WILLIAM PARKER A/K/A VIRGIL HARRIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A defendant convicted as an adult of burglary and grand theft challenged his trial status, arguing he should have been tried as a juvenile. The court held that because the defendant had not previously committed two delinquent acts with one being a felony, he was entitled to transfer to juvenile court despite the state attorney's initial discretion to proceed as an adult.
The defendant was entitled to transfer to juvenile court because he had not previously been found to have committed two delinquent acts, one of which constituted a felony. The defendant was not estopped from seeking transfer merely because he lied about his age at arrest, as the circumstances here differed from prior cases where estoppel applied.
[1] A juvenile is entitled to be tried as a juvenile offender rather than an adult if, at the time the information is filed, the juvenile has not committed two delinquent act…
[2] The state attorney has initial discretion to determine whether to proceed against a child over sixteen years of age as an adult.
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Join FLexlaw to unlock all legal intelligence“upon motion by the child, the case shall be transferred for juvenile adjudication if it is shown that the child has not previously been found to have committed two delinquent acts, one of which constituted a felony”
Establishes the statutory standard for transfer to juvenile court regardless of state attorney discretion
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Join FLexlaw to unlock all legal intelligenceWilliam Parker (also known as Virgil Harris), a defendant over sixteen years old, was charged in adult circuit court with burglary of a structure and …
The full statement of facts, procedural history, and disposition for this case are member content.
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NESBITT, Judge.
The dispositive point here is whether defendant was entitled to be tried as a juvenile offender rather than as an adult. Because we find that at the time the information was filed the child had not committed two delinquent acts, one of which involved an offense constituting a felony, we reverse his conviction as an adult and remand for further proceedings.
At the outset, we recognize that the state attorney has initial discretion to determine whether to proceed against a child in excess of sixteen years of age as an adult, pursuant to Section 39.04(2)(e)(4), Florida Statutes (Supp.1978). Masci v. State, 397 So. 2d 984 (Fla. 3d DCA 1981). However, as the statute plainly provides, upon motion by the child, the case shall be transferred for juvenile adjudication if it is shown that the child has not previously been found to have committed two delinquent acts, one of which constituted a felony. State v. Cain, 381 So. 2d 1351 (Fla.1980).
The defendant was informed against in the adult division of circuit court for the offense of burglary of a structure and grand theft. Eight days prior to the trial, he filed a motion activating the provisions of Section 39.04(2) (e) (4), supra, alleging that he had not previously been convicted of two delinquent acts, one of which constituted a felony. The state stipulated as to the basic facts but nonetheless argued that his conviction as an adult in another court prior to this offense made the statute inapplicable. We disagree.
In this case, the fact that the defendant’s motion to transfer was heard and determined prior to his trial readily distinguishes this case from Carter v. State, 382 So. 2d 871, 873 (Fla.5th DCA 1980) and State ex rel. Ortez v. Brousseau, 403 So. 2d 549, 550 (Fla.2d DCA 1981).
Next, the state, relying upon Smith v. State, 345 So. 2d 1080 (Fla. 3d DCA), cert. denied, 353 So. 2d 678 (Fla.1977), argues that the juvenile is estopped to request his transfer to the juvenile division because he lied about his age at the time of his arrest. We find that decision to be distinguishable. In that case, the juvenile lied about her age with the express purpose of subjecting herself to the jurisdiction of the adult court and obtaining probation. The defendant failed to appeal her conviction as an adult and accepted the benefits of an order of probation. It was not until post-judgment proceedings involving revocation of her probation that she sought to be treated as a juvenile. Under those circumstances, the court found that the juvenile was estopped from changing positions and asserting her right to be treated as a child. Those facts are not present here.
For the foregoing reasons, the defendant’s judgment of conviction and the order denying his motion to transfer the proceeding to the juvenile division of the circuit court are reversed and remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Whittington v. State, 543 So. 2d 317 (Fla. 1st DCA 1989)…t as an adult in the two prior burglary convictions was therefore error. We are referred to no prior decision that a juvenile’s treatment as an adult in one proceeding requires his treatment as an adult for subsequent offenses. Cf., Parker v. State, 410 So. 2d 215 (Fla. 3d DCA 1982). In F.S.N., supra, the court found that the defendant’s voluntary motion for adult disposition of a previous case did not warrant the juvenile’s treatment as an adult for subsequent offenses, upon authority of now repealed section…
Authorities Cited
- Gulf Mach. Co. & Liberty Mut. Ins. Co. v. Avant, 345 So. 2d 1080 (Fla. 4th DCA 1977)
- Smith v. State, 345 So. 2d 1080 (Fla. 3d DCA 1977)
- Carter v. State, 382 So. 2d 871 (Fla. 5th DCA 1980)
- Masci v. State, 397 So. 2d 984 (Fla. 3d DCA 1981)
- State v. Brousseau, 403 So. 2d 549 (Fla. 2d DCA 1981)