A.W., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2003-12-10
No. 4D02-4899
FARMER, C.J., GUNTHER, and MAY, JJ., concur.
862 So. 2d 858 Florida District Court of Appeal, Fourth District (2003) Positive Treatment
Cited by 7 cases

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Holding

The court held that the trial court's departure from the Department of Juvenile Justice's recommendation for a low-risk residential facility was not supported by competent and substantial evidence.


Headnotes

[1] A trial court's decision to depart from the Department of Juvenile Justice's recommendation for placement must be supported by competent and substantial evidence.

[2] A juvenile's commitment to a high-risk residential facility requires evidence demonstrating a concern for public safety that outweighs placement in lower commitment level…

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Facts & Procedural History

A juvenile, A.W., was adjudicated delinquent for violating probation. The Department of Juvenile Justice recommended a low-risk residential facility, …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

A.W., adjudicated delinquent upon his violation of probation, appeals the dis position order on grounds that the trial court erred in committing him to a high-risk residential facility which was a departure from the Department of Juvenile Justice’s (“DJJ”) recommendation. Because we find the trial court’s departure was not supported by the evidence, we reverse and remand.

A.W. pled guilty to a charge of grand theft auto and was placed on probation. Another charge of burglary of a conveyance was nolle prossed.

On April 4, 2002, an Affidavit/Petition for Violation of Probation was filed, alleging that A.W. failed to meet the conditions of his probation. Specifically, the affidavit stated that A.W. failed to perform sixty hours of community service work, failed to enroll in school, and failed to make weekly contact with his probation officer. The affidavit also stated that A.W. left his last known residence without first obtaining the consent of his probation officer. At the time, A.W. was supposed to be living with his mother, but his mother stated that A.W. was living with his father.

On April 23, 2002, A.W. entered into a plea agreement, pleading guilty to the violation of probation and leaving the disposition open. The DJJ filed a predisposition report (“PDR”) on May 8, 2002. In the PDR, the DJJ recommended that A.W. be adjudicated delinquent and placed in a low-risk residential facility.

While awaiting his disposition hearing, another Affidavit/Petition for Violation of Probation was filed, alleging that A.W. violated his curfew. A hearing was eventually held for both violations of probation on October 2, 2002. The trial court dismissed the second Affidavit/Petition for Violation of Probation. The trial court, however, adjudicated A.W. delinquent and committed him to a high-risk residential program on the basis of the first violation of probation, finding that the high-risk residential program was the most appropriate placement for A.W. as it would provide him with “opportunities he needs in order for him to have any chance at any meaningful rehabilitation.” The trial court found that the less restrictive placement recommended by the DJJ would not be sufficient.

The trial court stated that its reasons for departing from the DJJ’s recommendation and imposing a more restrictive placement are (1) A.W. is not in school, is not receiving any vocational training and does not have a full-time job despite repeated encouragement that he participate in one of .these, (2) A.W. is “an abuser of illegal substances, given his age,” (3) A.W. “is on probation for a felony,” (4) A.W. was “before the [cjourt that day for violating ... probation,” and (5) the trial court did not think that the mother had sufficient control over A.W. to motivate him to go to school, obtain full-time employment or avoid illegal substances. A.W. objected to the court’s departure from the DJJ’s recommendation and now appeals.

A trial court’s decision to depart from the DJJ’s recommendation is reviewed under an abuse of discretion standard and must be supported by competent and substantial evidence. S.L.K. v. State, 776 So. 2d 1062, 1064 (Fla. 4th DCA 2001) (citing A.C.N. v. State, 727 So. 2d 368, 369 (Fla. 1st DCA 1999)).

Thus, while this Court has stated that a trial court is not required to articulate “the ‘characteristics of the restrictiveness level imposed vis-avis the needs of the juvenile,’ ” K.S. v. State, 835 So. 2d 350, 352 (Fla. 4th DCA 2003), there still must be evidence in the record to support the trial court’s departure. In this case, neither the trial court’s findings nor the record sufficiently support A.W.’s commitment to a high-risk residential facility. The statute defines high-risk residential programs as:

[p]rograms or program models ... [which] are residential and shall not allow youth to have access to the community. Facilities are hardware-secure with perimeter fencing and locking doors. Facilities shall provide 24-hour awake supervision, custody, care, and treatment of residents. Youth assessed and classified for this level of placement require close supervision in a structured residential setting. Placement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels. The staff at a facility at this commitment level may seclude a child who is a physical threat to himself or herself or others. Mechanical restraint may also be used when necessary. The facility may provide for single cell occupancy.

§ 985.03(45)(c), Fla. Stat. (2002).

In other cases where the trial court committed the child to a high-risk residential facility, evidence existed in the record which supported the need to place the child in the high-risk facility. In K.S., this Court found that a child should be placed in a high-risk residential program, contrary to the DJJ’s recommendation, where the child was a flight risk and her conduct exposed her to danger. 835 So. 2d at 350, 352. The court stated that a high-risk facility was necessary to “ ‘secure’ the juvenile for her own protection as well as that of the public.” Id. at 352.

In C.T. v. State, 819 So. 2d 869, 872 (Fla. 4th DCA 2002), this Court approved the placement of a child in a high-risk residential program, despite the DJJ’s recommendation that she be placed in a moderate-risk program, because the child had violent tendencies and was a flight risk. The court in A.J. v. State, 826 So. 2d 528, 529-31 (Fla. 5th DCA 2002), approved the placement of a child in a high-risk residential facility, rather than the moderate-risk program recommended by the DJJ, where the child had ten previous offenses, many of which were violent, and the child had previously been committed to a moderate-risk facility and had gone on to commit other offenses after being released from the program.

In this case, the record does not contain competent and substantial evidence that A.W. is a danger to the public and needs to be in a facility that is “hardware-secure with perimeter fencing and locking doors” with “24-hour awake supervision.” See § 985.03(45)(c). Accordingly, we reverse and remand.

REVERSED and REMANDED.

FARMER, C.J., GUNTHER, and MAY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • K.M. v. State, 891 So. 2d 619 (Fla. 3d DCA 2005)
    …grams at lower commitment levels.” It is clear that the statute is referring to juveniles who have committed offenses of violence towards others such that they pose a genuine threat to the physical safety to members of the public. See A.W. v. State, 862 So. 2d 858, 860 (Fla. 4th DCA 2003); K.S. v. State, 835 So. 2d 350, 352 (Fla. 4th DCA 2003); A.J., 826 So. 2d at 531. Although KM.’s activities were illegal, they did not pose a threat of physical harm and thereby require that K.M. be placed in a facility wher…
  • State v. D.H., 920 So. 2d 689 (Fla. 5th DCA 2006)
    …PER CURIAM. AFFIRMED. See A.W. v. State, 862 So. 2d 858 (Fla. 4th DCA 2003); see also D.E.R. v. State, 744 So. 2d 1244 (Fla. 5th DCA 1999). GRIFFIN, THOMPSON and MONACO, JJ., concur.…
  • K.R.T. v. State, 928 So. 2d 511 (Fla. 1st DCA 2006)
    …rate-risk placement prior to the institution of the current proceedings and, therefore, never ran away from such placement. Thus, there is no evidence that a moderate-risk placement would be insufficient to keep K.M. under control.”); A.W. v. State, 862 So. 2d 858, 860 (Fla. 4th DCA 2003) (“[T]he record does not contain competent and substantial evidence that A.W. is a danger to the public and needs to be in a facility that is ‘hardware-secure with perimeter fencing and locking doors’ with ‘24-hour awake supe…

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