State v. Cain

Decision Date27 March 1980
Docket Number57410,Nos. 56528,s. 56528
Citation381 So.2d 1361
PartiesSTATE of Florida, Appellant, v. Mark Randall CAIN, Appellee. Virgil Thomas DUNCAN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Jim Smith, Atty. Gen., for State of Fla. in both cases.

Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant in No. 56528.

Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellee in No. 56528.

Harry W. Carls, III, Public Defender, and Glenn M. Klausman, Asst. Public Defender, Orlando, for appellant in No. 57410.

Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee in No. 57410.

SUNDBERG, Justice.

These consolidated cases present the issue of whether the state may constitutionally vest the state attorney with authority to criminally prosecute a juvenile who is sixteen years of age or older as an adult under subsection 39.04(2)(e)4, Florida Statutes (Supp.1978), when the juvenile has in the past committed two delinquent acts one of which involved an offense classified under Florida law as a felony. Because the trial courts below passed on the constitutional validity of subsection 39.04(2)(e) 4, we have direct appellate jurisdiction under our constitution. Art. V, § 3(b)(1), Fla.Const.

STATE v. CAIN, No. 56,528

Mark R. Cain, a juvenile, was charged by amended information on February 6, 1979, with two counts of armed burglary of a dwelling and with two counts of grand theft. Cain filed a motion to dismiss the information on the ground that the state charged him as an adult pursuant to an unconstitutional statute, subsection 39.04(2)(e)4, Florida Statutes (Supp.1978), which provides:

(e) The state attorney shall in all such cases, after receiving and considering the recommendation of the intake officer, have the right to take action, regardless of the action or lack of action of the intake officer, and shall determine the action which is in the best interest of the public. The state attorney may:

4. With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony(.)

Cain asserted that the statute unconstitutionally delegates to the state attorney the unbridled discretion to prosecute a juvenile as an adult. Cain also maintained that the statute violates due process of law by permitting transfer of the juvenile to adult court jurisdiction without a hearing. The circuit court held the statute unconstitutional and granted Cain's motion to dismiss, resulting in the state's filing this appeal.

DUNCAN v. STATE, No. 57,410

On March 27, 1979, the county sheriff filed a complaint in the juvenile division of the circuit court charging Virgil T. Duncan with petit theft. On April 25, the state attorney filed an information in the county court charging Duncan with the same crime. On Duncan's motion, the county court ordered the transfer of the case to the juvenile division of the circuit court. The state in turn moved to transfer the case back to the county court, alleging that the county court had criminal jurisdiction under subsection 39.04(2)(e) 4, Florida Statutes (Supp.1978), as a result of the filing of an information charging a misdemeanor. The circuit court granted the state's motion and on June 1, 1979, transferred the case to the county court. Duncan then filed a motion to dismiss alleging, among other things, that the statute was an unconstitutional abrogation of procedural due process, a denial of equal protection and an unconstitutional delegation of unbridled discretion to the state attorney to prosecute a juvenile as an adult. The county court denied Duncan's motion to dismiss and held subsection 39.04(2)(e)4 constitutional. Duncan then pleaded nolo contendere and the county court adjudicated him guilty, with sentencing being withheld pending this appeal.

At the outset it should be remembered that the juvenile court system is a fairly recent phenomenon, beginning in this country at the end of the last century and since spreading to every state. There was no common law right to be specially treated as a juvenile delinquent instead of a criminal offender. In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527 (1967). Nor is there any inherent or constitutional right to preferred treatment as a juvenile delinquent. Stokes v. Fair, 581 F.2d 287, 289 (1st Cir. 1978); Woodward v. Wainwright, 556 F.2d 781, 785 (5th Cir. 1977). Under our Florida Constitution, when authorized by law, a "child" as therein defined may be charged with a violation of law as an act of delinquency instead of a crime. Art. I, § 15(b), Fla.Const. Therefore, a child has the right to be treated as a juvenile delinquent only to the extent provided by our legislature. Johnson v. State, 314 So.2d 573 (Fla.1975). With respect to juveniles, the legislature has acted in chapter 39 of the Florida Statutes to temper the traditional prosecutorial prerogative of deciding what criminal offense to bring against whom. Under subsection 39.02(1), Florida Statutes (Supp.1978), the juvenile division of the circuit court is vested with exclusive original jurisdiction over proceedings in which a "child" is alleged to have committed a delinquent act or violation of law other than a traffic offense. 1 The legislature has, however, provided for several exceptions to the juvenile court's otherwise exclusive jurisdiction over juveniles. First, the court may waive juvenile jurisdiction over any child fourteen years of age or older after a waiver hearing in which the criteria listed in section 39.09(2)(c)1-8, Florida Statutes (Supp.1978), are considered. §§ 39.02(5)(a) & 39.01(35), Fla.Stat. (Supp.1978). If the juvenile has been previously adjudicated delinquent for certain serious violent offenses and is currently charged with a second or subsequent such offense, the state attorney is required to move for a transfer of the child for criminal prosecution. § 39.09(2)(a), Fla.Stat. (Supp.1978). Next, a juvenile may be prosecuted as an adult upon the return of a grand jury indictment charging him with a crime punishable by death or life imprisonment. § 39.02(5)(c), Fla.Stat. (Supp.1978). Third, in the exception disputed here, the state attorney may, by filing an information, criminally prosecute a juvenile sixteen years of age or older when in his discretion the public interest requires that adult sanctions be imposed. § 39.04(2)(e)4, Fla.Stat. (Supp.1978). If the child has not previously been found to have committed two delinquent acts, one of which involved an offense classified as a felony under Florida law, the child may move for transfer of the case for adjudication as a juvenile. Id. Finally, a juvenile has a right to be tried as an adult upon written demand joined by a parent or guardian. § 39.02(5)(b), Fla.Stat. (Supp.1978); art. I, § 15(b), Fla.Const.

It cannot be said that the legislature acted arbitrarily in providing for these statutory exceptions to juvenile treatment. The legislature could reasonably conclude based on circumstances such as age, seriousness of the offense and past record that certain juvenile offenders were not suitable candidates for the juvenile act's rehabilitative goals; consequently, the legislature could reasonably classify these offenders as persons against whom adult sanctions would be an alternative. The logical progression of the statutory transfer scheme demonstrates that, far from being arbitrary, the transfer scheme is entirely reasonable. For the most serious felonies (capital and life) charged against a juvenile of any age, transfer is automatic by indictment. § 39.02(5)(c). For a repeating offender sixteen or seventeen years of age with two or more prior delinquent acts, one of which would constitute a felony, transfer is within the prosecutor's discretion by filing an information. § 39.04(2)(e)4. For any offense by a juvenile age fourteen or over, transfer is by motion and only after a hearing before the judge. §§ 39.02(5)(a) & 39.09(2). Thus, as the circumstances supporting transfer become less compelling, the procedures required become more formal. With this background in mind we now turn to the specific arguments of defendants Cain and Duncan.

The myriad due process arguments asserted by Cain and Duncan in their attack on section 39.04(2)(e)4 closely resemble those raised and rejected in Johnson v. State, 314 So.2d 573 (Fla.1975), and Woodward v. Wainwright, 556 F.2d 781 (5th Cir. 1977). These cases upheld the constitutionality of subsection 39.02(5)(c) of the Florida Statutes permitting the criminal prosecution of a juvenile of any age upon the return of a grand jury indictment charging an offense punishable by death or life imprisonment. In Johnson the defendant argued that the statutory provision was defective because it sets no guidelines to assist the state attorney or grand jury in determining which child should be indicted and which should be dealt with as a delinquent. This Court responded to that argument as follows:

In both the adult and juvenile divisions of our court system, the State Attorney is the prosecuting officer. In any particular case he may elect to prosecute or not. The prosecutorial discretion to which the appellant objects is no more than that which is inherent in our system of criminal justice. Its origin is found in the common law of England. Similarly in the Federal system the Federal Courts have consistently held that the discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to...

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