IN THE INTEREST OF E.M., A CHILD
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In this juvenile delinquency appeal, the state challenged a trial court's dismissal of an amended petition alleging burglary filed more than 30 days after the original complaint. The Fourth District reversed, holding that amended petitions in juvenile proceedings may be freely filed prior to the adjudicatory hearing under the applicable rule, and the 30-day deadline does not vitiate the original petition.
The amended petition was properly filed and the trial court's dismissal was reversed. Under Florida Rule of Juvenile Procedure 8.110(c), amended petitions may be freely filed at any time prior to the adjudicatory hearing in the interest of justice and the welfare of the child, and the 30-day deadline does not vitiate the original petition.
[1] An amended petition for delinquency may be filed at any time prior to the adjudicatory hearing.
[2] Amendments to a petition for delinquency shall be freely permitted in the interest of justice and the welfare of the child.
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Join FLexlaw to unlock all legal intelligence“At any time prior to the adjudicatory hearing an amended petition may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child.”
The governing rule permitting freely filed amendments in juvenile proceedings at any time before adjudication
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Join FLexlaw to unlock all legal intelligenceA timely complaint alleging burglary and trespass was filed September 21, 1977 with the Division of Youth Services. A petition alleging delinquency fo…
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MOORE, Judge.
In this appeal by the state we are called upon to decide the effect of the filing of an amended petition for delinquency more than thirty days from the date the original complaint was referred to the intake office.
A timely complaint alleging burglary of a structure and trespass was filed on September 21, 1977 with the Division of Youth Services. Thereafter, and within the time prescribed by statute and rule, a petition alleging delinquency by reason of trespass was filed with the court. On October 24, 1977, more than thirty days subsequent to the filing of the complaint, an amended petition alleging delinquency on the basis of the burglary was filed with the court. The trespass and burglary are both based upon the same factual situation. Respondent successfully argued before the trial court that the filing of an amended petition acted to vitiate the original petition, and since the amended petition was filed more than thirty days subsequent to the filing of the complaint it should be dismissed with prejudice pursuant to Rule 8.110(e), Fla.R.Juv.P. (1977). We disagree with the ruling of the trial court and reverse.
In our opinion, this case is controlled by Rule 8.110(c) which provides:
“At any time prior to the adjudicatory hearing an amended petition may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child. A continuance may be granted upon motion and a showing that the amendment prejudices or materially affects any party.”
In the case sub judice no motion for continuance was requested nor was there any showing that the amended petition prejudiced or materially affected the respondent. It is true, as suggested by respondent, that the crime of trespass (a misdemeanor) is different from the crime of burglary (a felony). Unlike criminal law, however, the petition in juvenile proceedings merely alleges an act of delinquency and although it is necessary to prove the substantive behavior, the final result is an adjudication of delinquency and not conviction of a crime.
Respondent relies upon Wilcox v. State, 248 So. 2d 692 (Fla. 4th DCA 1971), a decision of this Court involving the filing of an amended information which was subsequently withdrawn. We find the Wilcox case factually distinguishable, not only because it was a criminal case but also because the amended information was withdrawn and the state attempted to prosecute the defendant on the original information.
As the filing of an amended petition is permissible at any time prior to the adjudicatory hearing pursuant to Fla.R.Juv.P. 8.110(c), the trial court’s dismissal of the petition in this case must be and is reversed with instructions to reinstate the amended petition for further proceedings pursuant thereto.
REVERSED and REMANDED.
ANSTEAD and DAUKSCH, JJ., concur.
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M.F. v. State, 583 So. 2d 1383 (Fla. 1991)…n offense of a higher degree.8 The court adjudicated B.T. delinquent at a hearing six months later, and the district court affirmed, finding that B.T. could not have been surprised or prejudiced under the facts of that case. Likewise, in In re E.M., 362 So. 2d 427 (Fla. 4th DCA 1978), the court approved an amendment that changed the allegation of trespass to an allegation of burglary. Each of these decisions are fatally flawed because they failed to recognize that since the design of the state was to change…1 / 2
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Bradley v. State, 385 So. 2d 1122 (Fla. 1st DCA 1980)…to require dismissal under Rule 8.110(d). Rather, the petition was substantially complete and recited the correct statutory citation. Further, the amendment was made long before any hearing on the merits of the petition. See In the Interest of E.M., 362 So. 2d 427 (Fla. 4th DCA 1978). Compare T.R. v. State, 364 So. 2d 100, 102 (Fla. 1st DCA 1978). As to the second point, sentencing Bradley under the Youthful Offender Act would be an impermissible retroactive application of the Act. Art. X, § 9, Fla. Const.;…
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State v. M.M., 557 So. 2d 217 (Fla. 2d DCA 1990)…the child or his custodians, and the amendment did not prejudice the child in the preparation of a defense. Bradley v. State, 385 So. 2d 1122 (Fla. 1st DCA), review denied, 392 So. 2d 1372 (Fla.1980). The fourth district in In the Interest of E.M., 362 So. 2d 427 (Fla. 4th DCA 1978) also permitted an amendment to the petition outside of the “window” where the original charge was trespass, and the amended petition alleged trespass and burglary. The court noted that the amended charges arose from the same fact…
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- Wilcox v. State, 248 So. 2d 692 (Fla. 4th DCA 1971)