DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
J.R., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1719
[April 3, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stacy Ross, Judge; L.T. Case No. 15002015DLA.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.
WARNER, J.
Appellant challenges his adjudication of delinquency for attempted
armed robbery and his commitment to a maximum risk residential
program. As to his adjudication, he contends that the court erred in
proceeding with the adjudicatory hearing without his presence and over
his attorney’s objection. As to his disposition, he argues that the court
erred in proceeding with his disposition without a completed
comprehensive evaluation. Because the trial court did not abuse its
discretion in concluding that J.R. voluntarily absented himself from the
adjudicatory hearing after its commencement, we affirm his adjudication.
However, we reverse the disposition and commitment, as the
comprehensive evaluation is mandatory pursuant to the statute.
The State charged appellant, as a juvenile, with attempted armed
robbery. While J.R. was present at the commencement of the adjudicatory
hearing, the hearing was continued, and he failed to appear on the date of
the continued hearing. His attorney told the court that she had spoken to
J.R. the day before the hearing, and he promised to be there at 9 a.m.
Because of J.R.’s non-appearance, a capias was issued, and he was
arrested six months later. When he was released, he was advised by the
judge herself of the date of his continued adjudicatory hearing. He failed
to appear. His juvenile probation officer told the court that she had
contacted appellant’s mother and informed her of the necessity of
appellant’s appearance. The evidentiary portion of the hearing concluded,
and to provide appellant an additional opportunity to appear, the court
held closing arguments the following day. The juvenile probation officer
called his residence again to inform him of the proceedings, but he could
not be reached. The court adjudicated him guilty of attempted armed
robbery.
When the disposition hearing was set and reset again, because of his
absence and the lack of a completed predisposition report, appellant was
located in Georgia, where he had been arrested and was being held without
bond. Because he was not present, and Georgia would not extradite him,
the Department of Juvenile Justice could not perform a comprehensive
evaluation to include in the Predisposition Report. Despite the lack of the
evaluation, the court proceeded with disposition and sentenced him to a
maximum risk residential program. He appeals both the adjudication and
disposition.
The trial court concluded that J.R. was voluntarily absent from the
disposition hearing, i.e., that he had waived his right to be present.
Persons convicted of crimes can be sentenced without being present when
they, with actual knowledge of the scheduled hearing, voluntarily absent
themselves. See Capuzzo v. State,
596 So. 2d 438, 440 (Fla. 1992). An
appellate court reviews a disposition order to determine whether the trial
court abused its discretion in finding that a defendant voluntarily
absented himself from the proceedings.
Id.
Florida Rule of Juvenile Procedure 8.100(c) provides:
(c) Absence of the Child. If the child is present at the
beginning of a hearing and during the progress of the hearing
voluntarily absents himself or herself from the presence
of the court without leave of the court, or is removed from
the presence of the court because of disruptive conduct during
the hearing, the hearing shall not be postponed or delayed,
but shall proceed in all respects as if the child were present in
court at all times.
(second emphasis added). In analyzing the similar adult rule of procedure,
Florida Rule of Criminal Procedure 3.180(b), Capuzzo reasoned that where
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the defendant absents himself from the proceeding, his actions constitute
a waiver of his right to be present for a trial, adjudication, and sentencing.
Capuzzo,
596 So. 2d at 439-40. “A contrary rule of law would be
repugnant to the rationale behind rule 3.180, which inherently dictates
that defendants cannot be allowed to thwart or impede the judicial process
through their own misconduct.”
Id. at 440 (citing State v. Melendez,
244
So. 2d. 137, 139 (Fla. 1971)).
The appellant failed to appear, not once but twice, during the progress
of the hearing. The court even directly advised him of the date of the
second continuation. The trial court was within its discretion to conclude
that his absence from the continued hearing was voluntary. We affirm the
adjudication, despite the absence of the appellant from the proceedings.
After adjudicating appellant guilty, the court proceeded with a
disposition hearing. There was some urgency because appellant’s
nineteenth birthday was approaching, and the court concluded that it
must complete the sentence before that date, otherwise it would lose
jurisdiction. The court ordered a predisposition report because the State
requested that appellant be placed in a maximum risk facility. The
Department, however, did not complete the report, as it could not conduct
a comprehensive evaluation of appellant, who was incarcerated in Georgia.
After discussions with the Department and the juvenile probation officer,
the court held a disposition hearing. The Department presented its
predisposition report, but it did not include a comprehensive evaluation
due to the absence of appellant. The court sentenced appellant into a high
risk facility.
Section 985.185(1), Florida Statutes (2018), provides, “A
comprehensive evaluation for physical health, mental health, substance
abuse, academic, educational, or vocational problems shall be ordered for
any child for whom a residential commitment disposition is anticipated or
recommended by an officer of the court or by the department.” This
requirement is repeated in section 985.43(1)(b), Florida Statutes (2018),
which provides that a summary of the evaluation must be included in the
predisposition report. The requirement of a comprehensive evaluation is
mandatory, and strict compliance with the statutory provisions regarding
juvenile disposition hearings is required. See K.D. v. State,
911 So. 2d
885, 886 (Fla. 1st DCA 2005). The court errs when it proceeds with a
disposition involving residential commitment without obtaining the
comprehensive evaluation. K.P. v. State,
97 So. 3d 966, 967 (Fla. 4th DCA
2012).
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The State contends that appellant absconded and made himself
unavailable to complete the required evaluation. It analogizes the
situation to one of invited error. However, the statute mandates a
comprehensive evaluation, and it even provides for the child to be taken
into custody following adjudication in order for the evaluation to be
completed. See § 985.43(1)(c), Fla. Stat. There is no exception to the
evaluation requirement when a juvenile absconds, and this court cannot
create an exception to the statute. Thus, reluctantly, we reverse the
disposition and remand for further proceedings.
Affirmed in part; reversed in part and remanded for further proceedings.
GROSS, J., and WEISS, DALIAH, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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