E.M., A CHILD v. STATE OF FLORIDA , 267 So. 3d 441 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
E.M., A Child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D17-3557, 4D17-3568, 4D17-3566, 4D17-3564, 4D17-3563,
4D17-3561, 4D17-3560, and 4D17-3558
[March 27, 2019]
Consolidated appeals from the Circuit Court for the Nineteenth Judicial
Circuit, St. Lucie County; Michael Heisey, Judge; L.T. Case Nos.
562016CJ000769A, 562017CJ000697A, 562017CJ000556A,
562017CJ000472A, 562017CJ000390B, 562017CJ000153A,
562017CJ000012A, and 562016CJ000910C.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
A juvenile appeals a disposition order that includes a five-day detention
sanction for direct criminal contempt. He argues: (1) the evidence does
not support a direct criminal contempt finding; (2) the court erred in
departing from the Department of Juvenile Justice’s (“DJJ”) recommended
disposition; and (3) the court erred in failing to make the required findings
in a written contempt order. We affirm on issues one and two, but we
agree with him on issue three. We reverse and remand the case to the trial
court for entry of a written order on the direct criminal contempt finding.
The twelve-year-old juvenile pleaded no contest to four cases and was
placed on probation. The following week, he admitted to violating
probation in those cases, and entered a no contest plea to four new
substantive offenses. While awaiting his disposition hearing, the juvenile
was arrested for a curfew violation and attended a detention hearing.
At the hearing, the court found probable cause for the probation
violation based on the arrest affidavit. The State recommended secure
detention until the disposition hearing. Defense counsel requested the
juvenile be released to home detention with an electronic monitor.
At that point, the juvenile said something indiscernible. The judge then
reminded him that he had just pleaded to four cases the week before and
was back for having tampered with the electronic monitor. The judge
advised him that he was going to securely detain him for twenty-one days
to keep him out of trouble until his disposition hearing for his own good.
Immediately following that decision, the juvenile engaged in a verbal
exchange with the trial court, which resulted in the court declaring the
juvenile to be in direct criminal contempt. The trial court allowed the
juvenile to explain why the contempt finding should not be entered and to
mitigate the sanction. The court then signed a detention order placing the
juvenile in secure detention for twenty-one days with an additional five
days for direct criminal contempt. The trial court did not enter a written
contempt order containing the requisite findings.
The DJJ completed a predisposition report, which recommended
adjudication of delinquency and placement in a non-secure residential
program, followed by post-commitment probation. At the disposition
hearing, the State requested the trial court depart from the DJJ’s
recommendation in favor of a high-risk placement. Defense counsel
argued against the departure, reminding the court of the rehabilitative
purpose of juvenile justice and the juvenile’s young age.
The court ordered the juvenile to a high-risk residential program. The
court then explained the reasons for its departure from the DJJ’s
recommendation and subsequently entered a written order detailing the
reasons for its departure. The order noted:
The record before the court also established that [the juvenile]
was uncontrollable by his father, grandmother or JPO and
during the numerous times before the court he shared little to
no discernable remorse for his actions. While he was on
probation he was detained in the detention center on at least
six secure detention orders and on October 9, 2017, after
entering an open plea to the court, [the juvenile] was held in
direct criminal contempt for his conduct in court.
The court identified five findings from the DJJ recommendation that
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did not support the non-secure placement:
1. Level of Risk to Re-offend: “High.”
2. The youth is noncompliant with all services.
3. Youth is only thirteen years old, but chooses to violate all
rules with every chance he gets.
4. Father is incarcerated, mother doesn’t want to deal with
the youth’s issues as she stated that the youth refuses to
listen to her and follow the rules at home.
5. Not one of the court ordered sanctions have been satisfied
while the youth has been on probation.
....
Having considered the facts of each case as stated above, the
continued pattern of escalating criminal behavior, the services
that have been offered and failed to rehabilitate [the juvenile],
the need to protect the community from future criminal acts,
and the specific needs of the youth as outlined in the various
evaluations completed; the court has determined that the
most appropriate placement to address the youths [sic] needs
is in a High Risk residential program. Simply put, this youth’s
needs cannot be addressed successfully in the time frame
non-secure residential programs are structured. His high risk
needs cannot be met in a program designed for low to
moderate risk youth. The court respects the effort the
Department of Juvenile Justice has put forth in preparing
their recommendation for this youth, but on these specific
cases, the Department has under weighed [the juvenile’s]
needs and the length of time, high risk programming, and high
risk security of the High Risk program level is needed.
From this order, the juvenile now appeals.
We have reviewed the record and departure order entered in this case
and find that the record supports the trial court’s contempt finding and
departure from the DJJ’s recommended disposition. See Murrell v. State,
595 So. 2d 1049, 1050 (Fla. 4th DCA 1992); E.A.R. v. State, 4 So. 3d 614,
638–39 (Fla. 2009). We therefore dispense with further comment on these
two issues.
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There is merit, however, in the third issue raised, as acknowledged by
the State. The juvenile argues the trial court erred in failing to strictly
follow the procedures of Florida Rule of Criminal Procedure 3.830. Such
a failure constitutes fundamental error. See A.W. v. State, 137 So. 3d 521,
522 (Fla. 4th DCA 2014).
A finding of direct criminal contempt by a juvenile is governed by
Florida Rule of Juvenile Procedure 8.150. The trial court must follow six
steps, two of which are:
2. The judgment of guilt shall include a recital of those facts
upon which the adjudication of guilt is based.
...
5. The judgment shall be signed by the judge and entered of
record.
J.A.H. v. State, 20 So. 3d 425, 427 (Fla. 1st DCA 2009) (quoting Fisher v.
State, 482 So. 2d 587, 588 (Fla. 1st DCA 1986)). Here, the court skipped
steps two and five.
“The proper remedy for a trial court’s failure to strictly adhere to the
requirements of Rule 3.830 is a new hearing at which the rule will be
followed.” Swain v. State, 226 So. 3d 250, 252 (Fla. 4th DCA 2017). “Even
technical errors, such as a failure to recite in the judgment those facts
upon which the adjudication of guilt was based, require a reversal.”
Fisher, 482 So. 2d at 588; see also J.A.H., 20 So. 3d at 428. Here, the
error is in the lack of a written order.
For this reason, we reverse and remand the case to the trial court to
enter the requisite written order.
Affirmed in part; reversed in part; and remanded.
CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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