IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
T. S., A Child, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NOS. 1D17-0744, 1D17-0746, &
1D17-0748
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed October 6, 2017.
An appeal from the Circuit Court for Duval County.
David C. Wiggins, Judge.
Andy Thomas, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, Tallahassee, for Appellee.
WINOKUR, J.
In these consolidated cases, the juvenile appellant, T.S., argues that the trial
court reversibly erred in deviating from the Department of Juvenile Justice’s
recommendation without complying with the requirements of E.A.R. v. State, 4 So.
3d 614 (Fla. 2009). We agree and reverse.
While on probation in two cases, T.S. was arrested and charged with grand
theft auto, possession of cocaine, possession of cannabis, and driving without a valid
driver’s license. T.S. was also charged with violating probation based on these
offenses. T.S. admitted violating probation and pled guilty to the new offenses. Upon
the trial court’s directive, the Department prepared a pre-disposition report (“PDR”).
The PDR described T.S.’s criminal record and found that he was a “moderate-high
risk” to reoffend, but stated that he was “not too far gone that he cannot be reached.”
The PDR recommended that T.S. be committed to a “minimum-risk” nonresidential
program at the American Marine Institute in Jacksonville (“AMI”).
At the disposition hearing, the State argued that T.S. should be committed to
a nonsecure residential program, which, unlike AMI, would not permit him to live
at home. The State pointed to the seriousness of T.S.’s offenses, his misbehavior in
school, and violations of probation. Counsel for T.S. argued that the trial court
should accept the recommendation of the Department.
The trial court committed T.S. to a nonsecure residential program. The trial
court explained its reasoning for departure as follows:
At this time I don’t think that – I’m going to not send him to
Marine Institute and require a residential setting.
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And I’m doing this, ma’am, to help him. I am not doing this
really to punish him. I don’t think he is going to make it right now. And
I’m looking at a little bit longer range.
So I’m doing this hopefully to benefit him. Because I don’t think
his chances of success with his history are very promising at the Marine
Institute.
So I’m hoping that what I do will turn him and his behavior
around, will get the drug treatment that he needs because I just don’t
think right now his judgment is good enough for me to count on him to
get it outside of a residential setting.
The State asked if the trial court was deviating based on T.S. posing a danger to the
community, and the trial court answered that he was.
Whether the trial court complied with the legal standard set forth in E.A.R. is
reviewed de novo. M.J. v. State, 212 So. 3d 534, 536 (Fla. 1st DCA 2017). Under
E.A.R., a trial court may not depart from the Department’s recommendation merely
because it disagrees; instead, it must provide reasons that are supported by a
preponderance of the evidence. 4 So. 3d at 638. The standards the trial court must
meet are as follows:
(1) Articulate an understanding of the respective characteristics of the
opposing restrictiveness levels including (but not limited to) the type of
child that each restrictiveness level is designed to serve, the potential
“lengths of stay” associated with each level, and the divergent treatment
programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these
differing characteristics, one level is better suited to serving both the
rehabilitative needs of the juvenile-in the least restrictive setting-and
maintaining the ability of the State to protect the public from further
acts of delinquency.
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Id. The trial court’s stated reasons must provide a “legally sufficient foundation” for
departing from the Department’s recommendation, which is accomplished “by
identifying significant information that [the Department] has overlooked, failed to
sufficiently consider, or misconstrued with regard to the child's programmatic,
rehabilitative needs along with the risks that the unrehabilitated child poses to the
public.” Id.
Here, the trial court gave nonspecific reasons in support of departure. The trial
court did not articulate anything about the respective characteristics of the different
restrictiveness levels as required under E.A.R. Nor did it explain why the nonsecure
residential level was better suited to serving both T.S.’s rehabilitative needs—in the
least restrictive setting—and maintaining the ability of the State to protect the public
from further acts of delinquency than the Department’s minimum-risk
recommendation. While the trial court may have relied on its experience and
personal knowledge to determine that a nonsecure residential program was more
suitable, its reasoning on the record was insufficient under the rigorous requirements
of E.A.R.
We are mindful of the seeming discrepancy between the text of section
985.433(7)(b), Florida Statutes, and the requirements of E.A.R. that Judge Makar
identifies in his concurring opinion. Here, for example, although the trial court did
not comply with E.A.R., it stated that it doubted that T.S.’s “chances of success with
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his history are very promising at the Marine Institute” and hoped that a more
restrictive commitment might “turn him and his behavior around, [and] get the drug
treatment that he needs because I just don’t think right now his judgment is good
enough for me to count on him to get it outside of a residential setting.” But for
E.A.R., we would find that this reasoning is sufficient under the statute, and that the
failure to specifically reference the “respective characteristics of the opposing
restrictiveness levels,” E.A.R. at 638, would be, at most, harmless error. Regardless,
E.A.R. is clear on this matter and leaves no room for harmless-error analysis. As we
are constrained by E.A.R., we reverse the trial court’s dispositions and remand for
resentencing with instructions to either enter a disposition order that includes the
requisite E.A.R. findings or, if such findings cannot be made, enter an order
committing T.S. to a minimum-risk nonresidential facility as recommended by the
Department. See M.J., 212 So. 3d at 538.
REVERSED and REMANDED.
B.L. THOMAS, C.J., CONCURS. MAKAR, J. CONCURS WITH WRITTEN
OPINION.
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MAKAR, J., concurring.
I concur, albeit with misgivings, because the broad holding of E.A.R. v. State
requires that we substitute our appellate judgment for that of trial judges who preside
in juvenile delinquency dispositions by applying a strict judicially-created standard
that substantially narrows the trial judge’s discretion, even though the legislative
structure of the dispositional process itself does not mandate this intense degree of
intercession. 4 So. 3d 614, 635-39 (Fla. 2009); see also id. at 642 (Canady, J.,
dissenting). The statute merely says that a 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 department.” § 985.433(7)(b), Fla. Stat.
Ordinarily, appellate review of compliance with this type of statutory standard
would entail whether competent substantial evidence supports a trial judge’s
findings and reasons and whether her decision to disregard the agency’s
dispositional recommendation is an abuse of discretion. But that was the dissent’s
view in E.A.R., 4 So. 3d at 640 (Canady, J., dissenting). Instead, under E.A.R., our
review accords the trial court little deference, effectively upending the appellate
paradigm. We are compelled to determine whether the trial court provided a
sufficiently “logical and persuasive” explanation that flows from “a full reasoning
and understanding on the record” as to why “‘one [dispositional] level is better suited
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to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-
and maintaining the ability of the State to protect the public from further acts of
delinquency.’” M.J. v. State, 212 So. 3d 534, 537-38 (Fla. 1st DCA 2017)
(quoting E.A.R., 4 So. 3d at 638). Appellate review under E.A.R. is deemed
“rigorous,” making it “a difficult matter” to disregard an agency recommendation
such that doing so “is no easy task and will take time and consideration.” M.H. v.
State, 69 So. 3d 325, 328 (Fla. 1st DCA 2011).
Again, the statute itself doesn’t compel this degree of appellate
inquiry; E.A.R. does, which binds us in the task to be performed. Ensuring that
dispositions are done in a thoughtful way that protects society while placing
juveniles in appropriate levels of restrictiveness is commendable, but where the
record supports a dispositional order—as in this case and others (such as M.H., 69
So. 3d at 328 and B.L.R. v. State, 74 So. 3d 173, 176 (Fla. 1st DCA 2011))—it makes
little sense to reverse and remand for the trial court to amend the dispositional order
by rotely inserting record evidence. The E.A.R. ship left the dock in 2009, but its
wake shouldn’t preclude upholding dispositional orders under a harmless error
approach. B.L.R., 74 So. 2d at 178-79 (Wolf, J., dissenting) (suggesting that the
failure to comply with E.A.R. may be harmless error in some circumstances).
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