D.G. v. State

170 So. 3d 1, 2015 Fla. App. LEXIS 4250, 2015 WL 1312646
CourtDistrict Court of Appeal of Florida
DecidedMarch 25, 2015
DocketNo. 2D13-404
StatusPublished
Cited by8 cases

This text of 170 So. 3d 1 (D.G. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.G. v. State, 170 So. 3d 1, 2015 Fla. App. LEXIS 4250, 2015 WL 1312646 (Fla. Ct. App. 2015).

Opinion

NORTHCUTT, Judge.

D.G. was adjudicated delinquent for two counts of sexual battery and committed to a high-risk sex offender program. He complains that the juvenile court departed from the recommendation by the Department of Juvenile Justice (DJJ) without adequate reasons. We affirm the delinquency adjudication, but we reverse the commitment and remand for further proceedings.

After hearing testimony at an adjudicatory hearing, the juvenile court found that D.G. committed two sexual batteries as alleged. At the subsequent disposition hearing, DJJ recommended that adjudication be withheld and that D.G. be placed on two years’ probation with several conditions, including sex offender evaluation and treatment. The prosecutor urged the court to reject that recommendátion and instead to adjudicate D.G. and commit him to a high-risk sex offender program. The court ruled that withholding adjudication and imposing probation were inappropriate in D.G.’s case. Instead, the court adjudicated and committed D.G. as the State requested.

Noting that D.G. qualified for a sex offender designation, the juvenile court announced and then reduced to writing four reasons for its decision:

1. Based on nature of the charges— forcible anal and oral rape of a younger, smaller acquaintance.

2. Total continuous chaos at home— domestic battery, etc.

3. Mom not even able to recite his caregivers names.

4. Noted conflict already w/ “George” at Baycare.

All of those factors had been referenced in the Department’s predisposition report (PDR). The report recited graphic details of the offenses and the victim’s age; described D.G.’s home situation, including past domestic violence between the parents and also involving D.G.; observed that D.G.’s mother did not know who had diagnosed her son’s mental health conditions; and reported that D.G. had “issues with George at Baycare.”

Significantly, the PDR also noted that “[a] comprehensive evaluation was requested by the Department on 12/12/12[;] however, the Department has not yet received it.” It further stated that at a multidisciplinary commitment staffing on 12/18/12, “the case was discussed at length and it was determined that ... a recommendation could not be made without the comprehensive evaluation.” However, at the January 17, 2013, disposition hearing, DJJ gave a bare recommendation for probation while making no reference to a comprehensive evaluation of D.G. Moreover, the record on appeal does not contain an evaluation or an amended PDR summarizing an evaluation.

On appeal, D.G. argues that the court was required to justify its departure from DJJ’s recommendation for probation and that it failed to state any reasons other than what was already contained in the PDR. Although we agree that D.G.’s commitment must be reversed, the issue is more procedurally complex than presented by the parties. As we will explain, the problem with the court’s commitment order was not that it disregarded the probation recommendation but, rather, that it prescribed a restrictiveness level without first obtaining a recommendation from the Department.

Section 985.433, Florida Statutes (2011), [3]*3governs the disposition hearing1 when a court has found that a juvenile offender committed a delinquent act; section 985.441 governs commitment. The disposition statute requires a two-step process. In the first step, the court must decide whether to adjudicate and commit the child to the custody of DJJ or instead to withhold adjudication and place the child on probation. § 985.433(6) (“The first determination to be made by the court is a determination of the suitability or nonsuit-ability for adjudication and commitment of the child to the department.”). DJJ provides a recommendation that the court must consider, and the statute provides criteria to guide DJJ’s recommendation. § 985.433(6)(a)-(h). But “[i]t is the intent of the Legislature that the criteria set forth in this subsection are general guidelines to be followed at the discretion of the court and not mandatory requirements of procedure.” § 985.433(6). A court’s determination that the child should be adjudicated and committed must be expressed, orally or in writing, and “shall include a specific finding of the reasons for the decision to adjudicate and to commit the child to the department.” § 985.433(7).

In this case, DJJ recommended that adjudication be withheld and that D.G. be placed on probation. Other than specifying a few conditions of the probation, the Department offered no insight into D.G.’s rehabilitative needs, the treatment or services available to meet those needs, or the risk he posed to the community. As mentioned, the PDR reported that no recommendation regarding those issues could be made without a comprehensive evaluation. The record contains no evidence that the evaluation was conducted or, if it was, the results. On the other hand, the court expressly articulated the reasons for its view that adjudication and commitment were more appropriate than probation in this case. To this point, we find no error.

Having properly decided that D.G. should be adjudicated and committed, the court was obliged in the second step of the disposition process to determine the appropriate restrictiveness level of the commitment. See § 985.03(45)(a)-(e) (defining five restrictiveness levels: minimum-risk nonresidential, low-risk residential, moderate-risk residential, high-risk residential, and maximum-risk residential). In this step, DJJ is required by subsection 985.433(7)(a) to recommend to the court a placement and treatment plan and specifically identify “the restrictiveness level most appropriate for the child.” Under subsection (b), the court must commit the child at the level recommended by the Department unless it provides reasons, supported by a preponderance of the evidence, for disregarding the recommendation. § 985.433(7)(b).

The Florida Supreme Court’s decision in E.A.R. v. State, 4 So.3d 614 (Fla.2009), involved this second step and, specifically, the type of reasons that would warrant a court’s disregard of DJJ’s recommended commitment level. In E.A.R., the supreme court held that a juvenile court must contrast the characteristics of the restrictiveness level recommended by the Department to that chosen by the court and that it must explain how the child’s rehabilitative needs and the public’s safety would be better served by the court’s choice. 4 So.3d at 638. Further, when departing from the DJJ recommendation, the juvenile court may not simply repeat information known to the Department but then announce a different re [4]*4strictiveness level; rather, the court “must provide a legally sufficient foundation for ‘disregarding1 the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id.

It was in this phase of the disposition process that the juvenile court went awry in D.G.’s case; it imposed a high-risk restrictiveness level without first obtaining the DJJ’s recommendation. The First District’s opinion in J.B.S. v. State, 90 So.3d 961, 962 (Fla. 1st DCA 2012), a case involving circumstances similar to this one, is instructive.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

J. D. P. v. STATE OF FLORIDA
District Court of Appeal of Florida, 2019
J. D. P. v. State
267 So. 3d 510 (District Court of Appeal of Florida, 2019)
Rebuild America, Inc v. Jane A Drew
Court of Appeals of Mississippi, 2019
K.M.W. v. State
District Court of Appeal of Florida, 2018
Davis v. State
218 So. 3d 890 (District Court of Appeal of Florida, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
170 So. 3d 1, 2015 Fla. App. LEXIS 4250, 2015 WL 1312646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dg-v-state-fladistctapp-2015.