Opinion
Case No. 4D01-180.
Opinion filed July 24, 2002.
Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Hubert R. Lindsey, Judge; L.T. Case No. 99-8820 CFA02.
Valentin Rodriguez, Jr. of Valentin Rodriguez, P.A., West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
The Defendant appeals his sentence and convictions of two aggravated assaults with a firearm and two kidnapings while in possession of a firearm. We affirm the convictions without further comment but reverse the sentence and remand for further proceedings consistent with this opinion.
The trial court sentenced the Defendant concurrently to ten years each on the kidnaping convictions and three years each on the assault convictions. The trial court determined that the kidnaping convictions were life felonies under the 10/20/Life statute; therefore, it did not have the discretion to impose a youthful offender sentence.
The Youthful Offender Act is not available to defendants who are convicted of life felonies. See § 958.04(1)(c), Fla. Stat. (2001). Kidnaping with a firearm is a first-degree felony. See § 787.01(2), Fla. Stat. (2001). However, after enhancement under the 10/20/Life statute, kidnaping with a firearm becomes a life felony. See § 775.087(1)(a), Fla. Stat. (2001).
Although this Court has not addressed a youthful offender sentence under the 10/20/Life statute, we have allowed a youthful offender sentence under other enhancement schemes. See Jones v. State, 588 So.2d 73 (Fla. 4th DCA 1991) (allowing a youthful offender sentence where otherwise a mandatory minimum of three years was required for a conviction of selling drugs within 1,000 feet of a school). We have also recognized that the youthful offender sentence is in lieu of other criminal penalties authorized by law. Porter v. State, 702 So.2d 257, 258 (Fla. 4th DCA 1997).
The Second District, however, has addressed this issue and concluded that a youthful offender sentence can be imposed where the 10/20/Life statute would normally apply. State v. Wooten, 782 So.2d 408 (Fla. 2d DCA 2001). "Since we find that the 10/20/Life statute contains no language to supersede the youthful offender sentence and because prior cases have held that the minimum mandatory sentencing is not applicable when one is sentenced as a youthful offender, we affirm the appellee's sentence."Id. at 409. See also State v. Krasky, 789 So.2d 1005 (Fla. 5th DCA 2001); Darrow v. State, 789 So.2d 552, 553 (Fla. 5th DCA 2001).
We agree and hold that the trial court has the discretion to sentence the Defendant as a youthful offender in alternative to the 10/20/Life enhancement statute. Thus, we remand to the trial court for determination of whether a youthful offender sentence is appropriate in this case.
AFFIRMED IN PART, REVERSED IN PART.
GUNTHER, KLEIN, JJ., and HAWLEY, ROBERT A., Associate Judge, concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.