Denied March 10, 2020.
[Copyrighted Material Omitted]
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. Martin A.
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
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.
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
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
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
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.
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
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.
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
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 ...