State of Florida v. Anthony Petagine

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-2086 _____________________________ STATE OF FLORIDA, Appellant/Cross-Appellee, v. ANTHONY PETAGINE, Appellee/Cross-Appellant. _____________________________ On appeal from the Circuit Court for Leon County. Martin A. Fitzpatrick, Judge. January 2, 2020 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.  Appeal 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 2 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. 3  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 under- age 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 4 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 5 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. 6 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. Accordingly, we affirm. REVERSED in part, AFFIRMED in part, and REMANDED. OSTERHAUS, J., concurs; BILBREY, J., dissents with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ BILBREY, J., dissenting. The question has been asked since primeval times, “Am I my brother’s keeper?” 1 Andrew Coffey wanted to be a brother of the Pi Kappa Phi fraternity at Florida State University. He went to a party with brothers of the fraternity and fellow pledges, drank to excess, and tragically died. Mr. Coffey’s future brothers did not keep him from harm. But the limited question we are presented with here is not whether any moral, civil, or societal obligation 1 Genesis 4:9 (KJV). 7 toward Mr. Coffey was violated by the fraternity brothers, but whether Anthony Petagine, the fraternity president, committed the crime of hazing as specifically defined by Florida law. Based on the record before us, there are insufficient allegations to set forth a prima facie case for either felony or misdemeanor hazing against Petagine. Accordingly, I would affirm the trial court’s dismissal of the felony count, and on the cross-appeal, reverse the trial court’s denial of dismissal of the misdemeanor count. Because the majority does the opposite, I respectfully dissent. In the second amended information, Petagine was charged with felony hazing resulting from the death of Mr. Coffey and misdemeanor hazing by creating a substantial risk of injury to any of the pledges at the party. The trial court ordered the State to provide a statement of particulars setting forth “the particulars of the offense sufficiently to enable the defendant to prepare a defense.” The trial court further ordered that if the State were proceeding on a principal theory, the State was to provide a description of the action taken by Petagine “which incited, caused, encouraged, assisted or advised another person or persons to actually commit or attempt to commit the crime.” Petagine moved to dismiss the second amended information claiming that the allegations therein and in the statement of particulars “omit critical elements of the charged offense.” The trial court granted the motion to dismiss as to the felony charge but denied the motion as to the misdemeanor charge. An information that omits an essential element of the crime fails to charge a crime. Connolly v. State, 172 So. 3d 893, 904 (Fla. 3d DCA 2015) (en banc). A defective information is properly challenged by a motion to dismiss under rule 3.190(c), Florida Rules of Criminal Procedure. Ingraham v. State, 32 So. 3d 761, 766 (Fla. 2d DCA 2010). In the statement of particulars, the State was required to “specify as definitely as possible the place, date, and all other material facts of the crime charged.” Fla. R. Crim. P. 3.140(n). When a statement of particulars is filed, the State cannot, over defense objection, seek a conviction based on facts other than those contained in the statement. See State v. Beamon, 298 So. 2d 376, 378-79 (Fla. 1974); Brown v. State, 462 So. 2d 840, 843 (Fla. 1st DCA 1985). Furthermore, 8  When the prosecuting officer has, in the statement of particulars, specified as definitely as possible and as is known to him [or her] what the material facts are . . . and, in the opinion of the trial judge, such facts do not legally constitute the crime charged or they affirmatively establish an effective bar to the prosecution, then the motion to dismiss should be granted. State v. Davis, 243 So. 2d 587, 591 (Fla. 1971). Section 1006.63(1), Florida Statutes (2017), defines criminal hazing as follows: As used in this section, “hazing” means 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. “Hazing” includes, but is not limited to, pressuring or coercing the student into violating state or federal law, any brutality of a physical nature, such as whipping, beating, branding, exposure to the elements, forced consumption of any food, liquor, drug, or other substance, or other forced physical activity that could adversely affect the physical health or safety of the student, and also includes any activity that would subject the student to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment, or other forced activity that could adversely affect the mental health or dignity of the student. Hazing does not include customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective. This definition of criminal hazing is applicable to both felony and misdemeanor offenses. 2 See § 1006.63(2) & (3), Fla. Stat. 2 Hazing in the broader sense that does not recklessly or intentionally endanger the mental or physical health or safety of a 9 (2017). Here, the State appeals the dismissal of the felony charge, and Petagine cross appeals the denial of the dismissal of the misdemeanor charge. 3 “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole . . . .Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992) (alteration in original) (citations omitted). The majority relies solely on the definition of criminal hazing in the first sentence of section 1006.63(1) in holding that Petagine created an “action or situation” that endangered Mr. Coffey for the felony charge or endangered any of the pledges for the misdemeanor charge. As discussed in detail below, I do not believe there are sufficient allegations of Petagine recklessly or intentionally creating a danger. The second sentence of section 1006.63(1) gives a nonexclusive list of matters that could endanger a student. Although there certainly could be other actions that would endanger a student, I believe all of section 1006.63(1) must be read together. To constitute criminal hazing the act that recklessly or intentionally endangers the student must be along the lines of what is specifically prohibited in the second sentence, student is not a criminal act. Therefore, various acts of hazing alleged to have been committed against the pledges, including presumably Mr. Coffey, which involved innocuous acts such as requiring the pledges to carry items with them like sunflower seeds or requiring the pledges to learn the history of the fraternity, or more offensive acts such as verbal abuse and name calling by the brothers, do not amount to a crime. 3 Petagine also raises a speedy trial issue concerning the addition of the misdemeanor charge more than 90 days after the initial information was filed. The majority rejects Petagine’s claim of a violation of his right to a speedy trial. Because I would dispose of the misdemeanor charge based on the failure to allege an essential element of the crime of hazing, I find it unnecessary to address the speedy trial issue. 10 otherwise the statute could be unconstitutionally vague. To avoid void for vagueness, the rule of lenity applies to the “run-of-the-mill ambiguity” contained in the hazing statute. Martin v. State, 259 So. 3d 733, 741-42 (Fla. 2018). As such, reading section 1006.63(1) as a whole, two of the three examples of criminal hazing in the second sentence could conceivably be applicable based on the allegations in the statement of particulars: 1) “pressuring or coercing the student into violating state or federal law,” or 2) “forced consumption of any food, liquor, drug, or other substance.” In his related appeal, Petagine’s codefendant and fraternity brother, Anthony Oppenheimer, contends that since forced consumption of liquor is defined as criminal hazing, the specific prohibition outweighs the general prohibition against violating the law, and therefore only forced consumption, the second example above, could be criminal hazing. 4 Oppenheimer further contends that since there are no allegations in the statement of particulars that Mr. Coffey was forced to consume alcohol, dismissal is appropriate. I agree that there were no allegations of forced consumption of liquor in the statement of particulars. If, for instance, Mr. Coffey had been ordered by Petagine or at Petagine’s direction that he must drink liquor to be initiated into the fraternity, such conduct would undoubtedly be criminal hazing. But no such forced consumption is alleged here. In fact, as the majority mentions, the statement of particulars sets forth that Petagine was present for a meeting where the party was planned, but Petagine was involved in “discussing mitigation of risk strategies and instructions that the pledges would not be forced to drink.” So, the criminal hazing statute’s prohibition on “forced consumption” cannot support the charges. But I do not agree with 4 Case numbers 1D18-2083 involving Oppenheimer and 1D18- 2215 involving Anthony Kluttz were consolidated for oral argument since they involve co-defendants and related issues. Similar statements of particulars were filed in Petagine, Oppenheimer, and Kluttz’s cases. 11 Petagine’s co-defendant Oppenheimer that forced consumption of liquor is a specific subset of “pressured or coerced” and without allegations of forced consumption the “pressure or coercion” example defining criminal hazing does not apply. Instead, I believe that if there were allegations that Mr. Coffey had been pressured or coerced into violating state law, that could be criminal hazing. At oral argument, the State acknowledged that its theory of the case was that the pledges had been pressured into drinking. “Forced consumption” can apply to matters that otherwise would not be a crime, like a pledge of legal drinking age being forced to drink liquor or any person being forced to eat or drink so much of anything as to endanger that person’s health or safety. 5 But here there is not any allegation in the statement of particulars of Petagine’s “pressuring or coercing” Mr. Coffey into violating the law so as to amount to criminal hazing. It is a crime for a person under the age of 21 to possess alcoholic beverages. § 562.111, Fla. Stat. (2017). If the statement of particulars alleged that Mr. Coffey had been pressured or coerced into possessing alcohol that would meet the definition of criminal hazing under section 1006.63(1). And if the criminal hazing resulted in Mr. Coffey’s “serious bodily injury or death” that would be felony hazing. 6 § 1006.63(2), Fla. Stat. But the best allegations the statement of particulars can make is “pledges were 5 See Coco Ballantyne, Strange But True: Drinking Too Much Water Can Kill, SCIENTIFIC AMERICAN, June 21, 2007, https://www.scientificamerican.com/article/strange-but-true- drinking-too-much-water-can-kill/ (last visited Dec. 16, 2019). 6 I will leave aside the fact I am unaware of anything in Florida law that specifically outlaws the consumption of alcohol by a person under 21 years old as opposed to possession of alcohol. It is difficult, if not impossible, to consume a substance without possessing it. For the sake of argument here, I think that if it was alleged that Mr. Coffey had been pressured or coerced into possessing alcohol, his subsequent consumption of that alcohol would likely be causally connected — although in that event the crime of possession arguably did not automatically mean consumption. 12 encouraged to illegally drink both directly and indirectly” (emphasis added). As the majority points out, consent of the victim is not a defense to criminal hazing. See § 1006.63(5)(a), Fla. Stat. But I think the trial court was correct in finding that since Mr. Coffey consented to drink, “it certainly negates a necessary element” when considering whether Mr. Coffey was pressured or coerced to drink. If Mr. Coffey wanted to drink alcohol, then that would negate the pressure or coerce element to prove criminal hazing. “It is well established that ‘where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.’” Shepard v. State, 259 So. 3d 701, 705 (Fla. 2018) (citations omitted). “Further, when construing a statute, our ‘task is to ascertain the meaning of the phrases and words used in a provision, not to substitute [the Court’s] judgment for that of the Legislature.’” Id. at 704 (quoting School Bd. of Palm Beach Cty’ v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1228 (Fla. 2009)). Being encouraged to undertake an act is not the same as being pressured or coerced to do that act. The verb “encouraged” is not synonymous with “pressured” or “coerced.” See https://www.thesaurus.com/browse/encourage (last visited Dec. 16, 2019). “Encourage” means “[t]o instigate; to incite to action; to embolden; to help.” Black’s Law Dictionary (8th ed. 2004). See also United States v. Lopez, 590 F.3d 1238, 1249 (11th Cir. 2009) (defining encourage similarly). Advertisements on television, in print, and on the internet encourage consumption of alcohol with only brief disclaimers noting that only people twenty- one years of age and older should drink. American movies since at least Animal House (1978) and Revenge of the Nerds (1984) have encouraged excessive consumption of alcohol and underage drinking by college students generally and fraternity members specifically. Annual lists appear in print and on the internet of the best “party” universities. Many student organizations, including many fraternities, encourage underage drinking. 7 But none of this 7 Much of this drinking results in harmful consequences to the students. The National Institute on Alcohol Abuse and Alcoholism, a part of the National Institutes of Health, reports that 13 societal encouragement of underage consumption of alcohol amounts to an allegation of the exertion of pressure or coercion to violate the law. “Pressure” implies some compulsion, perhaps short of “force” but certainly more than just being encouraged to act. See https://www.thesaurus.com/browse/pressure?s=t (last visited Dec. 16, 2019). Synonyms for “pressure” include “constrain,” “press,” and “insist.” Id. “Coerce” is defined as “[t]o compel by force or threat.” Black’s Law Dictionary (8th ed. 2004). See also Long- Lewis Sterling Western Star of Bessemer v. Sterling Truck Co., 460 Fed. Appx. 819, 820 (11th Cir. 2012) (defining coerce to mean “to restrain, control, or dominate, nullifying individual will or desire”). The State could have explicitly tracked the hazing statute if it had evidence to support an allegation that Mr. Coffey was pressured or coerced by anyone into possessing alcohol. But instead the State forthrightly alleged in the statement of particulars that the evidence at best showed only that Petagine encouraged the consumption of alcohol by Mr. Coffey. This allegation does not meet the definition of criminal hazing. The statement of particulars’ mention of “peer pressure,” discussed by the majority, likewise does not satisfy the definition of criminal hazing. There are no allegations here of pressure to violate “state or federal law,” as required by section 1006.63(1). The allegation in the statement of particulars that “[p]eer pressure and other societal pressures were brought to bear on the pledges in a systematic indoctrination process” does nothing to support an allegation of criminal hazing. 8 That statement would apply to a researchers estimate that each year 1,825 college students between “the ages of 18 and 24 die from alcohol-related unintentional injuries, including motor-vehicle crashes.” College Drinking, https://www.niaaa.nih.gov/publications/brochures-and- fact-sheets/college-drinking (last visited Dec. 16, 2019). 8 Likewise, the statement of particulars’ discussion of the other non-criminal hazing that occurred over the course of the semester does nothing to show any allegation that Mr. Coffey was subjected to criminal hazing that led to his death. 14 student joining most any campus organization such as a religious society, a band, a sports team, or ROTC. I assume most students try to join a campus organization because the prospective members like the particular organization and aspire to emulate existing members. Perhaps if the statement of particulars had alleged that there was peer pressure placed on Mr. Coffey from Petagine to violate the law, that allegation would suffice. But instead the statement notes, as mentioned above, that “pledges would not be forced to drink.” The majority’s statement concerning Mr. Coffey that “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” is not contained in the statement of particulars, and therefore it should not be used to support whether the statement of particulars alleges a crime. See Brown, 462 So. 2d at 843. The allegation that “[s]tories and traditions. . . told to the pledges concerning family drinks and drinking all the bottle or at least drinking to excess” is contained in the statement of particulars, but does not allege who told this to the pledges or if Mr. Coffey was so told. But even if it was alleged that Mr. Coffey had been told this by Petagine, it would allege at best “encouragement” to drink, not pressure or coercion. And the “stories and traditions” allegedly told to pledges could not have come from Petagine anyway since he was not alleged to have been at the party where Mr. Coffey drank to excess. An expansive interpretation of “pressuring or coercing” would allow criminal charges against any fraternity member attending a fraternity party where underage drinking occurred based on the fraternity member attending and thereby “encouraging” underage drinking. That is not how section 1006.63 reads and is not consistent with a reasonable interpretation of the statute. 9 Section 9 A person having control of a residence where an underage person is allowed to consume alcohol at a social gathering can be charged with the crime of “open house party.” See § 856.015, Fla. Stat. (2017). Petagine was not so charged, presumably because he had no control of the residence and was not alleged to have even been there at the time. 15 1006.63 was amended by chapter 2019-133, Laws of Florida, and now defines criminal hazing to include being “actively involved in the planning of any act of hazing.” § 1006.63(2) & (3), Fla. Sta. (2019). 10 But even under that amended definition of criminal hazing, the allegations of Petagine somehow encouraging Mr. Coffey to drink would not suffice since no criminal hazing was planned. The majority holds that by lifting the liquor ban, Petagine violated section 562.11(1)(a)(1), Florida Statutes (2017), and that allegation establishes a prima facie case of felony hazing. There are various problems with the rationale beyond this holding. First, the State did not even cite section 562.11 in its initial brief, much less argue that Petagine or someone on Petagine’s behalf violated that law and thereby committed criminal hazing. Barring fundamental error or jurisdictional issues, “issues not raised in the initial brief are considered waived or abandoned.” Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc). Second, even if the State had raised this issue, the statement of particulars does not allege Petagine lifted the liquor ban; instead it alleges only that the liquor ban was lifted. Third, even if the argument was not waived and even if the State had alleged that Petagine or someone on his behalf had lifted the liquor ban and thereby allowed underage drinking, that would still not show that Mr. Coffey or any of the pledges were pressured or coerced into breaking the law. An allegation of Petagine or someone on his behalf saying, “you underage pledges can now drink” is not the same as him saying “you underage pledges must now drink.” For the same reason, any contention that Petagine is criminally liable as a principal also fails. “Before an accused may be convicted as an aider and abettor, it must be shown not only that he assisted the actual perpetrator but that he intended to 10 Chapter 2019-133, Laws of Florida, also added two subsections that are not applicable here, but which bear mentioning. Section 1006.63(11) & (12) are named Andrew’s Law after Mr. Coffey. These subsections provide immunity to a person who summons immediate medical assistance or renders aid to a victim of criminal hazing. 16 participate in the crime.” Horton v. State, 442 So. 2d 1064, 1065- 66 (Fla. 1st DCA 1983). See also Ryals v. State, 150 So. 132 (Fla. 1933); Cannon v. State, 180 So. 3d 1023 (Fla. 2015); § 777.01, Fla. Stat. (2017). As discussed above, the statement of particulars does not set forth a prima facie case that anyone committed criminal hazing. Therefore, without an allegation that another person or persons actually committed or attempted to commit a crime, there are insufficient allegations that Petagine was a principal to criminal hazing. Without criminal hazing or some other criminal act being committed, Florida law does not make Petagine or other fraternity officers criminally liable for college drinking culture, even when that culture has tragic results. The trial court was correct to dismiss the felony charge and for the same reasons should have dismissed the misdemeanor charge since the definition of criminal hazing is the same for both offenses. See § 1006.63(1). It is the injury that results from the criminal hazing that distinguishes felony from misdemeanor hazing. Since there were no allegations that Petagine or someone on his behalf forced any of the pledges to consume liquor and since there were no allegations of pressuring or coercing the pledges by Petagine or someone on his behalf to violate state law, there were insufficient allegations of criminal hazing under section 1006.63(1). Without allegations of an act of criminal hazing committed by or on behalf of Petagine, there can be no felony hazing under section 1006.63(2) resulting from the death of Mr. Coffey and no misdemeanor hazing under section 1006.63(3) by creating a risk of injury to any of the pledges. Since the majority reinstates the felony charge and denies the dismissal of the misdemeanor charge, I respectfully dissent. _____________________________ 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. 17 Tannebaum of Brian L. Tannebaum, P.A., Miami, for Appellee/Cross-Appellant Petagine. 18