CopyCited 55 times | Published | Supreme Court of Florida | 2009 WL 217979
...As we explain below, these twin goals of the juvenile justice system (rehabilitation and protection of the public) are not necessarily irreconcilable but are, in fact, complementary [5] and, further, mandate the type of "reasons" that the juvenile court must provide to justify a departure disposition under section 985.433(7)(b), Florida Statutes (2007)....
...at may be present in the materials previously provided and already considered by the DJJ. Such a rule of law would thwart legislative intent, invite judicial capriciousness, and promote the inconsistent application and development of legal doctrine. Section 985.433(7)(b) does provide the juvenile court a measure of discretion to depart from the DJJ's recommended disposition when the DJJ has overlooked, failed to sufficiently consider, or misconstrued a significant characteristic of the child's p...
...oses to the public; however, it does not grant the juvenile court a license to promote procedural arbitrariness whenever the court simply disagrees with the DJJ. Any other approach would further ignore the Legislature's command in the last clause of section 985.433(7)(b) to provide meaningful appellate review of such departure dispositions....
...(2007) (emphasis supplied). The treatment plan should provide the "setting most appropriate to meet the child's programmatic needs and provide the minimum program security needed to ensure public safety. " §
985.14(3)(c), Fla. Stat. (2007) (emphasis supplied); see also §
985.43(1)(a), Fla....
...The DJJ must provide a comprehensive evaluation and PDR concerning "any child for whom a residential [i.e., custodial] commitment disposition is anticipated or recommended by an officer of the court or by the [DJJ]." §
985.185(1), Fla. Stat. (2007); see §
985.43(1)(a)-(b), Fla....
...the child in the context of his or her program and supervision needs, and a plan for treatment that recommends the most appropriate placement setting to meet the child's needs with the minimum program security that reasonably ensures public safety. § 985.43(1)(a), Fla. Stat. (2007) (emphasis supplied); see also § 985.43(3), Fla....
...estrictiveness level necessary to protect public safety. "The court shall consider the child's entire assessment and predisposition report and shall review the records of earlier judicial proceedings prior to making a final disposition of the case." § 985.43(2), Fla....
...s effort to determine the appropriate disposition to be made with regard to the child. The court may rely upon such evidence to the extent of its probative value, even though such evidence may not be technically competent in an adjudicatory hearing. § 985.433(3), Fla. Stat. (2007); see also Fla. R. Juv. P. 8.115(a). The juvenile court's first responsibility is to determine whether the child should be adjudicated and committed. See § 985.433(6), Fla. Stat. (2007). In making this decision, the court may consider a nonexhaustive list of factors contained in section 985.433(6)(a)(h). If the court determines that it should adjudicate the child and commit him or her to the custody of the DJJ, it is required to state this determination on the record or in writing. See § 985.433(7), Fla....
...e of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court's findings resulting in a modified level of restrictiveness under this paragraph. § 985.433(7)(b), Fla....
...was a current gang member, which is insufficient to support a departure disposition. Further, defense counsel contended that there was insufficient evidence that E.A.R. was a flight risk or a danger to the community. In response, the State contended that under section 985.433(7)(b), and associated case law, the juvenile court was free to consider the PDR, comprehensive assessment, and relevant evidence and testimony to reach a different conclusion than the DJJ with regard to the appropriate commitment restrictiveness level....
...h-risk residential commitment followed by post-commitment probation. E.A.R. timely filed a notice of appeal. D. The Fourth District's Opinion and Certification of Conflict On appeal, the Fourth District Court of Appeal framed the issue as: [W]hether section
985.433(7)(b), Florida Statutes (2007), requires a trial court to specifically identify the "characteristics of the restrictiveness level imposed vis-à-vis the needs of the juvenile," when the trial court sentences a juvenile to a different restrictiveness level than that recommended by the [DJJ]. E.A.R. v. State,
975 So.2d 610, 610-11 (Fla. 4th DCA 2008) (footnote omitted). The district court held that section
985.433(7)(b), and its predecessor (section 985.23(3)(c), Florida Statutes (2005)), do not expressly impose such a requirement, and further stated that this requirement had developed from a dissent in J.L.O....
...Introduction and Applicable Rules of Statutory Construction This case involves the interpretation of chapter 985, Florida Statutes (2007), within the context of a juvenile court's decision to depart from the DJJ's recommended disposition of a juvenile offender. Part VII of this chapter (sections 985.43-985.494) addresses the disposition process....
...while also protecting the public from further acts of delinquency. §
985.03(21), Fla. Stat. (2007); see also §
985.01-.02, Fla. Stat. (2007). Conversely, in the decision below, the Fourth District focused exclusively upon one statutory provision, section
985.433(7)(b), Florida Statutes (2007), without addressing any related provisions that further reveal the Legislature's intent and address the broader standards that should control juvenile dispositions....
...Any party may appeal the court's findings resulting in a modified level of restrictiveness pursuant to this subparagraph. Ch. 90-208, § 5, at 1129, Laws of Fla. (emphasis supplied); § 39.052(3)(e)1.-3., Fla. Stat. (Supp.1990) (emphasis supplied). Section 985.433(7)(a)-(b), Florida Statutes (2007), which governs disposition hearings in delinquency cases, contains very similar language but does not require that the juvenile court state its departure reasons in writing; instead, these reasons must simply be presented on the record....
...at a hearing that meets the constitutional standards of fundamental fairness and due process. Ch. 90-208, § 1, at 1087, Laws of Fla. (emphasis supplied) (strike-through text omitted); §
39.001(2)(f), Fla. Stat. (Supp. 1990) (emphasis supplied). C. Section
985.433(7)(b), Florida Statutes (2007), Must Be Interpreted in Light of the Juvenile Court's Overarching Duty to Ensure that the Child Receive the "Most Appropriate Dispositional Services in the Least Restrictive Available Setting" The enactm...
...a principle or law) that supports a conclusion or explains a fact.... d: the thing that makes some fact intelligible.... Merriam Webster's Collegiate Dictionary 974 (10th ed.1996). Based on section 39.052(3)(e)3., Florida Statutes (Supp. 1990), and section 985.433(7)(b), Florida Statutes (2007), we know that the court's departure "reasons" may not be alleged, but rather must be real and supported by "a preponderance of the evidence." Moreover, based upon the applicable statutes, we know that an...
...tiveness level is better suited for providing the juvenile offender with "the most appropriate dispositional services in the least restrictive available setting." §
985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§
985.03(44)(a)-(e),
985.433(7)(a)-(b) Fla....
...hild in the least restrictive available setting consistent with public safety while paying due regard to the child's rehabilitative needs and treatment plan) completely undermines the Legislature's carefully crafted statutory scheme. As indicated in section 985.433(7)(b), these "reasons" must " establish [ [30] ] by a preponderance of the evidence why the court is disregarding [ [31] ] the assessment of the child and the restrictiveness level recommended by the [DJJ]." (Emphasis supplied.) Accor...
...ith the risks that the unrehabilitated child poses to the public. In large part, this is why the juvenile court is permitted to consider live testimony and other evidentiary items not included within the DJJ's comprehensive assessment and PDR. See §§ 985.43(2), 985.433(3), Fla....
...ess and explain why departure is necessary to provide the juvenile offender with "the most appropriate dispositional services in the least restrictive available setting." §
985.03(21), Fla. Stat. (2007); see also §§
985.01-.02,
985.03(44)(a)-(e),
985.433(7)(a)-(b), Fla....
...aim that its prior articulation of the rule was dicta. See K.S. v. State,
835 So.2d 350, 352 (Fla. 4th DCA 2003); see also E.A.R.,
975 So.2d at 610-11; A.T.,
983 So.2d at 679. Since that step back, the Fourth District has maintained that the text of section
985.433(7)(b), and its predecessors, does not require the juvenile court to "reference the characteristics of the restrictiveness level vis-à-vis the needs of the child." See, e.g., E.A.R.,
975 So.2d at 611-13....
...The Fourth District also has not articulated an alternative, statutorily based substantive standard to separate sufficient from insufficient departure reasons, which would thereby fulfill the Legislature's stated intent that the appellate courts of this state provide meaningful review of departure dispositions. See § 985.433(7)(b), Fla....
...o require a basis for meaningful appellate review, and, likewise, fails to further the Legislature's statutory objectives, which include the underlying requirements for a sound determination at a disposition hearing. See §§
985.01-.02,
985.03(21),
985.433(7)(b), Fla....
...strictiveness level is better suited for providing the juvenile offender "the most appropriate dispositional services in the least restrictive available setting." §
985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§
985.03(44)(a)-(e),
985.433(7)(a)-(b) Fla....
...ly undermines the Legislature's carefully crafted statutory scheme. These "reasons" must "establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ]." § 985.433(7)(b), Fla....
...viding the juvenile offender the most appropriate dispositional services in the least restrictive available setting. Accordingly, read in pari materia, the Legislature's statutory scheme discloses the following substantive measure of compliance with section 985.433(7)(b): (1) whether the juvenile *639 court has employed the proper legal standard (as outlined above) in providing its on-the-record departure reasons; and, if so, (2) whether its stated reasons are supported by a preponderance of the competent, substantial evidence contained within the record....
...CANADY, J., dissents with an opinion, in which WELLS and POLSTON, JJ., concur. CANADY, J., dissenting. Because I conclude that the majority has adopted a standard of review with respect to dispositions in delinquency cases that is unwarranted by the governing statute, I dissent. Section 985.433(7)(b), Florida Statutes, unequivocally grants trial courts the discretion to "order placement" of a delinquent child "at a different restrictiveness level" than the level recommended by the Department of Juvenile Justice (DJJ). The exercise of such discretion under section 985.433(7)(b) is subject only to the requirement that the trial court "state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level...
...the department." The question presented by this case is what standard of review should be used in determining whether to affirm or reverse a trial court's decision to disregard the restrictiveness level recommended by the DJJ. Given the language of section 985.433(7)(b), the statutory context, and principles of sound judicial administration, I conclude that an abuse-of-discretion standard is the appropriate standard of review....
...rther rehabilitative goals. But these broad purposes of the juvenile justice system do not justify the majority's imposition of a standard of review that effectively divests trial courts of the discretion given to them by the Legislature pursuant to section 985.433(7)(b)....
...The reality is that disposition decisions involve weighing a wide array of circumstances which are relevant to determining "the most appropriate dispositional services in the least restrictive available setting." §
985.03(21), Fla. Stat.; see also §
985.433(6) (setting forth criteria to be evaluated in predisposition reports). It is evident from the text of section
985.433(7)(b) that the Legislature has recognized that a large measure of discretion is appropriately afforded to juvenile court judges as they make disposition determinations....
...1068,
25 L.Ed.2d 368 (1970) (the State must establish the juvenile offender's guilt "beyond a reasonable doubt"); Breed v. Jones,
421 U.S. 519, 531-40,
95 S.Ct. 1779,
44 L.Ed.2d 346 (1975) (double-jeopardy principles apply during juvenile proceedings). [11] Section
985.433(7)(a), Florida Statutes (2007), provides: The juvenile probation officer shall recommend to the court the most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child....
...[18] A trade-name antidepressant. [19] A trade-name antipsychotic. [20] Such external concerns, which have nothing to do with the needs, well-being, and risks of the juvenile offender, are improper considerations during a disposition hearing. See §§
985.03(21),
985.433, Fla....
...State,
835 So.2d 350, 351 (Fla. 4th DCA 2003); C.T. v. State,
819 So.2d 869 (Fla. 4th DCA 2002), review dismissed,
848 So.2d 305 (Fla.2003)). Juvenile courts must be aware that: (1) a finding of criminal street gang membership "shall be given great weight, " section
985.433(6)(a), Florida Statutes (2007) (emphasis supplied), in determining the most appropriate disposition for the juvenile (which means that, in the context of a juvenile departure disposition, an erroneous finding of membership in a crimin...
...t must prove, through proper evidence, that the juvenile offender satisfied " two or more " of the criteria presented in section
847.03(2), Florida Statutes (2007) (emphasis supplied), " at the time " that he or she committed the underlying offense, section
985.433(6)(a), Florida Statutes (2007) (emphasis supplied); and (5) there is a meaningful statutory distinction between a "criminal street gang member" under section
847.03(2), Florida Statutes (2007), and a "criminal street gang associate" under section
874.03(4)(a), Florida Statutes (2007) (i.e., section
985.433(7), Florida Statutes (2007) the statute addressing juvenile disposition hearings simply does not address "criminal street gang associates")....
...(2007). [26] §§
985.101-.16, Fla. Stat. (2007) (custody and intake); §§
985.18-.195, Fla. Stat. (2007) (examinations and evaluations); §§
985.24-.275, Fla. Stat. (2007) (detention); §§
985.318-.35 (petition, arraignment, and adjudication); §§
985.43-.494, Fla....
...[27] Unfortunately, in this case, the title provides very little insight regarding what may constitute a sufficient departure "reason" because it merely reiterates the preponderance-of-the-evidence standard present in section 39.052(3)(e)3., Florida Statutes (Supp.1990), and section 985.433(7)(b), Florida Statutes (2007)....
...[32] In addition to examining the entire statutory scheme (which is required given that the Legislature provided a mutually reinforcing, comprehensive legal framework and explicitly specified that the relevant statutes are remedial in nature), we must also construe each material portion of the statutory language present in section 985.433(7)(b)....
...Specifically, to permissibly depart from a DJJ-recommended disposition, the statute mandates that the circuit court provide "the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department." § 985.433(7)(b), Fla....
...should avoid readings that would render part of a statute meaningless."). [33] §
985.03(21), Fla. Stat. (2007); formerly §
985.03(22), Fla. Stat. (2005); formerly §
39.01(28), Fla. Stat. (1995); formerly §
39.01(21), Fla. Stat. (Supp.1990). [34] §
985.433(7)(b), Fla....
CopyCited 34 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 120, 2009 Fla. LEXIS 150
...at may be present in the materials previously provided and already considered by the DJJ. Such a rule of law would thwart legislative intent, invite judicial capriciousness, and promote the inconsistent application and development of legal doctrine. Section 985.433(7)(b) does provide the juvenile court a measure of discretion to depart from the DJJ’s recommended disposition when the DJJ has overlooked, failed to sufficiently consider, or misconstrued a significant characteristic of the child...
...es to the public; however, it does not grant the juvenile court a license to promote procedural arbitrariness whenever the court simply disagrees with the DJJ. Any other approach would further ignore the Legislature’s command in the last clause of section 985.433(7)(b) to provide meaningful appellate review of such departure dispositions....
...The treatment plan should provide the “setting most appropriate to meet the child’s programmatic needs and provide the minimum program security needed to ensure public safety.” §
985.14(3)(c), Fla. Stat. (2007) (emphasis supplied); see also §
985.43(l)(a), Fla....
...The DJJ must provide a comprehensive evaluation and PDR concerning “any child for whom a residential [i.e., custodial] commitment disposition is anticipated or recommended by an officer of the court or by the [DJJ].” §
985.185(1), Fla. Stat. (2007); see §
985.43(l)(a)-(b), Fla....
...he child in the context of his or her program and supervision needs, and a plan for treatment that recommends the most appropriate placement setting to meet the child’s needs with the minimum program security that reasonably ensures public safety. § 985.43(l)(a), Fla. Stat. (2007) (emphasis supplied); see also § 985.43(3), Fla....
...veness level necessary to protect public safety. “The court shall consider the child’s entire assessment and predisposition report and shall review the records of earlier judicial proceedings pri- or to making a final disposition of the case.” § 985.43(2), Fla....
...s effort to determine the appropriate disposition to be made with regard to the child. The court may rely upon such evidence to the extent of its probative value, even though such evidence may not be technically competent in an adjudicatory hearing. § 985.433(3), Fla. Stat. (2007); see also Fla. R. Juv. P. 8.115(a). The juvenile court’s first responsibility is to determine whether the child should be adjudicated and committed. See § 985.433(6), Fla. Stat. (2007). In making this decision, the court may consider a nonexhaustive list of factors contained in section 985.433(6)(a)-(h). If the court determines that it should adjudicate the child and commit him or her to the custody of the DJJ, it is required to state this determination on the record or in writing. See § 985.433(7), Fla....
...f the evidence why the court is disregarding the assessment of the child and, the restrictiveness level recommended by the department. Any party may appeal the court’s findings resulting in a modified level of restrictiveness under this paragraph. § 985.433(7)(b), Fla....
...was a current gang member, which is insufficient to support a departure disposition. Further, defense counsel contended that there was insufficient evidence that E.A.R. was a flight risk or a danger to the community. In response, the State contended that under section 985.43S(7)(b), and associated ease law, the juvenile court was free to consider the PDR, comprehensive assessment, and relevant evidence and testimony to reach a different conclusion than the DJJ with regard to the appropriate commitment restrictiveness level....
...risk residential commitment followed by post-commitment probation. E.A.R. timely filed a notice of appeal. D. The Fourth District’s Opinion and Certification of Conflict On appeal, the Fourth District Court of Appeal framed the issue as: [Wjhether section
985.433(7)(b), Florida Statutes (2007), requires a trial court to specifically identify the “characteristics of the restrictiveness level imposed visa-vis the needs of the juvenile,” when the trial court sentences a juvenile to a different restrictiveness level than that recommended by the [DJJ]. E.A.R. v. State,
975 So.2d 610, 610-11 (Fla. 4th DCA 2008) (footnote omitted). The district court held that section
985.433(7)(b), and its predecessor (section 985.23(3)(c), Florida Statutes (2005)), do not expressly impose such a requirement, and further stated that this requirement had developed from a dissent in J.L.O....
...Introduction and Applicable Rules of Statutory Construction This case involves the interpretation of chapter 985, Florida Statutes (2007), within the context of a juvenile court’s decision to depart from the DJJ’s recommended disposition of a juvenile offender. Part VII of this chapter (sections 985.43-985.494) addresses the disposition process....
...while also protecting the public from further acts of delinquency. §
985.03(21), Fla. Stat. (2007); see also §
985.01-.02, Fla. Stat. (2007). Conversely, in the decision below, the Fourth District focused exclusively upon one statutory provision, section
985.433(7)(b), Florida Statutes (2007), without addressing any related provisions that further reveal the Legislature’s intent and address the broader standards that should control juvenile dispositions....
...Any party may appeal the court’s findings resulting in a modified level of restrictiveness pursuant to this subparagraph. Ch. 90-208, § 5, at 1129, Laws of Fla. (emphasis supplied); § 39.052(8)(e)l.-3., Fla. Stat. (Supp.1990) (emphasis supplied). Section 985.433(7)(a)-(b), Florida Statutes (2007), which governs disposition hearings in delinquency cases, contains very similar language but does not require that the juvenile court state its departure reasons in writing; instead, these reasons must simply be presented on the record....
...at a hearing that meets the constitutional standards of fundamental fairness and due process. Ch. 90-208, § 1, at 1087, Laws of Fla. (emphasis supplied) (strike-through text omitted); §
39.001(2)(f), Fla. Stat. (Supp. 1990) (emphasis supplied). C. Section
985.433(7)(b), Florida Statutes (2007), Must Be Interpreted in Light of the Juvenile Court’s Overarching Duty to Ensure that the Child Receive the “Most Appropriate Dispositional Services in the Least Restrictive Available Setting” The...
...principle or law) that supports a conclusion or explains a fact .... d: the thing that makes some fact intelligible.... Merriam Webster’s Collegiate Dictionary 974 (10th ed.1996). Based on section 39.052(3)(e)3., Florida Statutes (Supp. 1990), and section 985.433(7)(b), Florida Statutes (2007), we know that the court’s departure “reasons” may not be alleged, but rather must be real and supported by “a preponderance of the evidence.” Moreover, based upon the applicable statutes, we kn...
...ess level is better suited for providing the juvenile offender with “the most appropriate dis-positional services in the least restrictive available setting.” §
985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§
985.03(44)(a)-(e),
985.433(7)(a)-(b) Fla....
...in the least restrictive available setting consistent with public safety while paying due regard to the child’s rehabilitative needs and treatment plan) completely undermines the Legislature’s carefully crafted statutory scheme. As indicated in section 985.433(7)(b), these “reasons” must “establish[ 30 ] by a preponderance of the evidence why the court is disregarding[ 31 ] the assessment of the child and the restrictiveness level recommended by the [DJJ].” (Emphasis supplied.) Acco...
...h the risks that the unrehabilitated child poses to the public. In large part, this is why the juvenile court is permitted to consider live testimony and other evidentiary items not included within the DJJ’s comprehensive assessment and PDR. See §§ 985.43(2), 985.438(3), Fla....
...and explain why departure is necessary to provide the juvenile offender with “the most appropriate dispositional services in the least restrictive available setting.” §
985.03(21), Fla. Stat. (2007); see also §§
985.01-02,
985.03(44)(a)-(e),
985.433(7)(a)-(b), Fla....
...m that its prior articulation of the rule was dicta. See K.S. v. State,
835 So.2d 350, 352 (Fla. 4th DCA 2003); see also E.A.R.,
975 So.2d at 610-11 ; A.T.,
983 So.2d at 679 . Since that step back, the Fourth District has maintained that the text of section
985.433(7)(b), and its predecessors, does not require the juvenile court to “reference the characteristics of the restrictiveness level vis-á-vis the needs of the child.” See, e.g., E.A.R.,
975 So.2d at 611-13 ....
...The Fourth District also has not articulated an alternative, statutorily based substantive standard to separate sufficient from insufficient departure reasons, which would thereby fulfill the Legislature’s stated intent that the appellate courts of this state provide meaningfid review of departure dispositions. See § 985.433(7)(b), Fla....
...require a basis for meaningful appellate review, and, likewise, fails to further the Legislature’s statutory objectives, which include the underlying requirements for a sound determination at a disposition hearing. See §§
985.01-02,
985.03(21),
985.433(7)(b), Fla....
...tiveness level is better suited for providing' the juvenile offender “the most appropriate dispositional services in the least restrictive available setting.” §
985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§
985.03(44)(a)-(e),
985.433(7)(a)-(b) Fla....
...nes the Legislature’s carefully crafted statutory scheme. These “reasons” must “establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].” § 985.433(7)(b), Fla....
...ing the juvenile offender the most appropriate dispositional services in the least restrictive available setting. Accordingly, read in pari mate-ria, the Legislature’s statutory scheme discloses the following substantive measure of compliance with section 985.433(7)(b): (1) whether the juvenile *639 court has employed the proper legal standard (as outlined above) in providing its on-the-record departure reasons; and, if so, (2) whether its stated reasons are supported by a preponderance of the competent, substantial evidence contained within the record....
...1068 ,
25 L.Ed.2d 368 (1970) (the State must establish the juvenile offender's guilt "beyond a reasonable doubt”); Breed v. Jones,
421 U.S. 519, 531-40 ,
95 S.Ct. 1779 ,
44 L.Ed.2d 346 (1975) (double-jeopardy principles apply during juvenile proceedings). . Section
985.433(7)(a), Florida Statutes (2007), provides: The juvenile probation officer shall recommend to the court the most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child .......
...A trade-name antidepressant. . A trade-name antipsychotic. . Such external concerns, which have nothing to do with the needs, well-being, and risks of the juvenile offender, are improper considerations during a disposition hearing. See §§
985.03(21),
985.433, Fla....
...State,
835 So.2d 350, 351 (Fla. 4th DCA 2003); C.T. v. State,
819 So.2d 869 (Fla. 4th DCA 2002), review dismissed,
848 So.2d 305 (Fla.2003)). Juvenile courts must be aware that; (1) a finding of criminal street gang membership "shall be given great weight," section
985.433(6)(a), Florida Statutes (2007) (emphasis supplied), in determining the most appropriate disposition for the juvenile (which *628 means that, in the context of a juvenile departure disposition, an erroneous finding of membership in a c...
...st prove, through proper evidence, that the juvenile offender satisfied “two or more " of the criteria presented in section
847.03(2), Florida Statutes (2007) (emphasis supplied), “at the time ” that he or she committed the underlying offense, section
985.433(6)(a), Florida Statutes (2007) (emphasis supplied); and (5) there is a meaningful statutory distinction between a "criminal street gang member” under section
847.03(2), Florida Statutes (2007), and a “criminal street gang associate” under section
874.03(4)(a), Florida Statutes (2007) (i.e., section
985.433(7), Florida Statutes (2007) — the statute addressing juvenile disposition hearings — simply does not address “criminal street gang associates")....
...Stat. (2007). . §§
985.101-.16, Fla. Stat. (2007) (custody and intake); §§
985.18- 195, Fla. Stat. (2007) (examinations and evaluations); §§
985.24-.275, Fla. Stat. (2007) (detention); §§
985.318-,35 (petition, arraignment, and adjudication); §§
985.43-.494, Fla....
...Unfortunately, in this case, the title provides very little insight regarding what may constitute a sufficient departure “reason" because it merely reiterates the preponderance-of-the-evidence standard present in section 39.052(3)(e)3., Florida Statutes (Supp.1990), and section 985.433(7)(b), Florida Statutes (2007)....
...In addition to examining the entire statutory scheme (which is required given that the Legislature provided a mutually reinforcing, comprehensive legal framework and explicitly specified that the relevant statutes are remedial in nature), we must also construe each material portion of the statutory language present in section 985.433(7)(b)....
...Specifically, to permissibly depart from a DJJ-recommended disposition, the statute mandates that the circuit court provide "the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.” § 985.433(7)(b), Fla....
...rts should avoid readings that would render part of a statute meaningless.”). . §
985.03(21), Fla. Stat. (2007); formerly §
985.03(22), Fla. Stat. (2005); formerly §
39.01(28), Fla. Stat. (1995); formerly §
39.01(21), Fla. Stat. (Supp.1990). . §
985.433(7)(b), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2013 WL 5476427, 2013 Fla. App. LEXIS 15544
...ement in a low-risk residential program with post-commitment probation. He contends that the trial court erred by committing him to a different restrictiveness level than that recommended by the Department without sufficient reasons, in violation of section
985.433(7), Florida Statutes and the requirements set out in E.A.R. v. State,
4 So.3d 614 (Fla.2009). The adjudications are affirmed, but because the Department’s recommendations *929 of probation were not recommendations of a “restrictiveness level” most appropriate for the child, as contemplated by section
985.433(7), Florida Statutes, we reverse the commitments and remand for further proceedings. In the juvenile proceedings, B.K.A. entered pleas of no contest to battery, grand theft, and burglary of a conveyance. The trial court requested that DJJ prepare a predisposition report (“PDR”) pursuant to section
985.43, Florida Statutes....
...imony, the previous probation status, and the felony nature of two of the offenses. Written reasons to support the court’s determination were attached to the disposition orders as well. The two-part process for juvenile dispositions, as set out in section
985.433(6) and (7), Florida Statutes, was described in E.A.R. v. State,
4 So.3d 614, 624 (Fla.2009). Step one is the “[t]he juvenile court’s first responsibility ... to determine whether the child should be adjudicated and committed.” E.A.R.,
4 So.3d at 624 (citing §
985.433(6), Fla. Stat.). The court’s determination “shall include considerations of the recommendations of the department, which may include a predisposition report.” §
985.433(6), Fla. Stat. The Department’s predisposition report must include the criteria listed in the statute (Section
985.433(6)(a)-(h), Fla. Stat.) but the court exercises its discretion in considering the criteria. As noted in E.A.R., section
985.433(7) requires that “[i]f the court determines that it should adjudicate the child and commit him or her to the custody of the DJJ, it is required to state this determination on the record or in writing.” E.A.R.,
4 So.3d at 624 (citing §
985.433(7), Fla....
...The court must specify its reasons for adjudication and for commitment of the child to the Depart *930 ment. Id. The court’s disposition made under subsection (6), i.e., whether the child is adjudicated delinquent or not, and if adjudicated, whether the child is committed to the department or not, is not ap-pealable. § 985.433(6), Fla....
...The court included specific findings of the reasons for its decision to adjudicate and to commit the child to the Department. As this court recently recognized, in J.B.S. v. State,
90 So.3d 961, 967 (Fla. 1st DGA 2012), “E.A.R. does not apply to the initial determination made under section
985.433(6), which gives the trial court wide discretion in determining the suitability of commitment of the child to the Department.” The error in these disposition orders is not with the initial determinations of whether the child should be adjudicated delinquent or not and whether he should be committed to the Department or not. The error occurred when the trial court proceeded to step two of the disposition process, as described in section
985.433(7)(a)-(b), without sufficient input from the Department. Specifically, DJJ never provided the court with a recommendation from the juvenile probation officer of “the most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child.” §
985.433(7)(a), Fla. Stat. Here, the predisposition report presented by DJJ loosely addressed the criteria in section
985.433(6)(a)-(h), Florida Statutes and recommended “probation.” No recommendation regarding commitment at any level was made. Accordingly, there was no identification of a “restrictiveness level” by DJJ, as contemplated by section
985.433(7)(a)-(b)....
...(lowest restrictiveness level is “minimal risk nonresidential,” applicable to committed youth who remain in the community). Because there was no restrictiveness level identified by the Department, the trial court’s orders that the child would be placed in a “low-risk” commitment did not violate section
985.433(7)(b) or the requirements for detailed explanation of any departure from the Department’s identified restrictiveness level, as set out in E.A.R.,
4 So.3d 614 (2009). The trial court’s error was in ordering a level of commitment without requesting a further multidisciplinary assessment and follow-up predisposition report, as the trial judge did in J.B.S. See §
985.43(l)(a), Fla. Stat. Once the trial court receives a recommendation from the Department of the “most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child,” as required by section
985.433(7)(a), the court may proceed with step two of the disposition in these cases *931 in terms of the level of commitment of the child....
...A recommendation of “probation” by DJJ, •without any alternative analysis and recommendation in the event the court determines that the child should be adjudicated delinquent and committed to the Department, is insufficient to allow the juvenile court to proceed with a final commitment disposition under section 985.433(7), Florida Statutes. Accordingly, the disposition orders on appeal are AFFIRMED as to the adjudications of delinquency, but the particulars of the commitments are REVERSED for further proceedings in accordance with this opinion and section 985.433(7), Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal
...Defense counsel
objected to continuing V.L.H.’s secure detention. The State argued that
1
V.L.H. also testified at the hearing, but the trial court found that V.L.H.
was not credible.
4
V.L.H. could be detained under section 985.439, Florida Statutes, but
V.L.H.’s counsel argued that a new disposition order under that statute
requires notice and a new predisposition report....
...ourt should
decide to commit V.L.H. to the DJJ in the future.
B. Disposition Order
V.L.H. argues that the trial court erred by entering the Disposition
Order prior to obtaining a new predisposition report from the DJJ. We
agree.
Section 985.43(1)(a), Florida Statutes (2020), provides, in part, that
“[a] predisposition report shall be ordered for any child for whom a
residential commitment disposition is anticipated or recommended by an
officer of the court or by the [DJ...
...recommended, a predisposition report is not optional. Further, the DJJ
“shall recommend to the court the most appropriate placement and
treatment plan, specifically identifying the restrictiveness level most
appropriate for the child if commitment is recommended.” § 985.433(7)(a),
Fla....
...Stat. (2020). Before making a final disposition, the trial court “shall
consider the child’s entire assessment and predisposition report and shall
8
review the records of earlier judicial proceedings.” § 985.43(2); see also §
985.433(7)(a). Further, the trial court “shall commit the child to the [DJJ] at
the restrictiveness level identified or may order placement at a different
restrictiveness level.” § 985.433(7)(b)....
...However, if the trial court disregards
the restrictiveness level recommended by the DJJ, the trial court “shall
state for the record the reasons that establish by a preponderance of the
evidence why the court is disregarding the assessment of the child and the
restrictiveness level recommended by the [DJJ].” § 985.433(7)(b).
The record before this Court reflects that the trial court circumvented
this procedure....
...The State argues that a new predisposition order is not required
when a trial court finds that a child has violated her probation, adjudicates
9
the child, and then commits the child to the DJJ, relying on section
985.439, Florida Statutes (2020), which is titled “Violation of probation or
postcommitment probation.” Section 985.439(4) provides that following a
hearing, if the trial court finds that a child has violated the conditions of
probation or postcommitment probation, the trial court “shall enter an order
revoking, modifying, or continuing probation...
...was prepared by the DJJ. Thereafter, the State disagreed with the
recommendation and sought commitment. The trial court ordered F.L.P.
committed to a non-secure facility, and F.L.P. appealed.
On appeal, the Fourth District provided that “[s]ection 985.433,
Florida Statutes (2018), delineates the procedural requirements a trial
court’s disposition decision must meet after a juvenile has been adjudicated
delinquent.” The court then quotes section 985.433(7)(b), which provides:
The court shall commit the child to the [DJJ] at the
restrictiveness level identified or may order placement at a
different restrictiveness level....
... to prepare a predisposition report); P.Y. v. State,
976 So. 2d 1168 (Fla. 1st
DCA 2008) (noting that the case involved a situation where trial court
disregarded the DJJ’s recommendation in a predisposition report to restore
P.Y. to probation after he violated probation). Although section
985.439(4)
only states that a “new disposition order” is required after a probation
violation, but does not mention a new predisposition report, section
985.439(4) should not be read in isolation, but in pari materia with sections
985.43 and
985.433, which sets forth the procedures for the entry of a
disposition order....
...for whom a residential commitment disposition is anticipated or
recommended by an officer of the court or by the [DJJ],” and section
985.44(2) provides that the trial court is required to review the
predisposition report before making a final disposition. Further, section
985.433 provides that the DJJ “shall recommend to the court the most
appropriate placement and treatment plan, specifically identifying the
restrictiveness level most appropriate for the child if commitment is
recommended.” § 985.433(7)(a), Fla....
