Abram v. State, TT-193
| Decision Date | 14 April 1981 |
| Docket Number | No. TT-193,TT-193 |
| Parties | Ronald Douglas ABRAM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
Abram appeals two judgments and corresponding sentences rendered pursuant to two jury verdicts. Appellant was found guilty of burglary of a dwelling on the first verdict and involuntary battery on the second. Both offenses occurred during the same criminal episode. At the same sentencing hearing, the trial court first adjudicated Abram guilty of burglary of a dwelling 1 and sentenced him as an adult to 15 years imprisonment. Moments later, the trial court adjudicated Abram guilty of involuntary sexual battery, and again sentenced him as an adult to 15 years imprisonment. The two sentences imposed were to run concurrently. Abram was 18 years old at the time of the sentencing. Prior to his trial he had not been previously found guilty of a felony, nor had he been previously classified as a youthful offender under Section 958.04, Florida Statutes (1979), nor had he been "adjudicated delinquent for an act which would be a capital, life, or first-degree felony if committed by an adult." Section 958.04(2)(b).
We reverse the first sentence since Abram met all the criteria required to be classified as a youthful offender. § 958.04(2), Fla.Stat. (1979). The trial court had a mandatory obligation to sentence Abram as a youthful offender on the first verdict since Abram had not yet been convicted on the second offense. But cf. Goodson v. State, 392 So.2d 1335 (Fla.1st DCA 1980); Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1980). 2
The second sentence was correctly imposed. Abram had been "previously found guilty of a felony" within the meaning of Section 958.04(2)(a) by virtue of the first adjudication for burglary of a dwelling. See Killian v. State, 387 So.2d 385 (Fla.2d DCA 1980); Goodson v. State, supra; Barnhill v. State, supra. A defendant who has been found guilty of more than one felony at the time of sentencing is not entitled to a mandatory classification as a youthful offender even though multiple convictions arise out of a single episode. Barnhill v. State, supra.
On rehearing the Barnhill court certified the identical issue to the Florida Supreme Court. Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1981). Although we feel bound by the precedent established by Goodson involving the same issue, we view the dissenting opinion in the case at bar as well reasoned and worthy of consideration. Accordingly, we join both Goodson and Barnhill by certifying the following question to the Supreme Court of the State of Florida as one of great public interest:
(Is) a person excluded from a mandatory classification under Section 958.04(2) (9), Florida Statutes (Supp.1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?
The sentence imposed as to the first sentence is reversed and remanded to the trial court for an appropriate sentence.
I concur in the result reached by the majority insofar as it requires appellant's classification as a youthful offender, and disposition pursuant to Chapter 958, Florida Statutes, for the offense of burglary of a dwelling. However, I would also require such classification and disposition for the offense of involuntary sexual battery. Both of appellant's convictions arose from a single criminal episode; his intent to commit a sexual battery within the dwelling was a necessary element ("intent to commit an offense therein") of the burglary offense.
Subsequent offender statutes have consistently been construed as requiring that the subsequent offense be committed after the prior conviction. See, e. g., Shead v. State, 367 So.2d 264 (Fla.3d DCa 1979). The rationale for such a construction is that the statute intends to encourage first offenders to reform by warning of severer penalties for subsequent offenses. Karz v. State, 279 So.2d 383 (Fla.2d DCA 1973). While Lucas v. State, 376 So.2d 1149 (Fla.1979), reaches a contrary result regarding "prior convictions" as aggravating circumstances within the purview of Florida's death penalty statute, I am of the opinion that Chapter 958, the Youthful Offender Act, is more akin to a subsequent offender statute. Section 958.021 indicates that the act provides "an additional sentencing...
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Abram v. State
...mandatory classification as a youthful offender under any one of them. We therefore quash that portion of the district court's decision, 405 So.2d 992, which reversed the trial court's first sentence. We hold that the trial court was not required to classify petitioner as a youthful offende......
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Garvin v. State, YY-240
...to a life felony. Richardson v. State, 398 So.2d 1010 (Fla. 1st DCA 1981). It follows from this Court's decision in Abram v. State, 405 So.2d 992 (Fla. 1st DCA 1981), that Garvin was entitled to youthful offender sentencing for armed robbery with a firearm, the first offense for which Garvi......