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 seconddegree 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.
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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
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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
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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 “onthe-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.
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