405 So. 2d 992 | Fla. Dist. Ct. App. | 1981
Lead Opinion
Abram appeals two judgments and corresponding sentences rendered pursuant to
We reverse the first sentence since Abram met all the criteria required to be classified as a youthful offender. § 958.-04(2), Fla.Stat. (1979). The trial court had a mandatory obligation to sentence Abram as a youthful offender on the first verdict since Abram had not yet been convicted on the second offense. But cf. Goodson v. State, 392 So.2d 1335 (Fla.1st DCA 1980); Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1980).
The second sentence was correctly imposed. Abram had been “previously found guilty of a felony” within the meaning of Section 958.04(2)(a) by virtue of the first adjudication for burglary of a dwelling. See Killian v. State, 387 So.2d 385 (Fla.2d DCA 1980); Goodson v. State, supra; Barnhill v. State, supra. A defendant who has been found guilty of more than one felony at the time of sentencing is not entitled to a mandatory classification as a youthful offender even though multiple convictions arise out of a single episode. Barnhill v. State, supra.
On rehearing the Barnhill court certified the identical issue to the Florida Supreme Court. Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1981). Although we feel bound by the precedent established by Goodson involving the same issue, we view the dissenting opinion in the case at bar as well reasoned and worthy of consideration. Accordingly, we join both Goodson and Barnhill by certifying the following question to the Supreme Court of the State of Florida as one of great public interest:
[Is] a person excluded from a mandatory classification under Section 958.04(2)(9), Florida Statutes (Supp.1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?
The sentence imposed as to the first sentence is reversed and remanded to the trial court for an appropriate sentence.
. We find, despite appellant’s contention to the contrary, that the trial court’s adjudication as to this offense was in conformity with the verdict. The judgment itself indicates that the appellant was adjudicated guilty of burglary of a dwelling, a second degree felony.
. Goodson and Barnhill are distinguishable from the instant case on this point. Both Goodson and Barnhill held that a trial judge was not required to sentence a defendant as a youthful offender when the appellant had been found guilty of more than one felony at the time of sentencing. In both cases the respective defendants were apparently first adjudicated guilty on each felony before any sentencing occurred. Here, the defendant’s sentencing on the first adjudication preceded the second adjudicated felony.
Concurrence in Part
concurring and dissenting.
I concur in the result reached by the majority insofar as it requires appellant’s classification as a youthful offender, and disposition pursuant to Chapter 958, Florida Statutes, for the offense of burglary of a dwelling. However, I would also require such classification and disposition for the offense of involuntary sexual battery. Both of appellant’s convictions arose from a
Subsequent offender statutes have consistently been construed as requiring that the subsequent offense be committed after the prior conviction. See, e. g., Shead v. State, 367 So.2d 264 (Fla.3d DCa 1979). The rationale for such a construction is that the statute intends to encourage first offenders to reform by warning of severer penalties for subsequent offenses. Karz v. State, 279 So.2d 383 (Fla.2d DCA 1973). While Lucas v. State, 376 So.2d 1149 (Fla. 1979), reaches a contrary result regarding “prior convictions” as aggravating circumstances within the purview of Florida’s death penalty statute, I am of the opinion that Chapter 958, the Youthful Offender Act, is more akin to a subsequent offender statute. Section 958.021 indicates that the act provides “an additional sentencing alternative” in order “to improve the chances of correction and successful return to the community of youthful offenders . . . . ” I thus disagree with Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1980), and would rule that an offender’s contemporaneous conviction of multiple offenses within a single criminal episode does not preclude the youthful offender classification under § 958.04(2), Florida Statutes.
I also note that neither Goodson v. State, 392 So.2d 1335 (Fla.1st DCA 1980), nor Killian v. State, 387 So.2d 385 (Fla.2d DCA 1980), indicate whether the multiple offense in those cases arose from a single criminal episode or multiple criminal episodes. In either event, I do not believe that the legislature intended that the application of Chapter 958 would depend on such artificial temporal distinctions as are employed in those cases, in Barnhill, and by the majority in the present case.
I would reverse the sentences imposed and remand the cause for resentencing in accordance with Chapter 958, as to both offenses.
