M.J. v. State of Florida

                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

M.J., A CHILD,                         NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NOS. 1D16-2613, 1D16-2615, 1D16-
                                       2616, 1D16-2617 &1D16-2618
STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed March 10, 2017.

An appeal from the Circuit Court for Duval County.
Henry E. Davis, Judge.

Andy Thomas, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Heather Flanagan Ross,
Assistant Attorneys General, Tallahassee, for Appellee.




PER CURIAM.

      In these consolidated cases, the juvenile appellant, M.J., 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.
      In November 2015, after admitting to a violation of probation in four prior

cases, M.J.’s probation was continued with a special condition that he successfully

complete the AMI program. In March 2016, M.J. admitted to violating probation

again, this time by not attending AMI.        Upon the trial court’s directive, the

Department prepared a pre-disposition report (PDR), which found M.J. was a “high

risk” to reoffend, but stated the Department’s belief that M.J. had not had the proper

services in place to facilitate his successful completion of probation.          The

Department continued to recommend probation as the least restrictive setting

necessary to ensure public safety. The PDR further provided, “But in compliance

with the Court’s expressed intention to commit the youth, and its demand for a

restrictiveness level, the Department would offer minimum-risk as the most

appropriate commitment alternative.”

      At the disposition hearing, the State objected, arguing that M.J. had already

violated probation for not attending AMI, rendering the Department’s

recommendations futile. The State requested that M.J. be committed to a nonsecure

residential level facility. See § 985.03(44), Fla. Stat. (2016) (defining the four

restrictiveness levels of juvenile commitment). During the hearing, the trial court

heard from M.J.’s probation officer that she had no reason to believe he would

comply with probation and also heard that M.J. had not attended AMI because he

was fearful of some people in the program.

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      The trial court found that probation was not appropriate. The trial court also

found commitment to AMI was not appropriate based upon M.J.’s articulated fear.

The trial court announced it would deviate from the Department’s recommendation,

adjudicated M.J. delinquent in each case, and committed him to the Department

under concurrent nonsecure residential placements. The State attempted to bolster

the trial court’s ruling by stating for the record that the deviation was valid because

the Department did not take into consideration the welfare of the community and the

welfare of the child. The trial court agreed with this statement, and again stated that

probation was “simply not an option” for M.J. and there was no reason to believe he

was going to comply with the probation. The trial court did not enter a written order.

      On appeal, M.J. argues that the trial court improperly deviated from the

Department’s recommendation solely based on its disagreement and, in so doing,

failed to comply with the requirements of E.A.R. This Court reviews the trial court’s

decision for an abuse of discretion. See B.L.R. v. State, 74 So. 3d 173, 175 (Fla. 1st

DCA 2011). Whether the trial court exercised appropriate discretion depends on

“(1) whether the trial court employed the proper legal standard as set forth in E.A.R.

and (2) whether the court’s departure reasons are supported by the evidence.” Id.

(citing E.A.R., 4 So. 3d at 638-39). Whether the trial court employed the proper

legal standard is reviewed de novo. Id.




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      Section 985.433, Florida Statutes (2016), governs the disposition hearing in

delinquency proceedings. Under subsection (6), the first determination to be made

is “the suitability or nonsuitability for adjudication and commitment of the child to

the [D]epartment.” § 985.433(6), Fla. Stat. (2016). This Court has recognized that

subsection (6) gives wide discretion to the trial court in determining whether to

commit a child to the Department and that the rigorous analysis in E.A.R. does not

apply to this initial determination. J.B.S. v. State, 90 So. 3d 961, 967 (Fla. 1st DCA

2012) (holding the E.A.R. analysis did not apply to the trial court’s initial

determination made under section 985.433(6) to reject the Department’s

recommendation of probation in favor of commitment); B.K.A. v. State, 122 So. 3d

928, 930 (Fla. 1st DCA 2013) (“Probation is not a restrictiveness level because it is

a limitation on the freedom of the child ‘in lieu of commitment to the custody of the

[D]epartment.’”) (citing § 985.03(44), Fla. Stat.) (emphasis in original). Here, the

trial court apparently advised the Department in advance that it intended to commit

M.J. and requested an alternative commitment recommendation. Cf. B.K.A. v. State,

122 So. 3d 928, 930 (Fla. 1st DCA 2013) (finding E.A.R. did not apply to the trial

court’s initial decision to reject probation in favor of commitment, but error occurred

when the trial court committed the juvenile before obtaining the Department’s

recommendation as to the appropriate restrictiveness level); A.L.M. v. State, 176 So.

3d 1025 (Fla. 1st DCA 2015) (affirming the disposition order that adjudicated the

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juvenile delinquent and found probation not appropriate, but reversing the trial

court’s nonsecure placement and remanding to first get a recommendation of a

restrictiveness level from the Department before committing the juvenile).

        The trial court’s decision to deviate from the Department’s minimum-risk

commitment recommendation is what triggers the application of the E.A.R. in this

case.    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.

Id. (emphasis in original).

        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,

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rehabilitative needs along with the risks that the unrehabilitated child poses to the

public.” Id. These measures insure “fulfillment of the Legislature's comprehensive

scheme and its stated intent that the juvenile courts of this state exercise appropriate

discretion with the ultimate aim of providing the juvenile offender the most

appropriate dispositional services in the least restrictive available setting.” Id.

        Here, the trial court did not articulate an understanding of 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

M.J.’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, it did not provide a full reasoning and understanding on

the record. Without such elucidation, this Court is not able to provide a meaningful

review and determine whether the rigorous requirements of E.A.R. were complied

with.

        We agree with M.J. that this case is similar to B.L.R. in which the majority

recognized that the trial court had a legally sufficient basis to deviate from the

Department’s recommendation, but held the trial court’s failure to articulate its

understanding of the restrictiveness levels and failure to explain why a maximum-

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risk facility was better suited to the juvenile’s needs and the safety of the public

compelled reversal under E.A.R. 74 So. 3d at 176. Much like B.L.R., the trial court

in this case did not articulate a sufficient basis for deviating from the Department’s

recommendation of minimum-risk commitment. We disagree with the State’s

argument that the trial court implicitly set out reasons for the deviation and relied on

pieces of information that the Department overlooked. First, implicit reasoning does

not satisfy the court’s duty under E.A.R. as the trial court’s reasoning must be placed

on the record. See B.L.R., 74 So. 3d at 176-77. Second, the information identified

by the State primarily relates to M.J.’s suitability for probation and not why a

nonsecure residential placement was more suitable than the Department’s minimum-

risk recommendation. We also note the trial court’s general agreement with the

State’s attempt to bolster its analysis for the record by using magic buzzwords does

not meet the strict requirements under E.A.R. As stated by this Court in M.H. v.

State,

         [I]t is important for trial courts to understand that deviating from a
         [Department] recommendation is a difficult matter pursuant to the
         dictates of E.A.R. In order to deviate lawfully, a trial court must do
         more than place generalized reasons on the record; it must engage in a
         well-reasoned and complete analysis of the PDR and the type of facility
         to which the trial court intends to send the child. This is no easy task
         and will take time and consideration.

69 So. 3d 325, 328 (Fla. 1st DCA 2011).




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      Accordingly, 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 M.J. to a minimum-risk facility as recommended by the

Department. See B.L.R., 74 So. 3d at 177.

      REVERSED and REMANDED.

ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.




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