DAVID LAI vs STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DAVID LAI,
Petitioner,
v. Case No. 5D22-453
LT Case No. 2017-CF-001896-A-O
STATE OF FLORIDA,
Respondent.
________________________________/
Opinion filed December 2, 2022
Petition Alleging Ineffectiveness of
Appellant Counsel,
A Case of Original Jurisdiction.
Matthew R. McLain, of McLain Law, P.A.,
Longwood, for Petitioner.
Ashley Moody, Attorney General,
Tallahassee, and Daniel Caldwell,
Assistant Attorney General, Daytona
Beach, for Respondent.
PER CURIAM.
In his petition for ineffective assistance of appellate counsel, filed
pursuant to Florida Rule of Appellate Procedure 9.141(d), David Lai argues
that his appellate counsel was ineffective for failing to argue in the initial brief
that fundamental error occurred because the jury returned inconsistent
verdicts for Count Three, sexual battery. We agree and grant the petition as
to ground 1. We deny the remainder of Lai’s claims.
Appellate counsel’s failure to identify fundamental error by the trial
court, and the failure to raise it in the direct appeal, generally falls outside of
the range of professionally acceptable performance and may constitute the
basis for relief. See, e.g., Jackson v. State, 347 So. 3d 292, 308 (Fla. 2022)
(noting appellate counsel can be deficient for not raising meritorious claims
of fundamental error), reh’g denied, No. SC19-1624, 2022 WL 4077957 (Fla.
Sept. 6, 2022); Duffy v. State, 345 So. 3d 934, 936 (Fla. 5th DCA 2022);
Phelps v. State, 317 So. 3d 1207, 1210 (Fla. 3d DCA 2021).
To establish fundamental error here, and therefore deficient and
prejudicial performance by his appellate counsel, Lai contends that the jury
rendered an inconsistent verdict for Count Three, which constituted
fundamental error. The verdict is inconsistent, he argues, because Count
Three alleged Lai penetrated the vagina of the victim. However, while the
jury returned a guilty verdict for Count Three, it made a special verdict finding
that Lai did not penetrate the vagina of the victim. Lai argues he would have
been granted relief in the form of an acquittal for Count Three and a
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resentencing had the issue been raised in the initial brief as fundamental
error.
In support, he relies on Proctor v. State, 205 So. 3d 784 (Fla. 2d DCA
2016), in which the Second District concluded that fundamental error
occurred when the jury rendered inconsistent verdicts by finding the
defendant guilty of aggravated assault but also specifically finding that the
defendant did not possess a firearm during the assault. He also relies on
Goodman v. State, 284 So. 3d 1169 (Fla. 1st DCA 2019), in which the First
District concluded that the trial court’s standard instruction—which defined
“sexual battery” as the sexual organ of the defendant penetrating or having
union with the vagina of the victim—constituted fundamental error, where the
information charged the defendant with only attempted sexual battery via
penetration, and the State relied on the instruction by presenting evidence
and arguing that the jury could convict the defendant of an uncharged crime.
Here, like in Goodman, the State only charged Lai with sexual battery
via penetration, and the jury convicted him on this ground despite a special
verdict finding no penetration. As a result, the verdict is truly inconsistent and
results in a conviction for the uncharged theory of union. Appellate counsel’s
failure to raise this argument as fundamental error is an omission “of such
magnitude as to constitute a serious error or substantial deficiency falling
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measurably outside the range of professionally acceptable performance,”
and “compromised the appellate process to such a degree as to undermine
confidence in the correctness of the result.” Zack v. State, 911 So. 2d 1190,
1204 (Fla. 2005) (citation omitted).
Under the circumstances of this case, we conclude that the proper
remedy is to order a new appeal. See Wilson v. Wainwright, 474 So. 2d 1162,
1165 (Fla. 1985). 1 Upon issuance of the mandate, a copy of this opinion shall
be furnished to the clerk of the lower tribunal for treatment as a notice of
appeal directed to Lai’s judgment and sentence in Orange County Circuit
Court case number 2017-CF-001896-A-O. The new appellate proceeding
authorized by this opinion shall be limited to the issue identified above.
GRANTED in part; DENIED in part.
SASSO, TRAVER and NARDELLA, JJ., concur.
1
We determine an additional appeal would not be redundant
considering the potential effect that a corrected sentence for Count Three
would have on Lai’s overall sentence.
4