T.D.B. v. Kirk, 84-1140

• Decision Date: 20 December 1984
• Docket Number: No. 84-1140,84-1140
• Citation: 468 So.2d 234,10 Fla. L. Weekly 30
• Parties: 10 Fla. L. Weekly 30 In the Interest of T.D.B., a child, Petitioner, v. Honorable Thomas S. KIRK, Judge of the Circuit Court in and for the Ninth Judicial Circuit Orange County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 234

468 So.2d 234

10 Fla. L. Weekly 30

In the Interest of T.D.B., a child, Petitioner, v. Honorable Thomas S. KIRK, Judge of the Circuit Court in and for the Ninth Judicial Circuit Orange County, Florida, Respondent.

No. 84-1140.

District Court of Appeal of Florida Fifth District.

Dec. 20, 1984.

Rehearing Denied Jan. 22, 1985.

Marc L. Lubet, of Lubet & Woodard, P.A., Orlando, for petitioner.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for respondent.

ORFINGER, Judge.

Petitioner seeks a writ of prohibition seeking to prevent the trial court from holding a dispositional hearing in this juvenile proceeding. Petitioner contends that the adjudicatory hearing was held after speedy trial had expired, so the court had no jurisdiction to conduct that hearing and consequently has no jurisdiction to sentence petitioner. We issued a rule to show cause directed to the respondent, and further proceedings in the lower court were stayed pursuant to Fla.R.App.P. 9.100(f). We have considered the response and now deny the writ and vacate the stay.

Petitioner T.D.B., age 13, was taken into custody on January 12, 1984, on the charge of aggravated battery in violation of section 784.045(1)(b), Florida Statutes (1983), it being alleged that she stabbed the victim with a switch-blade knife. The petition of delinquency was filed January 30, 1984. Thus, unless extended, the adjudicatory hearing was required to be conducted not later than April 11, 1984. Fla.R.Juv.P. 8.180(a).

On February 15, 1984 the State filed a motion for extension of the speedy trial. The motion does not appear to have been served on the child. The motion made the following representations:

1. That the Child's father contacted the State Attorney's Office reference the arraignment date.

2. The father explained that the Child is currently in a residential drug program at Thee Door for six (6) weeks.

3. That part of this program's requirements is that the Child have no contact with anyone outside of the program.

4. That the father and Child do not intend to employ any counsel and that they wish to have the arraignment scheduled for a date approximately six (6) weeks from the beginning of Thee Door's program (i.e. February 13, 1984).

5. That the State has no objection and would request that speedy trial be tolled in order to enable the Child to successfully complete this program.

On February 17, 1984, the trial court entered an order extending speedy trial because of petitioner's participation in Thee Door's rehabilitative program. Although no date was specified, in the light of the motion, the order can only be read as extending speedy trial for the six week period of the program. On March 26, 1984, exactly six weeks from the time petitioner entered the program, she was arraigned, and trial was set for May 3, 1984. On March 30, 1984 a notice of appearance of counsel was filed, and on April 26, 1984, petitioner's attorney filed a motion for continuance of the adjudicatory hearing, representing that more time was needed to prepare for trial, and specifically waiving petitioner's speedy trial rights. The continuance was granted and trial was rescheduled for May 21, 1984. On May 22, 1984, the court entered an order of adjudication, finding that the child had committed the offense of aggravated battery as charged, and withholding adjudication of delinquency pending the dispositional hearing. A motion for new trial was filed and was denied by order on June 6, 1984.

On June 28, 1984, petitioner filed a motion for discharge on speedy trial grounds, alleging that speedy trial had expired on April 12, 1984, [sic] had not been validly extended, and that the adjudicatory hearing was therefore a nullity because it took place after the expiration of the speedy trial period. When the trial court denied the motion for discharge, the petition for writ of prohibition was filed.

What the petitioner seeks to prohibit is the sentencing or dispositional hearing. Clearly a trial court has jurisdiction to enter a dispositional order following an adjudication of delinquency. See, section 39.09(3) and section 39.11, Florida Statutes (1983), and Florida Rule of Juvenile Procedure 8.190...