravated manslaughter of a

child in terms of an "enhancement" and whether there were sufficient findings for the

circuit court to "enhance" the jury's manslaughter verdict, a second-degree felony, to the

first-degree felony of aggravated manslaughter of a child. Relying on Florida Standard

Jury Instruction for Criminal Cases 7.7 (which characterizes section 782.07(3) as an

"enhanced penalty" of involuntary manslaughter)2 the litigants and the trial court tacitly



              2
                Florida Standard Jury Instruction for Criminal Cases 7.7 provides that if a
jury finds that a defendant has committed manslaughter by culpable negligence, his or
her conviction can be enhanced to one of the aggravated varieties of manslaughter
based on the jury's special findings. A review of the Supreme Court Committee on
Standard Jury Instructions in Criminal Cases' report published in connection with the
instruction's proposal demonstrates that this amended jury instruction was drafted in
response to the 2002 amendment to section 782.07. Fla. Sup. Ct. Comm. on Std. Jury
Instr. in Criminal Cases, Report No. 2006-1 (2006) (on file with Clerk, Fla. Sup. Ct.),
available at http://www.floridasupremecourt.org/clerk/comments/2006/06-
909%20Report%20(SJICriminalC)%205-2-06.pdf.
               In the report, the Committee cites to chapter 2002-74, Laws of Florida,
which added subsection (4) to section 782.07. Id. It appears to us that in amending the
instruction, the Committee may have read too much into the prefatory language of
chapter 2002-74, Laws of Florida, which stated that one of the purposes of the act was
to "[provide] an enhanced penalty." We suspect that the Committee misconstrued the
Florida Legislature's use of the phrase, "enhanced penalty" in this context. "Enhanced
penalty" was likely meant in a more colloquial sense—that is, as a higher punishment—
and in reference to the statute being amended, such that the newly enacted subsection
(4) would conform with the penalties already in place in the other subsections for
aggravated manslaughter of an elderly or disabled person and aggravated
manslaughter of a child. In other words, the Legislature sought to make it clear that
                                             9
assumed that the crime of aggravated manslaughter of a child is simply an

enhancement of the crime of involuntary manslaughter. We believe this assumption

misconstrues, on multiple levels, the actual statutory offense the Legislature crafted in

section 782.07(3).

              Enhancements refer to the authority of a judge to impose a more severe

sentence for a convicted offense when certain factual findings have been made. See

Jackson v. State, 515 So. 2d 394, 395-96 (Fla. 1st DCA 1987) ("An enhancement

statute is commonly associated with the province of the judge in sentencing . . . .").

Statutes authorizing enhancements do not add an element that would create a

separate, substantive crime, but simply authorize a judge to impose a more severe

sentence based on certain factual findings. See, e.g., Mills v. State, 822 So. 2d 1284,

1288-89 (Fla. 2002) (holding that section 784.07 was not an enhancement statute

because the victim's status as a law enforcement officer was an element of a

reclassified crime).

              That is not what happened in Mr. Pethtel's case. When the circuit court

entered a judgment of conviction for a first-degree felony based upon a second-degree

felony verdict, it did not enhance Mr. Pethtel's sentence; rather, the court effectively

reclassified his conviction to another crime of a higher degree. See Cooper v. State,

455 So. 2d 588, 589 (Fla. 1st DCA 1984) ("Reclassification speaks to the degree of the

crime charged, and in the metaphysical legislative application, appears to attach at the




aggravated manslaughter by culpable negligence of an officer, firefighter, emergency
medical technician, or paramedic, carried the same higher punishment as the other
types of aggravated manslaughter already defined in the manslaughter statute.


                                             10
time the indictment or information is filed . . . ."). Reclassification of a criminal conviction

from one degree to a higher degree stems from an express and explicit grant of

statutory authority. Cf. Spicer v. State, 615 So. 2d 725, 726 (Fla. 2d DCA 1993)

(reversing reclassification of robbery with a mask conviction because "[p]enal statutes

must be construed in terms of their literal meaning . . . . [I]f the legislature had intended

section 775.0845 [Florida Statutes (1989)] to reclassify offenses, it would have so stated

. . . ."); Cuthbert v. State, 459 So. 2d 1098, 1099 (Fla. 1st DCA 1984) (reversing

improper reclassification of aggravated battery conviction from second-degree to first-

degree felony based on defendant's habitual offender status and noting "Section

775.084 only authorizes the imposition of sentences which exceed the normal statutory

maximum. The crimes are not reclassified."). Although the terms are occasionally

confused, courts considering the imposition of an enhancement or a reclassification

must remain mindful that they are separate, and that each function operates

independently of the other. State v. Smith, 470 So. 2d 764, 765-66 (Fla. 5th DCA 1995)

(holding that section 775.087(1), Florida Statutes (1983), providing for reclassification of

a crime to a higher degree for possession or use of a deadly weapon, and section

775.087(2), Florida Statutes (1983), providing for a minimum prison term, are not

alternative methods of enhancement and must operate independently of each other);

Cooper, 455 So. 2d at 589 ("[W]e are critical of the commingling of the terms

'reclassification' and 'enhancement.' ").

              Having considered each of these terms and their respective functions, the

knot of the problem can be made clear. There is no authority in statute, case law, or




                                              11
even legislative history that aggravated manslaughter of a child is an enhancement or

reclassification of the crime of manslaughter.

              A plain reading of section 782.07, Florida Statutes (2010), demonstrates

that each variety of manslaughter enumerated in that section stands as a distinct

criminal offense. Indeed, section 782.07(3), "Aggravated Manslaughter of a Child,"

does not mention reclassification or enhancement whatsoever but instead unequivocally

presents the crime as its own chargeable offense. Compare § 782.07, Fla. Stat. (2010)

(listing manslaughter, aggravated manslaughter of an elderly person or disabled adult,

aggravated manslaughter of a child, and aggravated manslaughter of an officer, a

firefighter, an emergency medical technician, or a paramedic as separate crimes), with

§ 775.085, Fla. Stat. (2010) (explicitly providing for reclassification of any crime by one

degree where the crime was based on prejudice against the victim for their race, color,

ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, mental

or physical disability, or advanced age), and § 784.07, Fla. Stat. (2014) (expressly

authorizing reclassification of an assault or battery to a higher degree based on the

victim's status as a law enforcement officer, firefighter, emergency medical care

provider, public transit employee or agent, or other specified officer), and § 775.0845,

Fla. Stat. (2009) (expressly authorizing reclassification of almost any offense by one

degree where the defendant wore a mask during the commission of the crime), and §

775.087, Fla. Stat. (2014) (explicitly providing for reclassification of most felonies by one

degree where the defendant possessed or used a weapon during the commission of the

felony); see also Brewington v. State, 98 So. 3d 628, 629 (Fla. 2d DCA 2012) (in which




                                             12
the defendant was charged by information with the offense of aggravated manslaughter

of a child under section 782.07(3)).

               The history of the statute's amendment also dispels any notion that the

Legislature intended to create anything other than a separate criminal offense for

aggravated manslaughter of a child. Prior to 1996, section 782.07 made no reference

to aggravated manslaughter. During the 1996 Regular Session, the Florida Legislature

passed chapter 96-332, § 12, Laws of Florida, adding two new subsections to Florida

Statute section 782.07: subsection (2), creating a crime of aggravated manslaughter of

an elderly person, and subsection (3), creating a crime of aggravated manslaughter of a

child. See Ch. 96-332, § 12, at 1774-75, Laws of Fla. The introduction to chapter 96-

322, Laws of Florida, explains that the amendment to section 782.07 was for the

purpose of "defining and providing penalties for the offenses of 'aggravated

manslaughter of an elderly person or disabled adult' and 'aggravated manslaughter of a

child.' " Id. at 1762 (emphasis added).

               Thus, the trial court, the State, and the defendant have labored under a

misunderstanding of this criminal offense. Section 782.07, Florida Statutes (2010),

does not present aggravated manslaughter of a child as a reclassification, nor can it

reasonably be deemed an enhancement of a manslaughter sentence. Although we are

precluded from so holding, we do not believe the circuit court would have had the lawful

authority to reclassify Mr. Pethtel's offense under the statute. Cf. State v. Wershow, 343

So. 2d 605, 608 (Fla. 1977) ("Nothing is to be regarded as included within [a criminal

statute] that is not within its letter as well as its spirit; nothing that is not clearly and

intelligently described in its very words, as well as manifestly intended by the



                                                13
Legislature, is to be considered as included within its terms . . . ." (internal citation

omitted)). That issue is not before us for resolution today, but recognizing the confusion

that appears to have come from the parties' reliance on Florida Standard Jury

Instruction for Criminal Cases 7.7, we would commend it to the Supreme Court

Committee on Standard Jury Instructions in Criminal Cases for their consideration.

                                       CONCLUSION

              Accordingly, we affirm in part, reverse in part, and remand for adjudication

and resentencing consistent with this opinion.

              Affirmed in part, reversed in part, and remanded.




NORTHCUTT, J., Concurs.
KHOUZAM, J., Concurs specially.




KHOUZAM, Judge, Specially concurring.
              I agree that Mr. Pethtel's adjudication of guilt for aggravated manslaughter

of a child must be reversed. Mr. Pethtel was charged with first-degree felony murder

predicated on aggravated child abuse. The indictment in this case did not charge him

with aggravated manslaughter of a child. Because Mr. Pethtel was not charged with

aggravated manslaughter of a child, regardless of any additional findings made by the

jury, he could not be convicted of that crime. See State v. Gray, 435 So. 2d 816, 818

(Fla. 1983); Mauldin v. State, 696 So. 2d 801, 801 (Fla. 2d DCA 1997).

              I join in the majority's conclusion that Florida Standard Jury Instruction for

Criminal Cases 7.7 is misleading because it incorrectly characterizes section 782.07(3),

                                              14
Florida Statutes, as an "enhanced penalty" of involuntary manslaughter. Relying on this

instruction, the litigants as well as the trial court incorrectly assumed that involuntary

manslaughter could be enhanced to aggravated manslaughter of a child if the jury made

certain findings. But as explained above, there were no additional findings that the jury

could have made that would have given the trial court the authority to make such an

enhancement. It would behoove the Supreme Court Committee on Standard Jury

Instructions in Criminal Cases to address this misleading instruction.




                                             15
