Kazakoff v. State

642 So. 2d 596, 1994 WL 478548
CourtDistrict Court of Appeal of Florida
DecidedSeptember 7, 1994
Docket93-02681
StatusPublished
Cited by7 cases

This text of 642 So. 2d 596 (Kazakoff v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kazakoff v. State, 642 So. 2d 596, 1994 WL 478548 (Fla. Ct. App. 1994).

Opinion

642 So.2d 596 (1994)

William D. KAZAKOFF, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 93-02681.

District Court of Appeal of Florida, Second District.

September 7, 1994.

*597 Gary A. Urso, New Port Richey, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellee.

EN BANC

LAZZARA, Judge.

William D. Kazakoff, Jr., who was fifteen years of age at the time he committed the crimes that are the subject of this appeal, challenges his judgments and sentences, rendered after a jury trial, for armed burglary, kidnapping, sexual battery, and eleven counts of grand theft. He contends the trial court erred in transferring him as an adult for criminal prosecution, in failing to grant his motion for judgment of acquittal as to the kidnapping and sexual battery charges, and in failing to consider juvenile sanctions before sentencing him as an adult. We have decided to hear this case en banc because of the exceptional importance presented by the transfer issue and to determine whether we should continue to adhere to our prior decisions in this area of the law. Fla.R.App.P. 9.331.

We reject Kazakoff's argument that there was insufficient evidence to sustain his convictions for kidnapping and sexual battery and affirm on this point. See Staten v. State, 519 So.2d 622 (Fla. 1988); Rodriguez v. State, 558 So.2d 211 (Fla. 3d DCA 1990). We conclude, however, that we must reverse Kazakoff's sentences and remand this case for the trial court to make findings as to certain criteria it failed to address in its order transferring Kazakoff for adult prosecution under sections 39.052(2)(c) and (e), Florida Statutes (1991), and thereafter to resentence him in strict compliance with section 39.059(7), Florida Statutes (1991).

The state filed a petition in the juvenile division of the circuit court charging Kazakoff with various criminal offenses arising out of an episode in which he and his three co-defendants, while armed, terrorized two senior citizens and kidnapped and sexually battered their two-year old granddaughter, whom they were babysitting in their son's home.[1] It then filed a motion to transfer him to the criminal division for prosecution as an adult. Following a waiver hearing, the trial court granted the motion and later entered a written order of transfer based on sections 39.052(2)(c) and (e). Kazakoff appealed the transfer order but we dismissed his appeal because an order certifying a juvenile for trial as an adult is not reviewable by interlocutory appeal.[2]R.J.B. v. State, 408 So.2d 1048 (Fla. 1982).

After the entry of the transfer order, the state filed an information against Kazakoff and his co-defendants. Kazakoff was then tried on the information, convicted by a jury after a week-long trial, and later sentenced as an adult. In sentencing Kazakoff, the trial court failed to comply in any respect with the mandatory requirements of section 39.059(7), which governs the procedure that must be followed before imposing adult sanctions on a juvenile. This was fundamental error and compels us to reverse the adult sentences and remand for resentencing in strict compliance with the statute. Troutman v. State, 630 So.2d 528 (Fla. 1993).

As best we can determine from the record, this sentencing deficiency was caused by a misunderstanding of the law. Kazakoff, after he committed the offenses in this case, was convicted and sentenced as an adult in Hillsborough County on unrelated charges. Thus, everyone involved in Kazakoff's sentencing, including his defense counsel, concluded that his prior treatment as an adult obviated the necessity of complying with section 39.059(7). This was an erroneous conclusion pursuant to section 39.022(5)(d), Florida Statutes (1991), which provides in pertinent part as follows:

*598 Once a child has been transferred for criminal prosecution pursuant to a voluntary or an involuntary waiver hearing or information and has been found to have committed the offense for which he is transferred or a lesser included offense, the child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law, ... .

In Robinson v. State, 514 So.2d 1144 (Fla. 1st DCA 1987), the court construed the identical language of this statute's predecessor, section 39.02(5)(d), Florida Statutes (1985), in determining what constitutes a "subsequent violation of Florida law." It observed that "[u]nder the clear language of the statute, it appears that a `subsequent violation' is one which occurs only after: (1) a child has been transferred for criminal prosecution and (2) has been found to have committed the offense." Id. at 1145 (emphasis in original). As noted, Kazakoff's commission of the offenses in this case occurred before he was found to have committed the offenses in Hillsborough County. Thus, the offenses at issue do not constitute "subsequent violations" within the meaning of the statute. Accordingly, the trial court erred by not following section 39.059(7) before sentencing Kazakoff as an adult. Robinson.

The state attempts to justify Kazakoff's adult sentences in two respects. First, it argues he waived the issue of the trial court's failure to consider juvenile sanctions by not objecting below. We must summarily reject this argument on the authority of State v. Rhoden, 448 So.2d 1013 (Fla. 1984).

The state also directs our attention to section 39.022(5)(c)3., Florida Statutes (1991), which provides in part that "[i]f the child is found to have committed the offense punishable by death or by life imprisonment, the child shall be sentenced as an adult." It contends that since Kazakoff was convicted of three offenses punishable by life imprisonment (armed burglary, kidnapping, and sexual battery), he was not entitled to the sentencing benefits of section 39.059(7), citing Tomlinson v. State, 589 So.2d 362 (Fla. 2d DCA 1991), review denied, 599 So.2d 1281 (Fla. 1992). In Tomlinson, we construed the predecessor to this statute, section 39.02(5)(c)3., Florida Statutes (1989), which contained the same language. We held that a juvenile who had been indicted for first degree murder but convicted of the lesser offense of second degree murder, a felony punishable by life, was properly sentenced as an adult without following the procedure of the juvenile sentencing statute.

We reject the state's reliance on the statute and Tomlinson. A plain reading of the entire text of section 39.022(5)(c), as well as the entire text of the statutory section construed in Tomlinson, reveals that these statutes establish specifically enumerated sentencing criteria for juveniles indicted and convicted of offenses punishable by death or life imprisonment. See Duke v. State, 541 So.2d 1170 (Fla. 1989); Boudreau v. State, 546 So.2d 1152 (Fla. 2d DCA 1989). Kazakoff was informed against after a waiver hearing, not indicted, for the offenses he was convicted of committing.

We now address the troubling transfer issue which caused us to consider this case en banc. Kazakoff argues that the trial court's written order transferring him for prosecution as an adult was legally deficient because it did not comply with the statutory requirements of sections 39.052(2)(c) and (e).

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642 So. 2d 596, 1994 WL 478548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kazakoff-v-state-fladistctapp-1994.