N.B. v. State, 1D05-0758.

• Decision Date: 31 August 2005
• Docket Number: No. 1D05-0758.,1D05-0758.
• Citation: 911 So.2d 833
• Parties: N.B., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

911 So.2d 833

N.B., a child, Appellant, v. STATE of Florida, Appellee.

No. 1D05-0758.

District Court of Appeal of Florida, First District.

August 31, 2005.

Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

For shoplifting a pacifier, among other things, the trial court adjudicated N.B., a sixteen-year-old single mother, delinquent, and committed her to a low-risk residential facility. She appeals the final disposition order insofar as it placed her in the residential facility. The Department of Juvenile Justice (DJJ) had recommended probation. Because the trial judge identified no valid basis for deviating from DJJ's recommendation, we reverse.

Apprehended trying to steal clothing and a pacifier from Wal-Mart, N.B. pleaded guilty to a charge of petit theft. DJJ prepared a predisposition report¹ and recommendation, recommending that adjudication be withheld² and that N.B. be placed on probation.

Section 985.23(3)(c), Florida Statutes (2004), gives the trial judge, not DJJ, final say regarding dispositions of juvenile offenders, but lays down certain requirements when the trial judge decides to depart from DJJ's recommendation:

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.

In order to disregard DJJ's recommendation, the trial judge must state reasons for departure that a preponderance of the evidence supports. See A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999).

In the present case, the trial judge rejected the Department's recommendation as "clearly not acceptable." Addressing N.B. when she entered her plea, he inquired, then commented: "Why are you a thief? Have to come in to court, a young lady, come to court, you're a thief. You can't take your hands off of property that doesn't belong to you." At the disposition hearing, the trial judge said:

She's got a 10:00 p.m. curfew, which is not my business as such right now, but has a 10:00 p.m. curfew, and 12:00 on the weekends, which is way too late for her, seeing as she has a child at home. She's not in school. And more significantly, two years ago you had another theft, and that's why I'm not going to follow probation in this case.

The judge stated further:

This is her second theft in two years, a little, slightly over two years, from a major store, business here in the Jacksonville area. Wal-Mart this time, Belks two years ago, the same type of sophisticated thievery, where it's a plan, a scheme, where items are paid for, items that are not paid for are concealed by things that are.[³]

At that point N.B. shook her head.⁴ The judge then adjudicated her delinquent and committed her to the custody of the Department to be placed in a low-risk residential program⁵ for girls. Appellant's counsel argued the soundness of, and pointed to evidentiary support for, DJJ's recommendation, and objected to N.B.'s placement in the residential program, given DJJ's recommendation for probation.

A trial judge may not deviate from DJJ's recommendation at a juvenile delinquency disposition hearing simply because the judge disagrees with the recommendation. See K.M. v. State, 891 So.2d 619, 620 (Fla. 3d DCA 2005). In order to deviate, a trial court must identify adequate reasons, grounded in the evidence, for disregarding the recommendation. See A.C.N., 727 So.2d at 370. A judge may reweigh the same factors the Department considered and come to a different conclusion. But, when the court does so, the court "must set forth its reasons in the context of the needs of the child." E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002). The judge's findings "must have reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child." Id. The judge must explain why the judge came to a different conclusion than the Department did, and explain why the new restrictiveness level is indicated.

In the present case, the judge's reason for the residential commitment was that N.B. had been guilty of theft more than two years earlier, which he described as the same type of "sophisticated thievery" as in this case.⁶ In its predisposition report and in making its recommendation, the Department had also considered this prior charge of petit theft, and the circumstances surrounding it. Even though the judge was not without authority to deviate from the recommendation, therefore, he was required to provide a reason why a residential program was necessary for N.B. See E.S.B., 822 So.2d at 581.

In the final analysis, the only reason the trial judge assigned for placing N.B. in a residential facility, rather than adhering to DJJ's recommendation for probation, was that she had previously committed a similar theft.⁷ The trial judge offered no reason, however, why this would "require placement and services in [a] residential setting[ ]." § 985.03(45)(a), Fla. Stat. (2004). The judge did not at any time explain why N.B. would need to be in a residential program.

The reasons stated in the present case were insufficient to justify deviation from the Department's recommendation. They did not explain why N.B. should be placed in a low-risk residential facility rather than on probation. "[R]eversal is warranted because the trial court failed to refer to the needs of the child or explain why factors considered by the Department led the trial court to a different conclusion." D.R.B. v. State, 876 So.2d 700, 700-01 (Fla. 1st DCA 2004). See also S.C. v. State, 877 So.2d 850, 851 (Fla. 1st DCA 2004); E.S.B., 822 So.2d at 581;...