MALANDO WRIGHT, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A Florida appellate court granted a petition for ineffective assistance of appellate counsel, finding that appellate counsel failed to raise a preserved error regarding the trial court's erroneous belief that it lacked discretion to impose youthful offender sanctions. The petitioner committed the offense at age 20 but was 21 at sentencing, and the court failed to apply the statutory version in effect at the time of the offense rather than at sentencing.
Appellate counsel was ineffective in failing to raise the preserved error. The trial court erred in determining it lacked discretion to impose youthful offender sanctions because the defendant was entitled to have the law in effect at the time of the offense applied at sentencing, which permitted such sanctions for crimes committed before age 21.
[1] A court must apply the law in effect at the time an offense was committed when determining sentencing options.
[2] A defendant is entitled to have the court consider youthful offender sanctions if the offense was committed before their 21st birthday, even if they are 21 at the time of…
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Join FLexlaw to unlock all legal intelligence“Petitioner was entitled to have the law in effect at the time the offense was committed applied at sentencing.”
Establishes the foundational legal principle that governs which statutory version applies to sentencing decisions.
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Join FLexlaw to unlock all legal intelligencePetitioner Wright was 20 years old when he committed burglary with a firearm and aggravated battery with a firearm. He was convicted after a jury tria…
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We grant this petition alleging ineffective assistance of appellate counsel and remand for a new sentencing hearing at which the court shall consider youthful offender sanctions. Petitioner was convicted after jury trial of burglary with a firearm and aggravated battery with a firearm. The jury found that he discharged a firearm and inflicted great bodily harm. Petitioner admitted his involvement in the offense and that he was present, but maintained that he was not the shooter. Petitioner was twenty years of age at the time of the offense and had no prior criminal record. At the time of sentencing, petitioner was twenty-one years of age.
In 2008, the legislature amended the youthful offender statute. Ch.2008-250, § 7, Laws of Fla. Previously, the statute permitted a court to impose a youthful offender sentence if the crime was “committed before the defendant’s 21st birthday.” § 958.04(l)(b), Fla. Stat. (2007) (emphasis supplied). After the change, the statute permits a court to impose a youthful offender sentence “if the offender is younger than 21 years of age at the time sentence is imposed.” § 958.04(l)(b), Fla. Stat. (2008) (emphasis supplied).
At sentencing, the court indicated that it lacked discretion to sentence petitioner as a youthful offender because he was twenty-one years of age at the time of the sentencing hearing. Defense counsel argued that the court had discretion because the offense was committed when petitioner was under twenty-one years of age. The prosecutor expressed that he did not feel good about the twenty-five year mandatory sentence but that the change in law deprived the court of discretion. The *1146court imposed the twenty-five year mandatory for both counts to run concurrently.
Petitioner was entitled to have the law in effect at the time the offense was committed applied at sentencing. The court erred in determining that it lacked discretion to impose a youthful offender sentence. Urban v. State, 46 So.3d 1113, 1114 (Fla. 5th DCA 2010). Appellate counsel was ineffective in failing to raise this preserved error.
The petition is granted, and the sentence is vacated. The trial court shall hold a new sentencing hearing and consider imposing youthful offender sanctions.
Petition granted. Remanded for resen-tencing.
WARNER, POLEN and TAYLOR, JJ, concur.