Postell v. State, 79-1376
Decision Date | 03 June 1980 |
Docket Number | No. 79-1376,79-1376 |
Parties | Eve POSTELL, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Ellis Rubin, Naples, and Charles H. Sinclair, Miami, for appellant.
Jim Smith, Atty. Gen. and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
Before HUBBART, SCHWARTZ and DANIEL PEARSON, JJ.
Eve Postell, a thirteen-year-old female, was, along with four of her peers, charged by grand jury indictment with first-degree murder, burglary and robbery. Upon conviction of second-degree murder, burglary and robbery, she was sentenced to substantial terms of imprisonment in the State Penitentiary. 1 She challenges her conviction on the ground that her oral and videotaped confessions given at the stationhouse within several hours of her arrest, were wrongfully admitted at trial, having been procured in violation of her right to counsel and privilege against self-incrimination. 2 The underpinning of this contention is that Postell did not understand and therefore did not intelligently waive her rights under Miranda v. Arizona to remain silent and to consult with an attorney. 3 The fact that the confessions were made by a juvenile does not render the confessions ipso facto involuntary. Voluntariness is determined by taking into account the "totality of circumstances," and the age of the confessor is merely one of these circumstances. 4 State v. Francois, 197 So.2d 492 (Fla.1967); Doerr v. State, 348 So.2d 938 (Fla. 2d DCA 1977); T. B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975). The trial court found a knowing and intelligent waiver by Postell, and its finding is supported by substantial competent evidence. Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977); Gibbs v. State, 344 So.2d 621 (Fla. 3d DCA 1977); Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975).
We turn now to Postell's challenge to her sentence. Postell claims that she fulfilled all requirements for sentencing under the Florida Youthful Offender Act, Sections 958.011 et seq., Florida Statutes (Supplement 1978), and that, therefore, it was mandatory for the trial court to employ the Act's more lenient sentencing provisions and error for the trial court to impose the more severe adult sentence. 5 Since we find that Postell was not eligible to be classified as a youthful offender, we leave for another day the decision whether the sentencing benefits of the Youthful Offender Act must be accorded to one who meets the eligibility requirements of Section 958.04(1), Florida Statutes (Supplement 1978), and is not disqualified under Section 958.04(2), Florida Statutes (Supplement 1978). 6
The pertinent provisions of the act are:
(emphasis supplied).
The trial court found that Postell was ineligible under subsection (c) of Section 958.04(1), supra, to be classified as a youthful offender for the reason that a weapon was obtained in the house of the victim during the commission of the burglary, elevating that offense from a first-degree felony to a life felony under Section 775.087(1)(a), Florida Statutes (1977). While we agree Postell was ineligible to be classified as a youthful offender, the reason advanced by the trial court was clearly wrong under Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979).
Fowler v. State, supra, at 880 (footnotes omitted).
Moreover, the only evidence adduced concerning the weapon was that one of Postell's co-defendants found the gun in a suitcase in the victim's house and placed the gun inside his belt. There was no evidence that Postell herself ever possessed this gun. It has been held that the minimum mandatory sentencing provisions of Section 775.087(2), Florida Statutes (1977), are not applicable in the absence of proof that the defendant personally, not vicariously or constructively, possessed the weapon during the commission of the crime involved. Earnest v. State, 351 So.2d 957 (Fla.1977); Johnson v. State, 349 So.2d 1190 (Fla.1977); McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978); Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977). We are of the view that the enhancement provisions of Section 775.087(1), Florida Statutes (1977), a fortiori require that the defendant personally possess the weapon during the commission of the crime involved. 7
However, a correct ruling of a trial court will be sustained regardless of the incorrect reasons assigned for the ruling. Congregation Temple De Hirsch v. Aronson, 128 So.2d 585 (Fla.1961); Green v. Bruns, 102 So.2d 610 (Fla.1958); Moore v. City of St. Petersburg, 281 So.2d 549 (Fla. 2d DCA 1973); Leavstrom v. Muston, 119 So.2d 315 (Fla. 3d DCA 1960). Postell was, in fact, ineligible for classification as a youthful offender because she did not meet the separate requirement of subsection (a) of Section 958.04(1), that is, she was not a person ". . . who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39 . . . ." (emphasis supplied).
A child who is indicted by a grand jury for an offense punishable by death or life imprisonment is not a child who is transferred within the purview of Chapter 39, Florida Statutes.
Section 39.02(5)(c), Florida Statutes (Supplement 1978), provides:
(emphasis supplied).
The return of an indictment against a child divests the juvenile court of jurisdiction. State v. N. B., 360 So.2d 162 (Fla. 1st DCA 1978). The indicted child awaiting trial, if not otherwise eligible for release on bail, must be incarcerated in an adult facility. State ex rel. Powers v. Schwartz, 355 So.2d 460 (Fla. 3d DCA 1978). The indicted child is, upon conviction, subject to the adult minimum sentencing provision of Section 775.087, Florida Statutes. Ringel v. State, 366 So.2d 758 (Fla.1978). As the statute so plainly says, the indicted child is to be "handled in every respect as if he were an adult."
In contrast, the child who, after a waiver hearing, is transferred by the juvenile court for adult prosecution retains the right to be sentenced as a child. Section 39.02(5)(a), Florida Statutes (Supplement 1978), provides:
(emphasis supplied).
See Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979), and Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979) ( ). Since the Legislature in Section 39.02(5)(a), supra, chose to make available to waived juveniles the favorable sentencing provisions of Section 39.111(6), and omitted such a clause in Section 39.02(5)(c), we discern its intent to be that the indicted juvenile be sentenced as an adult. Any other holding would produce the anomalous result that a child indicted for an offense punishable by death or life imprisonment would be subject to youthful offender sentencing only, whereas a child waived and transferred for adult prosecution could under certain conditions be sentenced as an adult. See § 39.111(6)(c) and (d). 8
We have previously noted that the language of Section 39.02(5)(...
To continue reading
Request your trial-
Connolly v. State
...the defendant personally possess the weapon during the commission of the crime involved.” Id. at 1190 (citing to Postell v. State, 383 So.2d 1159, 1162 (Fla. 3d DCA 1980) ) (emphasis supplied).24 Martorano convinced Callahan that they needed to meet to discuss the recent killing of another ......
-
Bell v. Sec'y, Fla. Dep't of Corr.
...1992), Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989), Ngai v. State, 556 So. 2d 1130 (Fla. 3d DCA 989), andPostell v. State, 383 So. 2d 1159 , 1162 (Fla. 3d DCA 1980), withState v. Burris, 875 So. 2d 408 (Fla. 2004). Defendant then concludes that because an armed robbery convictio......
-
Connolly v. State, 3D09-280
...that the defendant personally possess the weapon during the commission of the crime involved." Id. at 1190 (citing to Postell v. State, 383 So. 2d 1159, 1162 (Fla. 3d DCA 1980)) (emphasis supplied). 24. Martorano convinced Callahan that they needed to meet to discuss the recent killing of a......
-
Sommer v. State
...trial court exists. See Combs v. State, 436 So.2d 93 (Fla.1983); Robinson v. State, 393 So.2d 33 (Fla. 1st DCA 1981); Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980). This principle is applicable to both issues on appeal, so even if the trial judge did use an errant basis to uphold the ......
-
How Parents can Affect the Processing of Delinquents in the Juvenile Court
...468 P.2d 204 (Cal. 1970)K.E.S. v. State, 216 S.E. 2d 670 (Ga. App. 1975)McBride v. Jacobs, 247 F.2d 595 (D.C. Cir. 1957)Postell v. State, 383 So.2d 1159 (Fla. App. 1980)BibliographyAlexander, Paul W.1948 What’s this about punishing parents? Federal Probation 2: 20Babbie, Earl1992 The Practi......