DM v. State , 539 So. 2d 579 ( 1989 )

539 So. 2d 579 (1989)

D.M., JR., a Child, Appellant,
v.
STATE of Florida, Appellee.

No. 88-672.

District Court of Appeal of Florida, Fifth District.

March 9, 1989.

David B. Russell of Eubank, Hassell & Miles, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dee R. Ball, Asst. Atty. Gen., Daytona Beach, for appellee.

GOSHORN, Judge.

A dispositional hearing was scheduled and a pre-disposition report ordered as a result of the juvenile's plea. After receiving the report, containing three options for placement programs pursuant to § 39.09(3)(e), Florida Statutes (1987), the court "requested" the Department of Health and Rehabilitative Services to amend to include in the report another or fourth option for commitment placement. The juvenile moved to strike the fourth option, contending the court was without authority to request HRS to amend its placement options to include additional alternatives. The court denied the motion. This was error.

We have repeatedly held that § 39.09(3)(e), Florida Statutes (1987) limits the authority of the court to consideration and ranking of the options presented by HRS. Department of Health and Rehabilitative Services v. State, 516 So. 2d 1094 (Fla. 5th DCA 1987), State of Florida, Department of Health and Rehabilitative Services v. McGregor, 511 So. 2d 1096 (Fla. 5th DCA 1987). The court is not authorized to order HRS to provide additional options. It makes no difference whether the additional alternatives are induced by court order or, as here, by "request".

Because ultimately the fourth alternative was not utilized in this juvenile's commitment, it would serve no purpose to remand this cause for a re-disposition hearing. Instead, the juvenile's motion to strike the fourth disposition option is granted.

ORDERED ACCORDINGLY.

DAUKSCH, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge, dissenting.

The trial court did not order additional options from HRS and there is no statutory or precedential prohibition against the communication of suggestions or ideas to that body. HRS was not legally obligated to include a fourth option in its report but elected to do so.

Section 39.09(3)(e), Florida Statutes (1987) is sufficiently frustrating to juvenile judges, as we have previously observed,^[1] without further expansion of its restrictions by equating a verbal request with a court order.

NOTES

[1] See N.L.J. v. Komanski, 527 So. 2d 840 (Fla. 5th DCA 1988); State of Florida, Dep't of Health and Rehabilitative Services v. McGregor, 511 So. 2d 1096 (Fla. 5th DCA 1987); and Dep't of Health and Rehabilitative Services v. R.S., 511 So. 2d 434 (Fla. 5th DCA 1987) (J. Cowart, concurring specially).