VERDELL HILL, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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On remand, the court found that the lower court failed to properly consider whether petitioner Hill qualified for sentencing under Florida's Youthful Offender Statute and incorrectly concluded that robbery with a firearm must be sentenced as a life felony rather than a first-degree felony. The court remanded again for a full hearing on youthful offender eligibility.
Robbery with a firearm is a first-degree felony that cannot be reclassified under Section 775.087(1) because that statute explicitly excludes felonies in which the use of a weapon is an essential element. The case is remanded for a proper hearing to determine whether Hill meets the mandatory qualifications for youthful offender sentencing.
[1] A resentencing order must comply with prior appellate court mandates requiring a hearing on eligibility for youthful offender sentencing.
[2] A court must consider all statutory criteria when determining eligibility for sentencing under the Youthful Offender Statute.
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Join FLexlaw to unlock all legal intelligence“The order does not show any consideration having been given to the various criteria which must be considered to determine whether petitioner is entitled to be sentenced as a youthful offender.”
Establishes the lower court's failure to properly apply the legal standard for youthful offender sentencing
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Join FLexlaw to unlock all legal intelligenceHill was convicted of robbery with a firearm. The lower court, on remand from a prior appeal, entered an order rejecting youthful offender sentencing,…
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DAUKSCH, Judge.
The order rendered September 7, 1983 is not in compliance with the opinion of this court issued June 23, 1983,1 which required a hearing to determine if the petitioner was qualified to be sentenced under the Youthful Offender Statute, Section 958.04, Florida Statutes (1979).
The order does not show any consideration having been given to the various criteria which must be considered to determine whether petitioner is entitled to be sentenced as a youthful offender. The or der is incorrect in its assertion that one who is convicted of robbery with a weapon must be sentenced for a life felony rather than a felony in the first degree. Section 775.-087(1), Florida Statutes (1981) provides that “whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, ... any weapon or firearm,” the felony is reclassified upwards. Here, the defendant was charged with and convicted of robbery with a firearm which is an already-enhanced charge under the robbery statute. It is a felony of the first degree. It cannot be reclassified under Section 775.087(1) because that statute specifically excludes such a felony (see the emphasized portion above). See also Maham v. State, 438 So. 2d 164 (Fla. 5th DCA 1983).
We remand this case again, this time for a period of thirty days. The court is directed to hold a hearing with the defendant and his attorney present, to take evidence and make a complete record, and to decide whether the defendant meets the mandatory qualifications to be sentenced under Section 958.04(2), Florida Statutes (1979). If the defendant qualifies, then he must be resentenced pursuant to that statute. If he does not, then an order must be entered setting out the reasons. The court shall then direct the clerk of the circuit court to forward to this court within ten days of the hearing a complete record and transcript of the proceedings held in compliance with this opinion.
It is so ordered.
SHARP and COWART, JJ., concur. . Hill v. State, 434 So. 2d 974 (Fla. 5th DCA 1983).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Ellis v. State, 608 So. 2d 514 (Fla. 5th DCA 1992)…d by reclassifying his conviction for attempted armed robbery with a deadly [*516] weapon from a second degree felony to a first degree felony pursuant to section 775.087. We agree that the reclassification in this case was error. See Hill v. State, 438 So. 2d 513 (Fla. 5th DCA 1983) (recognizing that robbery with a firearm is an “already-enhanced” charge under the robbery statute and thus cannot be reclassified under section 775.087(1)). However, this error is not cognizable on appeal because the sentence of…
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Springer v. State, 660 So. 2d 310 (Fla. 1st DCA 1995)…1991).1 Cf. Hangen v. State, 651 So. 2d 706 (Fla. 5th DCA 1995) (reaching the merits of a Rule 3.800 claim that juvenile offender was sentenced as an adult without the trial court having entered the requisite findings); see generally, Hill v. State, 438 So. 2d 513 (Fla. 5th DCA 1983) (challenge to sentence based on trial court’s failure to consider defendant’s eligibility for Youthful Offender status cognizable on Rule 3.850 motion/petition for writ of habeas corpus); McNeil v. State, 438 So. 2d 178 (Fla. 1st…
Authorities Cited
- Verdell Hill, Jr. v. State, 434 So. 2d 974 (Fla. 5th DCA 1983)
- State v. Cyphers, 438 So. 2d 164 (Fla. 5th DCA 1983)