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Holmes v. State

District Court of Appeal of Florida, First District
Jun 14, 1994
638 So. 2d 986 (Fla. Dist. Ct. App. 1994)

Summary

holding that the express language of section 958.04, which authorizes the discretion to sentence the appellant as a youthful offender "in lieu of other criminal penalties authorized by law," provides that a 10/20/life reclassification to a life felony does not preclude sentencing as a youthful offender

Summary of this case from Ruth v. State

Opinion

No. 93-2179.

June 14, 1994.

Appeal from the Circuit Court, Duval County, Robert M. Foster, J.

Nancy A. Daniels, Public Defender, Steven A. Been, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for appellee.


In this appeal of a judgment of conviction and sentence for robbery with a firearm, appellant argues that the lower court erred in denying his motion for a judgment of acquittal. We find there was a sufficient evidentiary basis for submission of the question of whether an actual, as opposed to, a toy firearm was used in the commission of this offense. We note that when a party moves for a judgment of acquittal, he admits all facts in evidence adduced and every conclusion favorable to the state reasonably inferable therefrom. Anderson v. State, 504 So.2d 1270 (Fla. 1st DCA 1986). Accordingly, we affirm the denial of the motion for a judgment of acquittal.

We do agree, however, that a remand is necessary. The record reflects that the lower court, after receiving comments by the assistant state attorney, was under the impression that it did not have the option of avoiding the mandatory minimum sentence for use of a firearm, section 775.087(2)(a), Florida Statutes, by sentencing appellant as a youthful offender. The youthful offender sentencing statute itself expressly provides that the sentencing alternatives prescribed therein are "[i]n lieu of other criminal penalties authorized by law. . . ." Section 958.04(2), Florida Statutes (1993). The record is unclear as to whether the lower court would have imposed a youthful offender sentence had the court been aware that this option was available. Accordingly, we vacate the sentence imposed and remand for reconsideration of the sentence. See, Blackmon v. State, 616 So.2d 587 (Fla. 1st DCA 1993). Notwithstanding our remand, we emphasize that the lower court is under no obligation to sentence appellant under the Youthful Offender Act unless the lower court believes such a sentence would be appropriate.

We AFFIRM in part; REVERSE in part, and REMAND.

SMITH, LAWRENCE and BENTON, JJ., concur.


Summaries of

Holmes v. State

District Court of Appeal of Florida, First District
Jun 14, 1994
638 So. 2d 986 (Fla. Dist. Ct. App. 1994)

holding that the express language of section 958.04, which authorizes the discretion to sentence the appellant as a youthful offender "in lieu of other criminal penalties authorized by law," provides that a 10/20/life reclassification to a life felony does not preclude sentencing as a youthful offender

Summary of this case from Ruth v. State

vacating and remanding sentence for consideration of whether to apply youthful offender sentence when trial court erroneously believed such a sentence was not available

Summary of this case from Postell v. State

In Holmes, 638 So.2d at 987, this court found that remand was necessary where the record showed that the trial court was under the impression that it did not have the option of sentencing a defendant under the youthful offender statute where the defendant had used a firearm.

Summary of this case from Bennett v. State
Case details for

Holmes v. State

Case Details

Full title:EUMIR HOLMES, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Jun 14, 1994

Citations

638 So. 2d 986 (Fla. Dist. Ct. App. 1994)

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§ 985.227(2)(d), Fla. Stat. (2000). While this court previously held in Holmes v. State, 638 So.2d 986 (Fla.…