*** ANNOTATIONS CURRENT THROUGH MAY 14, 2003 ***

                     TITLE 47.  CRIMINAL PROCEDURE AND CORRECTIONS 

                                            CHAPTER 985.

                    DELINQUENCY; INTERSTATE COMPACT ON JUVENILES

 

                         PART II.  DELINQUENCY CASE PROCESSING

                                                               

                 GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

                                  Fla. Stat. § 985.227  (2002)

 § 985.227.  Prosecution of juveniles as adults by the direct filing of an information in the criminal division of the circuit court; discretionary criteria;
 mandatory criteria


    (1)  DISCRETIONARY DIRECT FILE; CRITERIA.

    (a) With respect to any child who was 14 or 15 years of age at the time the alleged offense was committed, the state attorney may file an
 information when in the state attorney's judgment and discretion the public interest requires that adult sanctions be considered or imposed and when
 the offense charged is for the commission of, attempt to commit, or conspiracy to commit:

       1. Arson;

       2. Sexual battery;

       3. Robbery;

       4. Kidnapping;

       5. Aggravated child abuse;

       6. Aggravated assault;

       7. Aggravated stalking;

       8. Murder;

       9. Manslaughter;

       10. Unlawful throwing, placing, or discharging of a destructive device or bomb;

       11. Armed burglary in violation of s. 810.02(2)(b) or specified burglary of a dwelling or structure in violation of s. 810.02(2)(c), or burglary with
 an assault or battery in violation of s. 810.02(2)(a);

       12. Aggravated battery;

       13. Any lewd or lascivious offense committed upon or in the presence of a person less than 16 years of age;

       14. Carrying, displaying, using, threatening, or attempting to use a weapon or firearm during the commission of a felony;

       15. Grand theft in violation of s. 812.014(2)(a);

       16. Possessing or discharging any weapon or firearm on school property in violation of s. 790.115;

       17. Home invasion robbery;

       18. Carjacking; or

       19. Grand theft of a motor vehicle in violation of s. 812.014(2)(c)6. or grand theft of a motor vehicle valued at $ 20,000 or more in violation of s.
 812.014(2)(b) if the child has a previous adjudication for grand theft of a motor vehicle in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).

    (b) With respect to any child who was 16 or 17 years of age at the time the alleged offense was committed, the state attorney may file an
 information when in the state attorney's judgment and discretion the public interest requires that adult sanctions be considered or imposed.
 However, the state attorney may not file an information on a child charged with a misdemeanor, unless the child has had at least two previous
 adjudications or adjudications withheld for delinquent acts, one of which involved an offense classified as a felony under state law.

 (2)  MANDATORY DIRECT FILE.

    (a) With respect to any child who was 16 or 17 years of age at the time the alleged offense was committed, the state attorney shall file an
 information if the child has been previously adjudicated delinquent for an act classified as a felony, which adjudication was for the commission of,
 attempt to commit, or conspiracy to commit murder, sexual battery, armed or strong-armed robbery, carjacking, home-invasion robbery, aggravated
 battery, or aggravated assault, and the child is currently charged with a second or subsequent violent crime against a person.

    (b) With respect to any child 16 or 17 years of age at the time an offense classified as a forcible felony, as defined in s. 776.08, was committed,
 the state attorney shall file an information if the child has previously been adjudicated delinquent or had adjudication withheld for three acts

 classified as felonies each of which occurred at least 45 days apart from each other. This paragraph does not apply when the state attorney has good
 cause to believe that exceptional circumstances exist which preclude the just prosecution of the juvenile in adult court.

    (c) The state attorney must file an information if a child, regardless of the child's age at the time the alleged offense was committed, is alleged to
 have committed an act that would be a violation of law if the child were an adult, that involves stealing a motor vehicle, including, but not limited to, a
 violation of s. 812.133, relating to carjacking, or s. 812.014(2)(c)6., relating to grand theft of a motor vehicle, and while the child was in possession
 of the stolen motor vehicle the child caused serious bodily injury to or the death of a person who was not involved in the underlying offense. For
 purposes of this section, the driver and all willing passengers in the stolen motor vehicle at the time such serious bodily injury or death is inflicted
 shall also be subject to mandatory transfer to adult court. "Stolen motor vehicle," for the purposes of this section, means a motor vehicle that has
 been the subject of any criminal wrongful taking. For purposes of this section, "willing passengers" means all willing passengers who have
 participated in the underlying offense.

    (d) 1. With respect to any child who was 16 or 17 years of age at the time the alleged offense was committed, the state attorney shall file an
 information if the child has been charged with committing or attempting to commit an offense listed in s. 775.087(2)(a)1.a.-q., and, during the
 commission of or attempt to commit the offense, the child:

          a. Actually possessed a firearm or destructive device, as those terms are defined in s. 790.001.

          b. Discharged a firearm or destructive device, as described in s. 775.087(2)(a)2.

          c. Discharged a firearm or destructive device, as described in s. 775.087(2)(a)3., and, as a result of the discharge, death or great bodily harm
 was inflicted upon any person.

       2. Upon transfer, any child who is:

          a. Charged pursuant to sub-subparagraph 1.a. and who has been previously adjudicated or had adjudication withheld for a forcible felony offense
 or any offense involving a firearm, or who has been previously placed in a residential commitment program, shall be subject to sentencing under s.
 775.087(2)(a), notwithstanding s. 985.233.

          b. Charged pursuant to sub-subparagraph 1.b. or sub-subparagraph 1.c., shall be subject to sentencing under s. 775.087(2)(a),
 notwithstanding s. 985.233.

       3. Upon transfer, any child who is charged pursuant to this paragraph, but who does not meet the requirements specified in subparagraph 2., shall
 be sentenced pursuant to s. 985.233; however, if the court imposes a juvenile sanction, the court must commit the child to a high-risk or
 maximum-risk juvenile facility.

       4. This paragraph shall not apply if the state attorney has good cause to believe that exceptional circumstances exist which preclude the just
 prosecution of the child in adult court.

       5. The Department of Corrections shall make every reasonable effort to ensure that any child 16 or 17 years of age who is convicted and
 sentenced under this paragraph be completely separated such that there is no physical contact with adult offenders in the facility, to the extent that
 it is consistent with chapter 958.

 (3)  EFFECT OF DIRECT FILE.

    (a) Once a child has been transferred for criminal prosecution pursuant to an information and has been found to have committed the presenting
 offense or a lesser included offense, the child shall be handled thereafter in every respect as if an adult for any subsequent violation of state law,
 unless the court imposes juvenile sanctions under s. 985.233.

    (b) When a child is transferred for criminal prosecution as an adult, the court shall immediately transfer and certify to the adult circuit court all
 felony cases pertaining to the child, for prosecution of the child as an adult, which have not yet resulted in a plea of guilty or nolo contendere or in

 which a finding of guilt has not been made. If a child is acquitted of all charged offenses or lesser included offenses contained in the original case
 transferred to adult court, all felony cases that were transferred to adult court as a result of this paragraph shall be subject to the same penalties to
 which such cases would have been subject before being transferred to adult court.

    (c) When a child has been transferred for criminal prosecution as an adult and has been found to have committed a violation of state law, the
 disposition of the case may be made under s. 985.233 and may include the enforcement of any restitution ordered in any juvenile proceeding.

 (4)  DIRECT-FILE POLICIES AND GUIDELINES. --Each state attorney shall develop written policies and guidelines to govern determinations for filing an
 information on a juvenile, to be submitted to the Executive Office of the Governor, the President of the Senate, and the Speaker of the House of
 Representatives not later than January 1 of each year.

 (5) An information filed pursuant to this section may include all charges that are based on the same act, criminal episode, or transaction as the
 primary offenses.

 HISTORY:  s. 35, ch. 97-238; s. 130, ch. 99-3; s. 15, ch. 99-201; s. 1, ch. 99-257; s. 26, ch. 99-284; s. 2, ch. 2000-119; s. 27, ch. 2000-135;
 s. 1, ch. 2000-136; s. 21, ch. 2001-125; s. 4, ch. 2001-185.

 LexisNexis (TM) Notes:
 CASE NOTES
 LAW REVIEWS
  
  
  

 CASE NOTES
      
      
      
      
      
      
  
  
  

      
  
 1. Trial court's denials of State's motions to transfer respondent juveniles to adult court, upon its finding that Fla. Stat. ch. 985.227(3) violated
 constitutional provisions prohibiting ex post facto laws, were quashed by appellate court; the statute was constitutional where the prohibition against
 ex post facto laws did not apply to procedural matters. State v. A.C., 714 So. 2d 617, 1998 Fla. App. LEXIS 9082, 23 Fla. L. Weekly D 1700 (Fla.
 Dist. Ct. App. 4th Dist. 1998), review denied, 725 So. 2d 1106 (Fla. 1998).
  

      
  
 2. Former Fla. Stat. ch. 39.049(2)(e)(4) (now Fla. Stat. ch. 985.227), which gave the prosecutor absolute discretion to charge a 16 or 17-year old
 with a felony and cause those juveniles to be tried as adults, did not violate due process or equal protection provisions of the constitution. Jones v.
 State, 443 So. 2d 434, 1984 Fla. App. LEXIS 11228 (Fla. Dist. Ct. App. 5th Dist. 1984), review denied, 451 So. 2d 849 (Fla. 1984).
  

      
  
 3. Defendants convicted under Chapter 985.277(2)(d)2.b of the Florida Statutes mandates that those defendants could not receive juvenile
 sentences under ch. 985.233, but the sentencing court continues to have discretion to impose a sentence under the Youthful Offender Act, Fla. Stat.
 ch. 958, as youthful offender sentences were adult sanctions. State v. Drury, 829 So. 2d 287, 2002 Fla. App. LEXIS 15130, 27 Fla. L. Weekly D
 2285 (Fla. Dist. Ct. App. 1st Dist. 2002).
  
 4. In certain circumstances, the language in Fla. Stat. ch. 985.227(2)(d)2.b., providing for the sentencing of 16 and 17-year-old juveniles convicted
 as adults under Fla. Stat. ch. 775.087(2)(a), does not prohibit the trial court from imposing a sentence under the Youthful Offender Act, Fla. Stat. ch.
 958, as the legislature did not intend to subject 16 and 17-year-olds to harsher penalties than 18, 19, and 20-year-olds; the more specific Fla.
 Stat. ch. 958.04 controls over the more general Fla. Stat. chs. 985.233 and 985.227(2)(d)2.b. subject to different interpretations, and thus, ch.
 958.04 must be strictly construed in favor of a defendant to permit a youthful offender sentence. State v. Drury, 829 So. 2d 287, 2002 Fla. App.
 LEXIS 15130, 27 Fla. L. Weekly D 2285 (Fla. Dist. Ct. App. 1st Dist. 2002).
  
 5. Fl. Stat. ch. 985.277(2)(d)2.b Statutes mandates that those defendants convicted under that section can not receive juvenile sentences under
 ch. 985.233, but the sentencing court continues to have discretion to impose a sentence under the Youthful Offender Act, Fla. Stat. ch. 958, as

 youthful offender sentences are adult sanctions. State v. Drury, 829 So. 2d 287, 2002 Fla. App. LEXIS 15130, 27 Fla. L. Weekly D 2285 (Fla. Dist.
 Ct. App. 1st Dist. 2002).
  

      
  
 6. Under Fla. Stat. ch. 985.227(3)(b), juvenile cases were properly transferred to the felony division, where the 2 direct-filed adult cases were
 pending; the apparent intent of the statute was to promote efficiency by having all open juvenile cases transferred to the felony division handling the
 direct-filed cases of a defendant. Medina v. State, 732 So. 2d 1153, 1999 Fla. App. LEXIS 4636, 24 Fla. L. Weekly D 938 (Fla. Dist. Ct. App. 3d
 Dist. 1999).
  
 7. Trial court erred in dismissing petition of delinquency on the ground that it was not in the best interests of the child for the case to be prosecuted
 because under former Fla. Stat. ch. 39.04(2)(e) (now Fla. Stat. ch. 985.227), the determination of whether or not to prosecute is a function of the
 state attorney and not of the court. State v. C.C.B., 465 So. 2d 1379, 1985 Fla. App. LEXIS 13218, 10 Fla. L. Weekly 820 (Fla. Dist. Ct. App. 5th
 Dist. 1985).
  
 8. Trial court properly denied juvenile's motion to dismiss a grand jury indictment under former Fla. Stat. ch. 39.02(5)(c) (now Fla. Stat. ch.
 985.225), because the maximum penalty for the crime the juvenile was charged with was life imprisonment, which was sufficient to satisfy the
 requirements for trial of the juvenile as an adult. Ringel v. State, 352 So. 2d 88, 1977 Fla. App. LEXIS 17065 (Fla. Dist. Ct. App. 4th Dist. 1977),
 aff'd, 366 So. 2d 758 (Fla. 1978).
  

      
  
 9. Where defendant had not yet entered a plea on defendant's juvenile cocaine possession charge, defendant essentially waived defendant's juvenile
 case into adult court following defendant's grand theft and felony murder charges in accordance with Fla. Stat. ch. 985.227(3)(b). Nelson v. State,
 757 So. 2d 622, 2000 Fla. App. LEXIS 5826, 25 Fla. L. Weekly D 1182 (Fla. Dist. Ct. App. 3d Dist. 2000), review denied, 780 So. 2d 914 (Fla.
 2001).
  
 10. Fla. Stat. ch. 985.227, which imposes a criminal punishment, must be integrated into those statutes dealing with criminal punishments, including
 those provisions which deal with the prosecution of juveniles as adults, which explain the procedure for the direct filing of an information where the
 child is 16 or 17 and cases in which adult sanctions are appropriate. Sneed v. State, 736 So. 2d 1274, 1999 Fla. App. LEXIS 9848, 24 Fla. L.
 Weekly D 1721 (Fla. Dist. Ct. App. 4th Dist. 1999).
  
 11. Trial court's denials of State's motions to transfer respondent juveniles to adult court, upon its finding that Fla. Stat. ch. 985.227(3) violated
 constitutional provisions prohibiting ex post facto laws, were quashed by appellate court; the statute was constitutional where the prohibition against
 ex post facto laws did not apply to procedural matters. State v. A.C., 714 So. 2d 617, 1998 Fla. App. LEXIS 9082, 23 Fla. L. Weekly D 1700 (Fla.
 Dist. Ct. App. 4th Dist. 1998), review denied, 725 So. 2d 1106 (Fla. 1998).
  
 12. Former Fla. Stat. ch. 39.049(2)(e)(4) (now Fla. Stat. ch. 985.227), which gave the prosecutor absolute discretion to charge a 16 or 17-year old
 with a felony and cause those juveniles to be tried as adults, did not violate due process or equal protection provisions of the constitution. Jones v.
 State, 443 So. 2d 434, 1984 Fla. App. LEXIS 11228 (Fla. Dist. Ct. App. 5th Dist. 1984), review denied, 451 So. 2d 849 (Fla. 1984).
  
 13. 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 former Fla. Stat. ch. 39.04(2)(e) (now Fla. Stat. ch. 985.227), where the juvenile had in the past committed two delinquent acts, one of
 which involved a felony. State v. Cain, 381 So. 2d 1361, 1980 Fla. LEXIS 4182 (Fla. 1980).
  
 14. Former Fla. Stat. ch. 39.04(2) (now Fla. Stat. ch. 985.227) gives the state attorney the discretion to file an information directly against 15 and
 17 year old youths when in his judgment and discretion, the public interest requires that adult sanctions be considered or imposed. Deleveaux v.

 State, 1980 Fla. App. LEXIS 15826 (Fla. Dist. Ct. App. 5th Dist. Mar. 26 1980).
  
 15. In prosecution of 17-year old juvenile for burglary and grand theft, state attorney had the right to file an information in the felony division of the
 trial court pursuant to former Fla. Stat. ch. 39.04(2)(e) (now Fla. Stat. ch. 985.227), without first obtaining a written waiver of transfer of jurisdiction
 from the juvenile court, notwithstanding that petitioner had appeared before the juvenile court. State Ex Rel. Register v. Safer, 368 So. 2d 620, 1979
 Fla. App. LEXIS 14372 (Fla. Dist. Ct. App. 1st Dist. 1979).
  
 16. Trial court properly denied juvenile's motion to dismiss a grand jury indictment under former Fla. Stat. ch. 39.02(5)(c) (now Fla. Stat. ch.
 985.225), because the maximum penalty for the crime the juvenile was charged with was life imprisonment, which was sufficient to satisfy the
 requirements for trial of the juvenile as an adult. Ringel v. State, 352 So. 2d 88, 1977 Fla. App. LEXIS 17065 (Fla. Dist. Ct. App. 4th Dist. 1977),
 aff'd, 366 So. 2d 758 (Fla. 1978).
  

      
  
 17. Under Fla. Stat. ch. 985.227(3)(b), juvenile cases were properly transferred to the felony division, where the 2 direct-filed adult cases were
 pending; the apparent intent of the statute was to promote efficiency by having all open juvenile cases transferred to the felony division handling the
 direct-filed cases of a defendant. Medina v. State, 732 So. 2d 1153, 1999 Fla. App. LEXIS 4636, 24 Fla. L. Weekly D 938 (Fla. Dist. Ct. App. 3d
 Dist. 1999).


  

 LAW REVIEWS
  
 1. 10 J. Law. & Pub. Pol'y 249, ISSUES IN JUVENILE JUSTICE: A Socio-Legal History of Florida's Juvenile Transfer Reforms, Henry George White,
 Charles E. Frazier and Lonn Lanza-Kaduce *, Spring, 1999, Copyright (c) 1999 Florida Journal of Law and Public Policy, Florida Journal of Law and
 Public Policy