D.A.H., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Appellant D.A.H. challenges his juvenile disposition, in which the trial court departed upwards from the Department of Juvenile Justice (“DJJ”) recommended disposition of probation and committed him to a non-seeure residential program, without requesting a restrictiveness level recommendation for this commitment from DJJ. The State concedes that this was reversible error. See E.A.R. v. State, 4 So.3d 614 (Fla. 2009); D.R. v. State, 178 So.3d 478, 479 (Fla. 4th DCA 2016). We find that the issue was properly preserved. See H.D. v. Shore, 134 So.3d 1062, 1063 (Fla. 4th DCA 2013); A.L.B. v. State, 23 So.3d 190 (Fla. 5th DCA 2009). We therefore reverse for a new disposition hearing.
Reversed and remanded.
Warner, Gerber and Kuntz, JJ., concur.
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Sheheane v. State, 228 So. 3d 1178 (Fla. 1st DCA 2017)…also Charles v. State, 223 So. 3d 318, 329 (Fla. 4th DCA 2017) (“A defendant cannot, either expressly or implicitly, waive the right to a competency hearing.”) (citing Deferrell v. State, 199 So. 3d 1056, 1061 (Fla. 4th DCA 2016)); A.L.Y. v. State, 212 So. 3d 399, 403 (Fla. 4th DCA 2017) (“In other words, although the parties and the court may agree that the court may decide the issue of competency on the basis of the written reports alone, the juvenile can neither implicitly concede nor explicitly stipulate…
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Baker v. State, 221 So. 3d 637 (Fla. 4th DCA 2017)…xplicit waiver of such a, hearing in her motion for the evaluation.. The issue of “[w]hether the circuit court' fundamentally erred in failing to hold a competency hearing presents a pure question of law subject to de novo review.” A.L.Y. v. State, 212 So. 3d 399, 402 (Fla. 4th DCA 2017). The procedure for determining a defendant’s competency is. outlined in Florida Rule of Criminal Procedure 3.210(b), which states: (b) Motion for Examination. If, at any material stage of a criminal proceeding, the court o…
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Matthew v. Hawks, 226 So. 3d 892 (Fla. 4th DCA 2017)…retroactive determination of competency may be possible if the expert [*895] and fact witnesses are able to testify based upon observations and conclusions made contemporaneously with the court’s earlier adjudication. Id.; see also A.L.Y. v. State, 212 So. 3d 399, 404 (Fla. 4th DCA 2017); Bain v. State, 211 So. 3d 139, 140 (Fla. 4th DCA 2017). In determining whether a nunc pro tunc evaluation is possible, the court must be mindful of the Defendant’s due process rights and must not make a nunc pro tunc deter…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E.A.R. v. State, 4 So. 3d 614 (Fla. 2009)
- A.L.B. v. State, 23 So. 3d 190 (Fla. 1st DCA 2009)
- D.R. v. State, 178 So. 3d 478 (Fla. 4th DCA 2015)
- H.D. v. Shore, 134 So. 3d 1062 (Fla. 4th DCA 2013)