PAUL A. DURDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant was entitled to be classified as a youthful offender because the state failed to prove his prior adjudications for burglary would constitute first-degree felonies if committed by an adult. The sentence is vacated and remanded for resentencing.
Appellant pleaded guilty to robbery and was sentenced to ten years imprisonment. He argued he was entitled to youthful offender classification due to …
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ORFINGER, Judge.
Appellant pleaded guilty to a charge of robbery committed on September 18, 1980. He appeals the sentence of ten years imprisonment, contending that because he was seventeen years old when the crime was committed, he was entitled to be classified as a youthful offender under section 958.-04(2), Florida Statutes (1979).1
Appellant met the eligibility requirements of section 958.04(1) and was thus mandatorily entitled to be classified as a youthful offender under section 958.04(2), if (a) he had not been previously found guilty of a felony; or (b) he had never been adjudicated guilty for an act which would be a capital, life or first degree felony if committed by an adult. State v. Goodson, 403 So. 2d 1337 (Fla.1981); Evans v. State, 398 So. 2d 1018 (Fla. 5th DCA 1981).
Appellant’s predisposition report shows two prior adjudications of delinquency for burglary, so if either of these acts would be first degree felonies2 if committed by adults, appellant would not have been entitled to the mandatory benefits of the act. The record does not disclose that either burglary could have been classified as a first degree felony, and the burden would be on the State to show that they were.
The sentence of ten years imprisonment is vacated and the cause remanded for re-sentencing in accordance with section 958.-05, Florida Statutes (1979), unless the State demonstrates to the satisfaction of the trial court that appellant does not meet the criteria of section 958.04(2Xa) or (b).
REMANDED for resentencing.
SHARP and COWART, JJ., concur. . The statute has since been amended, effective October 1, 1980, but the amended statute does not apply to this case.
. § 810.02(2), Florida Statutes (1979).
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Citator
Cited By
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Smith v. State, 412 So. 2d 47 (Fla. 5th DCA 1982)…torily entitled to be sentenced as a youthful offender, unless he had been previously found guilty of a felony or had been adjudicated guilty for an act which would be a capital, life or first degree felony if committed by an adult. Durden v. State, 407 So. 2d 1003 (Fla. 5th DCA 1981). Although the record indicates that appellant did have a prior record, there is nothing in the record before us to evidence the nature of his prior crimes or delinquent acts. The judgment of conviction is affirmed, but the se…
Authorities Cited
- State v. Goodson, 403 So. 2d 1337 (Fla. 1981)
- Evans v. State, 398 So. 2d 1018 (Fla. 5th DCA 1981)