Banks v. State

520 So. 2d 43, 1987 WL 3185
District Court of Appeal of Florida·Decided December 22, 1987·No. BP-378·Published·Cited by 7 cases

Opinion

520 So.2d 43 (1987)

Michiah BANKS, Appellant,
v.
STATE of Florida, Appellee.

No. BP-378.

District Court of Appeal of Florida, First District.

December 22, 1987.
Rehearing Denied March 9, 1988.

*44 Michael E. Allen, Public Defender, Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Gregory Costas, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Judge.

The appellant, Michiah Banks, appeals the trial court's determination, after remand, to impose adult sanctions pursuant to section 39.111(6)(c), Florida Statutes, and its decision to depart from the recommended guideline sentence. We reverse on both issues.

The record in this case indicates that on June 8, 1984, the state "direct filed" a four-count information against the appellant, pursuant to section 39.04(2)(e)4, Florida Statutes, charging him with armed kidnapping, two counts of sexual battery with a deadly weapon, and attempted first-degree murder. Appellant was 17 years old at the time of the charged offenses, and had no prior adjudications of delinquency. On November 19, 1984, appellant entered pleas of guilty to all counts, with the exception of one count of armed sexual battery, and was sentenced to concurrent terms of 40, 40, and 30 years. The recommended guideline sentence was 17-22 years incarceration. The trial court (Judge Moran) entered a written order giving the following six reasons for departure:

1) The victim's testimony at the time of the defendant's sentencing, a copy of which is attached and made a part of these reasons.
2) The defendants had carefully planned this crime and had handcuffed this victim and forced her to participate in sexual activities.
3) The record reflects that after the sexual battery took place these defendants made a conscious decision to kill this victim. They attempted to strangle her and were unsuccessful. They attempted to stab her with a knife only to have the blade break off. They then beat the victim with a tire iron fifteen to twenty times in an effort to kill her. They also discussed, in her presence, tying her to two trees and running over her with an automobile. They further discussed putting *45 her in the trunk of an automobile and throwing her in the river.
4) From her testimony it is evident that the victim is still suffering psychological trauma from this episode.
5) The defendant's record reflects that society has worked with him previously in the Youth Mediation Program and has worked with him in a Community Control Program. Society has further worked with the defendant at University Hospital where he was to receive treatment in the Community Mental Health Center. None of these previous attempts have been successful at changing this defendant's violent behavior and antisocial demeanor.
6) The Presentence Investigation, under educational history, reflects that there were numerous altercations and disruptions of classes by this subject, and that many of these instances involved violence where the subject either struck another individual, or was involved in throwing chairs or other items around the room. The educational history further reflects that while enrolled at Florida Junior College, the defendant once again was involved in violent activity involving a fight in a stairwell and that, after being restrained by a recreational specialist at F.J.C., this defendant broke away and again attacked the other student.

In his first appeal to this court in 1985, appellant argued that the trial court had failed to comply with the requirements of section 39.111(6)(c), (d), Florida Statutes, in determining to impose adult sanctions. The state conceded that the requirements of the statute had not been followed, and this court vacated the trial court's judgment and remanded for resentencing as required by State v. Rhoden, 448 So.2d 1013 (Fla. 1984). The trial court was specifically directed to "consider each of the criteria enumerated in Section 39.111(6)(c), conduct a disposition hearing consonant with the direction of Section 39.111(6)(a), and reduce to writing the findings of fact and the reasons for imposing adult sanctions." Banks v. State, 488 So.2d 161 (Fla. 1st DCA 1986).

On September 19, 1986, the hearing on remand was conducted before Judge Parsons. After hearing argument from both counsel, the trial court entered a written sentence, finding adult sanctions to be suitable, and reimposing the original departure sentence imposed by Judge Moran. Judge Parsons adopted Judge Moran's statement of reasons for departure, and added the following statement: "If any one of the reasons for exceeding the guidelines are invalid, this court would have imposed the same sentence had the invalid reason(s) not been stated." We reverse both the trial court's finding of suitability of adult sanctions, and the sentence departing from the sentencing guidelines.

First, the finding of suitability of adult sanctions still fails to meet the requirements of section 39.111(6)(c), (d), Florida Statutes and, therefore, must be reversed and remanded again. Specifically, the trial court failed to address all six of the criteria listed in subsection (6)(c), as required by this court's earlier opinion, Banks v. State, supra, by the language of section 39.111(6)(d), and by case law requiring consideration of all six criteria. See Christy v. State, 489 So.2d 858 (Fla. 1st DCA 1986); Posey v. State, 501 So.2d 192 (Fla. 5th DCA 1987); Upshaw v. State, 464 So.2d 1355 (Fla. 4th DCA 1985). Further, the trial court's order failed to cite specific reasons for its decision to impose adult sanctions, as required by section 39.111(6)(d), but instead merely restated four of the factors listed in subsection (6)(c). On remand, the trial court is instructed to consider each of the six factors listed in subsection (6)(c), and to "render a specific finding of fact and the reasons for the decision to impose adult sanctions," as required by subsection (6)(d).

Appellant's argument that the state lacked the authority to direct file an information in the instant case and, therefore, that the trial court lacked both personal and subject matter jurisdiction, is without merit. Appellant argued in his initial brief that the state had discretion to file an information in the adult division of the *46 circuit court against a child who was 16 or 17 years old at the time of the offense, only if the child had also been previously found to have committed two delinquent acts, one of which would constitute a felony if committed by an adult. In making this argument, appellant relied upon State v. Cain, 381 So.2d 1361, 1364-1365 (Fla. 1980), which construed section 39.04(2)(e)4, Florida Statutes. Although his argument would have been correct at the time the Cain decision was written, section 39.04(2)(e)4 was amended in 1981 to read as follows:

Upon motion of a child charged with a misdemeanor, 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.

(e.s.) Since appellant was not charged with a misdemeanor, the information was properly filed.

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