S.P., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed an order declaring a minor a gang member and remanded for modification of a recommitment order. The court found the gang enhancement statutes, as written at the time of the offense, did not apply to delinquent acts, only felonies or violent misdemeanors. Additionally, the recommitment period for battery exceeded the statutory maximum for an adult.
1. Yes, the trial court erred because the statutes, as they existed in August 1994, required the commission of felonies or violent misdemeanors, not just delinquent acts, to trigger the gang enhancement. 2. Yes, the recommitment period for battery exceeded the statutory maximum for an adult.
[1] A juvenile cannot be declared a gang member under statutes requiring commission of felonies or violent misdemeanors if the juvenile was adjudicated delinquent for delinqu…
[2] Amendments to statutes defining 'pattern of youth and street gang activity' and providing for penalty enhancement do not apply retroactively to offenses committed before…
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Join FLexlaw to unlock all legal intelligence“S.P. does not fall within the purview of this definition because he was adjudicated delinquent for committing delinquent acts, not for a felony or violent misdemeanor.”
Explains why the gang enhancement statutes did not apply to S.P. at the time of the offense.
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Join FLexlaw to unlock all legal intelligenceS.P. was charged with throwing a deadly missile and battery, and the state sought to declare him a gang member under Florida Statutes Chapter 874. S.P…
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PARKER, Acting Chief Judge.
The state charged S.P. with throwing a deadly missile at or into an occupied vehicle and battery and also filed a Motion to Declare the Child a Gang Member. S.P. filed a Motion to Determine F.S. 874.03 and 874.04 Unconstitutional. The court denied S.P.’s motion and, after an evidentiary hearing, entered an Order Declaring Child a Gang Member. S.P. pleaded no contest, expressly reserving the right to appeal the court’s rulings on the constitutionality of the statutes and the finding that he was a gang member.
The trial court adjudicated him delinquent and recommitted him to the custody of the Department of Juvenile Justice. S.P. has filed an appeal, challenging the application of sections 874.03 and .04, Florida Statutes (1993), to him, the constitutionality of these statutes, the trial court’s finding that he was a gang member, and the disposition of his case. We strike the order declaring S.P. a gang member and remand for modification of the recommitment order. Chapter 874, Florida Statutes (1993), contains the Street Terrorism Enforcement and Prevention Act of 1990. This act provides for enhanced penalties for crimes committed as part of a pattern of youth and street gang activity in an effort “to eradicate the terror” which gangs create. § 874.02(3), Fla.Stat. (1993).
The first inquiry is whether S.P. comes within the purview of chapter 874, Florida Statutes (1993).
Section 874.04, Florida Statutes (1993), enhances the penalty for any felony or violent misdemeanor if its commission is part of a pattern of youth and street gang activity.
Section 874.03(3), Florida Statutes (1993), provides as follows: “ ‘Pattern of youth and street gang activity' means the commission, attempted commission, or solicitation, by any member or members of a youth and street gang, of two or more felony or violent misdemeanor offenses on separate occasions within a 3-year period, for the purpose of furthering gang activity.” S.P. does not fall within the purview of this definition because he was adjudicated delinquent for committing delinquent acts, not for a felony or violent misdemeanor. In 1994 the legislature amended section 874.03(3) to include “two or more delinquent acts or violations of law which would be felonies or violent misdemeanors if committed by an adult.” The legislature also amended section 874.04 to provide for a penalty enhancement for “any delinquent act or violation of law which would be a felony or violent misdemeanor if committed by an adult.” These changes, however, were not effective until October 1, 1994. Because S.P. allegedly committed these delinquent acts on August 12,1994, the amendments do not apply to this case.
Thus, the court erred in declaring S.P. a gang member.
Accordingly, we strike the Order Declaring Child a Gang Member. Because of our holding on this issue, we conclude that it is unnecessary for us to review the trial court’s ruling that sections 874.03 and .04 are constitutional.
S.P. also challenges his disposition. The court committed him to the Department of Juvenile Justice for an indeterminate period of time that shall not extend beyond his nineteenth birthday or fifteen years whichever occurred first. At the time of disposition, S.P. was fifteen years and ten months old. Thus, he would be nineteen in three years and two months.
Section 39.054(4), Florida Statutes (1993), provides: “Any commitment of a delinquent child to the department shall be for an indeterminate period of time, but the time shall not exceed the maximum term of imprisonment which an adult may serve for the same offense.” Battery is a first-degree misdemeanor, see § 784.03(2), Fla.Stat. (1993), which is punishable by a term of imprisonment not exceeding one year. See § 775.082(4)(a), Fla.Stat. (1993). See also R.B. v. State, 633 So. 2d 542 (Fla. 5th DCA 1994). Throwing a deadly missile is a second-degree felony, see § 790.19, Fla.Stat. (1993), which is punishable by a term of imprisonment not exceeding fifteen years. See § 775.082(3)(c), Fla.Stat. (1993). Thus, the disposition for the battery exceeds the maximum penalty allowed by law.
A review of chapter 39, Florida Statutes (1993), reveals that the statutes do not address whether there must be a separate disposition for each count. This court, however, has held that a court may not impose a general sentence for separate offenses. See H.L.L. v. State, 595 So. 2d 223 (Fla. 2d DCA 1992); C.P. v. State, 543 So. 2d 867 (Fla. 2d DCA 1989); J.J.S. v. State, 465 So. 2d 621 (Fla. 2d DCA 1985). We, accordingly, direct the trial court to amend the disposition for the battery count to show a recommitment to no more than one year with credit for any time served. See R.B.
Reversed and remanded for modification of the recommitment order. ALTENBERND and QUINCE, JJ., concur.
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A.C. v. State, 688 So. 2d 1004 (Fla. 2d DCA 1997)…. Commitment to the Department and community service is limited to the maximum adult term or to the date of the juvenile’s [*1005] twenty-first birthday, whichever occurs first. See C.P. v. State, 674 So. 2d 183 ( Fla. 2d DCA 1996); S.P. v. State, 664 So. 2d 1064 (Fla. 2d DCA 1995). Since the maximum term for battery that appellant could have received as an adult for the instant offense is one year, the sentence he received was not a legal sentence. See §§ 775.082(4)(a) and 784.08, Fla. Stat. (1995). We, the…
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Gilchrist v. State, 674 So. 2d 847 (Fla. 2d DCA 1996)…ment, we strike that portion of condition 12. See Malone, 652 So. 2d at 904. We also strike the $2 discretionary cost imposed under section 943.25(13), Florida Statutes (1993), because it was not orally pronounced at sentencing. See Buchy v. State, 664 So. 2d 1064 (Fla. 2d DCA 1995). The trial court entered judgment for a $1,000 public defender fee. See § 27.56, Fla.Stat. (1993). As defense counsel argues, the record contains no basis for the $1,000 fee — nothing reveals the hourly rate or time spent on the…
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T.C. v. State, 736 So. 2d 698 (Fla. 1st DCA 1998)…21 years of age. Therefore, in accordance with the above case law, the disposition order must be reversed and the case remanded for entry of a new order limiting the commitment for the misde [*699] meanor offense to one year. See also S.P. v. State, 664 So. 2d 1064 (Fla. 2d DCA 1995). On remand, the trial court should enter separate disposition orders for each offense. See J.M.J. v. State, 22 Fla. L. Weekly D1673, — So. 2d -, 1997 WL 369951 (Fla. 1st DCA July 7, 1997); A.L.W. v. State, 22 Fla. L. Weekly D2227,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- J.J.S. v. State, 465 So. 2d 621 (Fla. 2d DCA 1985)
- H.L.L. v. State, 595 So. 2d 223 (Fla. 2d DCA 1992)
- Powell v. State, 595 So. 2d 223 (Fla. 1st DCA 1992)
- C.P. v. State, 543 So. 2d 867 (Fla. 2d DCA 1989)
- R.B. v. State, 633 So. 2d 542 (Fla. 5th DCA 1994)