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Wilhelm v. State

Florida Court of Appeals, First District

June 4, 2018

Evan C. Wilhelm, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Kevin J. Carroll, Judge.

          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.

          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).

         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 ...


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