NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
J. D. P., )
)
Appellant, )
)
v. ) Case No. 2D16-4072
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 20, 2019.
Appeal from the Circuit Court for Lee
County; Amy R. Hawthorne, Judge.
Howard L. Dimmig, II, Public Defender,
and Karen M. Kinney, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellee.
CASE, JAMES R., Associate Senior Judge.
J.D.P. appeals the disposition order adjudicating him delinquent and
committing him to the Department of Juvenile Justice. On appeal, J.D.P. argues that
the juvenile court erred in departing from the DJJ's recommended disposition without
making adequate findings on the record. We agree and reverse.
The DJJ initially completed a predisposition report (PDR) recommending
that the court withhold adjudication and sentence J.D.P. to probation. At his June 14,
2016, hearing, the juvenile court considered the DJJ's PDR but did not adjudicate J.D.P.
or determine an appropriate disposition. Instead it ordered the DJJ to come up with a
commitment level after hearing testimony from the victims' family. Based on this
testimony, the court concluded that "I don't think the Department has adequately
considered everything in this case so I'm ordering a staffing."
The DJJ conducted another review of J.D.P.'s case consistent with the
factors provided in section 985.433(6), Florida Statutes (2016). It issued an amended
PDR and attached a memo, again recommending probation. However, in light of the
court's request, the DJJ also recommended in the alternative that a nonsecure
commitment level be imposed as a suspended sentence if J.D.P. failed to comply with
the treatment requirements of his probation. At his August 11, 2016, hearing, a
successor judge considered whether adjudication should be withheld and J.D.P. should
be sentenced to probation consistent with the DJJ's recommendations but concluded
that in light of the prior judge's ruling on the record, she lacked the discretion to do
anything but adjudicate J.D.P. delinquent and commit him to the custody of the DJJ.
This was error.
We review the trial court's order adjudicating and committing a juvenile to
the custody of the DJJ for an abuse of discretion. E.A.R. v. State, 4 So. 3d 614, 637
(Fla. 2009). "The disposition statute requires a two-step process. In the first step, the
court must decide whether to adjudicate and commit the child to the custody of DJJ or
instead to withhold adjudication and place the child on probation." D.G. v. State, 170
So. 3d 1, 3 (Fla. 2d DCA 2015) (citing § 985.433(6)). "If the court determines that it
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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.
Neither judge in this case determined on the record that J.D.P. should be adjudicated
and committed, nor did they make "a specific finding of the reasons for the decision to
adjudicate and to commit the child to the department." Id. (quoting § 985.433(7)).
Accordingly, we must reverse.
Furthermore, the juvenile court erred when it sentenced J.D.P. to a
commitment level inconsistent with the recommendations of the DJJ without making
adequate factual findings justifying the departure. Only when the court determines that
the child should be adjudicated and committed, should it then proceed to the second
step of the disposition process and determine the appropriate restrictiveness level of
commitment. D.G., 170 So. 3d at 3. The Florida Supreme Court has explained that
when departing from the DJJ's recommended disposition, the juvenile court must state
"reasons[]" [that] must provide a legally sufficient foundation
for "disregarding" the DJJ's professional assessment and
PDR by identifying significant information that the DJJ 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.
E.A.R., 4 So. 3d at 638.
At the initial disposition hearing in the instant case, the juvenile court
requested a commitment recommendation from the DJJ based on its determination that
the DJJ had not considered the duration of the charged offense or the victims'
statements. However, the DJJ's representative stated that these factors were
considered at the initial staffing. Defense counsel also clarified that information
regarding the charged offenses was included in the packet provided to the DJJ prior to
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the staffing. Furthermore, in preparing the amended PDR that was presented to the
successor judge, the DJJ expressly considered all of these factors and maintained its
recommendation of supervision or, in the alternative, a suspended sentence to a
nonsecure commitment facility. None of the factors identified by either judge in this
case were sufficient to support a deviation from the recommended disposition of the
DJJ. See R.A. v. State, 117 So. 3d 1181, 1183 (Fla. 2d DCA 2013) ("The supreme
court specifically held that the juvenile court's mere regurgitation or parroting of
information in the DJJ's comprehensive assessment and PDR is insufficient to establish
acceptable reasons why the court is disregarding those documents and the DJJ's
recommended disposition." (citing E.A.R., 4 So. 3d at 638)).
Because the trial court abused its discretion in adjudicating J.D.P. without
making the statutorily required findings and in deviating from the recommended
disposition of the DJJ without sufficient explanation and based on factors already
considered by the DJJ, we reverse and remand for proceedings consistent with this
opinion.
Reversed and remanded with instructions.
KELLY and SALARIO, JJ., Concur.
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