Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT J.W., ) ) Appellant, ) ) v. ) Case No. 2D19-1262 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed March 17, 2021. Appeal from the Circuit Court for Polk County; Wayne M. Durden, Judge. Howard L. Dimmig, II, Public Defender, and Lisa B. Lott, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katie Lynn Salemi- Ashby, Assistant Attorney General, Tampa, for Appellee. SLEET, Judge. J.W.1 entered nolo contendere pleas to resisting arrest with violence, battery on a law enforcement officer, and driving without a license. Because the trial court committed fundamental error by accepting his pleas to the felony offenses in the 1We refer to appellant by initials pursuant to Florida Rule of Judicial Administration 2.420(d)(1)(B)(viii). absence of a legally sufficient factual basis, we reverse his convictions and sentences for resisting arrest with violence and battery on a law enforcement officer and remand for further proceedings on those counts. We otherwise affirm his conviction and sentence for driving without a license. At J.W.'s plea hearing, defense counsel stipulated that the police report affidavit provided a factual basis for each of the three charged offenses. That affidavit, prepared by one of the arresting officers, stated that on June 11, 2018, police responded to a trailer park and were informed by a resident that she witnessed her neighbor, J.W., drive away from the park in an SUV and return later. She further told police that she had heard from J.W.'s wife that J.W. did not have a valid driver's license. J.W.'s wife confirmed to police that he had never had a valid license. The affidavit indicated that J.W. was present in the home at the time police were there. Although not referenced in the affidavit, our record indicates that police issued J.W. a citation and a notice to appear for the misdemeanor violation. The affidavit noted that EMS personnel were on the scene "evaluating" J.W.'s "medical issues," but no other explanation was given for their presence. The affidavit stated that J.W.'s wife informed the officer that her husband had been drinking that evening and had taken anxiety medication in a dose higher than that prescribed. The officer then informed J.W., while he sat on his couch, that he was going to be involuntarily committed for an evaluation under the Baker Act.2 The affidavit did not indicate that J.W. was given any reason for why he should be subjected to a Baker Act examination or that the examination had been recommended by EMS. J.W. remained 2§§ 394.451-.47892, Fla. Stat. (2017) (also known as the Florida Mental Health Act, see § 394.451). -2- seated and made it clear that he would not voluntarily submit to the examination. The officer informed him that he needed to get on the stretcher provided by EMS, but J.W. continued to refuse. The officer then laid hands on J.W., using force to attempt to handcuff him. J.W. braced himself in an attempt to prevent being pulled up, but the officer was eventually able to pull him off the couch, and as he did, J.W. kicked the officer in the leg. J.W. was then handcuffed, transported to the hospital, evaluated, and released into police custody. At the plea hearing below, after defense counsel stipulated to the factual basis, the trial court accepted J.W.'s pleas, finding that they were "freely, voluntarily and knowingly made" and "supported by a factual basis." On appeal, J.W. argues that the trial court erred in accepting his pleas to the two felony counts because the police report affidavit failed to establish a sufficient factual basis for those offenses. J.W. maintains that the affidavit failed to establish a necessary element of each offense and therefore was insufficient to sustain his felony convictions. We agree. Initially, we note that defendants who enter guilty or nolo contendere pleas without reserving the right to appeal a dispositive issue are limited on appeal to raising only those issues set forth in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), which requires that challenges to a plea on the basis that it was involuntary be preserved by a motion to withdraw plea. Although J.W. has not filed such a motion in the instant case, "an appellate court will always consider a fundamental error that is apparent on the face of the record." See Dydek v. State, 400 So. 2d 1255, 1258 (Fla. 2d DCA 1981). And "the conviction of a defendant in the absence of a prima facie showing of the essential elements of the crime charged" has been recognized by Florida -3- courts to be fundamental error. Id. (reversing conviction for possession of drug paraphernalia after entry of nolo contendere plea where factual basis did not establish all of the essential elements of the offense despite defense counsel's stipulation to the factual basis); see also Miller v. State, 988 So. 2d 138, 139 (Fla. 1st DCA 2008) ("We determine that, in those cases where the record affirmatively demonstrates the crime to which defendant pled guilty could not have occurred, fundamental error occurs."); cf. Allen v. State, 876 So. 2d 737, 740-41 (Fla. 1st DCA 2004) (granting petition for second-tier certiorari and determining circuit court "failed to comply with the established principle of law which holds that it is fundamental error to convict a defendant in the absence of a prima facie showing of the elements of the offense charged"). As such, we must determine whether the State's factual basis below established a prima facie showing of the felonies to which J.W. pleaded. See Waugh v. State, 388 So. 2d 253, 254 (Fla. 2d DCA 1980) ("Prior to accepting a guilty plea, the court must receive in the record factual information to establish the elements of the offense for which the defendant has entered his plea."). And we conclude that it did not. The State's factual basis consisted only of the police report affidavit, which lacked any evidence that the officer was engaged in the lawful performance of a legal duty at the time of the offense, which is an element of both resisting arrest with violence and battery on a law enforcement officer. See Brown v. State, 298 So. 3d 716, 718 (Fla. 2d DCA 2020) ("To support Brown's convictions for battery on a law enforcement officer and resisting an officer with violence, the evidence had to establish that the deputies had been engaged in the lawful execution of a legal duty when the offenses occurred."); see also §§ 784.07(2), Fla. Stat. (2017) (requiring that the battery offense occur "while the officer . . . is engaged in the lawful performance of his or her duties" in order to -4- enhance the offense from simple battery to battery on a law enforcement officer); 843.01 (identifying as an element of resisting with violence that the officer was "in the lawful execution of any legal duty" at the time of the offense), Fla. Stat. (2017). The State suggests that the legal duty the officer was performing in the instant case was placing J.W. in custody pursuant to the Baker Act.3 See §§ 394.451- .47892, Fla. Stat. (2017). Section 394.463(1) sets forth the statutory bases for subjecting an individual to an involuntary examination under the Baker Act as follows: A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness: (a)1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or 2. The person is unable to determine for himself or herself whether examination is necessary; and (b)1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or 2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior. The police report affidavit in the instant case documents no mental impairment exhibited by J.W. In fact, the only information the affidavit contains about 3The State does not rely on the misdemeanor charge as support that the officer was acting within his legal duty. But we note that because the misdemeanor as alleged occurred outside the presence of police, the officers could not legally effectuate an arrest of J.W. for that offense at that time. See generally § 901.15(1), Fla. Stat. (2017) ("A law enforcement officer may arrest a person without a warrant when . . . [t]he person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer. An arrest for the commission of a misdemeanor . . . shall be made immediately or in fresh pursuit." (emphasis added)). -5- J.W.'s actions prior to his being informed that police wanted to remove him from his home for an involuntary Baker Act evaluation was that he was sitting on his couch and EMS personnel were "evaluating" his "medical issues." Under section 394.463(1), these facts are insufficient to warrant subjecting J.W. to an involuntary examination. The State also argues that the officer had a good faith basis to place J.W. into protective custody based on the information provided by his wife. The affidavit does indicate that J.W.'s wife "pulled [the affiant] to the side and stated that . . . J.W. has been taking more medication th[a]n he was supposed to and had been drinking alcohol with the medication. [J.W.'s wife] advised [that J.W.] is prescribed" anxiety medication. But nothing about this statement indicates that J.W. "pose[d] a real and present threat of substantial harm to his . . . well-being" that could not "be avoided through the help of willing family members or friends or the provision of other services" or that there was a "substantial likelihood" that absent treatment he would "cause serious bodily harm to himself . . . or others in the near future." See § 394.463(1)(b). Although it is possible that the officer witnessed other behavior on the part of J.W. that caused concern for his well-being, the affidavit was the sole factual basis for the pleas, and it did not provide an articulable reason for J.W. to have been subjected to an involuntary physical seizure under the Baker Act. See Watkins v. Bigwood, 797 Fed. Appx. 438, 442 (11th Cir. 2019) ("For Plaintiff to be detained lawfully under the Baker Act, probable cause must have existed—evidenced by Plaintiff's recent behavior—to believe that a 'substantial likelihood' existed that Plaintiff would cause 'serious bodily harm' to himself or to others in the near future. This standard is a high one: for example, a reasonable belief about 'some likelihood,' 'might cause' 'some kind of bodily -6- harm,' 'at some point in the future' is not good enough for probable cause to deprive a person of their freedom." (quoting § 394.463(1)(b)(2))). We also note that the police report affidavit stated that J.W. "unlawfully, knowingly, and willfully resisted" the officer "in his lawful execution of any legal duties with offering or doing violence" and that "[d]ue to this" the affiant believed that without treatment, J.W. was "likely to suffer from neglect or refuse care for himself." This is not a valid basis for commitment under section 394.463. It should go without saying that behavior that occurred after the initiation of the involuntary commitment for treatment cannot form the justification for that same involuntary commitment. Likewise, effectuating a Baker Act hold cannot serve as the officer's legal duty if the concern for J.W.'s well-being did not arise until after J.W. resisted the officer's attempts to physically restrain him. Because there was no legal basis to forcibly place J.W. in custody, the officer was not engaged in the exercise of a lawful duty when J.W. resisted and kicked the officer. See C.B. v. State, 979 So. 2d 391, 395 (Fla. 2d DCA 2008). The affidavit therefore did not establish a prima facie showing of all of the elements of resisting an officer with violence and battery on a law enforcement officer and could not provide a sufficient factual basis on which to convict J.W. of those offenses. See Koenig v. State, 597 So. 2d 256, 258 (Fla. 1992) (finding appellant's plea deficient where "there was absolutely no evidence in the record of the crimes to which Koenig entered his plea").4 The trial court erred in accepting J.W.'s pleas to the felony 4This conclusion is not altered by the fact that defense counsel stipulated to the factual basis. See Koenig, 597 So. 2d at 258 ("Although Koenig's counsel stipulated that there was a factual basis for the plea, a stipulation with no factual basis in the record is insufficient."); Dydek, 400 So. 2d at 1257-58 ("Notwithstanding defense counsel's stipulation to a factual basis, appellant could not have been convicted of possession of drug paraphernalia on the facts before the trial court, incorporated by reference in that stipulation, and the trial court therefore erred in accepting appellant's -7- offenses, and we reverse his convictions and sentences for those two offenses and remand for further proceedings, which may include allowing J.W. to withdraw his plea. Because this does not affect J.W.'s conviction and sentence for driving without a license, we affirm as to that count. See Button v. State, 641 So. 2d 106, 108 (Fla. 2d DCA 1994) ("Our reversal on Count VII does not affect the judgment against Button on Counts I and V or the sentences imposed for these counts."). Affirmed in part, reversed in part, and remanded. KHOUZAM, C.J., and LaROSE, J., Concur. nolo plea to this charge."). However, we would caution that stipulating to and relying solely on a police report affidavit to provide a factual basis for a plea may not be the best practice for either the trial court, the State, or the defendant. See Koenig, 597 So. 2d at 258 ("The failure to follow the necessary procedures in accepting the plea in this case is not solely the fault of the trial judge. . . . [T]he responsibility to ensure that the proper procedural steps are followed is shared by the judge, the prosecutor, and the defense attorney."). -8-