Martin v. State, 88-2084

• Decision Date: 10 August 1989
• Docket Number: No. 88-2084,88-2084
• Parties: 14 Fla. L. Weekly 1900 Jimmy W. MARTIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 998

547 So.2d 998

14 Fla. L. Weekly 1900

Jimmy W. MARTIN, Appellant, v. STATE of Florida, Appellee.

No. 88-2084.

District Court of Appeal of Florida,

First District.

Aug. 10, 1989.

Bill Salmon, Gainesville, for appellant.

Robert A. Butterworth, Atty. Gen., and Virlindia A. Sample, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

This is an appeal from the imposition of adult sanctions upon a juvenile defendant. We find that the trial court failed to comply with section 39.111(7)(d), Florida Statutes (1987), in that the record does not reflect that the court considered each of the six criteria for determining suitability of adult sanctions, as enumerated in section 39.111(7)(c). We reverse and remand for resentencing and full compliance with the statute.

Appellant, seventeen year old Jimmy Martin, was arrested and charged as an adult with armed burglary, armed sexual battery and armed kidnapping. Pursuant to a negotiated plea agreement, he pled nolo contendere to the armed burglary charge. The state agreed not to prosecute the armed sexual battery and armed kidnapping offenses and recommended a 10-year sentence, if adult sanctions were imposed. The presentence investigation report, ("PSI"), indicated that Martin was administratively placed in the 9th grade during the 1986-1987 school year, but he subsequently dropped out. His prior criminal record included arrests for criminal mischief and petit theft, committed in March 1987, and grand theft auto, petit theft, criminal mischief and arson, committed between July 3-7, 1987. In November, 1987 the county court placed him on community control. He subsequently violated the technical conditions of the probation, including nonattendance in the community control program and nonconformity with the November, 1987 court order, i.e., failure to obey his parents and counselor, failure to maintain residence at his parents' home and failure to complete juvenile program. He pled guilty to the violations and, in March, 1988, he was placed on community control after a prison tour and visit to the Baker Correctional Institute. He committed the present offenses in May, 1988. The PSI author agreed with the negotiated plea and the recommended disposition.

The Department of Health and Rehabilitative Services, ("HRS"), prepared a predisposition report and filed it with the court. The HRS intake counselor concluded that appellant was not a suitable candidate for juvenile sanctions due to the seriousness of the present offenses, his previous performance on Community Control and his failure to comply with restitution obligations. The counselor also concluded that the HRS juvenile commitment options, (training school, halfway house and project STEP), did not offer a suitable or appropriate consequence for appellant.

At the sentencing hearing, the state argued that due to appellant's escalating pattern of criminal conduct and the seriousness of the most recent charges, adult sanctions were necessary. Appellant argued that the court should consider juvenile sanctions, pursuant to section 39.111(7)(c), Florida Statutes. ¹ He acknowledged that the criteria set forth section 39.111(7)(c)(1-3), i.e., the seriousness and violent nature of the most recent offenses and the fact that they were committed against persons rather property, militated in favor of adult sanctions. However, he asserted that the remaining criteria set forth in subsection (c)(4-6), militated in favor of juvenile sanctions, stressing that his prior criminal history stemmed primarily from a series of incidents occurring over a short period of time for which he was placed on community control under HRS supervision. Therefore, he had never truly faced a severe juvenile sanction such as being institutionalized in a juvenile home. Alternatively, appellant requested that he be sentenced as an adult according to the negotiated plea.

The trial court denied appellant's request to be sentenced as a juvenile, based upon his escalating pattern of criminal behavior, the seriousness of the most recent offenses, his violation of conditions of his juvenile probation, his failure to heed warnings and admonitions of his parents, HRS counselors and the juvenile court, his failure to make restitution to past victims of his crimes, and his failure to perform 120 hours of community service as ordered by the juvenile court in November, 1987. The trial court concluded that appellant was not a suitable candidate for juvenile sanction and that, therefore, he should be sentenced as an adult. His guidelines scoresheet indicated a range of 3 1/2-4 1/2 years incarceration. Pursuant to the negotiated plea agreement, the court entered judgment and sentenced appellant to 10 years incarceration with a 3 year minimum mandatory sentence and 77 days credit for time served. As departure reasons, the trial court cited to the negotiated plea and appellant's escalating pattern of criminal activity.

In determining suitability for adult sanctions, the trial court must consider the six criteria enumerated in section 39.111(7)(c), and if the court decides to impose adult sanctions, it must reduce that decision to writing, as required under section 39.111(7)(d). ² State v. Rhoden, 448 So.2d 1013 (Fla.1984); Barkley v. State, 522 So.2d 431 (Fla. 1st DCA 1988); Banks v. State, 520 So.2d 43 (Fla. 1st DCA 1987); Franklin v. State, 472 So.2d 1303 (Fla. 1st DCA 1985). A transcript which is made part of the appellate record, as in the present case, ³ satisfies § 39.111(7)(d), if it contains the requisite findings of fact and reasons for the decision to impose adult sanctions. Pimentel v. State, 442 So.2d 228 (Fla. 3d DCA 1983), rev. den., 450 So.2d 488 (Fla.1984); Cooper v. State, 465 So.2d 1334 (Fla. 4th DCA 1985). We would conclude, however, that the transcript in the present case does not reflect that the court fully considered all six criteria set forth in section 39.111(7)(c).

The trial court expressly considered "a variety of reasons" in determining that appellant was not a suitable candidate for juvenile sanctions: (1) the escalating pattern of criminal activity; (2) the seriousness of the offense--armed burglary--and the fact that the offense also included an armed assault and rape; (3) the violations of the conditions of his juvenile probation; (4) the failure to obey his parents, (including running away from home twice), counselors and the court; and, (5) the failure to pay past restitution and perform community service as previously ordered by the court. These reasons can be reasonably interpreted to pertain to the criteria under subsection (c)(1-3), and probably (c)(5) and (c)(6). However, there is no indication in the transcript that the trial court considered subsection (c)(4): "[t]he sophistication and maturity of the child, as determined by home,...