DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILL TWIGG,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-1694

[August 1, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-2014-CF-010319-

AXXX-MB.

David F. Pleasanton of David F. Pleasanton, P.A., West Palm Beach, for 

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven 

Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

Appellant, Will Twigg, appeals his conviction and sentence for one 

count of battery on an emergency medical care provider and one count of 

battery following an altercation between Appellant and staff members at a 

Veteran’s Administration hospital (“VA”). On appeal, Appellant argues 

that: 1) the State failed to prove that he committed the offense of battery 

on an emergency medical care provider; and 2) Appellant’s trial counsel 

was ineffective on the face of the record for failing to request a self-defense 

jury instruction and failing to move for a judgment of acquittal on the 

battery on an emergency medical care provider charge. We agree with 

Appellant’s arguments pertaining to the battery on an emergency medical 

care provider count and reverse that conviction. We affirm otherwise. 

Background
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Appellant was involuntarily brought to the emergency department of 

the VA pursuant to Florida’s Baker Act1 after his employer reported that 

Appellant was exhibiting erratic behavior. Appellant was subsequently 

admitted to the VA’s inpatient psychiatric unit where, after learning that 

he was not being released, Appellant became combative and spit on a 

nurse and a VA law enforcement officer. Based on the foregoing, the State 

charged Appellant with one count of battery on an emergency medical care 

provider for spitting on the nurse, one count of battery for spitting on the 

VA officer, and one count of resisting an officer without violence. Appellant 

pled not guilty and filed a notice of intent to rely upon insanity as a 

defense. 

The matter proceeded to a jury trial where the State presented evidence 

that the nurse victim was a Licensed Practical Nurse (“LPN”) who, on the 

day in question, was working in the VA’s inpatient psychiatric unit. The 

State’s evidence also established that the psychiatric unit was a secure 

lockdown unit which was separate and distinct from the VA’s other 

departments, including the emergency department. At the conclusion of 

the State’s case, Appellant’s counsel declined to move for a judgment of 

acquittal (“JOA”) on any of the charges. Instead, counsel focused on an 

insanity defense, presenting evidence from a psychiatrist who opined that 

Appellant was not able to determine whether what he did was right or 

wrong when he spit on the nurse and VA officer. 

Considering the evidence, the jury rejected Appellant’s insanity 

affirmative defense and found him guilty of battery on an emergency 

medical care provider, guilty of battery, and not-guilty of resisting an 

officer without violence. The court adjudicated Appellant per the jury’s 

verdict and sentenced Appellant to time served followed by eighteen 

months of probation. 

Analysis

a) Sufficiency of the Evidence Proving Battery on an Emergency 

Medical Care Provider

Appellant contends that the State’s evidence regarding the nurse victim 

was insufficient to support a conviction for battery on an emergency 

medical care provider. Appellant is correct. 

Section 784.03 of the Florida Statutes provides that the offense of 

battery is a third degree misdemeanor and “occurs when a person: 1.

 

1 §§ 394.451−.47892, Fla. Stat. (2015).
3

[a]ctually and intentionally touches or strikes another person against the 

will of the other; or 2. [i]ntentionally causes bodily harm to another 

person.” § 784.03(1)(a)−(b), Fla. Stat. (2015). When a battery is committed 

on certain persons, including “an emergency medical care provider . . . 

while the . . . emergency medical care provider . . . is engaged in the lawful 

performance of his or her duties,” section 784.07 of the Florida Statutes 

reclassifies the offense “of battery, from a misdemeanor of the first degree 

to a felony of the third degree.” § 784.07(2), (2)(b), Fla. Stat. (2015).

Based on the foregoing, the elements of the offense of battery on an 

emergency medical care provider are: (1) the defendant intentionally 

touched or struck the victim or intentionally caused bodily harm to the 

victim; (2) the victim was an emergency medical care provider; (3) the 

defendant knew that the victim was an emergency medical care provider; 

and (4) the emergency medical care provider was engaged in the lawful 

performance of his or her duties when the battery was committed. Fla. 

Std. Jury Instr. (Crim.) 8.11; State v. Granner, 661 So. 2d 89, 90 (Fla. 5th 

DCA 1995). Therefore, in order to prove that Appellant committed the 

offense of battery on an emergency medical care provider with respect to 

the alleged nurse victim, the State was required to prove that the nurse

was indeed “an emergency medical care provider.” 

The term “emergency medical care provider” is defined as:

1) [A]n ambulance driver, emergency medical technician, 

paramedic, registered nurse, physician as defined in s. 

401.23, medical director as defined in s. 401.23, or any person 

authorized by an emergency medical service licensed under 

chapter 401 who is engaged in the performance of his or her 

duties. 

2) The term “emergency medical care provider” also includes

physicians, employees, agents, or volunteers of hospitals as 

defined in chapter 395, who are employed, under contract, or 

otherwise authorized by a hospital to perform duties directly 

associated with the care and treatment rendered by the 

hospital’s emergency department or the security thereof.

§ 784.07(1)(a), Fla. Stat. (2015) (spacing and numbering added). 

In Spurgeon v. State, 114 So. 3d 1042, 1045 (Fla. 5th DCA 2013), the 

Fifth District clarified that because section 784.07 is penal in nature, the 

definition of “emergency medical care provider” must be strictly construed 

in conjunction with its plain language. Accordingly, in order to meet the 
4

first classification of persons outlined in the definition of “emergency 

medical care provider,” the State needed to establish that the nurse victim 

was a “registered nurse . . . or any person authorized by an emergency 

medical service license under chapter 401 who is engaged in the 

performance of his or her duties.” § 784.07(1)(a), Fla. Stat. (2015). 

The definition section of chapter 401 defines a “registered nurse” as “a 

practitioner who is licensed to practice professional nursing pursuant to 

part I of chapter 464.” § 401.23(20), Fla. Stat. (2015) (emphasis added). 

Chapter 464 governs the regulation of nursing in Florida. Part I of Chapter 

464 provides that an LPN is any “person licensed in this state or holding 

an active multistate license under s. 464.0095 to practice practical

nursing.” § 464.003(16), Fla. Stat. (2015) (emphasis added). It further 

delineates that “the practice of practical nursing” is distinct from “the 

practice of professional nursing” and that only a “registered nurse” is 

licensed “to practice professional nursing.” § 464.003(19)−(20), (22), Fla. 

Stat. (2015) (emphasis added). As an LPN is only licensed to practice 

practical, not professional, nursing, an LPN does not meet the definition 

of a “registered nurse” under either chapter 401 or 464. Therefore, as an 

LPN, the nurse victim did not qualify as a “registered nurse” as used in the 

definition of “emergency medical care provider.” 

Likewise, the evidence also did not establish that the nurse victim was 

“any person authorized by an emergency medical service license under 

chapter 401.” Chapter 401 provides for the licensure of emergency 

medical transportation services such as ambulances and air ambulances. 

§§ 401.25, .251, Fla. Stat. (2015). The nurse victim was working for a 

hospital, not a medical transportation service. Accordingly, based on both 

her license classification and who she worked for, the State did not prove 

that the nurse victim fell under the first class of persons defined as an 

“emergency medical care provider.”

To fall under the second classification of persons outlined in the 

definition of “emergency medical care provider,” the State was required to 

prove that the nurse victim was an “employee[], agent[], or volunteer[] of 

[a] hospital[] as defined in chapter 395, who [was] employed, under 

contract, or otherwise authorized by [the] hospital to perform duties 

directly associated with the care and treatment rendered by the hospital’s 

emergency department or the security thereof.” § 784.07(1)(a), Fla. Stat. 

(2015) (emphasis added). The evidence adduced at trial established that 

when she was spit upon, the nurse victim was performing LPN services in 

the VA’s inpatient psychiatric unit. The evidence also established that the 

VA’s inpatient psychiatric unit was separate and distinct from its

emergency department. Accordingly, the evidence submitted at trial did 
5

not establish that the nurse victim’s duties were “directly associated with 

the care and treatment rendered by the hospital’s emergency department.” 

Id. Thus, the State also did not prove that the nurse victim qualified as 

an “emergency medical care provider” under either classification.

Despite the State’s failure to prove that the nurse victim qualified as an 

“emergency medical care provider,” Appellant failed to move for a JOA

based on the insufficiency of the evidence and, therefore, failed to preserve 

the issue for anything other than a fundamental error review. F.B. v. State, 

852 So. 2d 226, 229 (Fla. 2003). 

[I]n order to be of such fundamental nature as to justify a 

reversal in the absence of timely objection the error must 

reach down into the validity of the trial itself to the extent that 

a verdict of guilty could not have been obtained without the 

assistance of the alleged error.

Id. (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). Based on 

this narrow application, the Florida Supreme Court has clearly delineated 

that unpreserved challenges to the sufficiency of the evidence may only be 

reviewed for fundamental error in two circumstances: “(1) the mandatory 

review by [the supreme court] of the evidence by which a capital defendant 

was convicted and sentenced to death; and (2) when there is insufficient 

evidence that a defendant committed any crime.” Monroe v. State, 191 So. 

3d 395, 401 (Fla. 2016). Accordingly, the insufficiency of the evidence to 

prove an element of a crime does not warrant fundamental error review. 

Bagnara v. State, 189 So. 3d 167, 171 (Fla. 4th DCA 2016) (state’s failure 

to prove value element of grand theft was not fundamental error). 

Therefore, Appellant’s insufficiency of the evidence argument is not 

cognizable on appeal. The issue is, however, cognizable as an ineffective 

assistance of counsel claim. 

b) Ineffective Assistance of Counsel on the Face of the Record

“[I]neffective assistance of counsel claims should rarely be raised on 

direct appeal because they are generally fact-specific.” Michel v. State, 989 

So. 2d 679, 681 (Fla. 4th DCA 2008). As a result, “[a]ppellate courts do 

not ordinarily address ineffective assistance of counsel concerns until a 

defendant seeks postconviction relief because such courts are limited to 

reviewing the record directly before them.” Monroe, 191 So. 3d at 403. 

“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 
6

for the conduct is inconceivable.” Bagnara, 189 So. 3d at 171 (quoting 

Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002)).

i) Failure to Move for a JOA on the Battery on an Emergency 

Medical Care Provider Count

[F]ailure to move for a judgment of acquittal when the State 

has not proved an essential element of its case, when it is clear 

that the State could not reopen its case to prove that essential 

element, amounts to ineffective assistance of counsel that 

may sometimes be adequately assessed from the record on 

direct appeal. 

Corzo, 806 So. 2d at 645.

As discussed above, the State did not prove, and from our review of the 

record could not prove, that the nurse victim qualified as an “emergency 

medical care provider,” an essential element of the offense of battery on an 

emergency care provider. Therefore, had counsel made a proper motion, 

Appellant would have been entitled to a JOA on the battery on an 

emergency medical care provider count and a reduction of the charge to 

the lesser included offense of battery. The distinction between the two 

offenses is significant as battery is a misdemeanor while battery on an 

emergency care provider is a felony. Thus, it is plain from the face of the 

record that counsel’s failure to seek a JOA on the battery on an emergency 

care provider charge was prejudicial to Appellant and constituted 

ineffective assistance of counsel. See Bagnara, 189 So. 3d at 172 

(counsel’s failure to properly move for JOA when state did not prove value 

element of grand theft constituted ineffective assistance of counsel on the 

face of the record); Gordon v. State, 126 So. 3d 292, 295−96 (Fla. 3d DCA 

2011) (counsel’s failure to properly move for JOA when state did not prove 

all of the elements of charged crime constituted ineffective assistance of 

counsel on the face of the record). 

Under these circumstances, “[i]t would be a waste of judicial resources 

to postpone addressing this issue until [Appellant] seeks post-conviction 

relief for ineffective assistance of counsel below.” Lesovsky v. State, 198 

So. 3d 988, 992 (Fla. 4th DCA 2016). Accordingly, we reverse Appellant’s 

conviction for battery on an emergency medical care provider.

ii) Failure to Request a Self-Defense Instruction

Appellant also argues that his counsel was ineffective for failing to 

request a self-defense jury instruction which, according to Appellant, 
7

would have been based on a theory that Appellant was protecting himself 

from being illegally detained under Florida’s Baker Act. Appellant is 

correct that self-defense is a viable defense to the crimes of battery and 

battery on an emergency medical care provider. See Spurgeon, 114 So. 3d 

at 1047. Further, even though Appellant also asserted insanity as a 

defense, Appellant was entitled to assert self-defense as an alternate 

theory of defense regardless of whether the defenses may have been 

inconsistent. See Martin v. State, 110 So. 3d 936, 939 (Fla. 1st DCA 2013) 

(defendant was entitled to have jury instructed on self-defense in 

aggravated assault on a law enforcement officer case even though 

defendant also asserted that he was insane). Thus, had Appellant’s 

counsel requested a self-defense instruction, it certainly would have been 

error for the court to deny the request. Spurgeon, 114 So. 3d at 1047.

However, this does not mean that counsel was necessarily ineffective 

on the face of the record for failing to make such a request. “[S]trategic 

decisions do not constitute ineffective assistance of counsel if alternative 

courses have been considered and rejected and counsel’s decision was 

reasonable under the norms of professional conduct.” Occhicone v. State, 

768 So. 2d 1037, 1048 (Fla. 2000). 

Here, Appellant’s counsel primarily argued that Appellant was not 

guilty by way of insanity because Appellant did not know what he was 

doing or that what he was doing was wrong due to his mental condition. 

Arguing self-defense as proffered would have required Appellant’s counsel 

to assert that, in the alternative, Appellant knew what he was doing but 

reasonably believed he needed to act to protect himself from being 

unlawfully detained. It is entirely possible and reasonable that counsel 

made a strategic decision not to pursue an alternate defense of self-defense 

in order not to undermine the credibility of the proffered insanity defense. 

Compare Cole v. State, 221 So. 3d 534, 543−44 (Fla. 2017) (counsel’s 

decision to abandon duress defense and instead argue that the defendant 

did not knowingly participate in the crime was strategic and reasonable),

with Kruse v. State, 222 So. 3d 13, 17 (Fla. 4th DCA 2017) (counsel was 

ineffective on the face of the record for failing to request a self-defense 

instruction when the evidence supported the instruction and there could 

be no strategic basis for not asking for the instruction as self-defense was 

the defendant’s only proffered defense). Under the facts of this case, this 

issue of whether counsel was deficient for failing to request a self-defense 

instruction requires explanation from counsel and is, therefore, better 

suited for postconviction proceedings. 

Conclusion
8

In conclusion, we hold that the State did not and could not prove the 

nurse victim was an “emergency medical care provider” and, therefore, did 

not prove that Appellant committed the offense of battery on an emergency 

medical care provider. Although Appellant’s trial counsel did not preserve 

this error for appeal by moving for a JOA and the error is not fundamental, 

counsel’s failure to move for a JOA constitutes ineffective assistance of 

counsel on the face of the record. Counsel was not, however, ineffective 

on the face of the record for failing to request a self-defense instruction 

when counsel also proffered a potentially inconsistent insanity defense. 

Based on the foregoing, we reverse Appellant’s conviction and sentence for 

battery on an emergency medical care provider and, on remand, direct the 

trial court to enter a judgment of guilt for the lesser-included offense of 

battery and proceed with a resentencing on that count. We otherwise 

affirm without prejudice for Appellant to file a motion for postconviction 

relief on the self-defense issue. 

Affirmed in part, reversed in part and remanded.

LEVINE, J., concurs.

KUNTZ, J., concurs specially with opinion.

KUNTZ, J., concurring specially.

As Judge Winokur explains in his concurring opinion in Latson v. State, 

193 So. 3d 1070, 1071-75 (Fla. 1st DCA 2016), direct appellate review of 

a criminal judgment should be limited to preserved arguments and 

fundamental error. Section 924.051(2), Florida Statutes (2017), states 

that “[t]he right to direct appeal . . . may only be implemented in strict 

accordance with the terms and conditions of this section,” and section 

924.051(3) limits review on direct appeal to “prejudicial error” that “is 

properly preserved or, if not properly preserved, would constitute 

fundamental error.” So “[i]t seems clear that fundamental error is the ‘sole 

exception’ to the general rule that a party must preserve errors to raise 

them on appeal.” Latson, 193 So. 3d at 1072 (Winokur, J., concurring). 

Despite this statutory limit on our authority, a Florida Supreme Court 

decision compels reversal. Thus, I fully concur in the Court’s opinion.

In this case, the State failed to prove each element of the crime for 

which the Defendant was convicted. At the close of the State’s case, the 

circuit court asked defense counsel whether he intended to assert any 

motions. In response, defense counsel represented that the Defendant

was not seeking a judgment of acquittal.
9

Similarly, in Monroe v. State, 191 So. 3d 395, 398 (Fla. 2016), “[a]fter 

the State rested, the trial court asked defense counsel if they intended to 

move for judgment of acquittal. Defense counsel declined.” The defendant 

argued on appeal that the state failed to introduce evidence to establish 

an element of the crime. Id. at 399-400. Conceding the issue was not 

preserved, the defendant argued it was fundamental error to convict him 

when the State failed to prove each element of the crime. Id.

Our supreme court reaffirmed its prior decisions, holding that 

unpreserved challenges to the sufficiency of the evidence cannot be 

reviewed on direct appeal when there is sufficient evidence to establish the 

defendant committed a crime. Id. at 401-02. Such unpreserved claims 

are only cognizable as fundamental error on direct appeal when the State 

fails to prove the defendant committed any crime at all. Id.

But the lack of preservation or fundamental error did not result in an 

affirmance. Id. The court continued and held “that the failure of Monroe’s 

trial counsel to preserve the sufficiency of the evidence issue for appellate 

review constitutes ineffective assistance of counsel that is apparent from 

the face of this record.” Id. at 402. Based upon the finding of ineffective 

assistance of counsel on the face of the record, the court reversed. Id. at 

404.

The question presented in this case is nearly identical to that answered 

in Monroe. In both cases, the State failed to prove each element of the 

crime, but the defendant did not preserve the issue by moving for a 

judgment of acquittal. Further, in both, the State presented sufficient 

evidence to establish a lesser included offense thereby precluding 

fundamental error. 

Based on Monroe, I agree that we must reverse the Defendant’s 

conviction for ineffective assistance of counsel on the face of the record. 

The circumstances are too similar. But absent the controlling opinion 

from the supreme court, I would question our authority to do so. The 

legislature limited direct appeal of a criminal judgment to preserved issues 

and fundamental error. Notwithstanding the statutory limits, claims of 

ineffective assistance of counsel on direct appeal are now commonly 

asserted. As Judge Winokur concluded, “the practice of permitting claims 

of ineffective assistance of counsel on direct appeal stemmed from a 

misreading of case law, and is directly contrary to controlling statutory 

law.” Latson, 193 So. 3d at 1074. Allowing a defendant to assert claims 

of ineffective assistance of counsel on direct appeal, absent fundamental 

error, allows the defendant to evade the strict requirements for 

fundamental error and “deprives trial counsel of the opportunity to defend 
10

themselves against allegations of unprofessional conduct.” Id. In the 

future, we should be careful to limit our review to that authorized by 

statute or, as here, mandated by supreme court precedent.

* * *

Not final until disposition of timely filed motion for rehearing.