Griffith v. State, 91-0297

• Decision Date: 23 February 1995
• Docket Number: No. 91-0297,91-0297
• Parties: Christopher GRIFFITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 936

654 So.2d 936

Christopher GRIFFITH, Appellant, v. STATE of Florida, Appellee.

No. 91-0297.

District Court of Appeal of Florida Fourth District.

Feb. 23, 1995.

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellee.

ON MOTION FOR REHEARING

FARMER, Judge.

Appellant's motion for rehearing calls our attention to an important error in our original opinion. Because it would not change the result, yet affects proceedings on remand, we have decided to publish a substitute opinion and do so now. We also correct other errors which affect neither our reasoning nor the result. Except for the specific corrections, we deny rehearing. ¹

Defendant's conviction of sexual battery and related crimes committed while he was under the age of 15 requires us to consider whether, for a person who has reached the age of 22 and is charged with a violation of law occurring before he reached the age of 16, the charges must be brought initially in the juvenile division of the circuit court under the provisions of part II, chapter 39. We must also decide whether that defendant is entitled to be sentenced under juvenile criteria and other sentencing issues. We hold that when an adult is charged with committing a violation of law occurring while he was under the age of 16, the charges must initially be brought in accordance with part II of chapter 39 but that, whether or not the defendant is ultimately tried as an adult for such offenses, his juvenile status must be considered in imposing sentence.

The facts in this case are simple. Defendant was born 25 August 1967. On 15 December 1989, he was charged by Information with 14 felonies: 10 counts of sexual battery and 4 counts of lewd assault. The Information alleged that all of the violations occurred "on one or more occasions between" 2 August 1983 and 1 August 1985. The jury convicted him of 3 counts of sexual battery and 2 counts of lewd assault. ²

The verdict adds for each conviction "as charged in the Information" but it does not specify the dates of the occurrences for the convictions. Informed by the rule of lenity, ³ we are required by the particular language employed in the Verdict and the Information to assume that all of the convictions represented violations that occurred while the defendant was under the age of 16. The trial court sentenced him to two 20-year terms of imprisonment and one 10-year term of imprisonment, all to run concurrently, and two 10-year terms of probation to run concurrent to each other but consecutive to his imprisonment. ⁴

Although Griffith has raised eight issues on appeal, we conclude that only two present grounds for a reversal. ⁵ First, he asserts the criminal division of the circuit court lacked jurisdiction over him because he was under the age of eighteen when he committed the offenses. Second, he asserts the court erred by sentencing him as an adult even though he was a juvenile when he committed the crimes. We find error in both of these issues and reverse.

I. JUVENILE COURT JURISDICTION

The question of jurisdiction requires that we examine the Florida Juvenile Justice Act. Because all the violations occurred during August 1983 to August 1985, we conclude that chapter 39, Florida Statutes (1983), supplies the governing statutory provisions. We begin with the definition of "child" in section 39.01(7):

"(7) 'Child' means any unmarried person under the age of 18 alleged to be dependent or any married or unmarried person who is charged with a violation of law occurring prior to the time that person reached the age of 18 years." [e.s.]

We then turn to the jurisdictional statute, section 39.02, which provides:

"39.02 Jurisdiction.--

"(1) The circuit court shall have exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.

"(2) During the prosecution of any violation of law against any person who has been presumed to be an adult, if it is shown that the person was a child at the time the offense was committed, the court shall forthwith transfer the case * * * to the appropriate court for proceeding under this chapter. * * *

* * * * * *

"(4) Notwithstanding the provisions of s. 743.07, ⁶ when the jurisdiction of any child who is alleged to have committed a delinquent act is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child that the court had prior to the child becoming an adult. This subsection shall not be construed to prevent the exercise of jurisdiction by any other court having jurisdiction of the child if the child, after becoming an adult, commits a violation of law.

"(5)(a) If the court finds, after a waiver hearing, that a child who was 14 years of age or older at the time the alleged violation was committed and who is alleged to have committed a violation of Florida law should be charged and tried as an adult, then the court may enter an order transferring the case and certifying the case for trial as if the child were an adult. The child shall thereafter be subject to prosecution, trial, and sentencing as if the child were an adult but subject to the provisions of s. 39.111(6)." [e.s.]

These two statutory provisions read together constitute a grant of exclusive jurisdiction to the "juvenile division" of the circuit court over proceedings in which "any married or unmarried person is charged with a violation of law occurring prior to the time that person reached the age of 18 years." [e.s.] These last words focus the jurisdictional provision on the age of the defendant when the offense was actually committed, rather than the age when the charges are brought. In other words, jurisdiction is acquired on the basis of the age of the defendant at the time of the offense, and not the age when brought into court.

That this is true is made even more apparent by section 39.02(2). That statute holds that when charges are commenced against a person "presumed to be an adult" for a violation of law, and during that prosecution "if it is shown that the person was a child at the time the offense was committed," the adult court is required to transfer the entire case to the "appropriate court for proceeding under this chapter ." ⁷ If the person's age when charged, rather than when the crime was committed, were the governing fact, of what relevance would it be that the person was a child at the time the offense was committed? The words "presumed to be an adult" thus obviously refer to the age of the defendant when the violations were alleged to have been committed. ⁸

Hence, summing up what we know about acquiring juvenile court "jurisdiction," the governing jurisdictional fact is the age when the offenses were committed, not when charged. To affirm in our case, we would have to rewrite the words of section 39.02(2) to apply only in the circumstance when the prosecution and court erroneously presume the defendant to have been an adult when the offenses were committed, but the defendant actually was a child. Our role as appellate judges does not allow us to do that.

The state makes two principal arguments against this reading of these statutory provisions. First, the state argues that section 39.02(5)(a) ⁹ would have allowed the juvenile court to transfer and certify the case for trial as an adult. The problem with this argument is that section 39.02(5)(a) operates on a case that has been properly commenced in the juvenile court and not one that has been directly filed, as here, in adult court. Moreover, with a child under 16 years of age when the offense was committed, waiver into adult court is entirely discretionary with the juvenile judge and is by no means automatic. Here that discretion was never given a chance to be exercised. While the age of a 22-year old defendant may suggest that juvenile jurisdiction will be waived, it is still a matter of discretion to be exercised in the first instance by the juvenile court judge and not by the state in choosing where to file. ¹⁰

The state also argues that section 39.02(4) demonstrates that juvenile court jurisdiction had already terminated by the time these charges were filed, for defendant was then 22 years of age. That statute states:

"Notwithstanding the provisions of s. 743.07, when the jurisdiction of any child who is alleged to have committed a delinquent act is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age."

Sec. 39.02(4), Fla.Stat. (1983). The state has misread the statute. The introductory adverbial clause, beginning with the words "when the jurisdiction of any child * * *," [e.s.] requires as a predicate that the court shall have previously "obtained" jurisdiction over a child. The court's jurisdiction over any child is obtained with the filing of a formal document invoking the court's powers. That obviously means that for this provision the charges must have been brought at a time when the defendant was still a child. Hence this provision deals solely with the case that is begun while the child is still a child. Griffith was 22 years old when he was charged, and thus section 39.02(4) is irrelevant as to him.

There are two Florida cases that appear to make a different construction of these statutes. In State v. A.N.F., 413 So.2d 146 (Fla. 5th DCA 1982), the defendant was arrested while 17-years old for crimes committed at that age. He failed to appear at his arraignment, however, and the police could not locate him to serve a custody order. After he had reached 19, he was arrested on new charges, and the police discovered the outstanding charges from his youth. Hence the prosecution on the juvenile charges was not begun until after he...