
    Walter C. BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-393.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 1981.
    
      Jerry Hill, Public Defender, Bartow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant appeals from his five-year sentence imposed upon a finding of a probation violation. Appellant, who was sixteen years old at the time, was initially charged by the state attorney on a direct information for burglary. Appellant was represented by the public defender, and as a result of a negotiated plea of guilty, adjudication was withheld and appellant was placed on three years’ probation. One condition of probation was that appellant reside in the county jail for sixty days. Subsequently, an affidavit of probation violation was filed charging appellant with petit theft. Finding that appellant had violated his probation, the trial court revoked the probation, adjudicated appellant guilty and sentenced him to five years in the state prison system.

The basis of this appeal is that the trial court did not follow the procedures set out in section 39.111(6), Florida Statutes (1979), either at the time the initial adult sanction was imposed on appellant or at the time probation was revoked and he was sentenced to the five-year prison term.

The circuit court, criminal division, properly had jurisdiction by reason of the direct information filed against appellant by the state attorney. State v. Cain, 381 So.2d 1361 (Fla.1980). Once the criminal division properly had jurisdiction, any omission by it in complying with statutory directions would not affect jurisdiction. The power to adjudicate includes the authority to rule both correctly and incorrectly. State ex rel. Pearson v. Johnson, 334 So.2d 54 (Fla. 4th DCA 1976). Appellant’s remedy for the court’s failure to follow section 39.111(6) when it imposed the adult sanction, placing him on three years’ probation with sixty days to be served in the county jail, would have been to appeal. State ex rel. Pearson v. Johnson. Failure by appellant to do so waived any error by the court in not following the procedures of section 39.111(6) at that time.

Section 39.02(5)(d) provides as follows:

Once a child has been transferred for criminal prosecution pursuant to a waiver hearing, indictment, or information and has been found to have committed the offense for which he is transferred or a lesser included offense, the child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law.

The court was not required to follow the procedures of section 39.111(6) to revoke the original probation and sentence the appellant as a result of the affidavit charging a probation violation for the commission of a subsequent offense. It is only when the court initially imposes an adult sanction that those procedures are required and appellant’s failure to appeal waived this requirement.

The judgment and sentence of the trial court is, therefore, affirmed.

OTT, J., concurs specially with opinion.

GRIMES, A.C.J., dissents with opinion.

OTT, Judge, specially

concurring.

There is no dispute over the initial question here. When a sixteen or seventeen-year-old juvenile has been directly informed against by the state attorney, before the Adult Division of the Circuit Court can impose any adult sanctions against him the court must consider, and make specific findings of fact regarding, the criteria specified by section 39.111(6), Florida Statutes. State v. Cain, 381 So.2d 1361 (Fla.1980).

But must the court continue to do so again and again, each and every time the juvenile comes before the court for further proceedings arising out of the same charges? In my opinion, once the court has determined that the circumstances of the offense do not warrant juvenile treatment, it is an unwarranted imposition to require the court to reconsider that decision. Will the passage of time somehow change those circumstances? I think not.

The mandate for initial consideration of the factors for determining whether a juvenile should be treated as an adult is a worthwhile procedure conducive to social justice. However, courts are far too busy for eternal afterthoughts and second guessing, whose sole effect could be only the eventual repudiation of the first decision.

When the court below imposed an adult sanction (probation) against appellant without considering the governing criteria, it erred. Appellant should have and could have appealed. But, evidently pleased with the court’s action, he did not bring the error to our attention, nor even to the attention of the erring court below. Knowing full well the conditions of his probation, and the consequences of violating them, he chose to take his chances. I think we should not encourage criminal defendants to look upon a procedural error as a secret ace in the hole, for future use.

GRIMES, Acting Chief Judge,

dissenting.

I doubt that section 39.02(5)(d) eliminates the sentencing requirements of section 39.-111(6) for any child convicted in criminal court, because section 39.02(6), which immediately follows section 39.02(5)(d), states:

(6) When a child has been transferred for criminal prosecution as an adult and the child has been found to have committed a violation of Florida law, the disposition of the case shall be made pursuant to s. 39.111(6).

In any event, section 39.02(5)(d) simply provides that once a child prosecuted in criminal court has been found to have committed an offense, he will thereafter be handled as an adult for any subsequent violation of Florida law. Thus, at the most, because appellant pled guilty in criminal court, he must be treated as an adult for any new violation of Florida law. However, the sentence appellant now challenges was imposed for the original violation. If section 39.-02(5)(d) is applicable at all in the context of this case, it would only come into play if the state files new charges against appellant for the petit theft which was the basis for the revocation of his probation.

Insofar as waiver is concerned, there is no doubt that by failing to appeal the probation order appellant lost the right to complain of the court’s noncompliance with section 39.111 at the time it placed him on probation. Yet, it was not until later that the court sentenced appellant to jail for the original offense, and he has timely appealed from that sentence. The fallacy in saying that he waited too long to complain is that it was only when he was sentenced to jail that he had anything to complain about. Section 39.111 is applicable to sentencing. Its obvious purpose is to require the court to first consider the advisability of sentencing alternatives before incarcerating youthful offenders with hardened criminals. However, appellant has now been jailed without regard to the statute.  