ROMIE CALHOUN, IV, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile charged as an adult with burglary pleaded nolo contendere while reserving the right to appeal the denial of his motion to dismiss. The Fifth District Court of Appeal affirmed, rejecting the appellant's argument that a statute permitting adult prosecution of juveniles unconstitutionally shifted the burden of proof regarding prior delinquent acts.
The statute does not unconstitutionally shift the burden of proof because the determination of which court prosecutes a juvenile is a pre-trial procedural matter, not a substantive element of the crime itself. Since there is no constitutional right to be tried as a juvenile, the burden is properly on the juvenile to justify transfer by demonstrating the requisite lack of prior delinquent acts.
[1] A statute permitting the transfer of a juvenile's prosecution to adult court is a procedural mechanism and does not create a new element of the crime.
[2] A juvenile seeking transfer of prosecution from adult to juvenile court bears the burden of justifying the transfer.
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Join FLexlaw to unlock all legal intelligence“No new element of the crime is created by the statute. The decision regarding which court should prosecute a juvenile has nothing to do with a substantive adjudication; rather, it is only the basis by which adjudication is initiated.”
Establishes the distinction between procedural jurisdiction and substantive elements of the crime at issue
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Join FLexlaw to unlock all legal intelligenceAppellant, a juvenile at the time of the alleged offense, was charged as an adult with burglary of a dwelling. He pleaded nolo contendere while preser…
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ORFINGER, Judge.
Appellant, a juvenile, charged as an adult with burglary of a dwelling, pleaded nolo contendere, reserving the right to appeal the denial of a motion to dismiss the information. We affirm.
Appellant’s contention that section 39.-04(2)(e)(4),1 Florida Statutes (Supp.1978), is unconstitutional has already been determined contrary to his position. State v. Cain, 381 So. 2d 1361 (Fla.1980). Appellant contends, however, that Cain did not address the particular area on which he relies, i. e., that the statute shifts the burden of proof to the child to show that he has not previously been found to have committed two delinquent acts, thus unconstitutionally shifting to him the burden of proof of an element of the crime.
No new element of the crime is created by the statute. The decision regarding which court should prosecute a juvenile has nothing to do with a substantive adjudication; rather, it is only the basis by which adjudication is initiated. State v. Cain, supra.
The statute permits the transfer of the prosecution to the juvenile division upon motion of the child, coupled with a showing that he has not “previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.” Section 39.04(2)(e)4, supra. Clearly, this involves a pre-trial proceeding, and does not involve the prosecution of the crime for which the appellant is now charged. Since there is no common law, inherent, or constitutional right to be tried as a juvenile, State v. Cain, supra, it is incumbent on the juvenile to justify the transfer. Carter v. State, 382 So. 2d 871 (Fla.5th DCA 1980).
The trial court was correct in denying the motion to dismiss, and the judgment of conviction is
AFFIRMED.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur. . “With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, [the State Attorney may] file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to § 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Cain, 381 So. 2d 1361 (Fla. 1980)
- Carter v. State, 382 So. 2d 871 (Fla. 5th DCA 1980)