IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
M.J., A CHILD, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED
v. CASE NOS. 1D16-2613, 1D16-2615, 1D16- 2616, 1D16-2617 &1D16-2618 STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed March 10, 2017.
An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.
Andy Thomas, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
PER CURIAM.
In these consolidated cases, the juvenile appellant, M.J., argues that the trial
court reversibly erred in deviating from the Department of Juvenile Justice’s
recommendation without complying with the requirements of E.A.R. v. State, 4 So.
3d 614 (Fla. 2009). We agree and reverse. In November 2015, after admitting to a violation of probation in four prior
cases, M.J.’s probation was continued with a special condition that he successfully
complete the AMI program. In March 2016, M.J. admitted to violating probation
again, this time by not attending AMI. Upon the trial court’s directive, the
Department prepared a pre-disposition report (PDR), which found M.J. was a “high
risk” to reoffend, but stated the Department’s belief that M.J. had not had the proper
services in place to facilitate his successful completion of probation. The
Department continued to recommend probation as the least restrictive setting
necessary to ensure public safety. The PDR further provided, “But in compliance
with the Court’s expressed intention to commit the youth, and its demand for a
restrictiveness level, the Department would offer minimum-risk as the most
appropriate commitment alternative.”
At the disposition hearing, the State objected, arguing that M.J. had already
violated probation for not attending AMI, rendering the Department’s
recommendations futile. The State requested that M.J. be committed to a nonsecure
residential level facility. See § 985.03(44), Fla. Stat. (2016) (defining the four
restrictiveness levels of juvenile commitment). During the hearing, the trial court
heard from M.J.’s probation officer that she had no reason to believe he would
comply with probation and also heard that M.J. had not attended AMI because he
was fearful of some people in the program.
2 The trial court found that probation was not appropriate. The trial court also
found commitment to AMI was not appropriate based upon M.J.’s articulated fear.
The trial court announced it would deviate from the Department’s recommendation,
adjudicated M.J. delinquent in each case, and committed him to the Department
under concurrent nonsecure residential placements. The State attempted to bolster
the trial court’s ruling by stating for the record that the deviation was valid because
the Department did not take into consideration the welfare of the community and the
welfare of the child. The trial court agreed with this statement, and again stated that
probation was “simply not an option” for M.J. and there was no reason to believe he
was going to comply with the probation. The trial court did not enter a written order.
On appeal, M.J. argues that the trial court improperly deviated from the
Department’s recommendation solely based on its disagreement and, in so doing,
failed to comply with the requirements of E.A.R. This Court reviews the trial court’s
decision for an abuse of discretion. See B.L.R. v. State, 74 So. 3d 173, 175 (Fla. 1st
DCA 2011). Whether the trial court exercised appropriate discretion depends on
“(1) whether the trial court employed the proper legal standard as set forth in E.A.R.
and (2) whether the court’s departure reasons are supported by the evidence.” Id.
(citing E.A.R., 4 So. 3d at 638-39). Whether the trial court employed the proper
legal standard is reviewed de novo. Id.
3 Section 985.433, Florida Statutes (2016), governs the disposition hearing in
delinquency proceedings. Under subsection (6), the first determination to be made
is “the suitability or nonsuitability for adjudication and commitment of the child to
the [D]epartment.” § 985.433(6), Fla. Stat. (2016). This Court has recognized that
subsection (6) gives wide discretion to the trial court in determining whether to
commit a child to the Department and that the rigorous analysis in E.A.R. does not
apply to this initial determination. J.B.S. v. State, 90 So. 3d 961, 967 (Fla. 1st DCA
2012) (holding the E.A.R. analysis did not apply to the trial court’s initial
determination made under section 985.433(6) to reject the Department’s
recommendation of probation in favor of commitment); B.K.A. v. State, 122 So. 3d
928, 930 (Fla. 1st DCA 2013) (“Probation is not a restrictiveness level because it is
a limitation on the freedom of the child ‘in lieu of commitment to the custody of the
[D]epartment.’”) (citing § 985.03(44), Fla. Stat.) (emphasis in original). Here, the
trial court apparently advised the Department in advance that it intended to commit
M.J. and requested an alternative commitment recommendation. Cf. B.K.A. v. State,
122 So. 3d 928, 930 (Fla. 1st DCA 2013) (finding E.A.R. did not apply to the trial
court’s initial decision to reject probation in favor of commitment, but error occurred
when the trial court committed the juvenile before obtaining the Department’s
recommendation as to the appropriate restrictiveness level); A.L.M. v. State, 176 So.
3d 1025 (Fla. 1st DCA 2015) (affirming the disposition order that adjudicated the
4 juvenile delinquent and found probation not appropriate, but reversing the trial
court’s nonsecure placement and remanding to first get a recommendation of a
restrictiveness level from the Department before committing the juvenile).
The trial court’s decision to deviate from the Department’s minimum-risk
commitment recommendation is what triggers the application of the E.A.R. in this
case. Under E.A.R., a trial court may not depart from the Department’s
recommendation merely because it disagrees; instead, it must provide reasons that
are supported by a preponderance of the evidence. 4 So. 3d at 638. The standards
the trial court must meet are as follows:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.
Id. (emphasis in original).
The trial court’s stated reasons must provide a “legally sufficient foundation”
for departing from the Department’s recommendation, which is accomplished “by
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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
M.J., A CHILD, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED
v. CASE NOS. 1D16-2613, 1D16-2615, 1D16- 2616, 1D16-2617 &1D16-2618 STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed March 10, 2017.
An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.
Andy Thomas, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
PER CURIAM.
In these consolidated cases, the juvenile appellant, M.J., argues that the trial
court reversibly erred in deviating from the Department of Juvenile Justice’s
recommendation without complying with the requirements of E.A.R. v. State, 4 So.
3d 614 (Fla. 2009). We agree and reverse. In November 2015, after admitting to a violation of probation in four prior
cases, M.J.’s probation was continued with a special condition that he successfully
complete the AMI program. In March 2016, M.J. admitted to violating probation
again, this time by not attending AMI. Upon the trial court’s directive, the
Department prepared a pre-disposition report (PDR), which found M.J. was a “high
risk” to reoffend, but stated the Department’s belief that M.J. had not had the proper
services in place to facilitate his successful completion of probation. The
Department continued to recommend probation as the least restrictive setting
necessary to ensure public safety. The PDR further provided, “But in compliance
with the Court’s expressed intention to commit the youth, and its demand for a
restrictiveness level, the Department would offer minimum-risk as the most
appropriate commitment alternative.”
At the disposition hearing, the State objected, arguing that M.J. had already
violated probation for not attending AMI, rendering the Department’s
recommendations futile. The State requested that M.J. be committed to a nonsecure
residential level facility. See § 985.03(44), Fla. Stat. (2016) (defining the four
restrictiveness levels of juvenile commitment). During the hearing, the trial court
heard from M.J.’s probation officer that she had no reason to believe he would
comply with probation and also heard that M.J. had not attended AMI because he
was fearful of some people in the program.
2 The trial court found that probation was not appropriate. The trial court also
found commitment to AMI was not appropriate based upon M.J.’s articulated fear.
The trial court announced it would deviate from the Department’s recommendation,
adjudicated M.J. delinquent in each case, and committed him to the Department
under concurrent nonsecure residential placements. The State attempted to bolster
the trial court’s ruling by stating for the record that the deviation was valid because
the Department did not take into consideration the welfare of the community and the
welfare of the child. The trial court agreed with this statement, and again stated that
probation was “simply not an option” for M.J. and there was no reason to believe he
was going to comply with the probation. The trial court did not enter a written order.
On appeal, M.J. argues that the trial court improperly deviated from the
Department’s recommendation solely based on its disagreement and, in so doing,
failed to comply with the requirements of E.A.R. This Court reviews the trial court’s
decision for an abuse of discretion. See B.L.R. v. State, 74 So. 3d 173, 175 (Fla. 1st
DCA 2011). Whether the trial court exercised appropriate discretion depends on
“(1) whether the trial court employed the proper legal standard as set forth in E.A.R.
and (2) whether the court’s departure reasons are supported by the evidence.” Id.
(citing E.A.R., 4 So. 3d at 638-39). Whether the trial court employed the proper
legal standard is reviewed de novo. Id.
3 Section 985.433, Florida Statutes (2016), governs the disposition hearing in
delinquency proceedings. Under subsection (6), the first determination to be made
is “the suitability or nonsuitability for adjudication and commitment of the child to
the [D]epartment.” § 985.433(6), Fla. Stat. (2016). This Court has recognized that
subsection (6) gives wide discretion to the trial court in determining whether to
commit a child to the Department and that the rigorous analysis in E.A.R. does not
apply to this initial determination. J.B.S. v. State, 90 So. 3d 961, 967 (Fla. 1st DCA
2012) (holding the E.A.R. analysis did not apply to the trial court’s initial
determination made under section 985.433(6) to reject the Department’s
recommendation of probation in favor of commitment); B.K.A. v. State, 122 So. 3d
928, 930 (Fla. 1st DCA 2013) (“Probation is not a restrictiveness level because it is
a limitation on the freedom of the child ‘in lieu of commitment to the custody of the
[D]epartment.’”) (citing § 985.03(44), Fla. Stat.) (emphasis in original). Here, the
trial court apparently advised the Department in advance that it intended to commit
M.J. and requested an alternative commitment recommendation. Cf. B.K.A. v. State,
122 So. 3d 928, 930 (Fla. 1st DCA 2013) (finding E.A.R. did not apply to the trial
court’s initial decision to reject probation in favor of commitment, but error occurred
when the trial court committed the juvenile before obtaining the Department’s
recommendation as to the appropriate restrictiveness level); A.L.M. v. State, 176 So.
3d 1025 (Fla. 1st DCA 2015) (affirming the disposition order that adjudicated the
4 juvenile delinquent and found probation not appropriate, but reversing the trial
court’s nonsecure placement and remanding to first get a recommendation of a
restrictiveness level from the Department before committing the juvenile).
The trial court’s decision to deviate from the Department’s minimum-risk
commitment recommendation is what triggers the application of the E.A.R. in this
case. Under E.A.R., a trial court may not depart from the Department’s
recommendation merely because it disagrees; instead, it must provide reasons that
are supported by a preponderance of the evidence. 4 So. 3d at 638. The standards
the trial court must meet are as follows:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.
Id. (emphasis in original).
The trial court’s stated reasons must provide a “legally sufficient foundation”
for departing from the Department’s recommendation, which is accomplished “by
identifying significant information that [the Department] has overlooked, failed to
sufficiently consider, or misconstrued with regard to the child's programmatic,
5 rehabilitative needs along with the risks that the unrehabilitated child poses to the
public.” Id. These measures insure “fulfillment of the Legislature's comprehensive
scheme and its stated intent that the juvenile courts of this state exercise appropriate
discretion with the ultimate aim of providing the juvenile offender the most
appropriate dispositional services in the least restrictive available setting.” Id.
Here, the trial court did not articulate an understanding of the respective
characteristics of the different restrictiveness levels as required under E.A.R. Nor
did it explain why the nonsecure residential level was better suited to serving both
M.J.’s rehabilitative needs – in the least restrictive setting – and maintaining the
ability of the State to protect the public from further acts of delinquency than the
Department’s minimum-risk recommendation. While the trial court may have relied
on its experience and personal knowledge to determine that a nonsecure residential
program was more suitable, it did not provide a full reasoning and understanding on
the record. Without such elucidation, this Court is not able to provide a meaningful
review and determine whether the rigorous requirements of E.A.R. were complied
with.
We agree with M.J. that this case is similar to B.L.R. in which the majority
recognized that the trial court had a legally sufficient basis to deviate from the
Department’s recommendation, but held the trial court’s failure to articulate its
understanding of the restrictiveness levels and failure to explain why a maximum-
6 risk facility was better suited to the juvenile’s needs and the safety of the public
compelled reversal under E.A.R. 74 So. 3d at 176. Much like B.L.R., the trial court
in this case did not articulate a sufficient basis for deviating from the Department’s
recommendation of minimum-risk commitment. We disagree with the State’s
argument that the trial court implicitly set out reasons for the deviation and relied on
pieces of information that the Department overlooked. First, implicit reasoning does
not satisfy the court’s duty under E.A.R. as the trial court’s reasoning must be placed
on the record. See B.L.R., 74 So. 3d at 176-77. Second, the information identified
by the State primarily relates to M.J.’s suitability for probation and not why a
nonsecure residential placement was more suitable than the Department’s minimum-
risk recommendation. We also note the trial court’s general agreement with the
State’s attempt to bolster its analysis for the record by using magic buzzwords does
not meet the strict requirements under E.A.R. As stated by this Court in M.H. v.
State,
[I]t is important for trial courts to understand that deviating from a [Department] recommendation is a difficult matter pursuant to the dictates of E.A.R. In order to deviate lawfully, a trial court must do more than place generalized reasons on the record; it must engage in a well-reasoned and complete analysis of the PDR and the type of facility to which the trial court intends to send the child. This is no easy task and will take time and consideration.
69 So. 3d 325, 328 (Fla. 1st DCA 2011).
7 Accordingly, we reverse the trial court’s dispositions and remand for
resentencing with instructions to either enter a disposition order that includes the
requisite E.A.R. findings or, if such findings cannot be made, enter an order
committing M.J. to a minimum-risk facility as recommended by the
Department. See B.L.R., 74 So. 3d at 177.
REVERSED and REMANDED.
ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.