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Date: 01-06-2020

Case Style:

State of Florida vs Anthony Petagine

Case Number: 2018-2086

Judge: Bradford (Brad) L. Thomas

Court: FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

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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
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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.
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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
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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 777.011, Florida Statutes, states: Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense. (Emphasis added). Whether prosecuted as a principal or considered a person who was “constructively present,” is irrelevant. See State v. Dene, 533 So. 2d 265, 269-70 (Fla. 1988). A correct reading of the statement of particulars, applying the proper standard of review, established that it was legally sufficient to charge a count of felony hazing. The State alleged that Mr. Petagine presided over the Executive
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Council and Fraternity chapter as a whole and directed all Pledge training, indoctrination, and other Fraternity activities. Mr. Petagine was explicitly trained and instructed on the dangers of binge drinking in this environment, and had actual knowledge that previous Big Brother parties had led to extreme intoxication. Mr. Petagine also had actual knowledge that the 2017 Pledge class had previously displayed poor behavior at a Fraternity event due to intoxication. Regardless, Mr. Petagine was present for a meeting the week of the Big Brother party where the danger of Pledges becoming intoxicated was discussed, and he encouraged the event to take place. In addition, as the leader of the Fraternity and Executive Council, Mr. Petagine lifted the liquor ban to allow the Big Brothers to supply liquor at the party, in violation of state law prohibiting “giv[ing], serv[ing], or permit[ting] to be served alcoholic beverages to a person under 21 years of age . . . .” § 562.11(1)(a)(1), Fla. Stat. (2017). This alone establishes that the State alleged a prima facie case of felony hazing, as underage drinkers are clearly more likely to become dangerously intoxicated in the context of a fraternity party in which that kind of behavior is encouraged and allowed, which is precisely the conduct targeted by the statute. The State presented sufficient facts that Mr. Petagine committed felony hazing by aiding and counseling actions and situations that recklessly or intentionally endangered the physical health or safety of the victim, which resulted in his death. See § 1006.63, Fla. Stat. Accordingly, we reverse the trial court’s dismissal of the felony-hazing charge. Cross-Appeal On cross-appeal, Mr. Petagine argues the trial court erred by allowing the misdemeanor-hazing charge to proceed because the misdemeanor charge was added more than ninety days after Mr. Petagine was arrested, which was a violation of his speedy trial rights under Florida Rule of Criminal Procedure 3.191(a). We disagree. Interpretation of the rules of procedure with regard to the right to a speedy trial is a question of law subject to de novo review.
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See State v. Nelson, 26 So. 3d 570, 573-74 (Fla. 2010). “[E]very person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony.” Fla. R. Crim. P. 3.191(a). This Court has previously held that where a defendant could not establish any specific prejudice resulting from an amended information, a motion to dismiss for a violation of speedy trial rights should be denied. Holland v. State, 210 So. 3d 238, 240 (Fla. 1st DCA 2017). “An amendment is generally permissible . . . when it ‘merely clarifies some detail of the existing charge and could not reasonably have caused the defendant any prejudice.’” Id. at 240 (alteration in original) (quoting State v. Mulvaney, 200 So. 3d 93, 96 (Fla. 5th DCA 2015)). As in Holland, Mr. Petagine has failed to allege or establish any specific prejudice resulting from the amendment. See Holland, 210 So. 3d. at 239-40.

Outcome: Accordingly, we affirm.

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