Opinion
No. 76-29.
October 8, 1976.
Appeal from the Circuit Court for Pasco County, Ray E. Ulmer, Jr., J.
Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
Robert E. Jagger, Public Defender, Clearwater, and J. Marion Moorman, Asst. Public Defender, Dade City, for appellee.
Appellant, 23 years of age, was charged with possession of recently stolen property by the state attorney for the Sixth Judicial Circuit. At the arraignment appellant pled not guilty to the charge. After extensive and lengthy inquiry the trial court entered an order determining that appellant had the mentality of a 10-year old and transferring the case to the juvenile division of the circuit court.
Finding no authority, either statutory, rule or case law, to support the ruling, we hold that the trial court's action constitutes reversible error. Under Section 39.02, Florida Statutes, and the Florida Rules of Juvenile Procedure the circuit court has jurisdiction to either treat a person under 18 years of age as a juvenile or transfer the child for criminal prosecution. The statute does not, however, authorize the court to treat a person over 18 years of age as a juvenile.
We fully recognize and appreciate precisely the deep concern of the trial court in this difficult and sensitive matter; however, to affirm this ruling would require this court to legislate which is not the function of the judiciary.
Accordingly, the order appealed is reversed with directions that appellant be tried as an adult.
REVERSED.
BOARDMAN, Acting C.J., GRIMES, J., and SCHWARTZ, ALAN R., Associate Judge, concur.