Darion Johnson v. State , 256 So. 3d 208 ( 2018 )

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
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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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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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