DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
D.L., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D20-1848, 4D20-1849 and 4D20-1850
[November 10, 2021]
Consolidated appeal from the Circuit Court for the Nineteenth Judicial
Circuit, Martin County; Darren Steele, Judge; L.T. Case Nos.
432019CJ000146A, 432019CJ000185A and 432019CJ000221A.
Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
The juvenile appeals from the circuit court’s disposition order, which
placed the juvenile in a high-risk secure residential program. The juvenile
raises several arguments, four of which require reversal. We conclude the
trial court erred by: (1) placing the juvenile in a high-risk secure residential
program when his underlying crimes were misdemeanors and his
probation violations were technical in nature; (2) making various
scrivener’s errors in the disposition orders; (3) not specifying the violated
probation conditions in a written order; and (4) imposing enhanced
prosecution costs without factual findings.
We will address each argument in turn.
1. The circuit court erred by placing the juvenile in a high-risk
secure residential program when his underlying crimes were
misdemeanors and his probation violations were technical in
nature.
Section 985.441(2) provides:
Notwithstanding subsection (1), the court having jurisdiction
over an adjudicated delinquent child whose offense is a
misdemeanor, or a child who is currently on probation for a
misdemeanor, may not commit the child for any misdemeanor
offense or any probation violation that is technical in nature
and not a new violation of law at a restrictiveness level other
than minimum-risk nonresidential. However, the court may
commit such a child to a nonsecure residential placement if:
(a) The child has previously been adjudicated or had
adjudication withheld for a felony offense;
(b) The child has previously been adjudicated or had
adjudication withheld for three or more misdemeanor offenses
within the previous 18 months;
(c) The child is before the court for disposition for a violation
of s. 800.03, s. 806.031, or s. 828.12; or
(d) The court finds by a preponderance of the evidence that
the protection of the public requires such placement or that
the particular needs of the child would be best served by such
placement. Such finding must be in writing.
§ 985.441(2)(a)-(d), Fla. Stat. (2020).
Here, the juvenile admitted violating his probation on three underlying
misdemeanor cases – simple battery in one case and resisting an officer
without violence in two other cases. The probation conditions which the
state alleged the juvenile had violated were:
Condition 3: The child shall not commit any further law
violations. ...
Condition 5: The child shall not change or leave his/her
residence, school, or place of employment without the consent
of his/her parents and Juvenile Probation Officer.
Condition 7: The child shall not use or possess alcoholic
beverages, drugs or controlled substances without a valid
prescription. …
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Condition 13: The child shall have a curfew of 8:00 p.m. until
6:00 a.m. ….
The state argues the circuit court properly committed the juvenile to a
high-risk secure residential program because the juvenile committed new
law violations by testing positive for marijuana and violating his curfew.
The state’s argument lacks merit. Section 948.06(2)(f)1.c., Florida
Statutes (2020), provides in pertinent part:
Except as provided in subparagraph 3. or upon waiver by the
probationer, the court shall modify or continue a probationary
term upon finding a probationer in violation when any of the
following applies:
….
c. The violation is a low-risk technical violation, as defined
in paragraph (9)(b).
§ 948.06(2)(f)1.c., Fla. Stat. (2020).
Subsection 9(b) defines a “low-risk violation” as including “[a] positive
drug or alcohol test result” and “[a] violation of curfew.” § 948.06(9)(b)1.
& 6., Fla. Stat. (2020). Although a minor’s curfew violation can constitute
a new law violation, see § 877.22(1)(a), Fla. Stat. (2020) (“A minor may not
be or remain in a public place or establishment between the hours of 11:00
p.m. and 5:00 a.m. of the following day, Sunday through Thursday, except
in the case of a legal holiday.”), the state’s probation violation affidavit
simply alleged the juvenile violated his probation condition 13 (“The child
shall have a curfew of 8:00 p.m. until 6:00 a.m.”), not section 877.22(1)(a).
Based on the foregoing, the juvenile’s positive marijuana test and
curfew violation were technical in nature and not new law violations. The
highest restrictiveness level to which the circuit court could have
committed the juvenile was a non-secure residential program, if any of
section 985.441(2)’s subsections a-d had applied, and if not, then
minimum-risk nonresidential. Thus, we are required to reverse the circuit
court’s placement of the juvenile in a high-risk secure residential program,
and remand for a new disposition hearing.
2. The circuit court’s three disposition orders contained various
scrivener’s errors which, on remand, require correction, as the
state concedes.
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The record shows the juvenile spent twenty-one days in secure
detention for his probation violations. However, the circuit court’s
disposition orders in all three underlying cases do not reflect the amount
of time which the juvenile spent in secure detention. Pursuant to Florida
Rule of Juvenile Procedure 8.115(d)(2), a disposition order shall “specify[]
the amount of time served in secure detention before disposition.” Thus,
on remand, the circuit court shall indicate in each case’s disposition order
that the juvenile spent twenty-one days in secure detention.
The disposition orders also contained the following scrivener’s errors:
• The disposition orders contained a checkmark indicating that, on
August 5, 2020, after … “an adjudicatory hearing,” the child was found to
have committed the delinquent acts listed below. However, an
adjudicatory hearing did not occur.
• The disposition orders did not contain a checkmark indicating the
circuit court had considered the predisposition report in determining the
juvenile’s commitment placement. However, the transcript indicates the
circuit court considered the predisposition report.
• The disposition orders indicated “the child is before the court for the
disposition of a felony,” and one of the disposition orders (in lower tribunal
no. 432019CJ221A) indicated the underlying charge was a “felony third
degree, maximum term 5 years.” However, the juvenile was before the
court for the disposition of three first-degree misdemeanors, each with a
one-year maximum term.
On remand, after conducting a new disposition hearing, the circuit
court shall ensure that the new disposition orders do not contain these (or
other) scrivener’s errors.
3. The circuit court erred by not specifying the violated probation
conditions in a written order.
“If a trial court revokes a defendant’s probation, the court is required
to render a written order noting the specific conditions of probation that
were violated.” M.A.L. v. State, 110 So. 3d 493, 498 (Fla. 4th DCA 2013)
(citation omitted). “If a formal, written order does not exist, it is
appropriate to remand for entry of a proper order.” Id.
The record does not contain a written order noting the probation
conditions which the juvenile violated. Further, contrary to the state’s
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position, the plea agreement does not indicate the probation conditions
which the juvenile admitted violating. Instead, the hearing transcript
simply indicates the juvenile admitted to “three VOPs” (perhaps
referencing having violated probation on the three underlying cases)
without specifying the probation conditions which the juvenile violated.
Thus, on remand, the circuit court shall render a written order noting
the probation conditions which the juvenile violated.
4. The circuit court erred by imposing enhanced prosecution
costs without additional findings.
The juvenile argues the circuit court erred in imposing an enhanced
$200 prosecution cost, instead of the statutory minimum $50 cost, in each
of the three underlying cases without having made factual findings
supporting the imposition.
The state argues the juvenile did not object to the prosecution costs
during the disposition hearing, and therefore waived his right to appeal
the enhanced $200 prosecution cost imposed in each case.
However, the juvenile correctly argues the plea agreement did not
indicate the prosecution costs would exceed the statutory minimum. Cf.
Ingalls v. State, 304 So. 3d 21 (Fla. 4th DCA 2020) (affirming the $200
prosecution costs where the plea agreement called for imposing $200
prosecution costs). Further, after the disposition hearing, the juvenile filed
a Florida Rule of Juvenile Procedure 8.135(b)(2) motion to correct
disposition, arguing the circuit court imposed the enhanced $200
prosecution costs without having made factual findings supporting the
imposition. Thus, the juvenile did not waive his right to appeal.
On the merits, section 985.032(2), Florida Statutes (2020), provides
that juveniles are to be assessed prosecution costs pursuant to section
938.27, Florida Statutes (2020). Section 938.27(8) provides:
Costs for the state attorney must be set in all cases at no less
than $50 per case when a misdemeanor … offense is charged,
… including a proceeding in which the underlying offense is a
violation of probation …. The court may set a higher amount
upon a showing of sufficient proof of higher costs incurred.
§ 938.27(8), Fla. Stat. (2020). Further, the state bears the burden of
demonstrating the costs incurred. § 938.27(4), Fla. Stat. (2020).
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Here, the circuit court imposed more than the $50 statutory minimum
prosecution cost in the disposition orders but did not make factual
findings that the enhanced costs were justified. This is reversible error.
N.J.P. v. State, Nos. 4D20-1645 & 4D20-1873, 2021 WL1898116, at *2
(Fla. 4th DCA May 12, 2021). On remand, the circuit court shall either
impose the statutory minimum $50 prosecution cost in each case, or shall
make factual findings to justify an increase based upon the state having
shown sufficient proof of higher costs incurred. Id.
Conclusion
Based on the foregoing, we reverse the circuit court’s placement of the
juvenile in a high-risk secure residential program, and remand for a new
disposition hearing, the results of which shall comply with this opinion.
Our reversal for a new disposition hearing moots the juvenile’s
additional two arguments on appeal that the circuit court erred by: (1)
considering the juvenile’s alleged fifth probation violation and other alleged
misconduct which allegedly occurred after the juvenile admitted to other
probation violations, but which had not been adjudicated before the
disposition hearing; and (2) failing to comply the procedural requirements
of E.A.R. v. State, 4 So. 3d 614, 638-39 (Fla. 2009), when it departed from
the Department of Juvenile Justice’s placement recommendation. On the
latter issue, if it had been necessary for us to have reached the merits, we
would have concluded, without further discussion, that the circuit court
complied with E.A.R.’s procedural requirements.
Reversed and remanded for further proceedings consistent with this
opinion.
ARTAU, J., concurs.
WARNER, J., concurs in result only.
* * *
Not final until disposition of timely filed motion for rehearing.
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