R.L.C., A CHILD v. STATE OF FLORIDA , 241 So. 3d 199 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
R.L.C., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-1379
[April 4, 2018]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Michael Heisey, Judge; L.T. Case Nos. 562017CJ000086A,
562016CJ000826A and 562016CJ000645B.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The juvenile appeals a disposition order committing him to a non-
secure residential program. He argues the trial court erred in failing to
make the requisite findings to support its decision. We agree and reverse
in part.
The State charged the juvenile, and he pled in three separate cases,
including two violations of probation. The Department of Juvenile Justice
(“DJJ”) recommended probation. The trial court ultimately adjudicated
him delinquent and committed him to a non-secure residential program.
In the first case, the juvenile pled no contest to one count of battery, a
first degree misdemeanor. The State nolle prossed a second count. The
trial court withheld adjudication and placed him on probation.
Two months later, the juvenile pled no contest to a disorderly conduct
charge, a second degree misdemeanor, and the State nolle prossed a
disruption of an educational institution charge. The juvenile also admitted
a probation violation. The trial court withheld adjudication and again
placed him on probation.
In the third case, the juvenile admitted the probation violations and
pled no contest to one count of battery and one count of assault. The trial
court requested a comprehensive evaluation, staffing, and predisposition
report. The court specifically requested the DJJ to “include a written
recommendation for a restrictiveness level as defined in Florida Statute
985.03(44).” The court placed the juvenile on home detention pending the
disposition hearing.
In its predisposition report, the DJJ indicated that the juvenile could
remain on probation and be treated in the community. But, if he
continued to violate probation—including incurring new law violations—
then program placement would need to be considered. The predisposition
report indicated the juvenile was a moderate to high level risk to re-offend.
A week after his comprehensive evaluation interview, and while on
home detention, the juvenile received a school disciplinary referral for
assaulting a pregnant student. He was suspended from school and
another probation violation was filed for the new substantive offense and
for failing a drug test.
At the disposition hearing, the State requested the trial court to follow
the DJJ’s alternative recommendation and place the juvenile in a non-
secure residential program. Defense counsel asked the court to follow the
DJJ’s recommendation of probation.
The trial court then stated:
I am noting for the record that you entered your plea on April
6, 2017. You were placed on home detention April 22nd. There
was a violation of that home detention for the – I’ll call it an
altercation, incident, whatever – however you want to phrase
it that occurred at school. Now [the juvenile] is here for
sentencing. . . . Now after entering his plea on April 6th after
being put on home detention on April 22nd, [the juvenile]
assaulted a young lady at school while on home detention
pending placement for the pending disposition, excuse me, on
two battery cases, an assault and a disorderly conduct by
telling this pregnant young lady that “I’ll kill you and your jit.
I’m gonna sucker punch you in the stomach.” That is while
on home detention, that is while pending disposition. I find
by the preponderance of the evidence that the protection of
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the public supports a commitment to non-secure residential.
Sir, I am adjudicating you delinquent, I am committing you to
non-secure residential. Due to your age, I am going to follow
that with a direct discharge. As soon as you are complete with
that program and successful, you will be released and
whatever you do will be dealt with in the adult system if you
break the law again.
The juvenile did not object to the disposition, but now appeals his
disposition.
The juvenile argues the trial court erred in failing to make the written
findings mandated by section 985.441(2)(d), Florida Statutes (2016). The
State agrees, and so do we.
Section 985.441(2) provides:
[T]he court having jurisdiction over an adjudicated delinquent
child whose offense is 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 child to
a nonsecure residential placement if:
...
(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.
(Emphasis added).
A court errs in ordering a juvenile to a non-secure residential program
without making the required written findings. K.M.H. v. State, 91 So. 3d
262, 264 (Fla. 1st DCA 2012). While the State agrees with the law, it
suggests the lack of findings amounts to a scrivener’s error. It
acknowledges however that “[t]he case should be remanded so that the
trial court can check the appropriate box and write down its findings orally
pronounced at the disposition hearing.” We reverse on this issue and
remand the case to the trial court to comply with section § 985.441.
In his second issue, the juvenile argues there was insufficient evidence
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that he was a danger to the public and should be committed. We have
reviewed the record and disagree. Here, the trial court orally pronounced
the juvenile’s history of multiple violent crimes against persons, multiple
probation violations, and his violation of home detention while awaiting
disposition. The court orally announced it was adjudicating the juvenile
delinquent, and committing him to a non-secure residential program for
the protection of the public. The trial court complied with the statutory
requirements. We affirm on this issue without further comment.
Affirmed in part; reversed in part and remanded.
GERBER, C.J., and DAMOORGIAN, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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