D.M., JR., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court held that a trial court lacks authority to request the Department of Health and Rehabilitative Services to add placement options beyond those statutorily required in a juvenile disposition hearing, and granted the juvenile's motion to strike the unauthorized fourth option.
A trial court is limited to consideration and ranking of placement options presented by HRS under § 39.09(3)(e) and cannot request HRS to provide additional alternatives.
[1] A trial court is limited to consideration and ranking of placement options presented by the Department of Health and Rehabilitative Services and lacks authority to reques…
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Join FLexlaw to unlock all legal intelligenceAfter a juvenile's plea, a dispositional hearing was scheduled and a pre-disposition report was ordered containing three placement program options. Th…
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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, De partment 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. . 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).
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Citator
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B.E.O. v. State, 544 So. 2d 1175 (Fla. 5th DCA 1989)…effect, a fourth option. H.R.S. complied and the child was sent to the fourth option. The child appeals and says the trial judge has no authority to request or require H.R.S. to resubmit options once that statutory duty is performed. D.M. v. State, 539 So. 2d 579 (Fla. 5th DCA 1989) is cited as authority. That case is on point and holds that H.R.S. is required by statute to submit at least three options, in order of H.R.S. preference, and that the judge is required to rank the options in order of court prefe…
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Dep't of Health & Rehabilitative Servs. v. R.W.K., 556 So. 2d 815 (Fla. 5th DCA 1990)…ram. The court has only the authority to rank three or more options presented by HRS in order of preference by the court pursuant to section 39.09(3)(e), Florida Statutes. See B.E.O. v. State, 544 So. 2d 1175 (Fla. 5th DCA 1989); D.M., Jr. v. State, 539 So. 2d 579 (Fla. 5th DCA 1989); N.L.J. v. Komanski, 527 So. 2d 840 (Fla. 5th DCA 1988); H.R.S. v. State, [*816] 516 So. 2d 1094 (Fla. 5th DCA 1987); H.R.S. v. McGregor, 511 So. 2d 1096 (Fla. 5th DCA 1987); H.R.S. v. R.S., 511 So. 2d 434 (Fla. 5th DCA 1987); In…
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M.M. v. The Honorable Lawrence L. Korda, 544 So. 2d 318 (Fla. 4th DCA 1989)…endations, an expression of views by the court, even where coupled with a continuance of the hearing, does not constitute an order in disregard of the statutory mandate. Additionally, we recognize that this opinion conflicts with D.M., Jr. v. State, 539 So. 2d 579 (Fla. 5tDCA 1989) (Cobb, J., dissenting), and elect not to follow that opinion. The petition for writ of mandamus is denied. WARNER and POLEN, JJ., concur. . The petitioner also seeks relief by the remedy of a writ of prohibition and has labeled…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't of Health & Rehabilitative Servs. v. State, 516 So. 2d 1094 (Fla. 5th DCA 1987)
- Dep't OF Health & Rehabilitative Servs. v. R.S., 511 So. 2d 434 (Fla. 5th DCA 1987)
- Carvel Holloman v. State, 511 So. 2d 1096 (Fla. 4th DCA 1987)
- State v. Hon. Robert B. McGREGOR, 511 So. 2d 1096 (Fla. 5th DCA 1987)
- N.L.J. v. Hon. Walter Komanski, 527 So. 2d 840 (Fla. 5th DCA 1988)