IN THE INTEREST OF C.S., A CHILD, APPELLANT
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A trial judge cannot substitute their own program choice for those offered by the Department of Health and Rehabilitative Services.
A juvenile defendant was adjudicated guilty of carrying a concealed weapon. The trial judge substituted a program option not offered by the Department…
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LETTS, Judge.
The juvenile defendant was adjudicated guilty of carrying a concealed weapon. We affirm the adjudication and commitment to the Department of Health and Rehabilitative Services, but reverse the trial judge’s substitution of another program option instead of one of the three furnished by the department. See § 39.09(3)(e), Florida Statutes (1989).
It is true that in M.M. v. Korda, 544 So. 2d 318 (Fla. 4th DCA 1989), we held that a trial judge should not be prevented from expressing his concern, dissatisfaction and criticism of the program options presented by HRS. However, in M.M., no final order was entered and the M.M. court was careful to point out that a trial judge cannot force the department to modify its placement recommendations and that an “expression of views by the court ... does not constitute an order in disregard of the statutory mandate.”
In the case before us now, the trial judge actually substituted his own choice of pro gram in favor of one of the three options presented by HRS. This he cannot do as he should have already known from M.M. v. Korda, in which he was, likewise, the trial judge. See also, A.T. v. State, 516 So. 2d 1104 (Fla. 2d DCA 1987).
All other points on appeal are affirmed.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
WARNER and POLEN, JJ., concur.
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B.J.M. v. State, 627 So. 2d 512 (Fla. 3d DCA 1993)…. 5th DCA 1987) (same). Compare M.M. v. Korda, 544 So. 2d 318 (Fla. 4th DCA 1989) (even though court required to accept and rank options presented by H.R.S., court could express suggestion or opinion concerning alternative placement) and In re C.S., 573 So. 2d 168 (Fla. 4th DCA 1991) (although court could express dissatisfaction with options, court could not substitute own choice of program in favor of one of three options presented by H.R.S.). Section 39.052, Florida Statutes .(1991), which replaced section…
Authorities Cited
- A.T. v. State, 516 So. 2d 1104 (Fla. 2d DCA 1987)
- M.M. v. The Honorable Lawrence L. Korda, 544 So. 2d 318 (Fla. 4th DCA 1989)