Kazakoff v. StateKazakoff v. State
William D. Kazakoff, Jr., who was fifteen years of age at the time he committed the crimes that are the subject of this appeal, challenges his judgments and sentences, rendered after a jury trial, for armed burglary, kidnapping, sexual battery, and eleven counts of grand theft. He contends the trial court erred in transferring him as an adult for criminal prosecution, in failing to grant his motion for judgment of acquittal as to the kidnapping and sexual battery charges, and in failing to consider juvenile sanctions before sentencing him as an adult. We have decided to hear this case en banc because of the exceptional importance presented by the transfer issue and to determine whether we should continue to adhere to our prior decisions in this area of the law.
We reject Kazakoff‘s argument that there was insufficient evidence to sustain his convictions for kidnapping and sexual battery and affirm on this point. See Staten v. State, 519 So.2d 622 (Fla. 1988); Rodriguez v. State, 558 So.2d 211 (Fla. 3d DCA 1990). We conclude, however, that we must reverse Kazakoff‘s sentences and remand this case for the trial court to make findings as to certain criteria it failed to address in its order transferring Kazakoff for adult prosecution under
The state filed a petition in the juvenile division of the circuit court charging Kazakoff with various criminal offenses arising out of an episode in which he and his three co-defendants, while armed, terrorized two senior citizens and kidnapped and sexually battered their two-year old granddaughter, whom they were babysitting in their son‘s home.1 It then filed a motion to transfer him to the criminal division for prosecution as an adult. Following a waiver hearing, the trial court granted the motion and later entered a written order of transfer based on
After the entry of the transfer order, the state filed an information against Kazakoff and his co-defendants. Kazakoff was then tried on the information, convicted by a jury after a week-long trial, and later sentenced as an adult. In sentencing Kazakoff, the trial court failed to comply in any respect with the mandatory requirements of
As best we can determine from the record, this sentencing deficiency was caused by a misunderstanding of the law. Kazakoff, after he committed the offenses in this case, was convicted and sentenced as an adult in Hillsborough County on unrelated charges. Thus, everyone involved in Kazakoff‘s sentencing, including his defense counsel, concluded that his prior treatment as an adult obviated the necessity of complying with
Once a child has been transferred for criminal prosecution pursuant to a voluntary or an involuntary waiver hearing or information and has been found to have committed the offense for which he is transferred or a lesser included offense, the child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law, ... .
In Robinson v. State, 514 So.2d 1144 (Fla. 1st DCA 1987), the court construed the identical language of this statute‘s predecessor,
The state attempts to justify Kazakoff‘s adult sentences in two respects. First, it argues he waived the issue of the trial court‘s failure to consider juvenile sanctions by not objecting below. We must summarily reject this argument on the authority of State v. Rhoden, 448 So.2d 1013 (Fla. 1984).
The state also directs our attention to
We reject the state‘s reliance on the statute and Tomlinson. A plain reading of the entire text of
We now address the troubling transfer issue which caused us to consider this case en banc. Kazakoff argues that the trial court‘s written order transferring him for prosecution as an adult was legally deficient because it did not comply with the statutory requirements of
A careful examination of the transfer order reveals that the trial court failed to make any findings of fact with respect to two of the statutory criteria: “the sophistication and maturity of the child” and “the record and previous history of the child.”
Other district courts of appeal have taken a different approach when faced with a juvenile transfer order that failed to contain findings in compliance with a statutory mandate under chapter 39. As our analysis will show, these courts do not treat such a deficiency as invalidating a juvenile‘s subsequent conviction as an adult. Instead, they have reversed and remanded for the entry of a proper order while leaving the conviction intact.
In Spencer v. State, 332 So.2d 30 (Fla. 1st DCA 1976), the court affirmed a juvenile‘s convictions for kidnapping and sexual battery following a jury trial even though it found the transfer order deficient for failing to contain a finding required by
In Woods v. State, 369 So.2d 632 (Fla. 4th DCA 1979), cert. denied, 419 So.2d 1201 (Fla. 1982), the court also affirmed a juvenile‘s conviction after a jury verdict. As in Spencer, it found the transfer order was insufficient because it did not contain the written reasons for the transfer as required by
In Mills v. State, 424 So.2d 866 (Fla. 4th DCA 1982), the appellant, after being transferred for prosecution as an adult, entered negotiated pleas to two felony offenses and was sentenced without the benefit of a presentence investigation as required by
Finally, in Townsend v. State, 398 So.2d 829 (Fla. 5th DCA 1980), the court construed the same statutory section at issue in Woods. Citing to Woods, it concluded that the transfer order did not comply with the requirements of the statute. In reversing and remanding for the entry of an appropriate order, it also left undisturbed the juvenile‘s convictions pending final review of the order.
This analysis reveals that G.D.W. and Gainer are in direct conflict with the cases we have cited from the other district courts of appeal. After careful consideration, we have decided to resolve this conflict by receding from G.D.W. and Gainer to the extent they hold that an improper transfer order renders all proceedings following such an order null and void.4 We now align ourselves
We believe one of the beneficial effects of our decision will be the conservation of judicial resources. Under the current state of the law, an order waiving juvenile jurisdiction and transferring a child for adult prosecution “is not a final order and not an appealable nonfinal order.” A.F. v. State, 541 So.2d 1217 (Fla. 2d DCA 1989) (emphasis in original). Further, “[a]ny error committed by the trial court may be raised only on appeal from the final judgment and sentence.” Id.; In the Interest of D.W., 616 So.2d 620 (Fla. 4th DCA 1993). Thus, given an appellate court‘s lack of jurisdiction to entertain an interlocutory appeal of a transfer order, it makes little sense to have to reverse a transferred juvenile‘s case in its entirety upon plenary review, after the expenditure of precious resources, because the order omitted certain findings, especially when there is sufficient evidence to support the transfer and the order can often be corrected by a simple remand to the trial court with specific directions.
Although we have determined that the transfer order is deficient, we do not find it necessary to remand for a new waiver hearing. After carefully reviewing the record of the original hearing, we conclude that the evidence and testimony considered by the trial court, which included the statutorily required “study and report to the court, relevant to the factors in paragraph (c)”5 that recommended placement of Kazakoff in the adult system, was more than sufficient for it to make findings as to the omitted factors, as well as to support a transfer of Kazakoff for adult prosecution. Spencer. Accord Gagliano v. State, 234 So.2d 159 (Fla. 1st DCA 1970).
Accordingly, we affirm Kazakoff‘s convictions but reverse his sentences. We remand this case to the trial court with specific directions to consider the criteria of
We also direct that the trial court strictly comply with the requirements of
Affirmed in part; reversed in part; and remanded with directions.
FRANK, C.J., and RYDER, DANAHY, CAMPBELL, SCHOONOVER, HALL, THREADGILL, PARKER, PATTERSON, ALTENBERND, BLUE and FULMER, JJ., concur.
QUINCE, J., recuses.