Opinion
No. 91-892.
May 26, 1992.
Appeal from the Circuit Court, Dade County, Arthur Rothenberg, J.
Diaz Batista, Hialeah, for appellant.
Robert A. Butterworth, Atty. Gen., and Roberta G. Mandel, Asst. Atty. Gen., for appellee.
Before BARKDULL, NESBITT and BASKIN, JJ.
The appellant, a minor, seeks review of his conviction as an adult and his sentence to three years in prison and two years community control, following his conviction on two counts of manslaughter.
This case arose out of an automobile-train collision. The appellant, driving with a suspended license, drove past a barricade at a railroad crossing. The collision resulted in the death of both of his passengers. An information was filed charging the appellant with two counts of manslaughter. He was taken to juvenile court where the state, based upon the appellant's past driving record, moved for a waiver of jurisdiction to try the appellant as an adult. After hearing thereon, the juvenile court granted the motion, waived jurisdiction and transferred the case to the criminal division of the circuit court to try the appellant as an adult for the crime of vehicular homicide, a third degree felony. He was then processed as an adult on the charge of two counts of manslaughter, resulting in the convictions and sentences appealed herein.
The appellant contends the criminal division of the circuit court lacked jurisdiction to try the appellant as an adult on the charge of manslaughter, a second degree felony, when the waiver entered by the juvenile court pursuant to Section 39.02(5)(a), Florida Statutes (1989), vested jurisdiction in the circuit court only for the purpose of trying the appellant for the crime of vehicular homicide, a third degree felony.
The state contends that once a case is removed from the juvenile court, that court does not have the authority to tell the state what particular charge to file. The charge of manslaughter includes the lesser included offense of vehicular manslaughter. Finally, because the sentence imposed is less or the same as that for vehicular manslaughter, any error would be harmless. We agree. Brantley v. State, 279 So.2d 290 (Fla. 1973); Section 924.33, Florida Statutes (1991).
Affirmed.
BARKDULL and NESBITT, JJ., concur.
I concur in the result only. The Juvenile Justice Act, chap. 39, sets forth the procedures for trying a juvenile as an adult. Sections 39.02(5)(a)-(c), .04(2)(e)(4), Fla. Stat. (1989). Section 39.04(2)(e)(4) delineates the state attorney's authority to file directly an information in certain cases: the state attorney may "[w]ith respect to any child who at the time of the commission of the alleged crime was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed." Because Roberto Iglesias was 16 years old at the time of the commission of the crime, it was within the state attorney's discretionary authority to file directly in the criminal division an information charging defendant with manslaughter. E.g., Allen v. State, 560 So.2d 1329 (Fla. 5th DCA 1990); Banks v. State, 520 So.2d 43 (Fla. 1st DCA 1987). It is of no moment that the state attorney had previously obtained a waiver of jurisdiction as to an amended petition for delinquency charging defendant with two counts of vehicular homicide. Pursuant to the statutory scheme, the filing of the information charging defendant with manslaughter invoked the jurisdiction of the criminal division obviating the need for waiver by the juvenile division. See Lott v. State, 400 So.2d 10 (Fla. 1981) (where state initially files petition for delinquency prior to filing information waiver of juvenile court jurisdiction unnecessary); Whittington v. State, 543 So.2d 317, 319-320 (Fla. 1st DCA 1989); Dealto v. State, 392 So.2d 61 (Fla. 5th DCA 1981); State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979); see also State v. Cain, 381 So.2d 1361 (Fla. 1980). For these reasons, I would affirm Iglesias' convictions.
Defendant does not contend that the state's filing of the information was barred by any time limitations.