D.P. v. State

• Decision Date: 11 May 1992
• Docket Number: Nos. 91-2030,91-2772,s. 91-2030
• Citation: 597 So.2d 952
• Parties: 17 Fla. L. Weekly D1210 In the Interest of D.P., a child, Appellant, v. STATE of Florida, Appellee. In the Interest of G.M., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 952

597 So.2d 952

17 Fla. L. Weekly D1210

In the Interest of D.P., a child, Appellant, v. STATE of Florida, Appellee.

In the Interest of G.M., a child, Appellant, v. STATE of Florida, Appellee.

Nos. 91-2030, 91-2772.

District Court of Appeal of Florida First District.

May 11, 1992.

Nancy A. Daniels, Public Defender, Nancy L. Showalter, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION FOR CLARIFICATION

MINER, Judge.

Appellee, State of Florida, has moved for clarification of the prior opinion issued in these consolidated cases. We grant the motion for clarification, withdraw our previous opinion and substitute the following therefor.

Appellants D.P. and G.M. challenge their adjudications of delinquency for escape pursuant to Section 39.061, Florida Statutes (Supp.1990). By order of the circuit court issued June 20, 1991, appellant D.P. was found to have violated Section 812.014(2)(c)4, Florida Statutes (grand theft auto) and Section 39.061, Florida Statutes (juvenile escape statute). D.P. had escaped from the Leon County Start Center, a residential commitment facility. By order of the circuit court issued August 1, 1991, appellant G.M. was found to have committed an escape in violation of Section 39.061. G.M. had escaped from the Criswell Halfway House, also a residential commitment facility. On appeal, appellants contend that Section 39.061 is constitutionally infirm as an invalid delegation of legislative authority in contravention of Article II, Section 3, Florida Constitution, and, further, that it is unconstitutionally vague. Concluding that that portion of the juvenile escape statute pertaining to appellants' escapes from residential commitment facilities is indeed violative of Article II, Section 3 of the Florida Constitution, we reverse appellants' adjudications of delinquency for escape. In view of this disposition, we find it unnecessary to reach appellants' vagueness claims.

The statute in question and under which appellants were adjudicated delinquent provides:

An escape from any secure detention or any residential commitment facility of restrictiveness level VI or above maintained for the treatment or rehabilitation of children found to have committed delinquent acts or violations of law constitutes escape within the intent and meaning of s. 944.40 and is a felony of the third degree.

The term "restrictiveness level" is defined in Section 39.01(61), as follows:

"Restrictiveness level" means the identification of broad custody categories for committed children, including nonresidential, residential, and secure residential. Specific placement in restrictiveness levels within these categories depends upon the risk and needs of the individual child. Restrictiveness levels must be established by the department by rule, provided, however that there shall be no more than eight levels.

Sec. 39.01(61), Fla.Stat. (Supp.1990).

Within this newly enacted statutory framework, the Department of Health and Rehabilitative Services (HRS) promulgated Florida Administrative Code Rule 10M-32.001 which created a regulatory scheme applicable to residential commitment facilities, consisting of four restrictiveness levels: (1) non-residential programs (Level 2); (2) low-risk residential programs (Level 4); (3) moderate risk residential programs (Level 6); and (4) high risk residential programs (Level 8). The rule also describes the characteristics of the programs at each restrictiveness level.

Article II, Section 3, of the Florida Constitution mandates that "[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein." Under this constitutional provision the legislature is prohibited from conferring upon administrative agencies authority which the constitution assigns exclusively to the legislature itself. Florida State Bd. of Architecture v. Wasserman, 377 So.2d 653, 655 (Fla.1979).

Under this doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.

Askew v. Cross Key Waterways, 372 So.2d 913, 925 (Fla.1978).

Pursuant to this doctrine, statutes granting enforcement power to administrative agencies must clearly announce adequate standards to guide the agencies in the execution of the powers delegated so as to preclude the agency from acting through whim, showing favoritism, or exercising unbridled discretion. Lewis v. Bank of Pasco County, 346 So.2d 53, 55-56 (Fla.1976). "The legislature, however, may validly delegate to agency officials the authority to promulgate subordinate rules within proscribed limits and to determine the facts to which established policies of legislation are to apply so long as the agency is not delegated the authority to determine what the law shall be." In re Advisory Opinion to the Governor, 509 So.2d 292, 311 (Fla.1987) (citing Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Florida Welding & Erection Service, Inc. v. American Mutual Insurance Co., 285 So.2d 386 (Fla.1973)).

The requirement that statutory enactments provide adequate standards and guidelines to executive agencies has been tempered, however, by certain policy considerations. "The exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulating enactments under the police power." Dickinson v. State, 227 So.2d 36, 37 (Fla.1969).

The general rule, which requires an express standard to guide the exercise of discretion is also subject to the exception that where it is impracticable to lay down a definite comprehensive rule, such as where regulation turns upon the question of personal fitness, or where the act relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public, it is not essential that a specific prescribed standard be expressly stated...