Evan C. Wilhelm, Appellant,
State of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Kevin 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.
Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.
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.
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.
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).
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.
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).
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).
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 ...