CT v. State, 4D01-3323.

• Decision Date: 29 May 2002
• Docket Number: No. 4D01-3323.,4D01-3323.
• Citation: 819 So.2d 869
• Parties: C.T., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

819 So.2d 869

C.T., a child, Appellant, v. STATE of Florida, Appellee.

No. 4D01-3323.

District Court of Appeal of Florida, Fourth District.

May 29, 2002.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

A juvenile appeals the trial court's disposition order entered after having pled guilty to a violation of probation. At issue is whether a trial court may disagree with the disposition recommended by the Department of Juvenile Justice [DJJ] when that disagreement rests solely on the same factors considered by the DJJ in making its recommendation. We hold that a trial court judge has that discretion. The disposition order is affirmed.

The State initially charged C.T. with a single count of battery on October 31, 2000. This battery occurred on school grounds when C.T. and another youth ran up behind the victim and punched the victim in the face. On December 8, 2000, she entered into a written plea agreement and was placed on community control.

C.T. violated community control and was placed on secure home detention on May 15, 2001. Three days later, a formal violation of probation was filed, which alleged that C.T. had violated curfew, failed to make weekly telephone contact with the probation officer, and had become truant. Less than two weeks later, C.T. failed to report to the detention center to sign her home detention contract, which caused the filing of an affidavit of violation of supervision on May 31, 2001. She was taken into custody on June 5, 2001.

On June 6, 2001, the trial court released her on electronic monitoring. On July 3, 2001, the probation officer filed another affidavit for violation of probation because of C.T.'s failure to comply with the conditions of electronic monitoring. She was again taken into custody, and placed in secure detention. She pled guilty to the violation of probation and was released on electronic monitoring pending final disposition. She absconded, causing another violation of supervision to be filed. On July 20, 2001, she was taken into custody, spent five days in secure detention, and was released on electronic monitoring.

The DJJ prepared a predisposition report. It recommended that C.T. be committed to a moderate risk residential program. The report indicated that the DJJ had considered the following factors: (1) C.T. was beyond parental control; (2) she was a flight risk; (3) she had violent tendencies; (4) all of her family members had delinquent histories; and (5) she had poor school attendance.

On August 1, 2001, the trial court conducted the final disposition hearing. C.T.'s grandmother and legal guardian testified that C.T.'s behavior was out of control and that she "hung out" with a drug dealer. The prosecutor did not object to the DJJ's recommendation, but added that a high risk level program might be better suited to her needs.

The trial court ordered that C.T. be placed in a high risk residential treatment program rather than the moderate risk program recommended by the DJJ. In doing so, the trial court stated:

Based on the PDR, the grandmother ... who has had the responsibility of raising this child, has indicated that for the past two years the child's behavior has become beyond her control. Her statements in court today bear that out without any questions. She has difficulty even getting this child to attend school. Apparently, based on grandmother, she leaves home and she goes and she hangs out with some drug dealer. Her school record also provides a basis for the court's departure and the records need not be repeated here in court, it is as reflected, the Court has relied upon it as it is reflected in the PDR. According to the PDR, the child has been placed on probation and has not made one iota of improvement, has continued to demonstrate negative behavior which has resulted in her violations of probation. According to the pre-disposition report, she is a flight risk, that's borne out by the PDR. There have been pick up orders for absconding, I placed her on the monitor, she violated the monitor, gone for a week, no one knew where she was. According to the PDR, she also has violent tendencies. Flight risk, violent tendencies indicates to this court that moderate risk residential program, these two factors alone just demonstrate to this court she shouldn't be in a moderate risk program, she should be in a high risk residential program.

From this disposition order, C.T. appeals.

The resolution of this case rests on the language of section 985.23(3)(c), Florida Statutes (2001). 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.

(Emphasis added).

The statute literally prevents a court from "disregarding" the DJJ's recommendation, not "disagreeing" with it, unless the trial court articulates its reasons, which are...