Full Opinion

Third District Court of Appeal State of Florida Opinion filed September 30, 2026. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D25-0403 Lower Tribunal No. F21-15478 ________________ John Henry Johnson, Appellant, vs. State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge. Eugene F. Zenobi, Regional Counsel, and Kristen Kawass, Assistant Regional Counsel, for appellant. James Uthmeier, Attorney General, and Daniel Colmenares, Assistant Attorney General, for appellee. Before LINDSEY, MILLER, and REBULL, JJ. LINDSEY, J. After a mistrial, and subsequent retrial by jury, Appellant, John Henry Johnson appeals his conviction for second-degree murder and felon in possession of a firearm. We affirm. BACKGROUND Angelica Marie Fernandez (aka “Bebe”) was shot on July 11, 2021. Law enforcement took statements from neighbors and an investigation commenced. CCTV footage, and witness accounts, showed Johnson walking onto Bebe’s property at the exact time witnesses heard a gunshot. After the gunshot, Johnson was immediately seen walking back to where he came from. Johnson was taken into custody and questioned a few months after the shooting. He denied seeing Bebe and denied speaking to her on the day of the incident. There, he gave his consent to search his room,1 where a blue hat, identical to the hat he was seen wearing in CCTV footage, was found. A sample recovered from the blue hat matched Johnson’s DNA. He was subsequently arrested and charged, via Information, with second- degree murder with a weapon (Count 1) and being a convicted felon in possession of a firearm (Count 2). As noted above, Johnson’s first trial resulted in a mistrial. In the second trial, at issue here, Johnson was found guilty of second-degree murder. 1 At the time, Johnson resided in a “rooming house.” 2 The trial was bifurcated and the jury also found Johnson guilty on the felon in possession of a firearm charge. He was ultimately adjudicated on both counts and sentenced to 40 years imprisonment. Johnson moved for a new trial which was denied. This appeal followed. 2 Johnson raises two issues on appeal: (1) ineffective assistance of counsel3 and that (2) the trial court erred in accepting a stipulation as to his convicted felon status without the requisite colloquy. Neither are legally sufficient to warrant reversal. I. Trial Phase 1 In the bifurcated trial, the second-degree murder charge was tried first (“Phase 1”). The State’s case centered on the CCTV footage which was corroborated by witness testimony and circumstantial evidence. The defense, on the other hand, claimed an “alternative suspect theory.” CCTV footage highlighted at trial shows Johnson approaching and entering the victim’s property at approximately 11:11 a.m. and leaving around 11:12 a.m. Another individual, Dave Perry, is later seen riding a bicycle around 11:22– 11:23 a.m. approaching and entering the driveway. Shortly thereafter, Perry 2 A belated appeal was granted on March 4, 2025. 3 As shall be addressed below, while this claim does not merit reversal herein, we express no opinion on whether it is cognizable in post-conviction proceedings as opposed to in this direct appeal. 3 is seen near a liquor store. A neighbor, LaKeisha Johnson, called 911 at 11:43 a.m. Another neighbor, Walter Collier, testified he saw an older man wearing a blue cap (later identified as Johnson) walk toward Bebe’s yard, heard a gunshot less than a minute later, and then saw the same man exit the yard and walk by again. No one witnessed the actual shooting, and CCTV footage did not capture it. No firearm was found at the scene, and no murder weapon was ever recovered. A single .25 caliber casing was located, and a projectile was recovered from Bebe’s head. The casing yielded no DNA evidence. The record shows law enforcement obtained Johnson’s phone records and determined that he placed a phone call to the victim at 8:18 a.m. on the day of the murder. The call lasted 5 seconds. No further calls were made to that number after that day. Detectives swabbed a blue cap located at Johnson’s residence and obtained a partial male DNA matching Johnson. Further, no DNA from the scene was tied to Johnson. The defense theory of the case was that a second individual on a bicycle, Dave Perry, was the real murderer since he too entered and exited the yard during the relevant timeframe and fled rapidly. II. Trial Phase 2 The felon in possession charge was tried second (“Phase 2”). There was no mention of the prior conviction during Phase 1. The parties stipulated 4 as to Johnson’s status as a convicted felon. Johnson personally signed a written stipulation expressly acknowledging his status. It was reviewed in open court, admitted and read to the jury in Phase 2. At this stage of the proceedings, the trial court colloquized Johnson. The only question asked was whether Johnson was previously convicted in the two cases referenced by the State, 4 to which he responded in the affirmative. Considering the stipulation and colloquy, the State admitted no other evidence of the prior convictions. Instead, the stipulation was read aloud to the jury in open court. The jury was then instructed to assess the voluntariness of the statement and to disregard it if it was not voluntary. The jury was instructed on the two elements: prior felony and knowing possession. The jury convicted Johnson on both counts. This timely appeal follows. ANALYSIS Johnson argues that his ineffective assistance of counsel claims are reviewable on direct appeal under Strickland, 5 because they were preserved 4 The State identified the cases as F74008296 and F10021682. 5 Strickland v. Washington, instructs: First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. 5 via the motion for new trial. 6 Alternatively, Johnson argues that even if not preserved, the errors were so egregious that they amount to fundamental error. Johnson also argues he did not acknowledge the stipulation of his status as a convicted felon, nor did he waive his right to have the State prove the same. The State, on the other hand, argues that ineffective assistance claims are not cognizable on direct appeal, absent fundamental error under Steiger.7 The State also argues that Johnson personally signed a written joint stipulation acknowledging his prior felony convictions, which was 466 U.S. 668, 687 (1984). “The deficiency prong requires the defendant to establish conduct on the part of counsel that is outside the broad range of reasonableness under prevailing professional standards.” Alcorn v. State, 121 So. 3d 419, 425 (Fla. 2013) (citation modified) (citing Strickland, 466 U.S. at 687–89). 6 The motion for new trial was untimely. Under Florida Rule of Criminal Procedure 3.590(a), the time to file a motion for new trial in a noncapital case is “within 10 days after the rendition of the verdict or the finding of the court.” Here, the verdict was rendered and filed on July 12, 2024. The motion for new trial was filed on July 28, 2024, more than ten days after the verdict. Therefore, the trial court was without jurisdiction to hear the motion for a new trial. See Dessa v. State, 89 So. 3d 1067, 1068 (Fla. 3d DCA 2012). 7 “[S]ection 924.051(3)’s preservation requirement to ineffective assistance of trial counsel claims on direct appeal imposes a reasonable condition upon a criminal defendant’s constitutional right to a direct appeal, leaving such unpreserved claims to either be separately alleged as fundamental error or brought in postconviction proceedings as ineffective assistance of trial counsel claims.” Steiger v. State, 328 So. 3d 926, 931–32 (Fla. 2021). 6 entered freely, voluntarily, knowingly, and intelligently, reviewed in court, admitted, and read to the jury. The State is correct. I. Ineffective Assistance of Counsel Unpreserved ineffective assistance of counsel claims are relegated to post-conviction proceedings. See Claudio-Martinez v. State, 324 So. 3d 45, 47 n.1 (Fla. 2d DCA 2021); Macauley v. State, 429 So. 3d 132, 135 (Fla. 3d DCA 2026); see also Fla. R. Crim. P. 3.850 advisory committee’s note to 1992 amendment (“Pursuant to State v. District Court of Appeal of Florida, First District, 569 So. 2d 439 (Fla.1990), motions seeking a belated direct appeal based on the ineffective assistance of counsel should be filed in the trial court under rule 3.850.”). “On rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Baxter v. State, 318 So. 3d 601, 604 (Fla. 3d DCA 2021) (quoting Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002)). Thus, direct appeal is limited to whether the alleged error independently constitutes fundamental error. That did not occur here. To establish fundamental error, the “error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have 7 been obtained without the assistance of the alleged error.” Steiger, 328 So. 3d at 930–31 (quoting F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003)). Here, the conduct challenged by Johnson is documented (e.g., improper cross-examination that generated admonitions, speculative questions on “survivability” despite the fact of a stipulation on cause of death, and directly addressing Johnson during closing), as are the trial court’s curative instructions. Even so, the record established an overwhelming amount of circumstantial evidence, proving beyond a reasonable doubt, that Johnson was responsible for the murder. Johnson gave inconsistent statements to the police; multiple angles of CCTV footage show Johnson entered Bebe’s property at the time Collier heard a gunshot; various witness testimony corroborated the circumstances found in the CCTV footage; and the blue baseball cap seen on the CCTV was identical to the one in Johnson’s possession, which matched his DNA. The record also reflects active adversarial defense participation during voir dire using, among other things, peremptory challenges. Defense counsel actively made objections and raised several arguments on evidentiary matters. In so doing, counsel even obtained the State’s withdrawal of a prior request to elicit testimony that Johnson previously possessed a small caliber firearm. The record also reflects the defense’s 8 vigorous cross-examination of key State witnesses such as Collier, Stuckey Taylor, Lakisha, and Officer Batista. On this record, Johnson fails to meet the Steiger standard. Further, the ineffective assistance of counsel claim is not facially established and would require extra-record development. Put differently, the record does not, without more, distinguish deficient performance from strategy nor establish prejudice equivalent to a denial of due process. As such, we deny the claim on direct appeal, without prejudice to Johnson raising it in a post-conviction motion. II. Invalid Stipulation Johnson argues that the trial court failed to conduct the on-the-record colloquy required by Brown—i.e., establishing a knowing, intelligent and voluntary waiver of the right to require the State to prove the prior felon element beyond a reasonable doubt. See Brown v. State, 719 So. 2d 882, 889 (Fla. 1998). In his view, absent a valid stipulation and independent proof of prior felony status, the State failed to prove an essential element. The State, on the other hand, argues that no fundamental error occurred because the record contains a written stipulation, personally signed by Johnson, an on-the-record acknowledgment, entered as evidence and read to the jury. The State is correct. 9 Generally, a challenge to a felon-in-possession conviction based on an allegedly invalid stipulation is reviewed as a preserved legal error, with the burden on the State to show harmlessness. See Whitfield v. State, 749 So. 2d 572, 572 (Fla. 2d DCA 2000). Again, if unpreserved, as here, the error is reviewed for fundamental error. See Lowe v. State, 259 So. 3d 23, 41–42 (Fla. 2018). In support of his position, Johnson relies on the general propositions of law espoused in Brown, Presha, and Harris. But he misapplies them to the facts here. In Brown, the court held that “when a criminal defendant offers to stipulate to the convicted felon element of the felon-in-possession of a firearm charge, the Court must accept that stipulation, conditioned by an on-the-record colloquy with the defendant acknowledging the underlying prior felony conviction(s) and acceding to the stipulation.” 719 So. 2d at 884 (emphasis added). Here, the record reflects that such colloquy took place. In Presha v. State, this Court stated that “the defendant must personally acknowledge the stipulation and his voluntary waiver.” 427 So. 3d 1047, 1053 (Fla. 3d DCA 2025). Without such stipulation, the State must present evidence of the convictions. See Harris v. State, 403 So. 3d 354, 355 n.1 (Fla. 3d DCA 2025) (“[W]ithout a valid stipulation, the only methods for the State to prove at trial that Harris was a convicted felon were the admission of the ‘whole record’ pertaining to the prior felony conviction or providing a 10 certified copy of the conviction.”). Johnson personally acknowledged the stipulation on the record. Thomas v. State, 427 So. 3d 519 (Fla. 4th DCA 2026) is instructive. In Thomas, the State and defendant stipulated to the fact that defendant was a convicted felon before the trial began. See id. at 520. The parties informed the court of the signed stipulation. See id. During the defendant’s motion for judgment of acquittal, he again conceded to the felon-in-possession count and he was subsequently convicted. See id. On appeal, the defendant argued he did not knowingly, voluntarily, and intelligently waive his right to have the State prove that element and that the court failed to properly colloquy him on the subject. See id. Despite finding that there was no “on- the-record colloquy,” the Fourth District Court of Appeal concluded that “the record contain[ed] the defendant’s ‘personally acknowledge[d]’ signed stipulation. Thus, no fundamental error occurred.” Id. at 521. In sum, under Thomas, even in the absence of a colloquy, courts have found no fundamental error where the record contained sufficient evidence of a signed stipulation and acknowledgment. Here, just like in Thomas, Johnson signed a Joint Stipulation: 11 But, unlike the Thomas court, the trial court here conducted an appropriate colloquy. So, Thomas applies with more force here. The transcript confirms that Johnson acknowledged his July 11, 2021, conviction when, on the record, in open court, he replied “[y]es, ma’am” to the trial court’s question of whether Johnson was previously convicted in two cases. Again, Count 2 was only tried in Phase 2. The stipulation was read to the jury, with proper instructions, only during Phase 2, providing requisite proof of the felon-status element. Accordingly, the stipulation, as submitted, tracked Brown’s requirements. Again, the record reflects proper bifurcation, Phase 1 firewalling, and the use of a narrow case-numbered stipulation during Phase 2. Prior 12 possession testimony, during Phase 1, was withdrawn and the court confirmed that the stipulations were signed. Accordingly, the record reflects that Johnson’s written stipulation was entered freely, voluntarily, knowingly and intelligently. The language of the stipulation complied with the requirements in Brown and the decision in Thomas. There was no fundamental error. CONCLUSION Based on the above, we affirm without prejudice to Johnson to pursue his ineffective assistance of counsel claims in post-conviction proceedings. Affirmed. 13