JOHN ARTHUR THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in imposing an adult sentence without considering a presentence investigation report and issuing a written sentencing order, but did not err in failing to make specific findings regarding suitability for adult sanctions due to a statutory amendment.
Appellant, a juvenile, was sentenced as an adult for aggravated battery. The trial court failed to consider a presentence investigation report and iss…
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[Original Opinion at 20 Fla.L.Weekly D2260]
ERVIN, Judge
We withdraw our previous opinion and substitute the following.
Appellant, John Thomas, a juvenile when he committed the offense of aggravated battery, appeals his adult sentence, imposed under section 39.059, Florida Statutes (Supp. 1994). We reverse and remand for resentencing, because the trial court erred in imposing the sentence without considering a presentence investigation report as required by section 39.059(7)(a). Troutman v. State, 630 So. 2d 528 (Fla.1993); Levesen v. State, 553 So. 2d 290 (Fla. 2d DCA 1989). The court also erred by failing to issue a written sentencing order. We nevertheless reject Thomas’s claim that the court erred in failing to set forth specific findings regarding his suitability for adult sanctions. Section 39.059(7)(d), Florida Statutes (1993), formerly required the trial court to make specific written findings of fact relating to the criteria set forth in section 39.059(7)(e), by providing: (d) Any decision to impose adult sanctions shall be in writing and in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions.
(Emphasis added.) The above provision was amended effective October 1, 1994, after Thomas committed his offense. Ch. 94-209, §§ 51, 150, at 1306, 1384, Laws of Fla. Thomas was sentenced on November 9,1994, pursuant to the amended statute, which provides:
(d) Any decision to impose adult sanctions must be in writing, but is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions.
(Emphasis added.)
We consider this to be a procedural amendment that was properly applied retroactively to Thomas’s disposition hearing. Arguably, Thomas is disadvantaged on appeal by having the 1994, rather than the 1993, version of section 39.059(7)(d) apply to his case, because the clear purpose of requiring written findings was to facilitate appellate review. Troutman v. State, 630 So. 2d 528, 532 (Fla.1993); State v. Rhoden, 448 So. 2d 1013, 1016 (Fla.1984). Nevertheless, a law must do more than simply disadvantage the defendant to be considered ex post facto. Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 44 (1990). The law must change the legal consequences of the acts the defendant committed before its effective date. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360 (1987). “Hence, no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’” Id. at 433, 107 S.Ct. at 2452-53, 96 L.Ed.2d at 362 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262, 269 (1884)).
Although the amendment to section 39.059(7)(d) will affect the depth of review of adult sanctions imposed under that statute, its application did not change appellant’s punishment in any way, thus it does not violate the prohibition against retroactive laws.
We grant the state’s motion for clarification, and grant Thomas’s motion for rehearing in part and deny his motion to certify conflict. On remand, we direct the trial court to order and consider a presentence investigation report, and to issue a written sentencing order if it imposes adult sanctions against Thomas.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
MICKLE and LAWRENCE, JJ., concur.
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Neal v. State, 688 So. 2d 392 (Fla. 1st DCA 1997)…assume that appellant is correct in his assertion that the statute “operates retrospectively,” it is clear that it neither “alters the definition of criminal conduct,” nor “increases the penalty by which a crime is punishable.” In Thomas v. State, 662 So. 2d 1334 (Fla. 1st DCA 1995), review denied, 669 So. 2d 252 (Fla.1996), the appellant challenged as ex post facto when applied to him an amendment to a statute which relieved the trial court of any obligation to make specific findings regarding the unsuitabi…
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Cemel Grayson v. State, 671 So. 2d 855 (Fla. 4th DCA 1996)…nded statute should be applied retroactively to defendants who committed their offenses prior to 1994, [*856] but were sentenced after the effective date of the amendment. See Lutz v. State, 664 So. 2d 1060, 1061 (Fla.4th DCA 1995); Thomas v. State, 662 So. 2d 1334, 1336 (Fla.1st DCA 1995). As the state concedes, the trial court did not sentence defendant in accordance with the amended statute. Although eliminating the requirement imposed by Troutman, the amended statute still retains many of the provisions o…
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Lutz v. State, 664 So. 2d 1060 (Fla. 4th DCA 1995)…ommitted his offense prior to the amendment’s effective date, his sentencing occurred after the effective date of the amendment. Thus, the amended statute should have applied retroactively to Defendant at his sentencing hearing. See Thomas v. State, 662 So. 2d 1334 (Fla. 1st DCA 1995) (rejecting appellant’s claim that court erred in failing to set forth findings of suitability for adult sanctions; applying procedural amendment retroactively to appellant sentenced after effective date did not constitute ex post…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- Hopt v. People of the Territory of Utah, 110 U.S. 574 (U.S. 1884)
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Collins v. Youngblood, 497 U.S. 37 (U.S. 1990)
- Troutman v. State, 630 So. 2d 528 (Fla. 1993)
- Edler v. State, 630 So. 2d 528 (Fla. 1993)
- Goldsmith v. Satz, 553 So. 2d 290 (Fla. 4th DCA 1989)
- Leyesen v. State, 553 So. 2d 290 (Fla. 2d DCA 1989)