          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.

                           June 4, 2018


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.

                          BACKGROUND

    At a FSU 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 twenty years’ incarceration
followed by ten 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
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).



                                 2
     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 ten 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 twenty
years. But Mr. Wilhelm was not prepared to accept a plea offer that
included more than thirty-six months’ incarceration. The trial
court credited the testimony of these two attorneys. Thus, we find
no error in the trial court’s decision to deny relief on this ground.

      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 twenty-one. See §
958.04(1)(b), Fla. Stat. (authorizing youthful offender sentencing
if a defendant is younger than twenty-one 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 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

                                   3
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 Appellant’s
rule 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.
               _____________________________


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

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




                                  4
