STATE OF FLORIDA, PETITIONER,
v.
LIVINGSTON MILBRY, RESPONDENT
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A defendant cannot be sentenced as a youthful offender to a term exceeding the statutory maximum for an adult offender for the same crime.
Livingston Milbry was charged with robbery and grand theft. He was acquitted of robbery but convicted of grand theft, a felony with a five-year maximu…
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McDonald, justice.
We have for review Milbry v. State, 469 So. 2d 137 (Fla. 3d DCA 1984), which directly and expressly conflicts with Dunlap v. State, 433 So. 2d 631 (Fla. 1st DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue here is whether a defendant may be sentenced as a youthful offender in excess of the statutory maximum sentence an adult offender could receive for the same crime. We answer in the negative.
The state charged Livingston Mil-bry with robbery and second-degree grand theft, in violation of sections 812.13 and 812.014, Florida Statutes (1983). After a nonjury trial, the trial court acquitted Mil-bry on the robbery count and adjudicated him guilty as charged on the grand theft count. Second-degree grand theft carries a statutory maximum penalty of five years imprisonment. §§ 812.014(2)(b), 775.-082(3)(d), Fla.Stat. (1983). The trial court sentenced Milbry as a youthful offender to four years imprisonment plus two years of community control. § 958.05, Fla.Stat. (1983). Milbry appealed his sentence on the ground that the six-year combined sentence as a youthful offender exceeded the maximum sentence permitted for a third-degree felony. The district court held that the Youthful Offender Act, chapter 958, Florida Statutes (1983), was designed to accord more lenient treatment to youthful offenders. By contrast, the sentence imposed on Milbry aggravated, rather than mitigated, the sanction for the crime he committed, based upon his status as a youthful offender. The district court ordered that Milbry be resentenced as a youthful offender to no more than a five-year total sentence of imprisonment and community control.
We agree with the district court opinion and adopt it as our own in this case. We disapprove Dunlap.
It is so ordered.
BOYD, C.J., and OVERTON, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents.
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Allen v. State, 526 So. 2d 69 (Fla. 1988)…to four years imprisonment followed by two years of community control for each offense, the sentences to run consecutively. On postconviction appeal, the First District agreed with petitioner that the sentences were excessive under State v. Milbry, 476 So. 2d 1281 (Fla.1985), which held that a youthful offender cannot be sentenced in excess of the statutory maximum sentence an adult could receive for the same crime. Because grand theft and bail bond jumping each carried a maximum penalty of five years, the di…
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Davis v. State, 528 So. 2d 521 (Fla. 2d DCA 1988)…h third-degree felonies punishable by a maximum five years imprisonment. When the trial judge imposed four years imprisonment followed by two years of community control concurrently on each charge, he exceeded the statutory maximum. State v. Milbry, 476 So. 2d 1281 (Fla.1985). See Committee Note to Fla.R.Crim.P. 3.701(d)(12). Davis argues that the trial judge erred in failing to provide written reasons for departing from the guidelines and for imposing adult sanctions pursuant to section 39.111(6)(d), Fla.St…
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Allen v. State, 515 So. 2d 256 (Fla. 1st DCA 1987)…So. 2d 318, 319 (Fla. 2d DCA 1985). Appellant argues that a defendant may not be sentenced as a youthful offender in excess of the statutory maximum sentence an adult may receive for the same crime. His view is correct according to State v. Milbry, 476 So. 2d 1281 (Fla.1985). We, therefore, find that appellant’s sentences of six years for each of his third degree felony offenses are illegal, and must be reduced to a maximum of a five year total sentence of imprisonment and community control for each convictio…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marvin Lynn Dunlap/Donald Ray Griffis v. State, 433 So. 2d 631 (Fla. 1st DCA 1983)
- Livingston Milbry v. State, 469 So. 2d 137 (Fla. 3d DCA 1984)