CML v. State, 5D03-544.
Decision Date | 11 February 2005 |
Docket Number | No. 5D03-544.,5D03-544. |
Citation | 895 So.2d 495 |
Parties | C.M.L., A Child, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
C.M.L., a juvenile, appeals from an order adjudicating him delinquent and sentencing him to a Level 10 commitment level in a proceeding in which the Department of Juvenile Justice (DJJ) recommended a Level 8 commitment. Based on the record in this case, we affirm.
The issues in this case are whether the trial judge's reasons support his decision not to accept DJJ's recommendation, and whether the evidence adduced support the trial judge's reasons. True, a trial court may not depart from the DJJ's recommendation simply because it disagrees with the recommendation. A.G. v. State, 737 So.2d 1244 (Fla. 5th DCA 1999). But, a court may depart from the DJJ's recommendation if it states sufficient reasons for the departure and those reasons are supported by a preponderance of the evidence. The court should also make reference to the characteristics of the restrictiveness level and the needs of the child. L.O. v. State, 718 So.2d 155, 157 (Fla.1998); S.S.M. v. State, 814 So.2d 1234, 1234-1235 (Fla. 5th DCA 2002). Our standard of appellate review in such cases is whether the trial court abused its discretion. M.P. v. State, 832 So.2d 877, 878 (Fla. 5th DCA 2002).
On January 28, 2003, C.M.L. entered a no-contest plea to reduced charges of aggravated battery with great bodily harm and witness tampering.1 At sentencing, the trial judge concluded that the DJJ's formal recommendation for a Level 8 commitment was inadequate upon review of the evidence and imposed a Level 10 commitment. C.M.L. contends that the trial court provided insufficient reasons for the departure. We disagree.
On September 11, 2003, at a hearing on a motion for correction of sentence, the trial judge articulated reasons for departing from the DJJ's formal recommendation.
In sentencing a child, it is cogent and proper for a court to consider the child's violent tendencies and the need to safeguard the public. In C.T. v. State, 819 So.2d 869 (Fla. 4th DCA 2002), the 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. This court in A.J. v. State, 826 So.2d 528, 529-31 (Fla. 5th DCA 2002) also 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 there was ample evidence of C.M.L.'s violent tendencies. First, the crimes committed in this case occurred while C.M.L. was on commitment status for a previous string of numerous offenses.2 Second, the crimes committed in this case involve physically threatening behavior.3 And third, after his arrest on this charge and while being held in the detention center, C.M.L. continued to display verbal and physical aggressiveness, even to the point of being involved in a fight and, during the staffing, having to be escorted by a guard into another room because of violent outbursts.
While the nature of the charge in a particular case may not be a sufficient reason to depart from DJJ recommendations,4 it is indicative of whether a child has benefitted from his previous commitment to the Level 8 program. This is an issue the trial judge must reference in deciding whether to depart from the DJJ's recommendation. A.G. v. State, 737 So.2d 1244, 1247 (Fla. 5th DCA 1999). In this case, after being committed to a Level 8 commitment for a previous laundry list of charges, C.M.L. committed additional violent crimes, demonstrating that the Level 8 commitment was inadequate. In our view, the trial judge properly referenced the previous crimes committed and the current charges as indicative that C.M.L. needs a higher commitment level.
The trial court also properly alluded to the characteristics of the restrictiveness level being imposed when he stated,
There is also testimony indicating that the DJJ's official recommendation should have been the higher Level 10 commitment. Mr. Smith, representing the State, stated:
Section 985.23(3)(c), Florida Statutes (2001) grants the court judicial oversight of the DJJ's actions. It provides:
The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court's findings resulting in a modified level of restrictiveness pursuant to this paragraph. (Emphasis added)
This judicial oversight is crucial to ensure that a proper...
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...737 So.2d 1244, 1247 (Fla. 5th DCA 1999). See also T.N. v. State, 929 So.2d 1133, 1136-37 (Fla. 5th DCA 2006); C.M.L. v. State, 895 So.2d 495, 496 (Fla. 5th DCA 2005); T.S. v. State, 801 So.2d 171, 172 (Fla. 5th DCA 2001). Here, the trial court gave reasons, the primary one being J.M.'s fai......
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KAP v. State, 5D03-4130.
...General, and Elizabeth C. King, Senior Research Assistant, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See C.M.L. v. State, 895 So.2d 495 (Fla. 5th DCA 2005). SHARP, W., THOMPSON and GRIFFIN, JJ., ...