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State v. Petagine

Florida Court of Appeals, First District

January 2, 2020

State of Florida, Appellant/Cross-Appellee,
Anthony Petagine, Appellee/Cross-Appellant.

         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. Martin A. Fitzpatrick, Judge.

          Ashley Moody, Attorney General, Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellant/Cross-Appellee.

          Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellee/Cross-Appellant Kluttz; Brian L.

          Tannebaum of Brian L. Tannebaum, P.A., Miami, for Appellee/Cross-Appellant Petagine.

          B.L. THOMAS, J.

         The State appeals the trial court's order dismissing a felony-hazing count. Appellee/Cross-Appellant Anthony Petagine cross-appeals the trial court's denial of his motion to dismiss the misdemeanor-hazing count. We reverse the dismissal of the felony count because the State alleged a prima facie case of felony hazing in the statement of particulars, pursuant to section 1006.63, Florida Statutes (2017). On the cross-appeal, we affirm because the Appellant suffered no prejudice when the State added the misdemeanor count of hazing in the amended information.


         Our review of the trial court's grant of a motion to dismiss is de novo. Parks v. State, 96 So.3d 474, 476 (Fla. 1st DCA 2012). When reviewing an order on a criminal defendant's motion to dismiss, we apply the following standard of review:

A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. Allen v. State, 463 So.2d 351 (Fla. 1st DCA 1985). Both should be granted sparingly. State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985). The trial court should not decide factual issues, determine the weight to be given to conflicting evidence or assess the credibility of witnesses. State v. Feagle, 600 So.2d 1236 (Fla. 1st DCA 1992). In considering such a motion, the trial court must construe all evidence and inferences in a light most favorable to the state. Vanhoosen v. State, 469 So.2d 230 (Fla. 1st DCA 1985). The state is not obliged to produce evidence sufficient to sustain a conviction. Feagle, 600 So.2d at 1239. "As long as the State shows the barest prima facie case, it should not be prevented from prosecuting." Vanhoosen, 469 So.2d at 232. Moreover, if the state's evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial, after all of the evidence has been presented. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).

State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998).

         In addition, "the [S]tate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant." Ramsey v. State, 124 So.3d 444, 446 (Fla. 1st DCA 2013) (citing State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000)). This standard of review does not change because Appellee filed his motion pursuant to Florida Rule of Criminal Procedure 3.190(c), rather than 3.190(c)(4). In fact, it is arguable that the State is entitled to even greater deference under 3.190(c), which does not require the movant to acknowledge undisputed facts in a sworn motion. Here, the unsworn motion fails to acknowledge relevant and undisputed facts. But even assuming arguendo that the same standard of review applies, the following facts are deemed established in the statement of particulars.

         Anthony Petagine was the president and the leader of the Executive Council of Pi Kappa Phi Fraternity at Florida State University during the Fall semester of 2017. Mr. Petagine directed all Fraternity activities, including the training and indoctrination of prospective, associate, or conditional members of the Fraternity, also known as Pledges: "He had the organizational and actual authority to stop all acts of hazing conducted by all members of the [F]raternity. He presided over the Executive Council and the chapter as a whole. . . . He encouraged and assisted and agreed to all [P]ledge activities." (Emphasis added). Most critical to our analysis here, he "was present for a meeting the week of the big brother party where the danger of [P]ledges becoming intoxicated was discussed and encouraged the event to take place through discussing mitigation of risk strategies and instructions that [P]ledges would not be forced to drink." (Emphasis added). Applying our required standard of review, these alleged facts established that Appellee knew the approved party would involve a dangerous situation where excessive intoxication would certainly occur. The fact that "mitigation strategies" were discussed cannot establish that the State failed to allege a prima facie case of felony hazing, as we discuss further below, but rather simply goes to a factual question for a jury to decide or for a trial court to consider on a motion for a judgment of acquittal, after the evidence has been presented at trial. Bonebright, 742 So.2d at 291.

         The victim was a twenty-year-old active Pledge member who attended a majority of the Pledge events up until his death on November 3, 2017. Pledges were required to attend and participate in events, unless specifically excused. Pledges, including the victim, were subjected to peer pressure and other society pressures as part of the Fraternity's systematic indoctrination process to ensure the Pledges complied with the desires and whims of the Fraternity members. The Pledges also received positive reinforcement such as invitations to social functions and networking opportunities and the privilege to associate themselves with the Fraternity.

         On November 3, 2017, the Fraternity conducted it's "Reveal" ritual, during which Pledges learned the identities of their Big Brothers. The Pledges were then instructed to gather materials for the Big Brother party later that evening, specifically authorized by Anthony Petagine and the Executive Council.

         Previous Big Brother nights had led to extreme intoxication, and under Fraternity tradition, intoxication was expected at the party. Mr. Petagine presided over the Executive Council and lifted the liquor ban to allow liquor at the party. The party was approved to be held off-campus and liquor was allowed, knowing that underage Pledges would be present and would consume alcohol. Although Mr. Petagine did not attend the party, the victim, most of the Pledge class, and the Big Brothers attended.

         At the party, the victim's Big Brother provided him with a "family bottle" of bourbon and told him there was an expectation to finish the family bottle. Many Pledges drank to the point of intoxication, including vomiting, blacking out, and sadly, the death of the victim. The victim's autopsy indicated his death was the direct result of severe intoxication, with a blood alcohol level of .447 g/dl at the time of the autopsy. Tests indicated his blood alcohol would have been even greater before the autopsy.

         The State charged Mr. Petagine by information with one count of felony hazing. The State filed an amended information, which changed only the citation to refer to section 1006.63(2), felony hazing, instead of section 1006.63(3), misdemeanor hazing. § 1006.63, Fla. Stat. Mr. Petagine entered a plea of not guilty. The State filed a second amended information, which charged him with one count of felony hazing and one count of misdemeanor hazing. The State thereafter filed its statement of particulars in response to Mr. Petagine's motion. He then filed a motion to dismiss the second amended information, asserting that the State had failed to comply with the trial court's order for a statement of particulars pursuant to Florida Rule of Criminal Procedure 3.190(c). After a pre-trial hearing, the trial court dismissed the felony-hazing charge and allowed the misdemeanor-hazing charge to proceed.

         We hold the trial court erred in dismissing the felony-hazing count. When viewed in a light most favorable to the State, with all inferences being resolved against the defendant, the State's statement of particulars alleged sufficient facts to show that a reasonable jury could find that Mr. Petagine committed felony hazing under the principal theory. See Parks, 96 So.3d at 476 (rejecting appellant's argument that the State failed to allege a prima facie case of failure to register as a sex offender); see Ramsey, 124 So.3d at 446 (same regarding motion to dismiss theft charge); § 777.011, Fla. Stat. (2017).

         Section 1006.63(1), Florida Statutes, defines hazing as "any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution." (Emphasis added.) A person commits felony hazing by "intentionally or recklessly commit[ting] any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing results in serious bodily injury or death of such other person." § 1006.63(2), Fla. Stat. In addition, the consent of the victim is not a defense to a charge of hazing. § 1006.63(5), Fla. Stat.

         The State alleged that Mr. Petagine violated the statute as a principal. Section ...

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