90,279 Keith Brennan v. State of Florida (Revised Opinion)

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State: Florida

Court: Supreme Court

Docket No: 90279b

Case Date: 10/21/1999

Plaintiff: 90,279 Keith Brennan

Defendant: State of Florida (Revised Opinion)

Preview:Supreme Court of Florida
No. 90,279
KEITH BRENNAN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
REVISED OPINION
[July 8, 1999]
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the
death penalty upon Keith Brennan, who was sixteen years old at the time of the
crime. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida
Constitution.   For the reasons expressed below, we affirm the conviction and
sentences imposed upon Brennan, with the exception that the death penalty is
vacated and his sentence reduced to life imprisonment without the possibility of

parole.   We have affirmed the conviction and death sentence for Brennan's
codefendant, Joshua Nelson.   See Nelson v. State, 24 Fla. L. Weekly S250 (Fla.
May 27, 1999).
I.   FACTS
The evidence presented at trial, viewed in the light most favorable to the
State, established the following facts.   Brennan, age sixteen, and Nelson, age
eighteen, wanted to leave Cape Coral and travel to Fort Lauderdale.   The two
devised a plan to steal Tommy Owens' car.   On March 10, 1995, Brennan and
Nelson lured Owens out of his car and Nelson hit Owens with a baseball bat.   After
a number of hits, Owens eventually fell to the ground.   Brennan attempted to slice
Owens' throat with a box cutter.   Brennan and Nelson also continued to strike
Owens a number of times with the bat.   The two eventually dragged Owens' body
to nearby bushes where Owens later died.
Brennan and Nelson picked up Tina and Misty Porth, and the four left Cape
Coral in Owens' car.   After stopping in Daytona Beach, the four proceeded to leave
the state, eventually ending up in New Jersey.   At different times during the trip,
Brennan and Nelson informed Tina and Misty that they had murdered Owens.   Tina
and Misty both testified at trial.
Brennan and Nelson were apprehended in New Jersey.   Brennan was
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charged with first-degree premeditated murder, first-degree felony murder, and
robbery with a deadly weapon.   Brennan gave a taped confession of his account of
the murder, in which he admitted his involvement in the murder but denied that
there had been any prior plan to kill Owens.   The taped confession was played to
the jury. Brennan was found guilty on all three counts.
At the time of the crime, Brennan was a sophomore in high school. He had
no significant history of prior criminal activity, and his juvenile records showed
only prior crimes against property.   His codefendant was eighteen.   Professionals
who treated Brennan and his family members described him as a follower.
During the penalty phase, Brennan presented evidence that he was two years
of age when his mother committed suicide.   Prior to her death, his mother was
confined to a mental institution and suffered from severe mental depression.   When
Brennan was approximately eight years of age, he was sexually abused by an older
brother for a period of six months.   He was small in stature, suffered from a speech
impediment, and was often "picked on" by others.   In 1993, he received inpatient
treatment for drug and alcohol addiction.   Brennan had been using LSD the night
before the homicide.
After hearing all the evidence, the jury recommended death by a vote of
eight to four.   The trial judge found four aggravators: (1) the capital felony was
3

committed in the course of a robbery; (2) the capital felony was especially heinous,
atrocious, or cruel (HAC); (3) the capital felony was committed in a cold,
calculated, and premeditated manner without any pretense of legal or moral
justification (CCP);1 and (4) the capital felony was committed for the purpose of
avoiding arrest.   The judge also considered six statutory mitigators and twenty-five
nonstatutory mitigators.   The statutory mitigator of age (sixteen) was given great
weight and the statutory mitigator of no significant criminal history was given
moderate weight.   The judge concluded that Brennan had failed to establish the
statutory mitigators of (1) extreme emotional disturbance, (2) accomplice with
minor participation, (3) acting under the domination of another person, and (4)
limited capacity to appreciate the criminality of his conduct.   The trial judge
weighed each of the nonstatutory mitigators that were established.2
1Although finding that the murder was cold and calculated, the trial court found and gave
“some weight” to the fact that victim had committed sexual battery on Brennan’s girlfriend, thus
evidencing “emotional reasons” for the crime.
2 The following nonstatutory mitigators were presented during the penalty phase (weight
assigned to each in parentheses):                                                                         (1) Brennan offered to plead to the charges in return for a life
sentence (some weight), (2) proportionality (some weight), (3) Brennan's mother committed
suicide when he was two years old (little weight), (4) positive personality traits, rehabilitation
potential (not established), (5) relative involvement (little weight), (6) character as testified to by
members of his family (not established), (7) drug abuse problems (moderate weight), (8) sexually
abused as a child by his older brother (little weight), (9) difficult childhood (little weight), (10)
Brennan's behavior at trial was acceptable (some weight), (11) dysfunctional family (little
weight), (12) gave a voluntary statement following arrest (some weight), (13) using LSD the night
before the homicide was committed (moderate weight), (14) apprehension, perceived his own
demise at the hands of Nelson if he did not follow his instructions (little weight), (15) completed
4

While giving significant weight to Brennan’s young age and moderate
weight to his lack of significant criminal history, the trial court concluded that
Brennan had “nonetheless wielded a baseball bat and box cutter to murder another
young man.”  In the end, the trial court followed the jury's recommendation and
imposed the death penalty for the first-degree murder charge.   The trial judge
sentenced Brennan to 160 months imprisonment on the robbery charge.   Brennan
now appeals, raising fourteen guilt and penalty phase issues.
II.   GUILT PHASE ISSUES
Brennan raises five guilt phase issues:                                                               (1) the trial court improperly
permitted the testimony of a critical witness who was incapacitated; (2) the trial
court erred by giving the State advice on trial strategy; (3) the trial court erred in
permitting the State to utilize a substitute medical examiner to introduce evidence;
(4) the trial court violated Brennan's right to confrontation by admitting a
nontestifying codefendant's out-of-court statement; and (5) the trial court erred by
Southwest Florida Addiction Services program (not established), (16) influence of the older
Nelson in the offense (little weight), (17) alcohol abuse (moderate weight), (18) not known, prior
to this case, to be a violent person (some weight), (19) personality disorder (some weight), (20)
childhood trauma (little weight), (21) psychological stress (some weight), (22) questions
regarding roles of Brennan and Nelson (little weight), (23) above average intelligence (not
established), (24) step-mother testified he was a good son (little weight), (25) victim had
committed sexual battery on the girlfriend of Brennan, Tina Porth (some weight), (26) lack of
childhood development, small in stature, taken advantage by others (little weight), (27) emotional
reasons for crime rather than cold calculation (some weight), (28) very young, sixteen years of age
at time of killing (some weight), and (29) was a follower rather than a leader (little weight).
5

failing to properly determine the admissibility of testimony by the State's DNA
expert.
In the first and second guilt phase issues, Brennan asserts that the trial court
erred in admitting the testimony of a witness who was incapacitated and by giving
the State advice on trial strategy regarding this witness.   Dr. William Ross Maples,
a forensic anthropologist, was called by the State to testify in order to establish that
the dental remains found at the crime scene matched Owens' dental records.   At the
time of the trial, Dr. Maples had been diagnosed with terminal brain cancer.   This
condition occasionally affected his ability to recall information.   Dr. Maples had
testified normally months earlier in the Nelson trial; however, during Brennan's
trial, Dr. Maples misidentified the dental records in question as belonging to
Brennan.   As a result, the State requested a recess to discuss Dr. Maples' condition
with the court.
The parties met with the trial court to discuss how the examination of Dr.
Maples should proceed in light of his condition.   During the discussion, the trial
court acknowledged that Dr. Maples was "definitely incapacitated."   Counsel for
Brennan also stated that Dr. Maples "may be incompetent to testify."   The parties
discussed the possibility of introducing Dr. Maples' testimony from the previous
Nelson trial or his deposition in this case.   Counsel for Brennan pointed out that
6

Brennan was not a party to the Nelson trial and that there was inadmissible
testimony in Dr. Maples' deposition.   The trial court and both parties agreed that it
would be best for the State to continue questioning Dr. Maples.   Thereafter, the
trial court stated:
THE COURT: I think you're [the State] gonna have to ask him about
that, you know, you identified this x-ray as Keith Brennan, you know,
without letting him know.   You know, is that correct, I mean, is this x-
ray of Keith Brennan, and see what he says. . .                                            . On the other hand, if
you [the State] can say something, you have some physical difficulties
now . . .
After the recess, Dr. Maples identified the dental records as belonging to Owens
without objection.
Brennan now asserts that it was error for the trial court to permit Dr. Maples
to testify because he was incapacitated.   Further, Brennan alleges that the trial court
erred by giving the State advice on how to proceed in questioning Dr. Maples.   We
find that these issues were not preserved for appeal as Brennan’s counsel both
agreed to the procedure followed by the trial court and failed to make
contemporaneous objections at trial either to the trial court's comments or to Dr.
Maples' testimony.   See generally J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)
(stating that except in cases involving fundamental errors, "to raise an error on
appeal, a contemporaneous objection must be made at the trial level when the
7

alleged error occurred").
In his third issue, Brennan alleges that the trial court erred in permitting Dr.
Carol Huser, a medical examiner who had not performed Owens' autopsy, to testify
as to Owens' cause of death.   Whether a witness is qualified to express an expert
opinion is a matter within the discretion of the trial judge, and this ruling will not
be reversed absent a clear showing of error.   See   Ramirez v. State, 542 So. 2d 352,
355 (Fla. 1989).   We find this case to be similar to Geralds v. State, 674 So. 2d 96,
100 (Fla. 1996), where this Court held that the trial judge did not err in permitting a
medical expert to testify as to the victim's cause of death, despite the fact that the
expert did not perform the autopsy.   In that case, we focused on the fact that the
substitute examiner developed independent conclusions using objective evidence.
See id.   In the present case, Dr. Huser testified that in reaching her conclusions she
reviewed, among other things, the autopsy report, a report by Dr. Maples,
depositions, photographs, and dental records.   Therefore, because Dr. Huser made
independent conclusions using objective evidence, we find that the trial court did
not abuse its discretion in permitting her to testify.
Brennan also claims error regarding the authenticity of the documents upon
which Dr. Huser relied.   However, this claim is not preserved for appellate review
as no objection was raised at trial regarding the authenticity of the documents. See
8

generally J.B., 705 So. 2d at 1378.
In issue four, Brennan asserts that the trial court violated his right to
confrontation by admitting statements codefendant Joshua Nelson made to other
witnesses in Brennan's presence.   During trial, Misty Porth testified that "they,"
meaning Nelson and Brennan, said "don't worry about it" when she questioned
them regarding Owens' whereabouts on the night of the murder and that Brennan
himself later admitted that he committed the murder.   She also testified that on
another occasion, when she and her sister questioned Nelson about the details of
the crime, Nelson refused to answer until Brennan was present, and when Brennan
joined them, they all four discussed the crime.
We discussed this issue in Nelson v. State, 24 Fla. L. Weekly S250 (Fla. May
27, 1999), where Nelson claimed that the trial court erred in admitting against him
statements attributed to Brennan.   As we explained, Brennan's silence in the face of
Nelson's statements regarding their involvement in the murder amounts to an
admission by acquiescence.   See Nelson; Farina v. State, 679 So. 2d 1151, 1157
(Fla. 1996), receded from on other grounds by Franqui v. State, 699 So. 2d 1312,
1320 (Fla. 1997); Privett v. State, 417 So. 2d 805, 806-07 (Fla. 5th DCA 1982).
Thus, the statements were properly admitted against Brennan.   In addition, we note
that Brennan himself made many of the inculpatory statements that were
9

introduced against him.
In issue five, Brennan claims that the trial court erred by failing to properly
determine the admissibility of testimony by the State's DNA expert.   The identical
issue was also discussed in depth in Nelson, wherein we explained that the trial
court erred in admitting this testimony under Frye v. United States, 293 F. 1013,
1014 (D.C. Cir. 1923), without first establishing that the expert's source for
calculation was generally accepted in the scientific community.   However, we
explained that the error was not reversible, in light of the fact that the error was
helpful to Nelson and in light of the overwhelming evidence of guilt.    That
analysis applies equally in this case.   Brennan never denied his involvement in the
murder of Owens.   Therefore, we find no reversible error on this point.
Based on the foregoing, we find no reversible error as to the guilt phase
issues.   Further, after reviewing all of the evidence in the record, we find that there
is competent, substantial evidence to support Brennan's convictions of first-degree
premeditated murder, first-degree felony murder, and robbery with a deadly
weapon.    We turn next to the penalty phase issues.
10

III.   PENALTY PHASE ISSUES
Although Brennan raises nine penalty phase issues,3 one penalty phase issue
is dispositive.   For the reasons that follow, we conclude that the imposition of the
death sentence on Brennan, for a crime committed when he was sixteen years of
age, constitutes cruel or unusual punishment in violation of article I, section 17 of
the Florida Constitution.4   In reaching this conclusion, we are guided by our
decision in Allen v. State, 636 So. 2d 494 (Fla. 1994).
In Allen, this Court found the death penalty to be unconstitutional under
3
(1) the trial court erred by giving a vague jury instruction on HAC; (2) the trial court
permitted the State to introduce evidence at the Spencer hearing in violation of discovery
principles; (3) the trial court erred by weighing HAC; (4) the trial court determined that HAC
existed through a process of improper doubling; (5) the trial court erred by weighing CCP; (6) the
trial court erred by weighing the avoidance of arrest aggravator; (7) the court erred by weighing
the during the commission of a robbery aggravator; (8) it is cruel and unusual punishment to
impose the death penalty on a sixteen-year-old; and (9) the death penalty is disproportionate.
4In its motion for rehearing, the State contends for the first time in this appeal that this
Court must construe article I, section 17 consistent with the amendment to that section approved
on November 3, 1998.  That amendment changes the language of the constitutional prohibition
from "cruel or unusual" to "cruel and unusual," mandates that this prohibition "shall be construed
in conformity with the United States Supreme Court" precedent and provides that the section
applies retroactively.   Motions for rehearing may only be used to apprise a court of "the points of
law or fact that the court has overlooked or misapprehended."  Fla. R. App. P. 9.330(a).  This
argument is an entirely new issue neither raised nor briefed on appeal.  See Polyglycoat Corp. v.
Hirsh Distributors Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983).  Further, this Court is presently
considering the validity of this amendment in Armstrong v. Harris, No. 95,223 (Fla. certificate
filed March 31, 1999), which was orally argued before the Court on September 2, 1999.  Lastly,
we have serious questions whether an amendment, which would adversely affect the substantive
law in effect at the time of the original crime, could be applied retroactively without violating the
United States Constitution's prohibition against ex post facto laws.  See, e.g., Gwong v.
Singletary, 683 So. 2d 109, 112 (Fla. 1996); State v. Lavazzoli, 434 So. 2d 321, 323 (Fla. 1983).
11

article I, section 17 of the Florida Constitution if imposed upon one who was under
the age of sixteen at the time of the crime.   Our reasoning in that case was
straightforward:
[M]ore than half a century has elapsed since Florida last executed one
who was less than sixteen years of age at the time of committing an
offense.   In the intervening years, only two death penalties have been
imposed on such persons, and both of these later were overturned.
There may be a variety of reasons for this scarcity of death
penalties imposed on persons less than sixteen years of age.   There
may be public sentiment against death penalties in these cases, or
prosecutors may simply be convinced that juries would not
recommend death or the judge would not impose it.   We need not
conduct a straw poll on this question, in any event.   Whatever the
reasons, the relevant fact we must confront is that death almost never
is imposed on defendants of Allen's age.
In sum, the death penalty is either cruel or unusual if imposed
upon one who was under the age of sixteen when committing the
crime;   and death thus is prohibited by article I, section 17 of the
Florida Constitution.   Tillman v. State, 591 So.2d 167, 169 n. 2
(Fla.1991).   We cannot countenance a rule that would result in some
young juveniles being executed while the vast majority of others are
not, even where the crimes are similar. Art.   I, Sec. 17, Fla.   Const.
636 So. 2d at 497 (emphasis supplied) (footnotes omitted).
We further rejected the State’s argument that the execution of young
juveniles was no different than the execution of women because both seldom
happen:
Nothing in the Constitution prohibits any court from taking notice of
the peculiar condition and historical treatment of the very young.   The
law itself for centuries has recognized that children are not as
12

responsible for their acts as are adults--a conclusion also supported by
the scarcity of death penalties imposed on the very young in this
country.
Id. at 497 n.6.
In reaching our decision in Allen, we relied on article I, section 17 of the
Florida Constitution, and not on either the Eighth Amendment of the United States
Constitution or the United States Supreme Court's decision in Thompson v.
Oklahoma, 487 U. S. 815, 838 (1988), which held that execution of a defendant
who was fifteen at the time of the crime was prohibited by the Eighth Amendment
of the United States Constitution.5
Brennan asserts that our reasoning in Allen compels the same result here.
We agree.   In this case, the defendant presented the trial court with unrefuted data
that at least since 1972, more than a quarter of a century ago, no individual under
the age of seventeen at the time of the crime has been executed in Florida.   In fact,
our research reveals that the last reported case where the death penalty was
imposed and carried out on a sixteen-year-old defendant was Clay v. State, 143 Fla.
204, 196 So. 462 (1940), over fifty-five years   ago.   Since 1972, the death penalty
5The majority in Thompson v. Oklahoma, 487 U. S. 815, 838 (1988), refused to “draw a
line” that would prohibit the execution of any person under the age of eighteen.  However, as
Justice O’Connor noted in her special concurrence, every member of the United States Supreme
Court participating in Thompson agreed that “there is some age below which a juvenile’s crimes
can never be constitutionally punished by death.”  Id. at 848 (O'Connor, J., concurring in the
judgment).
13

has been imposed on only four6 defendants, other than Brennan, who were sixteen
at the time of the crime.   For each of the three defendants whose appeals   have
already been decided, the death sentence was vacated.   See Farina v. State, 680 So.
2d 392, 398-99 (Fla. 1996);7 Morgan v. State, 639 So. 2d 6, 8 (Fla. 1994);8 Brown
v. State, 367 So. 2d 616, 625 (Fla. 1979).   This case is virtually identical to Allen
both because of the infrequency of the imposition of the death penalty on juveniles
age sixteen at the time of the crime and because, since 1972, each death sentence
imposed on a defendant who was sixteen at the time of the crime has been
overturned by this Court.   Thus, we agree that   our decision in Allen interpreting
the Florida Constitution compels the finding that the death penalty is cruel or
unusual if imposed on a defendant under the age of seventeen.
Although not binding on our state constitutional analysis, we are mindful
6The State points out on rehearing that a death sentence has also been imposed for the
murder conviction of Roderrick Ferrell, who was sixteen at the time of the crime.  That case  has
not yet been considered by this Court.  See Ferrell v. State, No. 93,127 (Fla. notice of appeal filed
June 2, 1998).
7In Farina v. State, 680 So. 2d 392, 399 (Fla. 1996), we reversed the imposition of the
death penalty on other grounds and declined to reach the constitutionality of executing defendants
who were sixteen at the time of the crime.   The death penalty was reimposed on Farina on
remand, but that case has not yet been considered by this Court.  See Farina v. State, No. 93,907
(Fla. notice of appeal filed Sept. 14, 1998).
8After the death penalty was imposed during the first trial and two retrials, Morgan's death
penalty was ultimately reduced to life imprisonment.  See Morgan v. State, 639 So. 2d 6, 9 (Fla.
1994); Morgan v. State, 537 So. 2d 973, 974 (Fla. 1989); Morgan v. State, 453 So. 2d 394, 395
(Fla. 1984); Morgan v. State, 392 So. 2d 1315, 1316 n.1 (Fla. 1981).
14

that in the plurality opinion of Stanford v. Kentucky, 492 U.S. 361, 380 (1989),
five members of the United States Supreme Court held that it was not per se cruel
and unusual punishment under the Eighth Amendment to impose the death penalty
on an individual sixteen or seventeen years of age at the time of the crime.9   Thus,
the Court   refused to categorically declare eighteen as the minimum age under the
United States Constitution for execution to be a constitutional sentence.10   See id.
9Only four members of the nine-person United States Supreme Court agreed with all parts
of Justice Scalia's five-part opinion in See Stanford v. Kentucky, 492 U.S. 361 (1989); thus, the
opinion is described as a plurality opinion.  Part I of Stanford described the procedural history of
the case.  Part II enunciated the standard for determining whether the punishment in question
violated the Eighth Amendment.  Part III held that the petitioners had failed to meet their burden
of establishing that there was a national consensus against executing sixteen and seventeen-year-
olds.  Part IV-A dismissed as unpersuasive the fact that few offenders under eighteen had been
sentenced to death.  Part IV-B rejected the proposition that general age-based state statutory
schemes are relevant to the issue.  Part V declined to consider public opinion polls and
socioscientific evidence regarding the lack of deterrent effect of such a punishment on sixteen and
seventeen-year olds.  Chief Justice Rehnquist and Justices White, O'Connor, and Kennedy
concurred as to Parts I, II, III, and IV-A.  Chief Justice Rehnquist and Justices White and
Kennedy also concurred as to Parts IV-B and V.
Justice O'Connor concurred in part but disagreed with Part IV-B and V, authoring a
separate concurring opinion.  See id. at 380-82.  Justice Brennan authored a dissent in which
Justices Marshall, Blackmun, and Stevens joined, using the same reasoning employed by Justice
Stevens in the majority opinion in Thompson v. Oklahoma, 487 U.S. 815 (1988), holding that it is
unconstitutional to execute defendants who were fifteen at the time of the crime.  See id. at 382-
405 (Brennan, J., dissenting).
10The plurality in Stanford limited its focus to “American conceptions of decency that are
dispositive” for the purpose of establishing the “first Eighth Amendment prerequisite, that the
practice is accepted among our people.”  492 U.S. at 369 n.1.  The dissent surveyed the position
of the American Bar Association and other national and international organizations.  See id. at
388 (Brennan, J., dissenting).  It noted that over 50 countries, including nearly all in Western
Europe, have formally abolished the death penalty or have limited its use to exceptional crimes
such as treason.  See id. at 389.  Of the nations that retain capital punishment, 65 prohibit the
execution of juveniles.  See id.  At the time of the Stanford decision, only eight executions of
juveniles had been recorded since 1979, with three of these taking place in the United States and
15

at 380.
However, there is an important aspect of the Stanford opinion that further
supports our determination that the imposition of the death penalty in this case
would be unconstitutional under both the Florida and United States Constitutions.
The plurality in Stanford concluded that the constitutionality of capital punishment
statutes depends not on the general state laws defining ages of legal disability, but
on the "individualized consideration" given to the defendant's circumstances.   Id. at
375.11   In order for the death penalty to have been constitutionally imposed on a
defendant, the Court concluded that one of the "individualized mitigating factors
that sentencers must be permitted to consider is the defendant’s age."   Id.   The
majority then observed that “the determinations required by juvenile transfer
statutes to certify a juvenile for trial as an adult ensure individualized consideration
the remaining five in Pakistan, Bangladesh, Rwanda, and Barbados. See id.
11In the Stanford plurality opinion, Part IV-B rejected the argument that state laws setting
eighteen as the legal age for engaging in various activities were relevant to whether a state is
prohibited by the United States Constitution from executing an individual under eighteen. 492
U.S. at 374-75.  On the other hand, in Thompson v. Oklahoma, the plurality opinion found
legislative enactments, including statutes setting forth the rights and duties of children as
compared to adults, to be relevant in Eighth Amendment analysis.   487 U.S. at 822-23.  The only
way to understand this reversal in reasoning is to consider the author of each opinion.  Justice
Scalia, who dissented in Thompson, wrote the majority in Stanford.  Justice O’Connor was the
swing vote in each case but never fully espoused the author’s reasoning in either.  In Stanford, she
specifically identified "age-based statutory classifications as 'relevant to the Eighth Amendment
proportionality analysis.'"                                                                            492 U.S. at 382 (O'Connor, J., concurring in part).  In Justice
O’Connor’s opinion, the Court’s constitutional analysis should include consideration of "state
statutes that distinguish juveniles from adults for a variety of other purposes." Id.
16

of the maturity and moral responsibility of 16- and 17-year-old offenders before
they are even held to stand trial as adults.”  Id.                                      (emphasis supplied).   The Kentucky
and Missouri statutes under consideration in Stanford specifically required a court
to give individualized consideration of sixteen- and seventeen-year-old juvenile
defendants before determining whether they should be transferred from juvenile
court to stand trial as adults.                                                         492 U.S. at 375-76 n.6.   The Kentucky statute
additionally specified a minimum age for the death penalty at sixteen.   See id.
Unlike the state statutes cited with approval in Stanford, the Florida statute
neither sets a minimum age for the death penalty nor sets forth criteria to “ensure
individualized consideration of the maturity and moral responsibility,”  id. at 376,
of those under eighteen before the child can be tried as an adult and sentenced to
death.   Section 985.225(1)(a), Florida Statutes (1997), provides that a child of any
age may be indicted for a capital crime and, when indicted, "must be tried and
handled in every respect as an adult . . . on the offense punishable by death or by
life imprisonment."   Section 985.225(3) further provides that “[i]f the child is
found to have committed the offense punishable by death or by life imprisonment,
the child shall be sentenced as an adult.”
The Legislature’s failure to impose a minimum age, the legislative mandate
that a child of any age indicted for a capital crime shall be subject to the death
17

penalty, and the failure to set up a system through our juvenile transfer statutes that
"ensure[s] individualized consideration of the maturity and moral responsibility"
render our statutory scheme suspect under the federal constitution and the
reasoning of Stanford as it applies to sixteen-year-old offenders.                        492 U.S. at 375.
This also distinguishes our statutory scheme from the Virginia statute recently
upheld as constitutional by the Virginia Supreme Court.   See Jackson v.
Commonwealth, 499 S. E.2d 538 (Va. 1998), cert. denied, 119 S. Ct. 796 (1999).
The Virginia statute authorized transfer of juveniles over fourteen, provided for
transfer hearings and "address[ed] the prosecution and punishment of juveniles in
as much detail as the Kentucky and Missouri statutes" in Stanford.   Jackson, 449
S.E. 2d at 552.
If given literal effect, our statutory scheme would unconstitutionally
authorize the imposition of the death penalty on a child of any age.   However, it is
uncontroverted that imposing the death penalty on a defendant who was fifteen or
younger at the time of the crime is unconstitutional.   See Allen, 636 So. 2d at 497;
Thompson, 487 U.S. at 838.   While we have great respect for the legislative voice,
it is the obligation of this Court to decide the question of whether a punishment
proscribed by the legislature is unconstitutionally cruel or unusual   by applying
constitutional, not legislative, standards.
18

Justice Wells' dissent asserts that the Court has taken a "lone position" in our
decision holding the death penalty unconstitutional under our Constitution as
applied to sixteen-year-old defendants.   Concurring in part, dissenting in part
opinion of Wells, J., at 48.   We are compelled to point out that, of the thirty-nine
states whose statutes authorize the death penalty, fifteen states explicitly prohibit
execution of sixteen-year-old defendants.   See Concurring in part, dissenting in
part opinion of Harding, C.J., note 25 at 39.   In the remaining twenty-four states,
only six state supreme courts have considered the constitutionality of executing
defendants of that age.   Apparently none of the states considering the issue except
Arizona decided the constitutional question based on their state's constitutional
protections.   Of those, Alabama, Arizona, Nevada, South Carolina, and Virginia
have upheld the imposition of the death penalty as applied to a defendant who was
sixteen at the time of the crime.12   To the contrary, the Supreme Court of
12See Ex parte Hart, 612 So. 2d 536 (Ala. 1992); State v. Jackson, 918 P.2d 1038 (Ariz.
1996); Domingues v. State, 961 P. 2d 1279 (Nev. 1998), petition for cert. filed, No. 98-8327
(U.S. Mar. 1, 1999); State v. Conyers, 487 S.E. 2d 181 (S.C. 1997); Jackson v. Commonwealth,
499 S.E. 2d 538 (Va. 1998), cert. denied, 119 S.Ct. 796 (1999). In Jackson, the Arizona Supreme
Court relied on the United States Supreme Court decision in Stanford, noting that their state
constitutional prohibition against cruel and unusual punishment was identical to the Eighth
Amendment of the United States Constitution, and that no party had argued for a different
interpretation.  Jackson, 918 P.2d at 1043.  In Conyers, the South Carolina Supreme Court held
that the issue had not been preserved, and also relied on Stanford without any analysis under its
state constitution.  Conyers, 487  S.E. 2d at 183.  In its decision, the Virginia Supreme Court
noted that its juvenile transfer statute, which only allowed transfer of juveniles over fourteen,
provided as much detail as the similar statutes upheld in Stanford.  See Jackson, 499 S.E. 2d at
552.   In Ex parte Hart, 612 So. 2d at 537, the Alabama Supreme Court affirmed the court of
19

Washington in State v. Furman, 858 P.2d 1092, 1102-03 (Wash. 1993), held its
death penalty statute unconstitutional as applied to juveniles under the age of
eighteen, although the Washington state statute provided that a child of any age
could be tried and sentenced as an adult.13
Finally, in Florida, we have repeatedly stated that the ultimate punishment of
death is reserved for the most aggravated and indefensible of crimes committed by
the most culpable of offenders.   See, e.g., Urbin v. State, 714 So. 2d 411, 416 (Fla.
1998); State v. Dixon, 283 So. 2d 1, 8 (Fla. 1973).   In addition, this Court is
constitutionally required to perform a proportionality analysis:
appeals' conclusion, without discussion, that the imposition of the death penalty on a defendant
sixteen at the time of the crime is constitutional. See Hart v. State, 612 So. 2d 520, 535 (Ala.
Crim. App. 1992).  Finally, in Domingues, the Nevada Supreme Court dealt with and rejected the
"single issue" of whether Nevada's death penalty statute was "superseded by an international
treaty ratified by the United States, which prohibits the execution of individuals who committed
capital offenses while under the age of eighteen." 961 P. 2d at 1279.
13The Washington state statute, like Florida's statute, did not impose a minimum age on
transfer.  However, unlike Florida's statute, the Washington statute did impose transfer criteria.
See State v. Furman, 858 P.2d at 1102.  The Washington Supreme Court reasoned that it
[could not] rewrite the juvenile court statute or the death penalty statute to
expressly preclude imposition of the death penalty for crimes committed by
persons who are under age 16 and thus exempt from the death penalty under
Thompson.  Nor is there any provision in either statute that could be severed in
order to achieve that result.  The statutes therefore cannot be construed to authorize
imposition of the death penalty for crimes committed by juveniles.  Absent such
authorization, appellant's death sentence cannot stand.
Id. at 1103 (footnote omitted).  We decline to follow this reasoning in deciding the
constitutionality of Florida's death penalty.
20

Our proportionality review requires us to "consider the totality
of circumstances in a case, and to compare it with other capital cases.
It is not a comparison between the number of aggravating and
mitigating circumstances."   Porter v. State, 564 So.2d 1060, 1064
(Fla.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d
1106 (1991).   In reaching this decision, we are also mindful that
"[d]eath is a unique punishment in its finality and in its total rejection
of the possibility of rehabilitation."   State v. Dixon, 283 So.2d 1, 7
(Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295
(1974).   Consequently, its application is reserved only for those cases
where the most aggravating and least mitigating circumstances exist.
Id.; Kramer v. State, 619 So.2d 274, 278 (Fla.1993)
Terry v. State, 668 So. 2d 954, 965 (Fla. 1996).   Thus, as the State acknowledges,
this proportionality review requires us to compare similar defendants, facts and
sentences.   See Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991).   The difficulty in
conducting a proper proportionality analysis in this case, because the death penalty
has not been upheld for any other defendant who was sixteen years old at the time
of the crime, highlights the inherent problems in upholding the death penalty under
these circumstances.
The State urges that we should find that the imposition of the death sentence
constitutional and also proportional because we have upheld the death penalty in
other cases involving similar circumstances, citing to cases such as Sliney v. State,
699 So. 2d 662 (Fla. 1997), cert. denied, 118 S.Ct. 1079 (1998); Walls v. State,
641 So. 2d 381 (Fla. 1994), and   Hayes v. State, 581 So. 2d 121 (Fla. 1991).
However, the very cases that the State points to as involving similar circumstances
21

involve adults, not sixteen-year-old juveniles.   The only common thread is the
brutal and senseless nature of the murders.
These cases demonstrate the dilemma posed by Allen: that death is almost
never imposed on defendants who are Brennan’s age and when the death sentence
has been imposed, the death sentence has been subsequently vacated.   There is no
doubt that the murder in this case is a deplorable crime and one for which the
defendant should spend the rest of his life in prison.   However, we cannot impose
the death penalty on this defendant who was sixteen at the time of the crime,
consistent with our case law and our Constitution.   See Allen, 636 So. 2d at 497.
Accordingly, the death sentence is vacated and reduced to life imprisonment
without a possibility of parole.
It is so ordered.
SHAW and PARIENTE, JJ., and KOGAN, Senior Justice, concur.
ANSTEAD, J., concurs specially with an opinion, in which KOGAN, Senior
Justice, concurs.
HARDING, C.J., concurs in part and dissents in part with an opinion, in which
WELLS, J., and OVERTON, Senior Justice, concur.
WELLS, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
FILED, DETERMINED.
ANSTEAD, J., specially concurring.
I concur in the majority opinion and note the soundness of its reasoning
22

based upon our controlling precedent in Allen v State, 636 So. 2d 494 (Fla.
1994).14   Not only is the reasoning of the majority sound, but its impact on the
status quo is virtually nil based upon Florida's long record of not executing
children.   I write separately, however, because of my belief in an equally
compelling alternative basis for the majority's holding that a child of sixteen may
not be constitutionally subjected to the death penalty.
In the present instance we are asked to draw a constitutional line, below
which the State will not be allowed to take a child's life as punishment for a
crime.15   For many that line-drawing will be focused on precise ages and the
identification of specific values in our society that would tip the scales one way or
14In another death penalty case, Justice Wells has recently commented: "If the doctrine of
stare decisis has any efficacy under our case law, death penalty jurisprudence cries out for its
application."  Blanco v. State, 706 So. 2d 7, 12 (Fla. 1997) (Wells, J., concurring).  The
importance of precedence and the concept of stare decisis are, of course, sometimes in the eye of
the beholder.  Put another way, their invocation may sometimes rest on whether they support an
outcome arrived at by a separate route.  That is reality.
15Someone must draw these important lines, and in our unique framework of sharing
governmental powers, this function of constitutional line-drawing has been assigned to the
judicial branch.  See Thompson v. Oklahoma, 487 U.S. 815, 840 (1988) (O'Connor, J.,
concurring in judgment) ("[T]here is some age below which a juvenile's crimes can never be
constitutionally punished by death. . .                                                                  .").  While there may be good faith disagreements over
where a particular line is to be drawn, when all is said and done we must accept that unique
responsibility and do the best we can.  Further, no matter where we draw that line, and, no matter
the rationale, there will always appear to be a degree of arbitrariness in its selection.  Inevitably,
there will be cases where one day's difference in age will be the determinative factor between life
and death.  We must also remember that the line we draw today only prevents the State from
killing a child, but does not prevent the State from protecting society and punishing the child
offender by imprisoning the child for life, a punishment many view as equivalent to a sentence of
death.
23

another in finally settling on a precise age at which we as a society would permit
the taking of human life by the State.   Others would merely defer to the legislative
branch and there would be no constitutional line-drawing to be done.   See
concurring and dissenting op. at 33 (Harding, C.J., concurring in part, dissenting in
part) ("[T]he better way to decide the issue . . . is to examine whether the
legislature has spoken on the subject.").
However, I believe the question to be less complicated and far more logically
framed in terms of how our society has traditionally valued and defined its children
and assessed their maturity for purposes of prescribing their rights and
responsibilities in society.   Using that framework of analysis, I would conclude that
based upon the enormous value we place on our children, and our historically
consistent treatment of children differently from adults for virtually all legal
purposes, but especially for purposes of assessing responsibility and meting out
punishment for criminal acts, that the constitutional line should be drawn at age
seventeen (17).16   This is a line we have already purposefully drawn between
16My views are not new.  In fact, they are consistent with those of Justice Barkett as set
out in her separate opinion in LeCroy v. State, 533 So. 2d 750 (Fla. 1988):
I am confident that most reasonable persons would agree that the death penalty
cannot be imposed on children below a certain age.  As Justice O'Connor noted,
every member of the United States Supreme Court participating in the Thompson
decision agreed that "there is some age below which a juvenile's crimes can never
be constitutionally punished by death."                                                      108 S. Ct. at 2706.  Differences arise only
24

childhood and adulthood, and we should stand by that well-established line in
deciding that we cannot constitutionally permit the execution of our children.   This
line, in both the way it has served as a common denominator in past line-drawing
exercises, and the way it has met the test of time, is a far more reliable measure
than any other alternative produced under the exigencies of the actual case being
decided.   This line, in fact, measures very real differences, in expectations and
accountability.
While we have sometimes raised the line upwards, as, for example, in
as to the age which should be the line of demarcation.  In my view, that line should
be drawn where the law otherwise distinguishes "minors" from adults.  In Florida,
this defendant would fall below that line.
Florida law protects seventeen-year-olds and those who are younger, treating
them as "minors" and "children," see sections 1.01(14), 39.01(7), Florida Statutes
(1987), not as mature adults capable of exercising judgment or discretion.  For
example, an unmarried seventeen-year-old such as appellant cannot vote, §97.041,
Fla. Stat. (1987), serve on a jury,                                                     §40.01, Fla. Stat. (1987), or purchase or possess
alcoholic beverages, §562.11, Fla. Stat. (1987).  Nor may he or she attend jai alai
or a dog race, compare §550.04 with §551.03, Fla. Stat. (1987), dispose of
property by will, §732.501, Fla. Stat. (1987), enter into a contract, compare
§743.01 with §743.07, Fla. Stat. (1987), or sue or be sued.  Compare §743.01 with
§743.07, Fla. Stat. (1987).  Without parental consent a seventeen-year-old may not
marry, §741.0405, Fla. Stat. (1987), and without either parental or judicial
consent, a seventeen-year-old may not obtain an abortion.   §390.001(4)(a), Fla.
Stat. (1987).
When a government withholds the right of a citizen to enjoy certain benefits
and privileges because of immaturity and lack of judgment, then for the same
reason it also should withhold the imposition of the ultimate and final penalty,
which can be imposed only where there is heightened culpability.  I cannot agree,
as the majority implicitly holds, that one whose maturity is deemed legally
insufficient in other respects should be considered mature enough to be executed in
the electric chair.
Id. at 759 (Barkett, J., concurring in part, dissenting in part).
25

making a policy decision that persons under twenty-one years of age are
presumptively not sufficiently mature to consume alcohol, we can look back
objectively to a consistent and abiding recognition that a person only becomes
sufficiently mature to accept the responsibilities and privileges of adulthood and
full citizenship at age eighteen.   A list of instances where we have invoked this line
is too lengthy to catalog here, but their existence and underlying premise are
matters of common knowledge.17
It is no coincidence, for example, that we use the age of eighteen as the
cutoff for child dependency and for the legal requirement of parents to take care of
their children, as well as a dividing line for a countless number of other legal
distinctions based upon a firmly established public policy of placing limitations
upon and extending special protections to the young and immature.   This line is
consistent with our traditional attitudes toward children as we have explicitly
recognized them generally, and most particularly by our maintenance of a separate
juvenile justice system based upon the premise that our children should be treated
differently.   The line we have drawn between children and adults also represents
our determination not to give up on our children, a determination that is obviously
at odds with the death penalty, a penalty that totally rejects any value in the
17See note 16, supra, for some examples cited by Justice Barkett.
26

continuation of life for a convicted defendant.
Make no mistake about it, a line must be drawn.   When the U.S. Supreme
Court considered the issue of whether the execution of a teenage child was
constitutional, it concluded that there was clearly an age below which the U.S.
Constitution would not permit the states to impose the penalty of death.   See
Thompson v. Oklahoma, 487 U.S. 815 (1988).   The Court's rationale was
essentially formulated in an earlier opinion:
[A]dolescents, particularly in the early and middle teen years, are
more vulnerable, more impulsive, and less self-disciplined than adults.
Crimes committed by youths may be just as harmful to victims as
those committed by older persons, but they deserve less punishment
because adolescents may have less capacity to control their conduct
and to think in long-range terms than adults.   Moreover, youth crime
as such is not exclusively the offender's fault; offenses by the young
also represent a failure of family, school, and the social system, which
share responsibility for the development of America's youth.
Eddings v. Oklahoma, 455 U.S. 104, 115 n.11 (1982) (quoting Twentieth Century
Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting
Youth Crime 7 (1978)).   That rationale, of course, is the same rationale underlying
our fundamental public policy distinguishing between children and adults, and
upon which we have constructed our juvenile justice system and purposefully
drawn the line there for children at age seventeen and younger.
We should stand by the line we have already drawn, not just when it is easy
27

and convenient, but also when it seems most difficult, as in the emotional turmoil
and frenzy that naturally occurs when a terrible crime is committed.   In standing
firm, we demonstrate the strength of our commitment to our children.   Abandoning
the clear line we have drawn would seriously undermine our commitment to
treating our children differently when that commitment is tested under fire.
Finally, when it comes to life or death for children our commitment to our children
should match our rhetoric.   As Justice Barkett has explained:
When a government withholds the right of a citizen to enjoy certain
benefits and privileges because of immaturity and lack of judgment,
then for the same reason it also should withhold the imposition of the
ultimate and final penalty, which can be imposed only where there is
heightened culpability.
LeCroy, 533 So. 2d at 759 (Barkett, J., concurring in part, dissenting in part).
Nothing is more destructive of a society's values than the perceived hypocrisy that
comes when we announce our reliance on well-established standards such as
immaturity and lack of judgment for important public policy decisions but quickly
abandon those standards in hard cases.
There is also a value to us adhering to this line we have ourselves drawn,
rather than turning to international human rights treaties or international or national
trends, all of which, of course, draw a clear line between children and adults as a
28

fundamental human rights dividing line for permitting executions.18 While the U.S.
Supreme Court has suggested we may look to the standards in place elsewhere, we
as a mature society have already made a clear and valid choice, and we need only
stand by it.   Surely, however, even under our "evolving standards of decency"19 in
Florida, we have not moved backwards in our assessment of human rights to the
point where we consciously choose to kill those whom we have clearly defined as
our children.
KOGAN, Senior Justice, concurs.
HARDING, C.J., concurring in part and dissenting in part.
I concur as to Brennan's conviction but respectfully dissent as to his
sentence.   The majority concludes that the imposition of the death sentence on
Brennan for a crime committed when he was sixteen years of age constitutes cruel
or unusual punishment in violation of article I, section 17 of the Florida
Constitution.   While I concurred in Allen v. State, 636 So. 2d 494 (Fla. 1994), I
18The United States, for example, is a party to the International Covenant on Civil and
Political Rights which bans the use of the death penalty for children under age eighteen.  Nearly
every country in the world, including those like China whose human rights practices we
sometimes question, honor that ban.
19Stanford v. Kentucky, 492 U.S. 361, 369 (1989) (quoting Trop v. Dulles, 356 U.S. 86,
101 (1958)).
29

now find its reasoning flawed.   The better approach would be to decide this issue
in conformance with the legislative history on the subject, as suggested by the
United States Supreme Court's decision in Stanford v. Kentucky, 492 U.S. 361
(1989).
In Allen, this Court held that article I, section 17 of the Florida Constitution
prohibited the imposition of the death sentence on a defendant who was fifteen
years of age at the time of the offense.   The majority in the present case cites to the
following passage from Allen:
[M]ore than half a century has elapsed since Florida last executed one
who was less than sixteen years of age at the time of committing an
offense.   In the intervening years, only two death penalties have been
imposed on such persons, and both of these later were overturned.
There may be a variety of reasons for this scarcity of death
penalties imposed on persons less than sixteen years of age.   There
may be public sentiment against death penalties in these cases, or
prosecutors may simply be convinced that juries would not
recommend death or the judge would not impose it.   We need not
conduct a straw poll on this question, in any event.   Whatever the
reasons, the relevant fact we must confront is that death almost never
is imposed on defendants of Allen's age.
In sum, the death penalty is either cruel or unusual if imposed
upon one who was under the age of sixteen when committing the
crime;   and death thus is prohibited by article I, section 17 of the
Florida Constitution. Tillman v. State, 591 So.2d 167, 169 n. 2
(Fla.1991).   We cannot countenance a rule that would result in some
young juveniles being executed while the vast majority of others are
not, even where the crimes are similar. Art.   I, § 17, Fla.   Const.
Id. at 497 (footnotes omitted).   In essence, the majority's reasoning in Allen was
30

that because fifteen-year-old offenders are rarely sentenced to death, the
punishment must be unusual in violation of article I, section 17 of the Florida
Constitution.   I believe that an analysis of the unusual element has to include more
than simply asking how often the punishment is imposed.
There are several flaws with the majority's reasoning in this case and in
Allen.    First and foremost, the Allen standard does not allow for a change in public
opinion on this issue.   To make this point, assume for purposes of argument, as this
Court stated in Allen, that the death penalty is rarely imposed on sixteen- or
fifteen-year-old offenders because "there is public sentiment against death penalties
in these cases."   Allen, 636 So. 2d at 497.   If this is true, what happens if the
citizens change their minds?   What if it can be demonstrated in the future that the
citizens of this state overwhelmingly support the death penalty for sixteen-year-old
offenders?   Once the Allen standard is put in place, it can never be changed.   Even
if a majority of people favored the death penalty for sixteen-year-old offenders, the
bottom line of Allen is that since a particular punishment has rarely been imposed
up until this point, such a punishment cannot be imposed now.
Another concern with the majority's analysis is the potential effect it will
have in other analogous situations.   For example, if this state decides to alter its
method of execution, will the first time the new method is used be unusual and
31

thus subject to constitutional scrutiny, simply because it has never been used
before?   Will the majority's reasoning apply in such a circumstance?
As pointed out by this Court in Allen, one can imagine several reasons that
would explain why the number of executions for sixteen-year-old offenders is low;
namely, very few sixteen-year-olds are committing capital crimes, and prosecutors
and juries are hesitant to impose the death penalty on sixteen-year-olds unless the
circumstances are extreme. Allen, 636 So. 2d at 497.   See also Stanford, 492 U.S.
at 374 ("To the contrary, it is not only possible, but overwhelmingly probable, that
the very considerations which induce petitioners and their supporters to believe that
death should never be imposed on offenders under eighteen cause prosecutors and
juries to believe that it should rarely be imposed.").   Yet, this fact alone cannot
possibly be the basis for declaring a punishment constitutionally infirm.   Certainly,
this Court's focus should extend beyond mere happenstance when making this
critical decision.
Justice Grimes and Justice Overton both wrote separate concurring opinions
in Allen.   Neither justice agreed with the reasoning of the majority.   Instead, both
justices pointed out that the issue was controlled by the United States Supreme
Court's decision in Thompson v. Oklahoma, 487 U.S. 815 (1988), which decided
six years earlier that the federal constitution prohibited the imposition of the death
32

penalty on a person who was under sixteen years of age at the time of the crime.
See Allen, 636 So. 2d at 498 (Grimes, J., concurring).   I now agree that this was the
better way to decide the issue in Allen.   Because there is no federal constitutional
bar to the imposition of the death penalty on a sixteen-year-old offender, see
Stanford, 492 U.S. 361, I believe the better way to decide the issue in the present
case is to examine whether the legislature has spoken on the subject.
In LeCroy v. State, 533 So 2d 750 (Fla. 1988), this Court determined that
imposing the death penalty on a person who was seventeen years old at the time of
the crime did not violate the prohibition against cruel and unusual punishment.20
To make this determination, the Court focused on the legislative history regarding
capital punishment and juveniles:
Florida law generally recognizes distinctions between juveniles and
adults but section 39.02(5)(c), Florida Statutes (1979-1987), mandates
that a child of any age charged with a capital crime "shall be tried and
handled in every respect as if he were an adult."   (Emphasis supplied.)
The words "every respect" could not be clearer and can only be read
as a declaration of legislative intent that persons under eighteen years
may be subject to the same penalty as an adult.   This has been the
long-standing law in Florida.   Prior to 1950, the Florida Constitution
vested jurisdiction over all criminal charges against juveniles in
criminal courts, i.e., not in juvenile courts, and all juveniles were tried
as adults.   The constitution was amended in 1950 to authorize the
legislature to confer criminal jurisdiction on cases involving juveniles
20The opinion in LeCroy couched the argument as "cruel and unusual" rather than "cruel
or unusual."  LeCroy v. State, 533 So. 2d 750, 756 (Fla. 1988).
33

in juvenile courts. [21]   The legislature responded by enacting chapter
26880, section 1, Laws of Florida (1951), codified as chapter 39,
Florida Statutes (1951).   Under chapter 39, jurisdiction for violations
of law allegedly committed by a child, then defined as a person under
seventeen years of age, was removed from criminal courts and placed
in either juvenile courts or county courts in those counties where no
juvenile court existed. §§                                                                              39.01, .02, Fla.Stat.                                     (1951).   Section
39.02(6), Florida Statutes (1951), granted discretion to the juvenile
court to transfer felony charges against children fourteen years of age
or older to criminal courts, except "that a child sixteen years of age or
older who, if an adult, would be charged with a capital offense, shall
be transferred."                                                                                        (Emphasis supplied.)    Since 1951, the legislature has
steadily expanded the transfer of criminal charges from juvenile to
criminal courts and has, similarly, expanded and reiterated its decision
that juveniles charged with capital offenses be tried and handled as
adults.
In 1955, the legislature amended section 39.02(6) by deleting
"sixteen years or older" and providing that any child, irrespective of
age, indicted by a grand jury for an offense punishable by death or life
imprisonment shall be tried in criminal court.   Section 39.02(6) was
further revised, and legislative intent made even clearer in 1967 and
1969 by providing:
(c) When an indictment is returned by the grand
jury charging a child of any age with a violation of
Florida law punishable by death, or punishable by life
imprisonment, the juvenile court shall be without
jurisdiction, and the charge shall be made, and the child
21The court in LeCroy correctly pointed out that the Florida Constitution did not authorize
the legislature to confer criminal jurisdiction on cases involving juveniles in juvenile courts until
1950.   However, it is important to note that juvenile courts existed in Florida as early as 1911.
See Roger J. Waybright, A Proposed Juvenile Court Act For Florida, 4 U. Fla. L. Rev. 16, 20
(1951).   Some of these early juvenile courts were established by special acts of the legislature,
while others were created as a result of chapter 6216, Laws of Florida, which placed a duty upon
county judges to exercise control over dependent and delinquent children.  See id.  However,
because these courts were limited in their jurisdiction, the courts were confined to dealing with
cases involving minor crimes or neglected children.  See id. at 20-21.
34

shall be handled, in every respect as if he were an adult.
39.02(6)                                                                                     (c), Fla.Stat.                  (1969) (emphasis supplied).
In 1973, the legislature substantially rewrote chapter 39.
Exclusive original jurisdiction of charges against juveniles was
returned to the circuit court and provisions were made whereby the
court could try any child fourteen years of age or older as an adult on
any criminal charge.   A child was also redefined as any person under
eighteen years of age.   Ch. 73-231, §§ 2, 3, Laws of Fla.   (1973).   In
1978, the legislature rewrote and recast section 39.02, providing that a
child once tried as an adult would thereafter be subject to prosecution,
trial, and sentencing as an adult for any subsequent criminal
violations.   Ch. 78-414, § 3, Laws of Fla.   (1978).   Finally, in 1981,
the legislature further amended the recast 39.02(5) by providing that
trials of offenses punishable by death or life imprisonment would
include trials of any other criminal violations connected with the
primary offense.   Further, if convicted of the offenses punishable by
death or life imprisonment, "the child shall be sentenced as an adult."
Ch. 81-269, § 1, Laws of Fla.   (1981) (codified at § 39.02(5)(c), Fla.
Stat.                                                                                        (1981)).
Several points are clear from the legislative history recounted
above.   First, legislative action through approximately the last
thirty-five years has consistently evolved toward treating juveniles
charged with serious offenses as if they were adult criminal
defendants.   Second, since 1951, the legislature has repeatedly
reiterated the historical rule that juveniles charged with capital crimes
will be handled in every respect as adults.
Id. at 756-57 (footnotes omitted).   An examination of this legislative history reveals
a distinct cut-off line between offenders that are sixteen or older and offenders
under the age of sixteen.   The very first statute that dealt with this issue specifically
mandated that "a child of sixteen years of age or older who, if an adult, would be
charged with a capital offense, shall be transferred."                                       § 39.02(6), Fla. Stat. (1951)
35

(emphasis supplied).   As evidenced by the history set forth in LeCroy, the
minimum age for capital punishment has never risen above sixteen.
A comparison of LeCroy and Allen demonstrates that the two opinions are in
conflict.   Although Allen specifically deals with fifteen-year-old offenders, the
opinion can be read to encompass juveniles in general (children under the age of
eighteen):
We do not find persuasive the State's argument that execution
of young juveniles is no different than the execution of women, in that
both seldom happen.   Nothing in the Constitution prohibits any court
from taking notice of the peculiar condition and historical treatment of
the very young.   The law itself for centuries has recognized that
children are not as responsible for their acts as are adults--a
conclusion also supported by the scarcity of death penalties imposed
on the very young in this country.   On the other hand, adult women
and men committing similar crimes must be treated the same under the
rule of equal protection.
Allen v. State, 636 So. 2d 494, 497 n.6 (Fla. 1994).   Essentially, the Allen court
stated that juveniles are treated differently from adults under the laws of this state.
Chapter 985, Florida Statutes (1997), which codifies the juvenile justice system in
Florida, defines "juvenile" or "child" as "any married or unmarried person who is
charged with a violation of law occurring prior to the time that person reached the
age of 18 years."   § 985.03(6), Fla. Stat. (1997).   Using the logic of Allen, all
juveniles, including seventeen-year-olds, fall within the purview of the Allen test.
36

The majority in this case and in Allen point out that no fifteen- or sixteen-year-olds
have been executed in over a quarter of a century.   The same is also true of
seventeen year-olds.22   Thus, it seems to me that the reasoning in Allen would
pre

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