Robidoux v. Coker

• Decision Date: 07 May 1980
• Docket Number: No. 80-197,80-197
• Citation: 383 So.2d 719
• Parties: Benjamin ROBIDOUX, Petitioner, v. Honorable Thomas M. COKER, as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 719

383 So.2d 719

Benjamin ROBIDOUX, Petitioner, v.Honorable Thomas M. COKER, as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.

No. 80-197.

District Court of Appeal of Florida, Fourth District.

May 7, 1980.

Rehearing Denied June 11, 1980.

Alan H. Schreiber, Public Defender, and Howard Finklestein and Channing Brackey, Asst. Public Defenders, Fort Lauderdale, for petitioner.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.

ANSTEAD, Judge.

By petition for writ of prohibition the petitioner, Benjamin Robidoux, a juvenile, seeks to prohibit the adult criminal division of the circuit court from exercising jurisdiction with regard to two counts of an indictment which also charged petitioner with an offense punishable by death or life imprisonment in a separate count.

Section 39.02, Florida Statutes(1979) provides that upon indictment on a violation of Florida law punishable by death or life imprisonment, a child shall be tried as an adult.Petitioner was indicted, in three separate counts, for the offenses of armed robbery, attempted murder, and aggravated assault.Only the first count, armed robbery, is a crime punishable by life imprisonment or death.The assigned judge in the criminal division of the circuit court nevertheless denied petitioner's motion to dismiss the other two counts.Petitioner contends that the criminal division lacks jurisdiction over the two charges in question absent a waiver of jurisdiction by the juvenile division.The petitioner is not challenging the court's jurisdiction on the armed robbery charge.

Chapter 39 sets forth a comprehensive procedure for the treatment of offenders below the age of eighteen (18) years.Exclusive original jurisdiction of such offenders is vested in the juvenile division of the circuit court.However, four exceptions allowing for treatment of juveniles as adults are contained in Chapter 39.Under the first exception, a child 14 years of age or older may be certified for trial as an adult by a juvenile judge following a waiver hearing.Section 39.02(5)(a).Secondly, a child may, joined by his parent or guardian, demand to be tried as an adult.Section 39.02(5)(b).Thirdly, a child, if age 16 or 17 at the time of the alleged offense, may also be tried as an adult upon the filing of an information by the state attorney if the child has previously committed two delinquent acts, one a felony under Florida law.Section 39.04(2)(e)(4).Finally, as is the case here, a child of any age charged with a violation of Florida law punishable by death or life imprisonment shall be tried as an adult if an indictment on such charge is returned by the grand jury.Section 39.02(5)(a).

Under Section 39.02(5)(c) a child must be initially charged by a delinquency petition unless charged by indictment with a crime punishable by death or life imprisonment.SeeCollins v. State, 381 So.2d 328(Fla. 5th DCA1980);Johnson v. State, 379 So.2d 704(Fla. 3d DCA1980);Whidden v. State, 374 So.2d 543(Fla. 2d DCA1979); In Interest of S. E. B., 365 So.2d 451(Fla. 1st DCA1978);Ringel v. State, 352 So.2d 88(Fla. 4th DCA1977), aff'd.366 So.2d 758(Fla.1978);E. H. N. v. Willis, 350 So.2d 829(Fla. 1st DCA1977);A. D. T. v. State, 318 So.2d 478(Fla. 1st DCA1975).

In E. H. N. v. Willis, supra, a minor was charged by a single information with two felonies and thereafter charged by a single information with two more felonies.¹At the time the four felonies were committed the minor was serving a sentence based upon a prior felony conviction in the adult division and the four felonies arose from or were closely connected with the incarceration arising out of the prior felony conviction.A motion to dismiss was denied.In holding that the adult division was without jurisdiction, the First District held that Section 39.02(5)(a), the waiver hearing statute, permits the child to be treated as an adult for the sole purpose of dealing with the alleged violation pending in the juvenile division and no other, and that a waiver hearing and certification is necessary for a new criminal charge even though the juvenile division had previously waived jurisdiction as to an earlier criminal charge.

A similar result was reached in A. D. T. v. State, supra.In that case, the juvenile defendant was charged by indictment with one count of disorderly intoxication and three counts of resisting arrest with violence.The First District held that the indictment could not substitute for a petition alleging delinquency.Noting that substitution was permitted only when the child is charged by grand jury indictment with a violation of...