Gillion v. State, 81-257

• Decision Date: 24 March 1982
• Docket Number: No. 81-257,81-257
• Citation: 411 So.2d 341
• Parties: Sammie R. GILLION, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 341

411 So.2d 341

Sammie R. GILLION, Jr., Appellant, v. STATE of Florida, Appellee.

No. 81-257.

District Court of Appeal of Florida, Fourth District.

March 24, 1982.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Appellant, indicted for first degree murder, was tried by a jury and convicted of third degree murder. We affirm the judgment on the holding that (1) the hearsay testimony to which appellant objected was admissible as an excited utterance under Section 90.803(2), Florida Statutes (1981), and (2) the instruction on third degree murder, to which appellant made no objection, was mandated by Brown v. State, 206 So.2d 377 (Fla.1968) and was not error. See Thomas v. State, 406 So.2d 538 (Fla. 4th DCA 1981).

At the time of sentencing, appellant's request for classification as a youthful offender was denied. It would appear that in denying the motion the trial court construed Section 958.04(2), Florida Statutes as being directory rather than mandatory in the classification of a defendant as a youthful offender. At that time the trial court did not have the benefit of this court's opinion in Barnhill v. State, 393 So.2d 557 (Fla.1980) nor the Supreme Court's opinion in State v. Goodson, 403 So.2d 1337 (Fla.1981). On this appeal appellee concedes that appellant appears to qualify for youthful offender classification. His sentence is vacated and this cause remanded for the purpose of the court resentencing appellant in light of the foregoing authorities.

Judgment affirmed; sentence vacated and this cause remanded for resentencing.

HERSEY and GLICKSTEIN, JJ., concur.