T.Y., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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T.Y., a juvenile, was acquitted of robbery but adjudicated delinquent for both petit theft and assault as lesser included offenses. The Florida Third District Court of Appeal held that trial courts in juvenile delinquency cases may only convict of necessarily lesser included offenses, not permissive lesser included offenses, and therefore reversed the assault adjudication while affirming the petit theft adjudication.
A juvenile trial court may adjudicate a child delinquent only of necessarily lesser included offenses, not permissive lesser included offenses. The court affirmed the petit theft adjudication (a necessarily lesser included offense of robbery) but reversed the assault adjudication (a permissive lesser included offense).
[1] A juvenile court may find a child guilty of a necessarily lesser included offense but not a permissive lesser included offense when the petition charges a single crime.
[2] Florida Rule of Juvenile Procedure 8.110(j) authorizes a finding of guilt only for necessarily lesser included offenses.
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Join FLexlaw to unlock all legal intelligence“If in a petition the offense alleged necessarily includes lesser offenses the [court] may find the child committed such a lesser offense.”
The text of Florida Rule of Juvenile Procedure 8.110(j) that governs lesser included offense findings in juvenile delinquency cases.
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Join FLexlaw to unlock all legal intelligenceThe State filed a delinquency petition charging T.Y. with robbery. After an adjudicatory hearing, the trial court acquitted T.Y. of robbery but found …
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COPE, Judge.
T.Y. appeals an adjudicatory order entered in a juvenile delinquency proceeding. We affirm in part and reverse in part.
The State filed a petition for delinquency against T.Y. charging one count of robbery. After an adjudicatory hearing, the trial court acquitted T.Y. of the charge of robbery, but found that the child had committed both the necessarily lesser included offense of petit theft and the permissive lesser included offense of assault. The child has appealed, arguing that where the petition only charges a single crime, she cannot be convicted of more than one lesser included offense.
We conclude that the text of Florida Rule of Juvenile Procedure 8.110®1 resolves the question under the circumstances of this case and requires a ruling in T.Y.’s favor. That rule states, “If in a petition the offense alleged necessarily includes lesser offenses the court may find the child committed such a lesser offense.” Construing the comparable language of section 924.34, Florida Statutes (1985),2 in Gould v. State, 577 So. 2d 1302 (Fla.1991), the supreme court held that the phrase “offense necessarily included in the offense charged” refers only to a necessarily lesser included offense, not a permissive lesser included offense. Id. at 1304-05.
We are obliged to construe Rule 8.110(j) consistent with the reasoning of Gould. We conclude, therefore, that Rule 8.110(j) authorizes the trial court in a juvenile delinquency case to find a child guilty of a necessarily lesser included offense but not a permissive lesser included offense. Compare Fla.R.Juv.P. 8.110(j) (referring to necessarily included offense) and Fla.R.Crim.P. 3.620 (same) with Fla.R.Crim.P. 3.510(b) (referring to necessarily included offense or lesser included offense of the charged offense which is supported by the evidence).
Both parties argue that this court has construed Rule 8.110(3) 1° the contrary in dictum in G.C. v. State, 560 So. 2d 1186, 1190-91 n. 4 (Fla. 3d DCA 1990), approved, 572 So. 2d 1380 (Fla.1991). We do not think that the analysis of Rule 8.110(j) in dictum in footnote four in G.C., 560 So. 2d at 1190-91 n. 4, survives Gould any more than this court’s accompanying construction of section 924.34 in G.C., id. at 1190, survives Gould.
The trial court in the present ease had the authority to find that T.Y. had committed the necessarily lesser included offense of petit theft, but not the permissive lesser included offense of assault. The adjudication of petit theft is affirmed, and the adjudication of assault is reversed.
Affirmed in part and reversed in part.
. This rule was previously numbered as Rule 8.190Q). See Petition of The Florida Bar To Amend the Florida Rules of Juvenile Procedure, 589 So. 2d 818, 832 (Fla.1991).
. That statute states: "When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.” Id. (emphasis added).
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L.F. v. State, 694 So. 2d 840 (Fla. 2d DCA 1997)…e must reverse with directions that the adjudication of delinquency on this count be vacated. See I.T. v. State, 694 So. 2d 720 (Fla. May 9, 1997). We recognize that our decision in this case implicitly conflicts with the holding in T.Y. v. State, 660 So. 2d 771 (Fla. 3d DCA 1995), that Florida Rule of Juvenile Procedure 8.110(j) authorizes the trial court to find a child guilty of a necessarily lesser included offense, but not a permissive lesser included offense. However, the Third District based its cons…
Authorities Cited
- State v. G.C., 572 So. 2d 1380 (Fla. 1991)
- Buckley v. State, 577 So. 2d 1302 (Fla. 1991)
- G.C. v. State, 560 So. 2d 1186 (Fla. 3d DCA 1990)
- In re Petition of the Florida Bar to Amend the Florida Rules of Juvenile Procedure, 589 So. 2d 818 (Fla. 1991)