         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


DARION JOHNSON,

              Appellant,

 v.                                                    Case No. 5D17-177

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed May 25, 2018

Appeal from the Circuit Court
for Orange County,
Thomas W. Turner, Judge.

Terrence E. Kehoe, of Law Office of
Terrence E. Kehoe, Orlando, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona
Beach, for Appellee.

COHEN, C.J.

      Following a jury trial, Darion Johnson was convicted of aggravated battery on a

pregnant person. See § 784.045(1)(b), Fla. Stat. (2016). On appeal, Johnson argues that

the State committed fundamental error in its method of impeaching his testimony and that

he is entitled to a new trial because his court-appointed attorney was suspended from the

practice of law during the trial. He also contends that he is entitled to the entry of
sentencing documents correcting the credit for time served and modifying or removing

certain costs. We affirm Johnson’s conviction but remand for the entry of corrected

sentencing paperwork.

       At trial, Johnson testified on his own behalf. Johnson had three impeachable prior

convictions—burglary of a dwelling, grand theft, and petit theft. The prosecutor inquired

of Johnson whether he had any felony convictions, and Johnson responded that he had

two. The prosecutor then asked Johnson whether he had any convictions for crimes

involving dishonesty, and Johnson again answered two.

       Johnson’s answers were accurate: he was convicted of both grand theft and petit

theft, crimes involving dishonesty, and both the burglary and grand theft convictions are

felonies. However, Johnson’s answers left the false impression that Johnson had four

rather than three prior convictions. Although the questions could have been more precise,

it does not appear that the prosecutor intended to mislead the jury. Nor do we believe that

the testimony, to which there was no objection, rises to the level of fundamental error. “To

be fundamental, an 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.’” Farina v. State, 937 So. 2d 612, 629 (Fla. 2006) (quoting Harrell v. State, 894 So.

2d 935, 940 (Fla. 2005)). 1

       The crux of this case involves the failure of Benjamin Davis, Johnson’s court-

appointed attorney, to complete The Florida Bar continuing legal education basic skills

requirement. Johnson moved for a new trial alleging that Davis was suspended from the



       1The prosecutor only referenced Johnson’s criminal history in passing during
closing argument, noting that Johnson was a prior-convicted felon and had been
convicted of crimes of dishonesty without mentioning the number of prior convictions.


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practice of law at the time of his trial. Johnson argued that representation by counsel

unlicensed to practice law violated his constitutional rights under the Sixth Amendment.

       It appears that Davis was unaware of the deficiency at the time of trial, which took

place on November 14 and 15, 2016. The Florida Bar sent the deficiency notice on

November 15, 2016. Davis received the notice on November 18, 2016, and filed a petition

for removal of delinquency the same day. While the lack of knowledge of the suspension

is important to our consideration, lawyers (and judges) are required to comply with their

continuing legal education requirements and deadlines. That Davis was unaware of the

suspension at the time of trial is not dispositive.

       Rule 1-3.6 of the Rules Regulating The Florida Bar provides that members who

fail “to comply with continuing legal education or basic skills course requirements” shall

be deemed delinquent. Fla. Bar. R. 1-3.6. “Delinquent members shall not engage in the

practice of law in Florida nor be entitled to any privileges and benefits accorded to

members.” Id. Rule 1-3.7 governs reinstatement of membership. Fla. Bar. R. 1-3.7. It

provides that “reinstatement from delinquency for payment of membership fees or

completion of continuing legal education or basic skills course requirements approved

within 60 days from the date of delinquency is effective on the last business day before

the delinquency.” Id. Members reinstated within the sixty-day window are “not subject to

disciplinary sanction for practicing law in Florida during that time.” Id.

       Pursuant to The Florida Bar Rules, the trial court correctly found that “as Attorney

Davis was reinstated within the 60-day period as outlined above in [rule 1-3.7], he is not

subject to disciplinary sanctions and was reinstated on October 28, 2016 (the last




                                              3
he had no knowledge of his licensing deficiencies at the time of trial, we find no reversible

error. See, e.g., id. at 186–87 (finding attorney’s suspension for failure to pay bar dues

did not deny defendant his Sixth Amendment right to counsel); Dolan v. State, 469 So.

2d 142, 143 (Fla. 3d DCA 1985) (holding that attorney’s reinstatement after suspension

for failure to pay bar dues “is purely ministerial, the suspended status of the attorney

simply has no bearing on his ability to effectively represent a criminal defendant” (citation

omitted)); see also Thornhill v. State, 103 So. 3d 949, 951 (Fla. 4th DCA 2012) (holding

that attorney’s one-month suspension during defendant’s representation constituted

harmless error because attorney only performed ministerial tasks during suspension);

Duval v. State, 744 So. 2d 523, 526 (Fla. 2d DCA 1999) (concluding defendant’s

representation by legal intern without defendant’s consent was harmless error;

representation “did not result in the prejudice necessary for a finding of ineffective

assistance of counsel”; declining to adopt a per se rule).

       However, the State properly concedes that Johnson is entitled to the entry of

sentencing documents reflecting the correction of his credit for time served and the

correction of certain costs. Indeed, Johnson filed a motion under Florida Rule of Criminal

Procedure 3.800(b), and the trial court granted the request. However, no corrected

sentencing documents followed. See Hagan v. State, 193 So. 3d 1008, 1009 (Fla. 2d

DCA 2016) (remanding for entry of amended sentencing document that had not yet been

entered after trial court granted relief on defendant’s rule 3.800(b) motion).

       AFFIRMED; REMANDED for entry of corrected sentencing documents.

TORPY and EISNAUGLE, JJ., concur.




                                             5
he had no knowledge of his licensing deficiencies at the time of trial, we find no reversible

error. See, e.g., id. at 186–87 (finding attorney’s suspension for failure to pay bar dues

did not deny defendant his Sixth Amendment right to counsel); Dolan v. State, 469 So.

2d 142, 143 (Fla. 3d DCA 1985) (holding that attorney’s reinstatement after suspension

for failure to pay bar dues “is purely ministerial, the suspended status of the attorney

simply has no bearing on his ability to effectively represent a criminal defendant” (citation

omitted)); see also Thornhill v. State, 103 So. 3d 949, 951 (Fla. 4th DCA 2012) (holding

that attorney’s one-month suspension during defendant’s representation constituted

harmless error because attorney only performed ministerial tasks during suspension);

Duval v. State, 744 So. 2d 523, 526 (Fla. 2d DCA 1999) (concluding defendant’s

representation by legal intern without defendant’s consent was harmless error;

representation “did not result in the prejudice necessary for a finding of ineffective

assistance of counsel”; declining to adopt a per se rule).

       However, the State properly concedes that Johnson is entitled to the entry of

sentencing documents reflecting the correction of his credit for time served and the

correction of certain costs. Indeed, Johnson filed a motion under Florida Rule of Criminal

Procedure 3.800(b), and the trial court granted the request. However, no corrected

sentencing documents followed. See Hagan v. State, 193 So. 3d 1008, 1009 (Fla. 2d

DCA 2016) (remanding for entry of amended sentencing document that had not yet been

entered after trial court granted relief on defendant’s rule 3.800(b) motion).

       AFFIRMED; REMANDED for entry of corrected sentencing documents.

TORPY and EISNAUGLE, JJ., concur.




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