Under Section 985.565, a child who is found to have perpetrated a Miami juvenile crime can be committed to the Juvenile Justice Department for treatment in an appropriate program or be put on juvenile probation as an alternative to going through adult court. Section 985.565(3) requires a pre-sentence investigation report to include a comments section prepared by the Department of Juvenile Justice, recommending whether it thinks the defendant is suitable for disposition as a juvenile or an adult. In a recent Florida appellate decision, the appellant challenged his sentence on the basis that his pre-sentence investigation report didn’t go into the Department of Juvenile Justice System’s recommendations.
The defendant, when he was 17, had been charged with lewd and lascivious battery. The prosecutor used its discretion under Florida Statute section 985.557(1)(b). and filed charges against the appellant as an adult. While the case was pending, he was charged with two counts of grand theft.
The defendant pled to the charges. The pre-sentence investigation report was prepared. He didn’t object to the information specified in that report at sentencing. Rather he disagreed and told the court that it looked like the person who prepared the report hadn’t spoken to the state attorney, the public defender or the victim. The prosecutor asked for 12 years. The defense attorney argued for a youthful offender sentence that would last a year in jail with probation to follow. The defense attorney didn’t mention juvenile sentencing.
The court gave the defendant, 20-years-old at time of sentencing, the lowest possible sentence on the lewd and lascivious batter, a second-degree felony. This sentence was to run concurrently with the grand theft charges. The defendant appealed. He moved under Florida Rule of Criminal Procedure 3.800(b) to attack his sentence for failure of the pre-sentence investigation report to include the Department of Juvenile Justice report’s recommendations as mandated by section 985.565(3)(a). The prosecutor objected, arguing there had been a waiver.
The appellate court explained that the court can sentence a child who is transferred for prosecution according to information as an adult. It is supposed to receive a presentence report with recommendations, but the offender can waive this requirement. In this case, the juvenile had failed to object at sentencing, but had objected to other matters.
The appellate court found that failing to include this recommendation was an error in the process of sentencing, not a sentence error, and so it was appropriately preserved. It found that even if the issue had been preserved, leaving out those comments would be considered harmless beyond a reasonable doubt because the offender was an adult by the time he was sentenced. He had aged out of the juvenile justice system.
Comments are given by the Department of Juvenile Justice to provide information about various statutory criteria that the court is supposed to consider when it sentences a defendant as a juvenile. These factors to be considered include reasonable rehabilitation and prior commitments to the Department of Juvenile Justice, as well as whether the Department has appropriate services, facilities and programs available right away.
For the foregoing reasons, we affirm appellant’s conviction and sentence.
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