Tunisia Shavonne McClan v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
TUNISIA SHAVONNE MCCLAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-2954
[December 3, 2025]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; August A. Bonavita, Judge; L.T. Case No. 50-2024-MM-
006576-AXXX-SB.
Daniel Eisinger, Public Defender, and Ethan R. Goldberg, Assistant
Public Defender, West Palm Beach, for appellant.
James Uthmeier, Attorney General, Tallahassee, and Mary Elizabeth
Johnson, Assistant Attorney General, West Palm Beach, for appellee.
CONNER , J.
After a jury trial, the defendant appeals her misdemeanor convictions
for improper exhibition of a weapon or firearm and discharging a firearm
in a residential area. The defendant raises two arguments for reversal: (1)
she was convicted of an uncharged crime because the evidence at trial
proved a different crime than the count alleging discharge of a firearm in
a 	residential 	area, 	and 	(2) 	the 	trial 	court 	erred 	in 	admitting 	an
unauthenticated video at trial.
On the second argument, we affirm the trial court’s admission of the
video evidence without discussion. 	On the first argument, as the State
concedes, we agree that the defendant was found guilty by the jury of
discharging a firearm in a residential area based on evidence that was not
charged 	in 	the 	information. 	We 	therefore 	reverse 	the 	conviction 	for
discharging a firearm in a residential area and remand to the trial court to
vacate the conviction.

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Background
The evidence showed that the defendant shot the victim, one of her
daughters, during an argument that occurred in the parking lot of the
victim’s apartment complex. The defendant and another daughter went to
the complex uninvited and unannounced because the defendant was
concerned that the victim was being abused by her boyfriend. 	The
defendant and her other daughter wanted to try and convince the victim
to come home with them. 	The victim and the other daughter got into an
argument, which resulted in pushing and shoving. 	The defendant then
got involved in the shoving match.
For her protection, the defendant commonly carried a gun in a hip
holster. 	The defendant had the gun in the hip holster when she went to
the victim’s apartment complex on the morning of the incident. 	During
the shoving match, the gun discharged, striking the victim with a bullet.
The evidence at trial was conflicting as to how the gun came out of the
holster and who had caused the gun to discharge.
Two witnesses living in the complex testified as to their observations of
the shoving match. 	Cellphone video evidence of portions of the incident
was also recorded by two different residents of the complex. 	The victim
also testified for the defense, contending she had shot herself by accident.
The defendant likewise testified the gun had discharged by accident.
The State argued in closing that it had proven the defendant had
improperly exhibited a firearm because witness testimony showed the
defendant had carried a firearm, witness testimony and video evidence
showed that the defendant had been “waving it around,” and all the
witnesses had agreed that multiple people were present.
The defense argued the State had not presented any testimony that the
defendant had intended to expose her weapon, or that she had been
showing the gun to anyone, threatening anyone, waving the gun around,
or being careless with it. 	The defense further argued that after the gun
had come out of the holster, the defendant had tried to put the gun back,
but the victim kept pushing and pulling at her. 	The defense argued the
gun discharging was an accident caused by the victim, not the defendant.
Finally, the defense argued the defendant was simply trying to protect her
daughter when this devastating accident had occurred.
The jury found the defendant guilty as charged as to both counts. After
sentencing, the defendant gave notice of appeal. 	As discussed above, we

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find 	error 	only 	in 	the 	conviction 	for 	charging 	the 	defendant 	with
discharging a firearm in a residential area.
Appellate Analysis
The defendant argues that her conviction for discharging a firearm in a
residential 	area 	amounts 	to 	adjudication 	to 	an 	uncharged 	crime.
Specifically, 	she 	argues 	the 	information 	was 	fundamentally 	defective
where the State proceeded and presented evidence on an uncharged theory
of prosecution.
The State agrees the information was fundamentally defective and the
defendant’s conviction for discharging a firearm should be reversed and
remanded for dismissal of the charge. The State concedes the information
charged the defendant under the wrong statute which did not apply to the
theory of guilt and evidence which the State has presented at trial.
Whether an information is fundamentally defective is a legal question
and therefore subject to de novo review. 	See State v. Glatzmayer, 789 So.
2d 297, 301 n.7 (Fla. 2001).
We have previously explained when an information is fundamentally
defective:
“A criminal information is fundamentally defective ‘only where
it totally omits an essential element of the crime or is so vague,
indistinct or indefinite that the defendant is misled or exposed
to double jeopardy.’” Felton v. State, 919 So. 2d 557, 559 (Fla.
5th DCA 2005) (quoting Smartmays v. State, 901 So. 2d 278
(Fla. 5th DCA 2005)). 	“The overriding concern is whether the
defendant had sufficient notice of the crimes for which he is
being tried.” 	McMillan v. State, 832 So. 2d 946, 948 (Fla. 5th
DCA 2002).
Perley v. State, 947 So. 2d 672, 674 (Fla. 4th DCA 2007) (emphasis added).
Additionally, “a criminal defendant is entitled to a trial on the charges
contained in the information and may not be prosecuted for uncharged
offenses, even if [the uncharged offenses] are of the same general character
or constitute alternative ways of committing the charged offense.” Morgan
v. State, 146 So. 3d 508, 512 (Fla. 5th DCA 2014) (citations omitted).
“Citation to the correct statute in an information that specifically alleges
the ways [in which] the statute was violated to the exclusion of others does
not cure the fundamental defect inherent in a verdict that finds the

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defendant guilty of violating the statute in the ways that were not charged.”
Id.
Further, “[i]t is a basic tenet of constitutional law that due process is
violated when an individual is convicted of a crime not charged in the
charging instrument.” 	Castillo v. State, 929 So. 2d 1180, 1181 (Fla. 4th
DCA 2006). 	“Therefore, an error that directly results in such a conviction
is by definition fundamental.” 	Jaimes v. State, 51 So. 3d 445, 449 (Fla.
2010) (footnote omitted).
Both parties agree the instant case is governed by our decision in J.V.
v. State, 221 So. 3d 689 (Fla. 4th DCA 2017). 	In that case, the defendant
was found in possession of packaged narcotics and was charged with two
counts of possession of drug paraphernalia under section 893.147(1)(b),
Florida Statutes (2015), which criminalizes the use or possession of drug
paraphernalia 	“[t]o 	inject, 	ingest, 	inhale, 	or 	otherwise 	introduce 	a
controlled substances into the body[.]” 	Id. at 690. 	“At trial, however, the
state prosecuted appellant on the theory that appellant used or possessed
drug 	paraphernalia 	to 	‘pack, 	repack, 	store, 	contain, 	or 	conceal’ 	a
controlled substance, which would be a violation of section 893.147(1)(a).”
Id. 	Despite the superficial similarity between the two subsections, we
reversed the two counts of possession of drug paraphernalia because the
delinquency petition was fundamentally defective as to those counts where
“th[e] counts cited the wrong statutory provision and failed to allege an
essential element of the crime for which appellant was tried.” 	Id.
We agree that J.V. is directly on point and mandates reversal and
dismissal of the defendant’s conviction for discharging a firearm in a
residential area. 	Below, the second amended information charged the
defendant with a violation of section 790.15(4), Florida Statutes (2024):
COUNT 2: TUNISIA SHAVONNE MCCLAN on or about June
29, 2024, in the County of Palm Beach and State of Florida,
did discharge a firearm outdoors, in an area that TUNISIA
SHAVONNE 	MCCLAN 	knew 	or 	should 	have 	known 	was
primarily residential in nature and with a residential density
of one or more dwelling units per area, contrary to Florida
Statute 790.15(4). (1 DEG MISD).
(emphasis added). 	Section 790.15(4) provides:
Any person who recreationally discharges a firearm outdoors,
including target shooting, in an area that the person knows or
reasonably should know is primarily residential in nature and

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that has a residential density of one or more dwelling units
per acre, commits a misdemeanor of the first degree[.]
(emphasis added).
However, 	at 	trial, 	the 	State’s 	theory 	of 	prosecution 	was 	that 	the
defendant negligently or recklessly discharged the firearm on property
used primarily as the site of a dwelling. This tracks the language of section
790.15(1), Florida Statutes (2024): “(1) . . . [A]ny person . . . who recklessly
or 	negligently 	discharges 	a 	firearm 	outdoors 	on 	any 	property 	used
primarily as the site of a dwelling . . . commits a misdemeanor of the first
degree[.]” (emphasis added).
Thus, 	like 	in 	J.V., 	despite 	the 	superficial 	similarity 	between 	two
subsections of a statute, the information was fundamentally defective as
to discharging a firearm in a residential area. 	Rather, the information
“cited the wrong statutory provision and failed to allege an essential
element of the crime for which appellant was tried [i.e., recklessly or
negligently discharging a firearm].” 	J.V., 221 So. 3d at 690. 	Thus, we
conclude the defendant was convicted of an uncharged crime.
Conclusion
Having determined that the defendant’s conviction for discharging a
firearm in a residential area was improper because the evidence at trial
did not support the crime charged in the information, we reverse the
conviction and sentence on that count and remand for the trial court to
vacate the judgment and sentence as to that count.
Affirmed in part, reversed in part, and remanded with instructions.
KUNTZ , C.J., and M ETZGER , ELIZABETH, Associate Judge, concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.