P.D.W., A MINOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this juvenile proceeding, the court vacated the appellant's adjudication and commitment for resisting a merchant because the state never charged that offense and the trial court lacked jurisdiction to adjudicate it, but affirmed the adjudication and commitment for petit theft and the waiver of the predisposition report.
The trial court lacked jurisdiction to adjudicate the appellant for resisting a merchant because the state never charged that offense, and this fundamental error requires vacation of that adjudication and commitment. The appellant validly waived the predisposition report because a prior PDR from another pending case had already been prepared and the court explained its reasoning for departing from the recommendation.
[1] A conviction for the underlying theft must be obtained before a charge for resisting a merchant can be brought.
[2] A trial court lacks jurisdiction to adjudicate a defendant guilty of an offense for which the defendant was never charged.
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Join FLexlaw to unlock all legal intelligence“The state correctly asserts that a conviction for the underlying theft must be obtained before the state can bring a charge for resisting a merchant. K.C. v. State, 524 So.2d 658 (Fla.1988). The state, however, never charged the appellant with resisting a merchant; therefore, the trial court lacked jurisdiction to adjudicate the appellant guilty of that offense, and this error is fundamental.”
Establishes the jurisdictional defect requiring vacation of the resisting a merchant adjudication and commitment.
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Join FLexlaw to unlock all legal intelligenceThe appellant, a minor, was adjudicated for both resisting a merchant and petit theft. A predisposition report had been prepared in another pending ca…
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PATTERSON, Judge.
In this juvenile proceeding, the appellant challenges his adjudication for resisting a merchant and his commitment to the Department of Health and Rehabilitative Ser vices (HRS) for both resisting a merchant and petit theft. We vacate the appellant’s adjudication and commitment for resisting a merchant and affirm in all other respects.
The state correctly asserts that a conviction for the underlying theft must be obtained before the state can bring a charge for resisting a merchant. K.C. v. State, 524 So. 2d 658 (Fla.1988). The state, however, never charged the appellant with resisting a merchant; therefore, the trial court lacked jurisdiction to adjudicate the appellant guilty of that offense, and this error is fundamental. See Saskowitz v. State, 498 So. 2d 598 (Fla. 2d DCA 1986). Thus, we vacate the appellant’s adjudication and commitment for resisting a merchant.
The appellant also argues that he did not validly waive his right to a predisposition report (PDR). Contrary to the appellant’s assertions, a juvenile may waive a PDR under certain circumstances. In Rollins v. State, 610 So. 2d 651 (Fla. 1st DCA 1992), the court stated that defense counsel had waived the PDR that is required when sentencing a juvenile as an adult. See § 39.059(7)(a), Fla.Stat. (1991). The First District held that although defense counsel had waived the PDR required by section 39.059(7)(a), counsel did not waive the findings required under section 39.059(7)(c); thus, the court remanded for resentencing to consider the (7)(c) criteria and to make written findings.
In the present case, however, we are not confronted with a “straight waiver” of a PDR. In effect, the appellant waived a duplicative effort. A current PDR had been prepared in another pending case, and the PDR recommended a level six commitment. In that earlier case, the judge had departed from the recommendation and imposed a level eight commitment prior to the disposition hearing in the present case. The order of commitment in the present case reflects that the trial court considered the PDR, because the court explained why it chose to disregard HRS’ recommendation as to restrictiveness level. Under these circumstances, the trial court properly allowed the appellant to waive the PDR prior to committing him to HRS. Accordingly, we uphold the waiver of the PDR and affirm the appellant’s commitment to HRS on the petit theft charge.
Affirmed in part and reversed in part.
DANAHY, A.C.J., and LEHAN, J., concur.
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Hannah v. State, 644 So. 2d 141 (Fla. 2d DCA 1994)…7) must be voluntary, knowing, and intelligent. See Berry v. State, 636 So. 2d 555 (Fla. 2d DCA 1994). The record does not reflect such an affirmative, voluntary, and knowing waiver of a proper predisposition report. The state cites P.D.W. v. State, 620 So. 2d 1112 (Fla. 2d DCA 1993), for the proposition that a juvenile defendant may waive a predisposition report. The state also asserts that, as in P.D.W., Hannah effectively waived a duplicate report. P.D.W., however, is distinguishable in that it involved an…
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State v. E.N., 624 So. 2d 806 (Fla. 3d DCA 1993)…la. 5th DCA 1985), absent certain exceptions inapplicable in this case. State v. Donner, 500 So. 2d 532, 533 (Fla.1987). In view of the state’s objection, the trial court should not have accepted a plea to a non-charged offense. Cf. P.D.W. v. State, 620 So. 2d 1112 (Fla. 2d DCA 1993) (trial court lacks jurisdiction to adjudicate juvenile guilty of non-charged offense). Accordingly, we reverse the order and remand for further proceedings. Reversed and remanded. . Although the trial court did not enter an o…
Authorities Cited
- K.C. v. State, 524 So. 2d 658 (Fla. 1988)
- Saskowitz v. State, 498 So. 2d 598 (Fla. 2d DCA 1986)
- Cullen L. Rollins v. State, 610 So. 2d 651 (Fla. 1st DCA 1992)