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Transferring of a Child to Adult Court

Florida law provides three different methods of transferring a child from juvenile court to adult court for prosecution including:

  • direct filing an information;
  • judicial waiver; or
  • indictment by a grand jury.

If your minor child is being charged in adult court with a criminal offense, then contact an experienced attorney who understands the procedures in both the juvenile justice system and in adult court.

Call the juvenile defense attorneys in Tampa, FL, at Sammis Law Firm, P.A., today for a free consultation to discuss the case at 813-250-0500.


Direct File

A direct file is when a state attorney files an information charging a child in adult court. Under s. 985.557, F.S., the direct file can either be discretionary or mandatory. 

The most widely used method of transferring juvenile cases to adult court are direct file which account for nearly 98 percent of the transfers each year. See 2016 Bill Analysis for SB 314 (2016), Department of Juvenile Justice, (September 28, 2015) (on file with the Senate Criminal Justice Committee).


Discretionary Direct File

Section 985.557(1), F.S., provides the state attorney with the discretion to file a case in adult court for certain types of juvenile cases when he or she believes the offense requires that adult sanctions be considered or imposed.

Under the rules for a discretionary directory file when the state attorney may file an information in adult court, the following requirements apply including that the child must be:

  • 14 or 15 years of age and is charged with one of the following felony offenses:
    • Murder;
    • Manslaughter;
    • Sexual battery;
    • Robbery;
    • Aggravated assault;
    • Aggravated child abuse;
    • Arson;
    • Kidnapping;
    • Unlawful throwing, placing, or discharging of a destructive device or bomb;
    • Aggravated battery;
    • Carrying, displaying, using, threatening, or attempting to use a weapon or firearm during the commission of a felony;
    • Possessing or discharging any weapon or firearm on school property in violation of s. 790.115, F.S.;
    • Home invasion robbery;
    • Aggravated stalking;
    • Carjacking;
    • Any lewd or lascivious offense committed upon or in the presence of a person less than 16;
    • Burglary with an assault or battery in violation of s. 810.02(2)(a), F.S.;
    • Specified burglary of a dwelling or structure in violation of s. 810.02(2)(c), F.S.;
    • Armed burglary in violation of s. 810.02(2)(b), F.S.;
    • Grand theft in violation of s. 812.014(2)(a), F.S.;
    • Grand theft of a motor vehicle in violation of s. 812.014(2)(c)6., F.S.; or
    • Grand theft of a motor vehicle valued at $20,000 or more in violation of s. 812.014(2)(b), F.S., if the child has a previous adjudication for grand theft of a motor vehicle in violation of s. 812.014(2)(c)6. or (2)(b), F.S.
  • 16 or 17 years of age and is charged with any felony offense; or
  • 16 or 17 years of age and is charged with any misdemeanor, provided the child has had at least two previous adjudications or adjudications withheld for delinquent acts, one of which is a felony.

Under Sections 985.565(4)(a)2. and (b), F.S., if a child transferred to adult court by discretionary direct file is found to have committed the offense or a lesser included offense, the court may sentence the child as an adult, a youthful offender, or a juvenile.


Mandatory Direct File

Section 985.557(2), F.S., requires the state attorney to file a case in adult court when the child is:

  • 16 or 17 years of age at the time of the alleged offense:
  • Is charged with a second or subsequent violent crime against a person and has been previously adjudicated delinquent for an enumerated felony including: 
    • murder;
    • sexual battery;
    • armed or strong-armed robbery;
    • carjacking;
    • home-invasion robbery;
    • aggravated battery; or
    • aggravated assault. 
  • Has been previously adjudicated delinquent or had adjudication withheld for three felonies that each occurred at least 45 days apart from each other and is charged with a forcible felony including:
    • treason;
    • murder;
    • manslaughter;
    • sexual battery;
    • carjacking;
    • home-invasion robbery;
    • robbery;
    • burglary;
    • arson;
    • kidnapping;
    • aggravated assault;
    • aggravated battery;
    • aggravated stalking;
    • aircraft piracy;
    • unlawful throwing, placing, or discharging of a destructive device or bomb; and
    • any other felony which involves the use or threat of physical force or violence against any individual.
  • Is charged with committing or attempting to commit an offense listed in s. 775.087(2)(a)1.a.-p., F.S.,21 and during the commission of the offense the child actually possessed or discharged a firearm or destructive device; or
  • Any age and is alleged to have committed an act that involves stealing a vehicle in which the child, while possessing the vehicle, caused serious bodily injury or death to a person who was not involved in the underlying offense.

The court has the discretion to sentence a child transferred to adult court by mandatory direct file as an adult, a youthful offender, or a juvenile if:

  • The child was 16 or 17 years old at the time of the offense, the charged offense is listed in s. 775.087(2)(a)1.a.-p., F.S., and during the commission of the offense the child actually possessed or discharged a firearm or destructive device; or
  • The charged offense involves stealing a vehicle in which the child, while possessing the vehicle, caused serious bodily injury or death to a person who was not involved in the underlying offense.23

However, the court must impose adult sanctions for a child transferred to adult court by mandatory direct file who was 16 or 17 years old at the time of the offense and:

  • Is charged with committing a second or subsequent violent crime against a person and has been previously adjudicated delinquent for an enumerated felony; or
  • Is charged with committing a forcible felony and has been previously adjudicated delinquent or had adjudication withheld for three felonies that each occurred at least 45 days apart from each other.

Section 985.557(2)(b), F.S., provides that this provision does not apply when the state attorney has good cause to believe that exceptional circumstances exist which preclude the just prosecution of the child in adult court.


Judicial Waiver in Florida

The judicial waiver process allows juvenile courts in Florida to waive jurisdiction to adult court depending on the facts of the case. Section 985.556, F.S., provides for three different types of judicial waivers:

  • Voluntary Waiver – the child requests to have his or her case transferred to adult court under Section 985.556(1), F.S.; 
  • Involuntary Discretionary Waiver – the state attorney may file a motion requesting the court to transfer any case where the child is 14 years of age or older under Section 985.556(2), F.S.; and
  • Involuntary Mandatory Waiver – the state attorney must request the transfer of a child 14 years of age or older if the child:
    • The child is currently charged with a second or subsequent violent crime against a person and has previously been adjudicated delinquent for an enumerated felony which includes: 
      • murder;
      • sexual battery;
      • armed or strong-armed robbery;
      • carjacking;
      • home-invasion robbery;
      • aggravated battery;
      • aggravated assault; or
      • burglary with an assault or battery.

OR

    • Was 14 years of age or older at the time of commission of a fourth or subsequent felony offense and was previously adjudicated delinquent or had adjudication withheld for three felony offenses, one or more of which involved the use or possession of a firearm or violence against a person as explained in Section 985.556(3), F.S.

Hearings to Determine Whether a Transfer Should Occur

If the state attorney files a motion to transfer a child to adult court, the court must hold a hearing determining whether the child should be transferred under Section 985.556(4), F.S. The court must consider a variety of factors in determining whether the transfer from juvenile court to adult court is appropriate.

Those factors listed in Section 985.556(4)(c), F.S., include:

  • the seriousness of the offense;
  • the sophistication and maturity of the child;
  • the record and previous history of the child; and
  • whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

Under Section 985.556(4)(e), F.S., the court must provide an order specifying the reasons for its decision to impose adult sanctions.

If a child is transferred to adult court by a voluntary wavier or involuntary discretionary waiver and is found to have committed the offense or a lesser included offense, the court may sentence the child as an adult, a youthful offender, or a juvenile as provided in Section 985.565(4)(a)2., F.S. If the transfer was by an involuntary mandatory waiver, the court must impose adult sanctions as required by Section 985.565(4)(a)3., F.S.


Indictment

Section 985.56, F.S., specifies that a child of any age who is charged with an offense punishable by death or life imprisonment is subject to the jurisdiction of the juvenile courts unless and until an indictment by a grand jury.

If the grand jury returns an indictment on the charge, the child’s case must be transferred to adult court as required by Section 985.56(1), F.S.

If the child is found to have committed the offense punishable by death or life imprisonment, the court must sentence the child as an adult as provided in Section 985.565(4)(a)1., F.S.

If the child is instead found to have committed a lesser included offense or any other offense for which he or she was indicted as part of the criminal episode, the court may sentence the child as an adult, a youthful offender, or a juvenile. See Section 985.565(4)(a)1.a.-c., F.S. 13 2016 Bill Analysis for SB 314 (2016), Department of Juvenile Justice, (September 28, 2015) (on file with the Senate Criminal Justice Committee).


Imposing Adult or Juvenile Sanctions

Judges often have wide discretion to impose adult or juvenile sanctions when a child is transferred to adult court and found to have committed an offense. In determining whether adult or juvenile sanctions are appropriate the judge must consider the following factors:

  • The seriousness of the offense to the community and whether the community would best be protected by juvenile or adult sanctions;
  • Whether the offense was committed in an aggressive, violent, premeditated, or willful manner;
  • Whether the offense was against persons or against property with greater weight is given to offenses against persons, especially if personal injury resulted; 
  • The sophistication and maturity of the offender;
  • The record and previous history of the offender including:
    • Previous contacts with the Department of Corrections (DOC), the Department of Juvenile Justice (DJJ), the former Department of Health and Rehabilitative Services (HRS), the Department of Children and Families (DCF), law enforcement agencies, and the courts;
    • Prior periods of probation;
    • Prior adjudications that the offender committed a delinquent act or violation of law as a child;
    • Prior commitments to the DJJ, the former HRS, the DCF, or other facilities or institutions;
    • The prospects for adequate protection of the public and the likelihood of deterrence and reasonable rehabilitation of the offender if assigned to the DJJ services and facilities;
    • Whether the DJJ has appropriate programs, facilities, and services immediately available; and
    •  Whether adult sanctions would provide more appropriate punishment and deterrence to further violations of law than juvenile sanctions under Section 985.565(1)(b), F.S.

Requirements if Juvenile Sanctions are Imposed

If juvenile sanctions are imposed, the court must adjudge the child to have committed a delinquent act. Under Section 985.565(4)(b), F.S., adjudication of delinquency is not deemed a conviction, nor does it operate to impose any of the civil disabilities ordinarily resulting from a conviction. The court may also do one of the following:

  • Place the child on probation with the DJJ for an indeterminate period of time until he or she reaches the age of 19 years or sooner if discharged by order of the court;
  • Commit the child to the DJJ for treatment in an appropriate program for an indeterminate period of time until he or she reaches 21 years of age or sooner if discharged by the DJJ as long as the DJJ notifies the court of its intent to discharge the child from the commitment program no later than 14 days prior to discharge with the failure of the court to timely respond to the department’s notice shall be considered approval for discharge.
  • Order, if the court determines not to impose youthful offender or adult sanctions, any of the following:
    • Probation and post-commitment probation or community service under s. 985.435, F.S.;
    • Restitution under s. 985.437, F.S.;
    • Violation of probation or post-commitment probation under s. 985.439, F.S.;
    • Commitment under s. 985.441, F.S.;
    • Work program liability and remuneration under s. 985.45, F.S.; and
    • Other dispositional issues under s. 985.455, F.S. 29 If the court imposes a juvenile sanction and the DJJ determines that the sanction is unsuitable for the child, the DJJ must return custody of the child to the sentencing court for further proceedings, including the imposition of adult sanctions.

Any sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or list the criteria used as any basis for its decision to impose adult sanctions. Under Florida law, the court may not sentence a child to a combination of adult and juvenile sanctions.


Effect of Transferring a Child to Adult Court

If a child transferred to adult court is found to have committed the offense or a lesser included offense, the child must have any subsequent violations of law handled in adult court.

Under Sections 985.556(5), 985.56(4), and 985.557(3), F.S., this provision does not apply if the adult court imposes juvenile sanctions under s. 985.565, F.S. 

Under Sections 985.556(5), 985.56(4), and 985.557(3), F.S., the court must also immediately transfer and certify all unresolved felony cases pertaining to the child to adult court for prosecution. Unresolved cases include those which have not yet resulted in a plea of guilty or nolo contendere or in which a finding of guilt has not yet been made.

If the child is acquitted of all charged offenses (or lesser included offenses) contained in the original direct filed case, all felony cases transferred to adult court as a result of the direct file case must be subject to juvenile sanctions.


This article was last updated on Tuesday, March 21, 2017.