Dimilta v. State, s. 90-03167
| Decision Date | 20 December 1991 |
| Docket Number | Nos. 90-03167,90-03681,s. 90-03167 |
| Citation | 590 So.2d 1074 |
| Parties | Shane Michael DIMILTA, Appellant, v. STATE of Florida, Appellee. 590 So.2d 1074, 17 Fla. L. Week. D59 |
| Court | Florida District Court of Appeals |
J. Andrew Press, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee.
Shane Dimilta was convicted of burglary and sentenced to a term of fifteen years incarceration. We find no error in the conviction or the sentence for the burglary offense.
When Dimilta committed the burglary, however, he was on probation for a number of previous offenses, sentences for all of which were imposed on June 15, 1988, in eight separate cases. The resulting sentence was 2 1/2 years incarceration to be followed by 5 years probation. Dimilta was designated a youthful offender at that time.
Following the burglary trial from which this appeal has been taken, Dimilta was sentenced upon the violation of his probation stemming from the June 15, 1988 convictions. All sentences were to run concurrently for a total of 4 1/2 years incarceration, which was to run consecutive to the 15 year burglary term. As we explain below, the imposition of the 4 1/2 term was erroneous.
The Youthful Offender Act (YOA), chapter 958, Florida Statutes (1989), limits the total term of incarceration and probation that may be imposed upon a youthful offender to a total of six years. Sec. 958.04(1)(c), Fla.Stat. (1989). Thus, when Dimilta was originally sentenced in June of 1988, his total sentence exceeded the maximum allowed by the YOA. At the hearing upon violation of probation, the trial court explained that it had intended to impose youthful offender sentences of 2 1/2 year terms in four of the cases; and in the remaining four cases the court intended to sentence Dimilta as an adult to 5 years probation. Nevertheless, the youthful offender designation appears on all of the judgments and sentences and sentencing guideline scoresheets. Furthermore, at the sentencing hearing no limitation on youthful offender sentencing was announced. Thus, as in Boffo v. State, 543 So.2d 435, 436 (Fla. 2d DCA 1989):
We find no authority for the proposition that a court may adjudicate or classify a defendant to be a youthful offender on one count but not on the other counts in the same information ... We see no evidence in this record that the original sentencing judge intended to treat the appellant as a youthful offender on one count and as an adult on the other two counts. Such would be contrary to the intent of the Youthful Offender Act.
Although this case is distinguishable from Boffo in that the original sentencing judge is the same judge who sentenced Dimilta upon violation of probation and who expressed the belief that she was sentencing Dimilta as a youthful...
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Porter v. State, 1D06-1975.
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Louissaint v. State, 98-931.
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Kahrs v. State, 2D01-855.
...trial court to sentence Kahrs as a youthful offender in three cases and as an adult in the remaining two cases. See Dimilta v. State, 590 So.2d 1074, 1075 (Fla. 2d DCA 1991); Kelly v. State, 739 So.2d 1164, 1165-66 (Fla. 5th DCA 1999). Furthermore, the combined sentences exceed the six-year......