STATE OF FLORIDA, APPELLANT,
v.
R.L.K., A CHILD, APPELLEE
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The State appealed the trial court's dismissal of a second count in a delinquency petition filed 50 days after the juvenile's custody, which exceeded Florida's 45-day filing requirement. The appellate court reversed, holding that the second count constituted an amendment to the original petition rather than a new offense, and amendments arising from the same circumstances are permitted under the rules of juvenile procedure.
The court held that a count added outside the 45-day window period constitutes an amendment rather than a new offense when it arises from the same circumstances, and such amendments are permissible under Florida Rule of Juvenile Procedure 8.110(c). Accordingly, dismissal of count II was improper and the trial court's order was reversed.
[1] A petition alleging delinquency must be filed within 45 days of the juvenile being taken into custody, or it shall be dismissed with prejudice.
[2] Dismissal of a count added to a petition outside the 45-day window period is improper if the count arises out of the same circumstances as the original count.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 39.05(6) requires that a petition alleging delinquency be filed within 45 days from the date the juvenile is taken into custody, or the petition "shall" be dismissed with prejudice.”
Establishes the mandatory statutory deadline for filing delinquency petitions
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Join FLexlaw to unlock all legal intelligenceR.L.K. was taken into custody on August 12, 1989. The state initially charged him with disorderly intoxication on August 21, 1989, and filed an amende…
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SHARP, W., Judge.
The state appeals the lower court’s order which granted R.L.K.’s motion to dismiss count II of a second amended petition alleging R.L.K. to be a delinquent. We reverse.
R.L.K. was taken into custody on August 12, 1989, and on August 21, 1989, the state charged him with one count of disorderly intoxication.1 On August 24, 1989, the state filed an amended petition which corrected the date of the offense. On October 2, 1989, some 50 days after R.L.K. had been taken into custody, the state filed a second amended petition which contained the second count, disorderly conduct.2
Section 39.05(6) requires that a petition alleging delinquency be filed within 45 days from the date the juvenile is taken into custody, or the petition “shall” be dismissed with prejudice. R.L.K. brought a motion to dismiss based on the foregoing, alleging the second amended petition was filed outside this 45-day window period. The trial court granted the motion with respect to count II, finding that although the second count arose out of the same circumstances as the first count, the offenses were substantively different.
Where a count is added to a petition outside the 45-day window period and arises out of the same circumstances, dismissal is improper. State v. M.M., 557 So. 2d 217 (Fla. 2d DCA 1990); In the Interest of E.M., 362 So. 2d 427 (Fla. 4th DCA 1990).3 Florida Rule of Juvenile Procedure 8.110(c) provides that amendments may be made to petitions at any time prior to the adjudicatory hearing and that such amendments should be freely given. In the event the defense is prejudiced or surprised, a continuance should be sought. Id. However, no continuance was requested in this case.
We hold that the second count (though substantive in nature) constituted an amendment under the rules of procedure, and not a new offense committed under different circumstances. Accordingly, the order being appealed is
REVERSED.
DAUKSCH and GOSHORN, JJ., concur. . § 856.011, Fla.Stat. (1989).
. § 877.03, Fla.Stat. (1989).
. We reject R.L.K.’s argument that an affirmance is required based on State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988). T.A. is distinguishable because the petitions there reflected both a change in the name of the owner of certain property taken, and the address and location of the property taken. Thus, the amended count there could not be said to have arisen out of the same circumstances.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988)
- In the Interest of E.M., 362 So. 2d 427 (Fla. 4th DCA 1978)
- State v. M.M., 557 So. 2d 217 (Fla. 2d DCA 1990)