Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr. and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Thomas D. Winokur and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
Appellant— a juvenile— challenges the trial court's decision to upwardly depart from the sentencing recommendation given by the Department of Juvenile Justice (DJJ). We agree with Appellant that the trial court did not follow the requirements for imposing an upward departure found in E.A.R. v. State, 4 So.3d 614 (Fla.2009), and reverse.
Appellant was charged in a delinquency petition with committing sexual battery pursuant to section 794.011(2)(b), Florida Statutes (2010). He pled guilty, and the trial court accepted the plea and withheld adjudication of delinquency. The trial court placed Appellant on conditional probation, with two conditions being that he commit no new law violations and refrain from using drugs.
Four months later, Appellant's probation officer issued an affidavit alleging Appellant had violated the conditions of his probation. In particular, the officer claimed Appellant had tested positive for marijuana twice and been caught leaving his home unsupervised on " several occasions." Appellant admitted to committing these violations and the trial court accepted his plea. The trial court then ordered the DJJ to prepare a predisposition report (hereinafter a PDR) for the disposition hearing.
In the PDR, the DJJ found Appellant had no behavioral problems or incidents at home since the filing of the affidavit. It stated he had made significant improvements academically, and had been accepted into AMI/Jacksonville, a rigorous school. The PDR went on to state Appellant
had passed several recent drug tests— as well as failing one more drug test for marijuana— and had shown progress in his responsiveness to treatment. It concluded his risk to reoffend was moderate.
Attached to the PDR was a report from a licensed psychologist assigned to conduct a psychosexual evaluation of Appellant. She stated she would recommend releasing Appellant into probation if he received day treatment at AMI/Jacksonville, along with additional substance abuse and sex offender treatment from a licensed psychologist. Given this psychologist's cautious recommendation, as well as the positive reports from Appellant's school, the DJJ concluded the PDR with the following recommendation:
It is respectfully requested that [Appellant] be continued on probation with the added conditions that he enroll in and successfully complete AMI/Jacksonville, participate in substance abuse treatment including random urinalysis testing and successfully complete outpatient sex offender treatment as designated by his therapist and probation officer.
The PDR was then submitted at the disposition hearing, where the DJJ and Appellant asked the trial court to adopt the recommendation of probation. The trial court rejected the recommendation and placed Appellant in a moderate-risk residential program.
Section 985.433(7)(b), Florida Statutes (2010), governs the extent to which a trial court may deviate from a sentencing recommendation of the DJJ. It states:
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 that establish by a preponderance of the evidence why [it] is disregarding the assessment ...