Evans v. State

398 So. 2d 1018 (1981)

Willie George EVANS, Appellant,
v.
STATE of Florida, Appellee.

No. 80-473.

District Court of Appeal of Florida, Fifth District.

May 27, 1981.

Andrew A. Graham of Reinman, Harrell, Silberhorn, Moule & Boyd, P.A., Melbourne, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Chief Judge.

This is an appeal from a sentence. The appellant meets all of the requirements of section 958.04, Florida Statutes (1979), and is thus entitled to be sentenced as a youthful offender under that statute. The provisions of that sentencing act are mandatory in their terms in that subsection (2) says "A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person ... ." meets additional criteria. The appellee urges the statute is discretionary in its terms because subsection (1) starts out by saying "The court may classify as a youthful offender any person ..." meeting certain criteria. The appellee neglects to read on to where it says in (2), as we pointed out, that if the person meets the first criteria and the second, then the person shall be classified as a youthful offender.

We think shall means mandatory, in this instance, at least. See Murray v. State, 378 So. 2d 111, 112 (Fla. 5th DCA 1980) (Orfinger, J., concurring).

The sentence is reversed and this cause remanded for resentencing.

ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.