RONALD DOUGLAS ABRAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1981-04-14
No. TT-193
ERVIN and SHAW, JJ., concur., WENTWORTH, J., concurs and dissents.
405 So. 2d 992 Florida District Court of Appeal, First District (1981) Negative Treatment
Cited by 4 cases

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Synopsis

Ronald Douglas Abram was convicted of burglary of a dwelling and involuntary sexual battery during the same criminal episode and sentenced to 15 years on each count. The appellate court reversed the first sentence, holding that Abram qualified as a mandatory youthful offender on the first conviction since he had no prior felony convictions at that time, but affirmed the second sentence after he became ineligible by virtue of the first conviction.


Holding

The first sentence was reversed because Abram met all criteria for mandatory youthful offender classification at the time of sentencing on the burglary conviction, before the second conviction was entered. The second sentence was affirmed because by the time of sentencing on the involuntary sexual battery conviction, Abram had already been found guilty of a felony (the burglary), rendering him ineligible for mandatory youthful offender status.


Headnotes

[1] A defendant is entitled to mandatory classification as a youthful offender if they meet all statutory criteria and have not been previously convicted of a felony or class…

[2] 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 if the…

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Key Quotes

“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.”

Establishes the core holding that youthful offender eligibility is determined at the time of sentencing on each individual conviction, and mandatory classification applies when all criteria are met and no prior felony convictions exist.

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Facts & Procedural History

Abram, age 18 at sentencing, was tried and found guilty by jury on two counts: burglary of a dwelling and involuntary sexual battery, both arising fro…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Abram appeals two judgments and corresponding sentences rendered pursuant to two jury verdicts. Appellant was found guilty of burglary of a dwelling on the first verdict and involuntary battery on the second. Both offenses occurred during the same criminal episode. At the same sentencing hearing, the trial court first adjudicated Abram guilty of burglary of a dwelling1 and sentenced him as an adult to 15 years imprisonment. Moments later, the trial court adjudicated Abram guilty of involuntary sexual battery, and again sentenced him as an adult to 15 years imprisonment. The two sentences imposed were to run concurrently. Abram was 18 years old at the time of the sentencing. Prior to his trial he had not been previously found guilty of a felony, nor had he been previously classified as a youthful offender under Section 958.04, Florida Statutes (1979), nor had he been “adjudicated delinquent for an act which would be a capital, life, or first-degree felony if committed by an adult.” Section 958.04(2)(b).

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).2

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.

ERVIN and SHAW, JJ., concur. WENTWORTH, J., concurs and dissents.

. 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.

Other
WENTWORTH, Judge,

WENTWORTH, Judge,

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 single criminal episode; his intent to commit a sexual battery within the dwelling was a necessary element (“intent to commit an offense therein”) of the burglary offense.

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.


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Citator

Cited By

  • Garvin v. State, 413 So. 2d 34 (Fla. 1st DCA 1981)
    …1st DCA 1981). Nor can the firearm enhancement statute, Section 775.087(1)(a), be applied to increase this offense to a life felony. Richardson v. State, 398 So. 2d 1010 (Fla. 1st DCA 1981). It follows from this Court’s decision in Abram v. State, 405 So. 2d 992 (Fla. 1st DCA 1981), that Garvin was entitled to youthful offender sentencing for armed robbery with a firearm, the first offense for which Garvin was adjudicated guilty and was sentenced. We follow that precedent reluctantly, for we feel that in pr…
  • Abram v. State, 408 So. 2d 215 (Fla. 1981)
    …In doing so we held that a defendant who is simultaneously convicted of two or more felonies is not entitled to mandatory classification as a youthful offender under any one of them. We therefore quash that portion of the district court’s decision, 405 So. 2d 992, which reversed the trial court’s first sentence. We hold that the trial court was not required to classify petitioner as a youthful offender for purposes of either sentence; such treatment was discretionary. The case is remanded with directions to…

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