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
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
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 time of the autopsy. Tests indicated his
blood alcohol would have been even greater before 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.
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).
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),
State alleged that Mr. Petagine violated the statute as a
principal. Section ...