DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
O.L., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3411
[January 13, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Robert B. Meadows, Judge; L.T. Case No. 56-2019-CJ-
000204-A.
Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley,
Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
O.L., a child (“Appellant”), appeals his judgment and conviction for lewd
or lascivious molestation (offender under 18, victim under 12). Appellant
raises two issues on appeal: (1) whether under E.A.R., 1 the court erred by
following the Department of Juvenile Justice’s (“DJJ”) alternative
recommendation to commit Appellant to a non-secure residential program
followed by probation with special conditions; and (2) whether the court
erred by failing to enter a written order finding Appellant competent to
proceed prior to accepting his plea. Concluding that the court ruled
correctly on both issues, we affirm.
1 E.A.R. v. State, 4 So. 3d 614, 616–17 (Fla. 2009) (requiring “juvenile courts to
justify departures from the [DJJ’s] recommended dispositions by explaining a
judge’s ‘reasons’ for a departure in terms of the characteristics of the imposed
restrictiveness level vis-à-vis the rehabilitative needs of the child” (footnotes
omitted)).
Prior to entry of a plea to the aforementioned crime, Appellant was
found to be incompetent to proceed and was transferred to the
Apalachicola Forest Youth Camp. Upon completion of a competency
evaluation a few months later, a report was prepared which concluded that
Appellant was competent to proceed to trial. Thereafter, the court held a
competency hearing. During the hearing, the court stated that it reviewed
the report and “at this time, the Court will find . . . [Appellant] competent
to stand trial.” Defense counsel did not object to the court’s competency
finding. The court did not enter a written order of competency, and
defense counsel did not bring the failure to enter a written competency
order to the court’s attention.
At the disposition hearing, the court reviewed DJJ’s predisposition
report containing its recommendation and alternative recommendation.
The State asked the court to follow DJJ’s alternative recommendation,
requesting non-secure commitment followed by post-commitment
supervision. Defense counsel objected to the State’s request and asked
the court to follow DJJ’s recommendation and place “[Appellant] on
probation and under a condition of that probation, for him to enroll in
sexual offender counseling.”
Following DJJ’s alternative recommendation, the court sentenced
Appellant to a non-secure residential program followed by post-
commitment juvenile probation. In so doing, the court provided a detailed
explanation for following the alternative recommendation. Defense
counsel objected to the commitment, arguing the stated reasons were
insufficient pursuant to E.A.R. The State countered the court requested
that DJJ provide the court with an alternative recommendation with a
restrictiveness level which the court imposed. Accordingly, the State
argued this was not an E.A.R. deviation which would require specific
findings justifying the imposition of the alternative recommendation. This
appeal follows.
“The trial court errs if the DJJ only recommends probation and it
commits the juvenile without requesting a DJJ restrictiveness
recommendation for the commitment.” F.L.P. v. State, 292 So. 3d 791, 794
(Fla. 4th DCA 2020). This Court has routinely reversed dispositions when
a trial court orders commitment at a restrictiveness level different from
that recommended by DJJ without making the requisite findings. See,
e.g., D.A.H. v. State, 212 So. 3d 399, 399 (Fla. 4th DCA 2017) (reversing
commitment to non-secure residential program where DJJ recommended
probation); B.N. v. State, 39 So. 3d 515, 516–17 (Fla. 4th DCA 2010)
(reversing commitment to a moderate risk program where DJJ
recommended probation); E.E. v. State, 7 So. 3d 1140, 1141–42 (Fla. 4th
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DCA 2009) (reversing commitment to a moderate risk program over DJJ’s
recommendation of probation due to insufficient findings under E.A.R.).
However, unlike here, in each of those cases, DJJ neither made an
alternative commitment nor a restrictiveness level recommendation.
Here, DJJ recommended adjudication be withheld and probation. DJJ
also provided an alternative recommendation which provided “[i]f the
Court wishes to depart from the recommendation made by the
Department, the restrictiveness level recommended would be Non-Secure
and Direct Discharge.” The predisposition report also provided that
Appellant follow an intervention plan containing tasks and restrictive
elements associated with safety, accountability, and counseling. The court
followed the alternative DJJ recommendation, ordering Appellant to be
committed to a non-secure residential program, followed by post-
commitment juvenile probation with the same restrictive elements
contained in DJJ’s intervention plan.
Based upon the foregoing, we hold that the court was not required to
make E.A.R. findings before sentencing Appellant to non-secure
commitment because it followed the restrictiveness level recommended by
DJJ. See D.R. v. State, 178 So. 3d 478, 482 (Fla. 4th DCA 2015) (trial
court not required to make E.A.R. findings in ordering non-secure
commitment where DJJ not only provided a recommendation of probation
but also a restrictiveness level recommendation of non-secure if the court
decided to commit the juvenile).
Appellant next argues that the court erred by failing to enter a written
competency order. Based on the law as it existed at the time the State
filed its answer brief, it correctly conceded error. See Q.A. v. State, 277
So. 3d 637, 637–38 (Fla. 5th DCA 2019); B.R.C. v. State, 210 So. 3d 243,
245–46 (Fla. 2d DCA 2017). However, in Santiago-Gonzalez v. State, 301
So. 3d 157, 175 (Fla. 2020) and Craft v. State, 45 Fla. L. Weekly S293,
S297 (Fla. Nov. 19, 2020), the Florida Supreme Court recently held that if
the court’s failure to enter a written order finding defendant competent to
proceed does not rise to the level of fundamental error, remand is not
necessary for entry of a written nunc pro tunc order. In both cases, the
supreme court noted that the trial judge’s oral competency finding was
fully supported by the record, and the failure to enter a written order was
not brought to the trial judge’s attention. See Santiago-Gonzalez, 301 So.
3d at 175; Craft, 45 Fla. L. Weekly at S297.
Here, the record reflects the court had the competency report from the
Apalachicola Forest Youth Camp, reviewed the report at the competency
hearing and, after making an independent determination, orally stated
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that Appellant was competent to stand trial. Moreover, there was no
objection to the court’s reliance on the report or its competency findings.
On these facts, the court did not commit fundamental error and we need
not remand for entry of a written nunc pro tunc competency order.
Affirmed.
WARNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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