D.S., a child v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2009 D.S., a child, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D08-1157 [June 3, 2009] STEVENSON, J. D.S., a minor, was charged with robbery, and as a consequence, he was also charged with violating his probation imposed for two prior misdemeanor offenses: second-degree petit theft and battery. D.S. entered a no contest plea to the charges, a n d th e juvenile court adjudicated him delinquent, committing him to a maximum-risk residential program as a serious habitual offender pursuant to section 985.47, Florida Statutes (2008). Although his designation as a serious or habitual offender for the robbery charge was permissible, the juvenile court erred in also applying that designation to the two violation-ofprobation charges where the underlying offenses were not enumerated in subsection (1)(a), and were misdemeanors. We reverse D.S. s violationof-probation sentences as they run afoul of section 985.47, Florida Statutes (2008), and remand for a new disposition. In the instant case, the Department of Juvenile Justice recommended assigning D.S. to a high-risk commitment facility, but the juvenile court deliberately disregarde d this recommendation, ordering D.S. to a maximum-risk facility. Because we remand for a new disposition, we note that pursuant to our supreme court s recent decision in E.A.R. v. State, 4 So. 3d 614 (Fla. 2009), a juvenile court must make certain findings on the record in order to deviate from a recommendation of the Department of Juvenile Justice. As to D.S. s remaining arguments on appeal, we are unpersuaded and affirm. Reversed in part; affirmed in part. POLEN and DAMOORGIAN, JJ., concur. * * * Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert L. Pegg, Judge; L.T. Case Nos. 312007CJ000209A, 312005CJ000370A and 312008CJ000008A. Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant. Bill McCollum, Attorney General, Tallahassee, a n d Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee. Not final until disposition of timely filed motion for rehearing. 2
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