SAMMIE R. GILLION, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant convicted of third-degree murder had his conviction affirmed on hearsay and jury instruction grounds, but his sentence was vacated and remanded for resentencing because the trial court erroneously denied his youthful offender classification.
The hearsay testimony was admissible as an excited utterance, the third-degree murder instruction was proper, but the trial court erred in denying youthful offender classification which Section 958.04(2) mandates.
[1] Section 958.04(2), Florida Statutes, mandates youthful offender classification when a defendant qualifies, and the trial court lacks discretion to deny such classificatio…
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Join FLexlaw to unlock all legal intelligenceAppellant was indicted for first-degree murder, tried by jury, and convicted of third-degree murder. At sentencing, he requested classification as a y…
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OWEN, WILLIAM C., Jr., (Retired), Associate Judge.
Appellant, indicted for first degree murder, was tried by a jury and convicted of third degree murder. We affirm the judgment on the holding that (1) the hearsay testimony to which appellant objected was admissible as an excited utterance under Section 90.803(2), Florida Statutes (1981), and (2) the instruction on third degree murder, to which appellant made no objection, was mandated by Brown v. State, 206 So. 2d 377 (Fla.1968) and was not error. See Thomas v. State, 406 So. 2d 538 (Fla. 4th DCA 1981).
At the time of sentencing, appellant’s request for classification as a youthful offender was denied. It would appear that in denying the motion the trial court construed Section 958.04(2), Florida Statutes as being directory rather than mandatory in the classification of a defendant as a youthful offender. At that time the trial court did not have the benefit of this court’s opinion in Barnhill v. State, 393 So. 2d 557 (Fla.1980) nor the Supreme Court’s opinion in State v. Goodson, 403 So. 2d 1337 (Fla.1981). On this appeal appellee concedes that appellant appears to qualify for youthful offender classification. His sentence is vacated and this cause remanded for the purpose of the court resentencing appellant in light of the foregoing authorities.
Judgment affirmed; sentence vacated and this cause remanded for resentencing.
HERSEY and GLICKSTEIN, JJ., concur.
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Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Goodson, 403 So. 2d 1337 (Fla. 1981)
- Chatman v. State, 393 So. 2d 557 (Fla. 4th DCA 1980)
- Barnhill v. State, 393 So. 2d 557 (Fla. 4th DCA 1980)
- Thomas v. State, 406 So. 2d 538 (Fla. 4th DCA 1981)