J.R. v. State

923 So. 2d 1269, 2006 Fla. App. LEXIS 4359, 2006 WL 778619
CourtDistrict Court of Appeal of Florida
DecidedMarch 29, 2006
DocketNos. 1D05-0757, 1D05-0759
StatusPublished
Cited by6 cases

This text of 923 So. 2d 1269 (J.R. 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
J.R. v. State, 923 So. 2d 1269, 2006 Fla. App. LEXIS 4359, 2006 WL 778619 (Fla. Ct. App. 2006).

Opinion

BENTON, J.

These consolidated cases ask the question whether a child who has been adjudicated delinquent may raise as error on direct appeal his mother’s exclusion from his adjudicatory hearing and, if so, whether excluding his mother from the courtroom until she testified was in fact error. We answer both questions in the affirmative and reverse for a new adjudicatory hearing.

At an adjudicatory hearing on January 12, 2005, after defense counsel invoked the rule of sequestration, the following transpired:

MR. MASON [defense counsel]: ... One additional matter before we start. Because I haven’t been in front of this Court. The mother I have listed as a defense witness. Now, we have always argued that the mother’s right to be present for the child’s trial is—
THE COURT: I "don’t know any law like that, dp you? That’s nice, if that’s the law, but I don’t know.
MR. MASON: I don’t know if there is law, but we have always made that argument that that would trump the rule of sequestration, and that has always been honored in the past by the previous judges.
THE COURT: Well good, if that’s what they did. I’m not doing it. She can stay outside.
MR. MASON: Your Honor, based on that ruling, I understand the Court’s ruling, I would object to this child going to trial without his mother being present in the courtroom.
THE COURT: Okay. Your objection is noted for the record.

(Emphasis supplied.) The State put on its case-in-chief against J.R. while his mother remained outside the courtroom, as ordered.1

I.

For reasons stated below, we conclude that J.R.’s mother was herself a [1271]*1271party and entitled to be present at the adjudicatory hearing on that account. But counsel did not object at the hearing on her behalf, and argues on appeal only that her exclusion violated J.R.’s rights. Preliminarily, therefore, we confront a standing question. Like most other courts that have considered the question, we conclude that it is appropriate for J.R. to assert this as error on appeal. See L.B. v. State, 675 N.E.2d 1104, 1107 (Ind.Ct.App.1996) (“Given that the right existed, it must be determined whether it may be asserted by L.B. and whether denial of the right implicates the child’s due process concerns. Again focusing upon the tenor of the provisions relating to juveniles, the rights accorded parents and child are viewed as coextensive .... With the exception of petitions alleging the children to be in need of services ..., the child’s and parents’ interests are the same.”); see also Hopkins v. Youth Court of Issaquena County, 227 So.2d 282, 284 (Miss.1969) (holding mother’s exclusion from hearing violated the child’s due process rights); State ex rel. V.M., 363 N.J.Super. 529, 833 A.2d 692, 694 (2003) (holding mother’s exclusion from adjudicatory hearing required reversal of child’s adjudication of delinquency and remand for a new trial). But see People v. Akers, 17 Ill.App.3d 624, 307 N.E.2d 630, 630-31 (1974) (holding juvenile code provision granting parents “the right to be present, to be heard,” bestowed a right on the parents, and because “the parents did not appeal nor did they join in the appeal nor are they made parties to the appeal,” nobody could complain that their rights were violated). •

II.

At issue is whether the rule of sequestration authorized the trial judge2 to exclude J.R.’s mother from the courtroom because she was listed as a defense witness. Commonly called “the rule,” section 90.616, Florida Statutes (2004), provides:

(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).
(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
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(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

[1272]*1272“If sequestration is invoked, section 90.616(2) provides that four categories of witnesses ... [including parties] may remain in the courtroom and also testify during the trial or hearing.” Charles W. Ehrhardt, Florida Evidence § 616.1, at 596 (2004 ed.).

III.

If J.R.’s mother was a “party who is a natural person,” § 90.616(2)(a), Fla. Stat. (2004), the rule of sequestration afforded no basis on which to exclude her from J.R.’s adjudicatory hearing. A careful examination of applicable statutes and rules leaves no doubt that she was such a party, and that she enjoyed party status in the delinquency proceeding, as J.R.’s mother, even aside from the State’s efforts to make her legally responsible for restitution.3

Contemplating service on parents at the commencement of delinquency proceedings, the Florida Rules of Juvenile Procedure provide, in cases where children are in the custody of their parents:

(a) Summons.
(1) Upon the filing of a petition upon a child who is not detained by order of the court, the clerk shall issue a summons. The summons shall require the person on whom it is served to appear for a hearing at a time and place specified.
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(b) Service.
(1) Generally. The summons and other process shall be served upon such persons and in such manner as required by law.

Fla. R. Juv. P.. 8.040(a)(1), (b)(1) (2004). Section 985.219, Florida Statutes (2004), entitled “Process and service,” provides in relevant part:

(2) Upon the filing of a petition containing allegations of facts which, if true, would establish that the child committed a delinquent act or violation of law ... the clerk or deputy clerk shall issue a summons.
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(5) The summons shall be directed to, and shall be served upon[4] the following persons:
[1273]*1273(a) The child, in the same manner as an adult;
(b) The parents of the child; and
(c) Any legal custodians, actual custodians, guardians, and guardians ad litem of the child.
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Bluebook (online)
923 So. 2d 1269, 2006 Fla. App. LEXIS 4359, 2006 WL 778619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jr-v-state-fladistctapp-2006.