State of Florida v. Luis Antonio Perez Franco

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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA

No. 1D2023-1916

STATE OF FLORIDA,
Appellant,
v.
LUIS ANTONIO PEREZ FRANCO,

Appellee.

On appeal from the Circuit Court for Levy County.
Peter K. Sieg, Judge.

March 11, 2026
PER CURIAM.

In a criminal case, only where there is not sufficient evidence
to support a jury finding of the defendant’s guilt is it appropriate
for the trial court to override the jury and enter an order granting
the defendant’s motion for judgment of acquittal. In the
alternative, should the trial court find the evidence presented at
trial established a lesser-included offense than what the jury
found, it also has the power to adjudicate the defendant guilty of
the lesser offense. In all other circumstances, it is the jury’s
province as factfinder to decide whether the evidence shows the
defendant’s guilt, not the prerogative of the court.

Facts

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The 	State 	charged 	co-defendants, 	Luis 	Antonio 	Perez
Carraquillo (the father) and Luis Antonio Perez Franco (the son),
with two counts of attempted first-degree murder under sections
782.04(1)(a)1. and 777.04(1), Florida Statutes, for their actions
against Shane Carnes and Robert Carter, Jr. The State alleged
that during the commission of the offense, the father discharged a
firearm, 	and 	the 	son 	possessed 	a 	firearm, 	different 	criminal
enhancements under section 775.087(2)(a), Florida Statutes. They
were jointly tried. This appeal concerns only the son.
As this case concerns a judgment of acquittal, this Court has
reviewed the evidence presented by the parties in the light most
favorable to the State. The State’s evidence showed that the son,
the son’s wife, and the father went to a Marathon gas station near
their family home in Williston, Florida; the son was driving the
group in a silver Lexus. Shane Carnes and Robert Carter, Jr.,
arrived at the Marathon shortly thereafter. The two groups got
into 	a 	yelling 	match 	over 	a 	driving 	altercation. 	Insults 	were
exchanged, and at some point, Carnes ran toward the vehicle to
punch them, but the son drove the trio away down a dirt road
behind the Marathon.
Shane Carnes testified that several minutes later, he was
pumping gas and turned around to see the son and the father each
pointing a black handgun at his face. Carnes testified that the son
and the father were moving closer to him and saying they were
going to kill him. Carter was behind him during this interaction.
In response to the threat, Carnes said he told the men to shoot him.
According to Carnes, the son and the father began to walk away,
but the father turned around, fired a shot, walked further away,
and then fired another shot. When the son and the father returned
to their vehicle, Carnes heard two more shots. They drove away
from the Marathon down the same dirt road.
Robert Carter, Jr., testified he saw a vehicle that matched the
co-defendants’ return to the Marathon on the same dirt road. Two
people got out of the vehicle and cut across the parking lot towards
him and Carnes. The men had pistols in their hands, one silver
pistol and the other black. Carter took a picture of the two men.
Carter testified the men pointed the pistols at him and Carnes and
yelled at them. Carter claimed the men chest-bumped Carnes into

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the car before running back towards their own vehicle. Carter
remembered only one shot being fired that day when he moved in
front of a vehicle to shield himself, but he did not see who fired the
shot.
The State also presented surveillance videos (without audio)
from inside and outside the Marathon, the photograph taken from
Carter’s phone of the son and the father pointing firearms at him
and Carnes, and an audio recording of the gas station attendant’s
911 phone call, as well as other witnesses’ testimony that generally
supported 	Carnes’s 	and 	Carter’s 	version 	of 	events. 	From 	the
surveillance footage, it is clear that the son and the father returned
to the Marathon and that they ran right up to Carnes and Carter.
It is also evident in the footage that the son drove himself and his
father to and from the scene.
There is differing evidence, though, on how many shots were
fired. Carnes testified that there were four shots and that the
father discharged his weapon. Carter testified to having heard one
shot. One of the surveillance videos shows that after confronting
Carnes and Carter, upon their retreat, the father turns around two
different times and appears to fire one to two shots before he and
the son disappear down the dirt road. Notably, no witness testified
to having seen the son, rather than his father, discharge his
firearm.
The State presented only scant additional evidence to support
that 	the 	son 	discharged 	his 	firearm. 	Testimony 	by 	a 	law
enforcement officer showed that the son and the father were not
arrested until eight days later. Upon arrest, an officer found a
firearm in a crossbody bag secured to the son’s chest. Another law
enforcement officer testified that one shell casing was found near
where the son and the father’s vehicle appeared in the surveillance
footage. The State introduced testimony of a firearms analyst
stating that the spent casing matched the caliber of ammunition
that could have been discharged from the firearm recovered from
the son at the time of his arrest. That analyst also testified that
the 	son’s 	firearm 	contained 	eight 	unspent 	cartridges 	in 	its
magazine but had the capacity to carry thirteen cartridges. Then,
without 	any 	other 	explanation 	aside 	from 	her 	training 	and
experience, the analyst testified she determined the cartridge case

4
was fired from the firearm retrieved from the son. On cross-
examination, she admitted that she had no evidence that the son
fired the pistol.
Motion for Judgment of Acquittal
After the State rested, the defense moved for judgment of
acquittal, arguing the State had not proven a prima facie case of
attempted first degree murder as to the son. The defense argued
that none of the State’s witnesses testified to having seen the son
discharge a firearm.
The State asked for a jury instruction on principals as it had
sought to prove the son’s guilt as a principal to the father’s conduct.
To support the instruction, the State explained the son had been
the driver of the vehicle, transporting his father to the scene and
assisting in the escape. Moreover, the surveillance videos showed
the son taking part in the perpetration of the crime. Alternatively,
the State argued it had presented sufficient evidence that the son
had discharged his firearm as there was testimony that he had
possessed a firearm and that the spent shell casing recovered by
law enforcement had been fired from the firearm retrieved at the
son’s arrest. In response, the defense made no objection to the
principal theory being utilized by the State, arguing only that the
enhancement of discharge of a firearm could only apply if the
evidence showed the son discharged a firearm, not under the
theory of principals.1 The trial court denied the son’s motion for
judgment of acquittal and his renewed motion at the close of his
case.
1 Additionally, after the defense rested, when the parties
conferred to confirm the jury instructions, the defense said it did
not have any objection to the principal instruction as it was
“standard.” The defense also made no objection to the verdict form.
And when the trial court read the principal instruction to the jury,
the 	defense 	made 	no 	objection. 	On 	appeal, 	the 	defense 	has
conceded that there was no issue at trial with the State attempting
to prove the son’s guilt under the principal theory, allowing that
he had been charged as a principal by implication.

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The court read the jury instructions, 	which included the
instruction on principals. The jury found the son guilty of two
counts of the 	lesser-included 	offense 	of attempted aggravated
battery; that he did carry, display, use, threaten to use, or attempt
to use a firearm during the commission of the offense; that he
discharged a firearm; and that he actually possessed a firearm.
The jury found the father guilty of two counts of an even lesser-
included offense: aggravated assault. The trial then concluded for
the day without the court rendering the defendants’ judgments of
conviction and sentences.
The Trial Court’s Reconsideration
Eleven days later, the trial court sua sponte issued a notice to
reconsider the son’s motion for judgment of acquittal. At a hearing
on this matter, the trial judge’s main contention seemed to be that
this Court had previously reversed a decision he had made in Reno
v. State, 121 So. 3d 1174 (Fla. 1st DCA 2013). The trial court
explained to the parties that in Reno, a husband was convicted of
attempted second-degree murder, but this Court reversed the
conviction and said the highest offense established was improper
exhibition of a firearm. That decision was made notwithstanding
the fact that in that case, a witness saw the husband fire a gun
towards his wife. The trial court reasoned that the defendant in
Reno must be more culpable than Perez Franco when no witness
saw him discharge his weapon.
The trial court vacated its previous ruling and granted the
son’s motion for judgment of acquittal. The court found that the
son was impermissibly found guilty of a crime in which he was not
charged (read: discharge of a firearm) and that the evidence was
insufficient to support a guilty verdict against him of any lesser-
included offenses. The trial court also found the son could not be
guilty as a principal as the information did not allege the son was
a principal and a principal theory was not argued or included in
the verdict form. The trial court then once against rested on Reno
for the position that “[i]f the evidence in Reno (an eyewitness to the
shooting) 	is 	insufficient 	to 	support 	a 	verdict 	of 	attempted
manslaughter, it is necessarily insufficient (no eyewitness to the
shooting) to support that verdict in the instant case.”

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At sentencing, the trial court adjudicated the father guilty and
sentenced him before addressing the son. Regarding the son, the
State reiterated that it had met its burden for the evidence to be
considered by the jury and objected to the court granting the
motion for judgment of acquittal. The State also asserted that a
principal theory need not be charged and noted that the jury was
instructed on the theory. Still, the trial court granted the son’s
motion for judgment of acquittal. This appeal by the State timely
follows.2
Appeal
The State makes the same two arguments for reversal as it
made at trial: 1) that it had provided sufficient evidence for the
jury 	to 	consider 	that 	the 	son 	discharged 	his 	firearm 	and 	2)
alternatively, that it had provided sufficient evidence for the jury
to consider that the son was a principal to the father’s criminal
actions. We now address each of these arguments in turn.
Discharge of Firearm Enhancement
The trial court correctly concluded that the State did not
present a prima facia case that the son discharged his firearm.3
Possession and discharge of a firearm are separate sentencing
enhancements that when proven, impose statutory mandatory
minimum sentences. A jury finding of possession of a firearm when
2 The parties do not dispute the State’s right to have appealed
this non-final order. See § 924.07(1)(j), Fla Stat. (“The state may
appeal from . . . [a] ruling granting a motion for judgment of
acquittal after a jury verdict.”); see also Fla. R. App. P. 9.130(a)(2)
(“Appeals 	of 	nonfinal 	orders 	in 	criminal 	cases 	shall 	be 	as
prescribed by rule 9.140.”); Fla. R. App. P. 9.140(c)(1)(E) (“The
state may appeal an order . . . granting a motion for judgment of
acquittal after a jury verdict[.]”).
3 This Court notes that the State also did not charge the son
with discharge of a firearm—only possession of one—but we do not
reach this issue as we find the State did not provide sufficient
evidence to prove a prima facia case that the son discharged a
firearm.

7
a defendant is convicted of attempted aggravated battery (as the
jury here found) raises the floor of a defendant’s sentence from zero
years to a mandatory minimum of ten years in prison, and a jury
finding of discharge of a firearm in that same situation raises the
mandatory minimum sentence to twenty years in prison. See §
775.087(2)(a), Fla. Stat.
A jury is allowed to draw reasonable inferences from the
evidence presented at trial, and where a jury can make such
inferences from the evidence to determine the guilt of a defendant,
the facts must be decided upon by the jury, not the court. See
Sanchez v. State, 182 So. 645, 648 (Fla. 1938) (“If the evidence is
conflicting or will admit of different reasonable inference, or if
there is evidence to prove the issue, it should be submitted to the
jury as a question of fact to be determined by them, and not taken
from the jury and passed upon by the court as a question of law.”
(emphases supplied)); see also Davis v. State, 2 So. 3d 952, 967 (Fla.
2008) (finding that the evidence supported conviction of guilt
where “the jury reasonably could have inferred” from the evidence
that the defendant committed the crime.) However, a jury may not
draw an inference from an inference rather than from the evidence
presented by the parties. In such a situation, the court will find
that 	the 	evidence 	is 	insufficient 	to 	support 	a 	conviction. 	See
Gustine v. State, 97 So. 207, 208 (Fla. 1923) (holding that the
evidence presented at trial was “not of the conclusive nature
required 	to 	sustain 	the 	verdict” 	where 	“[o]nly 	by 	pyramiding
assumption upon assumption and intent upon intent can the
conclusion necessary for conviction be reached”); Baugh v. State,
961 So. 2d 198, 205 (Fla. 2007) (“[E]vidence is insufficient to
support a conviction when it requires pyramiding of assumptions
or impermissibly stacked inferences”).
According to the evidence presented by the State in this case,
no 	firearm 	was 	retrieved 	from 	either 	defendant 	until 	law
enforcement recovered a firearm on the son’s person at the time of
his arrest—over a week after the incident. It was never confirmed
whether that was the same firearm the son had on him the day of
the altercation with Carnes and Carter. Rather, the evidence only
confirmed that the spent shell casing found near the Marathon on
the day after the incident matched the caliber of ammunition fired
from the weapon recovered from the son more than a week later.

8
It was also never ruled out what caliber of ammunition the father’s
gun used as his weapon was not recovered. And no witness testified
to having seen the son discharge his firearm. The spent shell
casing 	seems 	to 	have 	been 	found 	near 	the 	area 	where 	the
surveillance footage showed and witness testimony described that
the father fired at least one shot. No rational trier of fact could
infer from the above evidence that the son discharged his firearm.
Pyramiding inferences is not something the jury is permitted to do.
For that reason, we order the trial court to strike the discharge of
a firearm enhancement from the jury’s findings.
Conviction as a Principal
Still, the trial court erred in granting the son’s motion for
judgment of acquittal as the State provided sufficient evidence to
support a prima facia case that the son was guilty of having
committed a crime as a principal to his father’s actions. Under
section 777.011, Florida Statutes, a person who “commits any
criminal offense against the state” and a person who “aids, abets,
counsels, 	hires, 	or 	otherwise 	procures 	such 	offense 	to 	be
committed, and such offense is committed or is attempted to be
committed,” legally stands in the same position as both people are
“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 supplied.) It is apparent from the record that the State
provided 	ample 	evidence for 	the 	jury 	to 	find 	that 	the 	father
discharged a firearm towards Carnes and Carter, intending but
failing to shoot them, and that the son aided his father in the
commission of this offense.
The supreme court has elucidated on when a defendant is
guilty as a principal: “In order to be guilty as a principal for a crime
physically committed by another, one must intend that the crime
be committed and do some act to assist the other person in actually
committing the crime.” Staten v. State, 519 So. 2d 622, 624 (Fla.
1988); Garzon v. State, 980 So. 2d 1038, 1041 (Fla. 2008) (observing
that so long as the principal theory applies, the jury could convict
defendant A based on defendant B’s actions, provided defendant A
“had 	a 	conscious 	intent 	that 	the 	criminal 	acts 	be 	done” 	and
defendant A “did or said something to aid or encourage those

9
acts”). The supreme court has also further explained that it is
immaterial whether the charging document explicitly names the
defendant as a principal:
a person is a principal in the first degree whether he
actually 	commits 	the 	crime 	or 	merely 	aids, 	abets 	or
procures its commission, and it is immaterial whether the
indictment 	or 	information 	alleges 	that 	the 	defendant
committed the crime or was merely aiding or abetting in
its commission, so long as the proof establishes that he was
guilty of one of the acts denounced by the statute.
State v. Roby, 246 So. 2d 566, 571 (Fla. 1971) (emphasis supplied).
“The principals instruction may be given if the evidence adduced
at trial supports such an instruction.” McGriff v. State, 12 So. 3d
894, 895 (Fla. 1st DCA 2009). It is of no moment whether the
verdict form expressly includes the term “principal”; where there
are co-defendants and “[t]he jury’s verdict was a general verdict . .
., if the evidence was sufficient to prove either count of the . . .
[charging document,] the verdict should not be disturbed.” Jimenez
v. State, 30 So. 2d 292, 297 (Fla. 1947).
When co-defendants are tried jointly, there is a chance that
one defendant may be found guilty by the jury of a lesser offense
than another defendant. That is what happened in this case where
the jury found the son guilty of the lesser-included offense of
attempted aggravated battery with possession and discharge of a
firearm but the father guilty of an even lesser-included offense of
aggravated assault. This seeming inconsistency in the verdicts
though 	is 	not 	true 	inconsistency 	and 	is 	generally 	allowed 	in
Florida. State v. Powell, 674 So. 2d 731, 732–33 (Fla. 1996) (“As a
general rule, inconsistent jury verdicts are permitted in Florida.”);
id. at 733 (“Inconsistent verdicts against jointly tried conspirators
are not truly inconsistent and we find no compelling reason to
except such verdicts from the general rule.”). The supreme court
has reasoned that
[i]nconsistent verdicts are allowed because jury verdicts
can be the result of lenity and therefore do not always
speak 	to 	the 	guilt 	or 	innocence 	of 	the 	defendant.
Moreover, 	defendants 	have 	adequate 	procedural 	and

10
constitutional protections to ensure that their convictions
are not erroneous, whereas the State does not have the
benefit of any reciprocal protections.
Id. (internal citations omitted). See also Eaton v. State, 438 So. 2d
822 	(Fla. 	1983) 	(approving 	seemingly 	inconsistent 	verdicts 	of
jointly tried co-defendants where the evidence was sufficient to
sustain 	a 	conviction 	of 	the 	charged 	offense 	against 	each
defendant).
The jury did not return an inconsistent verdict in this case
when it found the son guilty of a higher crime than it found the
father guilty of notwithstanding the fact that the two defendants
were jointly tried and the evidence demonstrated that the father
discharged his firearm while the son only possessed a firearm. The
jury’s verdicts are permissible as it could have found the son guilty
as a principal to his father’s actions against Carnes and Carter and
for whatever reason, chose to be more lenient to the father than to
the son, the aider of the crime.
There is sufficient evidence that the son aided the father in
the commission of the offenses charged as the son’s assistance was
temporally and physically simultaneous to the father’s actions in
committing the offenses. See Neumann v. State, 156 So. 237, 239
(1934) (“A principal in the second degree is one who aids in the
commission of a felony . . . by being present, aiding and abetting
the 	commission 	of 	the 	felony 	at 	the 	time 	it 	is 	perpetrated.”
(emphases 	supplied) 	(internal 	quotations 	omitted)); 	State 	v.
Lowery, 419 So. 2d 621, 623 (1982) (defining a second-degree
principal as a “person who does not commit the crime with his own
hands but is present, aiding and abetting the actual perpetrator”);
Staten v. State, 519 So. 2d 622, 624 (Fla. 1988) (“[T]o be guilty as
a principal for a crime physically committed by another, one must
intend that the crime be committed and do some act to assist the
other 	person 	in 	actually 	committing 	the 	crime.” 	(emphasis
supplied)); cf. Williams v. State, 314 So. 3d 775, 782–83 (Fla. 1st
DCA 2021) (differentiating a principal in the second degree who
aids or abets a crime from an accessory before the fact who merely
promotes or incites a crime based on that person’s actions and his
temporal and physical proximity to the offense). Here, the State
sufficiently demonstrated a prima facie case that the son was

11
guilty as a principal as the evidence showed he drove his father to
and from the Marathon to commit the offense and flee the scene;
the son ran alongside his father to confront Carnes and Carter; and
both the son and his father possessed firearms and pointed them
at Carnes and Carter during the altercation. So, the fact that the
father was the only one to discharge a firearm is of no moment here
as the son clearly aided his father’s actions.
However, the principal theory only gets the State so far in that
it allows the jury to consider the evidence against the son to find
him guilty as charged or guilty of one of the lesser-included
offenses. What the son cannot be found criminally culpable of as a
principal, though, is the criminal enhancements of possession and
discharge of a firearm. See State v. Rodriguez, 602 So. 2d 1270,
1272 (Fla. 1992) (“We hold that, when a defendant is charged with
a felony involving the ‘use’ of a weapon, his or her sentence cannot
be 	enhanced 	under 	section 	775.087(1) 	without 	evidence
establishing that the defendant had personal possession of the
weapon during the commission of the felony.”); id. (rejecting the
“State’s contention that . . . [the defendant’s] sentence should be
enhanced on the theory of constructive or vicarious possession
based on the conduct of the codefendant” where the evidence
“plainly 	establishe[d]” 	defendant 	did 	not 	“have 	personal
possession” of a gun “during the commission of the felony”). Here,
there was only evidence sufficiently shown that the son possessed
a firearm and not that he discharged one, and he cannot be guilty
of the discharge enhancement as a principal.
Guilty Verdict Reinstated
On remand, no retrial is necessary, and the jury’s guilty
verdict must be reinstated. See Hudson v. State, 711 So. 2d 244,
246 (Fla. 1st DCA 1998) (explaining that “[i]f the state prevails on
an appeal from a post-verdict judgment of acquittal, the jury’s
guilty 	verdict 	is 	reinstated, 	the 	trial 	judge’s 	contrary
determination is set at naught, and the defendant’s position after
the appeal is the same as it was before the trial judge granted the
motion for judgment of acquittal. No retrial is necessary”); see also
§ 924.34, Fla. Stat. (mandating that if this Court determines “the
evidence does not prove the offense for which the defendant was
found guilty but does establish guilt of a lesser statutory degree of

12
the offense or a lesser offense necessarily included in the offense
charged,” then this Court “shall reverse the judgment and direct
the trial court to enter judgment for the lesser degree of the offense
or for the lesser included offense”). The father’s actions described
previously satisfy the elements of attempted aggravated battery as
he took actions to commit a battery, though ultimately failed to
commit battery, and used a deadly weapon in that attempt. See §§
784.045(1)(a)2., 777.04(1), Fla. Stat. The evidence shows the son
aided 	in 	that 	offense. 	Therefore, 	the 	State 	sufficiently
demonstrated that the son is guilty of this offense as a principal.
Conclusion
Accordingly, we reverse and remand with instructions for the
trial 	court 	to 	reinstate 	the 	verdict, 	striking 	the 	discharge
enhancement under section 775.087(2)(a). We direct the trial court
to enter a judgment of conviction of attempted aggravated battery
as to the son in line with the jury’s 	verdict with the 	added
sentencing enhancement of possession of a firearm.
REVERSE and R EMAND.
LEWIS, ROBERTS, and B ILBREY4, JJ., concur.
_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
James 	Uthmeier, 	Attorney 	General, 	and 	Daren 	L. 	Shippy,
Assistant Attorney General, Tallahassee, for Appellant.
4 Judge Bilbrey was substituted for an original panel member
in this proceeding after oral argument. He has viewed the digital
video recording of oral argument.

Robert R. Berry of The Law Office of Robert R. Berry P.A.,
Tallahassee, for Appellee.

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