K.M.H. v. State

• Citation: 91 So.3d 262
• Decision Date: 03 July 2012
• Docket Number: No. 1D11–6669.,1D11–6669.
• Parties: K.M.H., A Child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

91 So.3d 262

K.M.H., A Child, Appellant,
v.
STATE of Florida, Appellee.

No. 1D11–6669.

District Court of Appeal of Florida,
First District.

July 3, 2012.

[91 So.3d 263]

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

K.M.H. appeals a delinquency disposition order committing her to a moderate-risk residential placement. The Department of Juvenile Justice (DJJ) recommended that K.M.H. be placed on probation with the requirement that she participate in an inpatient drug treatment program. K.M.H. argues that the trial court erred by failing to make the written finding required by section 985.441(2)(d), Florida Statutes, and that such finding was necessary for K.M.H. to be committed to residential placement for a misdemeanor offense. K.M.H. also argues that the trial court erred by failing to comply with the requirements enunciated in E.A.R. v. State, 4 So.3d 614 (Fla.2009) in deviating from DJJ's recommendation. We agree that reversal is required because the trial court failed to make the written finding mandated by section 985.441(2)(d), Florida Statutes. We decline to reach the second issue raised by K.M.H.

The state properly concedes that the trial court did not make the written finding required by section 985.441(2)(d), Florida Statutes, when it committed K.M.H. to a residential placement for a violation of probation based on a misdemeanor offense. Section 985.441, Florida Statutes, was amended in 2011 to restrict the trial court's authority to commit an adjudicated juvenile to a residential placement for a misdemeanor offense. Ch. 2011–54, § 1, Laws of Fla. The statute provides that a trial court may not commit a juvenile “for any misdemeanor offense or any probation violation at a restrictiveness level other than minimum-risk nonresidential unless the probation violation is a new violation of law constituting a felony.” § 985.441(2), Fla. Stat. However, the statute provides four exceptions where a juvenile who commits a misdemeanor offense or who violates probation based on a misdemeanor offense may be committed to residential placement:

(2) Notwithstanding subsection (1), the court having jurisdiction over an adjudicated delinquent child whose underlying offense was a misdemeanor may not commit the child for any misdemeanor offense or any probation...