V.L.H., A JUVENILE v. State

V
      Third District Court of Appeal
                              State of Florida

                      Opinion filed February 17, 2021.
      Not final until disposition of timely filed motion for rehearing.

                           ________________

                            No. 3D20-1858
                       Lower Tribunal No. 19-1316
                          ________________


                          V.L.H., a juvenile,
                                 Appellant,

                                    vs.

                        The State of Florida,
                                 Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Yery
Marrero, Judge.

      Carlos J. Martinez, Public Defender, and John Eddy Morrison,
Assistant Public Defender, for appellant.

      Ashley Moody, Attorney General, and Kseniya Smychkouskaya,
Assistant Attorney General, for appellee.


Before SCALES, HENDON, and MILLER, JJ.

     HENDON, J.
      V.L.H., a juvenile, raises issues relating to the trial court’s violation of

probation order and the disposition order committing her to the custody of

the Department of Juvenile Justice (“DJJ”) for placement in a non-secure

residential program, which orders were entered on December 1, 2020,

following a violation of probation hearing.        We affirm the violation of

probation order but remand with instructions to strike any reference to

V.L.H. failing to maintain contact with her juvenile probation office (“JPO”),

and reverse the disposition order and remand for a new disposition hearing

as set forth in this opinion.

I. FACTS AND PROCEDURAL HISTORY

      In July 2019, the State filed a delinquency petition against V.L.H. for

battery on a law enforcement officer.        On February 20, 2020, the DJJ

prepared a predisposition report recommending probation. The report did

not contain any alternative recommendations as to the level of commitment

if the trial court should decide in the future to commit V.L.H. to the custody

of the DJJ.

      On May 19, 2020, the trial court found V.L.H. delinquent but withheld

adjudication and placed her on probation. The probation order provided

that V.L.H. has to, among other things, live with her parent, maintain an

8:00 p.m. curfew, attend school, not commit new law offenses, and



                                        2
maintain contact with her JPO.

      In October 2020, V.L.H’s JPO, Victoria Nurse, filed an affidavit of

violation of probation, which was amended in November 2020.               The

amended affidavit asserts that V.L.H. violated her probation by (1)

committing the new law offense of battery on June 5, 2020; (2) violating her

8:00 p.m. curfew on several specific dates; (3) failing to attend class on

several specific dates; and (4) committing the new law offenses of petit

theft and resisting an officer without violence on November 10, 2020. The

affidavit provided that if found guilty of the probation violations, the DJJ is

considering commitment.

      On November 11, 2020, V.L.H. was picked up pursuant to a pickup

order and placed in secure detention. She was also charged with new law

violations.

      On December 1, 2020, the trial court conducted a violation of

probation hearing. JPO Nurse testified that she instructed V.L.H. as to her

conditions of probation, and as to V.L.H’s new law violations, truancy, and

curfew violations. JPO Nurse also testified that V.L.H. was required to

contact her every Monday and have meetings once a month, but JPO

Nurse did not specifically testify that V.L.H. violated this condition of

probation.



                                      3
      V.L.H.’s father testified, among other things, as to an altercation

between his wife (V.LH.’s mother) and V.L.H., during which he heard his

wife state, “Why are you hitting me? Why are you hitting me?” His wife

called the police, and V.L.H. was arrested. He also testified as to several

occasions where V.L.H. would leave the house for prolonged periods,

including from October 13th to October 26th, and that she was eventually

located by the police on October 26th sleeping in an apartment. Thereafter,

V.L.H. continued to run away from home. 1

      At the hearing, the trial court ruled that it was revoking V.L.H.’s

probation because V.L.H. willfully and substantially violated her probation

by not abiding by her curfew, not staying at home, not staying in contact

with JPO Nurse, and committing the new law offense of battery on her

mother. On that same day, the trial court entered a Violation of Probation

Order and, over defense counsel’s objection, a Disposition Order and

Commitment to the Department of Juvenile Justice, ordering that V.L.H. be

committed to the DJJ for placement in a non-secure residential program

(“Disposition Order”). In the Violation of Probation Order, the trial court set

the case for a review of placement on January 4, 2021. Defense counsel

objected to continuing V.L.H.’s secure detention. The State argued that

1
 V.L.H. also testified at the hearing, but the trial court found that V.L.H.
was not credible.

                                      4
V.L.H. could be detained under section 985.439, Florida Statutes, but

V.L.H.’s counsel argued that a new disposition order under that statute

requires notice and a new predisposition report. The trial court ruled that

based on V.L.H.’s history of running away and putting herself in danger,

commitment is the only appropriate remedy. Defense counsel objected

once again and noted that V.L.H. was not waiving the predisposition report.

The trial court then noted that it had a prior predisposition report—the

February 2020 report when V.L.H. was placed on probation—and was also

relying and JPO Nurse’s testimony. V.L.H.’s appeal followed.

      After V.L.H. filed her notice of appeal, the trial court conducted a

hearing on January 5, 2021. 2 During the hearing, the trial court reviewed

the DJJ’s “Post-Disposition Report” dated December 16, 2020.           In the

report, the DJJ did not make a recommendation as to either continuing

probation or commitment and did not recommend a commitment

restrictiveness level.   Instead, the DJJ’s post-disposition report merely

acknowledges that on December 1, 2020, the trial court found that V.L.H.

violated her probation, adjudicated her delinquent, and committed her to

the DJJ for placement into a non-secure residential facility, with conditional

release services to follow. Defense counsel renewed all objections raised

2
  The hearing scheduled for January 4, 2021, was rescheduled to January
5, 2021.

                                      5
at the December 1, 2020 hearing. The trial court found that the December

16, 2020 post-disposition report was consistent with the February 20, 2020

predisposition report she reviewed at the violation of probation hearing and

with JPO Nurse’s testimony. As the State and the trial court referred to the

report as a predisposition report, JPO Nurse informed the trial court that the

report was not a predisposition order, but actually a post-disposition report

because the trial court entered a disposition from the bench on December

1, 2020.

ANALYSIS:

      I. Whether the trial court erred in finding that V.L.H. violated her
probation by failing to maintain contact with her juvenile probation
officer where this ground was not alleged in the probation violation
affidavit?

      The State has conceded that the trial court fundamentally erred by

finding that V.L.H. violated her probation by failing to maintain contact with

JPO Nurse because this ground was not alleged in the amended violation

of probation affidavit. However, based on our review of the transcript of

violation of probation hearing, it is clear that the trial court would have

found that V.L.H. violated her probation based on the other proven

grounds. As such, we affirm the violation of probation order, but remand

with instructions for the trial court to strike any reference to V.L.H. failing to

maintain contact with her juvenile probation officer. See Grady v. State,

                                        6

264 So. 3d 363

, 366 (Fla. 2d DCA 2019) (“Moreover, this court need not

reverse an order of revocation based on one unproven violation when the

record establishes that the trial court would have revoked based on other

proven violations.”).

     II. Whether the trial court erred in entering the Disposition Order
on December 1, 2020, without a new predisposition report?

      A. Is the issue moot?

      In response to V.L.H.’s argument that the trial court erred by entering

the Disposition Order without a new predisposition report, the State argues

that the issue is now moot because, when the trial court entered the

Disposition Order, it considered a previously prepared predisposition report

prepared approximately ten months prior to the entry of the new disposition

order and because the trial court considered the post-disposition report at

the hearing conducted on February 5, 2021. We disagree.

      An issue is considered moot “when the controversy has been so fully

resolved that a judicial determination can have no actual effect.” Carlin v.

State, 

939 So. 2d 245

, 247 (Fla. 1st DCA 2006) (quoting Godwin v. State,

593 So. 2d 211

, 212 (Fla. 1992)). Under the circumstances of this case,

V.L.H.’s argument is not moot.     Although a post-disposition report was

prepared following the December 1, 2020 disposition, the post-disposition

report did not specifically address whether V.L.H.’s probation should be

                                     7
continued or whether she should be committed to the DJJ and if committed,

a recommended restrictiveness level.       Further, although the trial court

reviewed    the   February    2020   predisposition      report,    that   report

recommended       probation   and    did    not     identify   an     alternative

recommendation as to the restrictiveness level if the trial court should

decide to commit V.L.H. to the DJJ in the future.

     B. Disposition Order

     V.L.H. argues that the trial court erred by entering the Disposition

Order prior to obtaining a new predisposition report from the DJJ. We

agree.

     Section 985.43(1)(a), Florida Statutes (2020), provides, in part, that

“[a] predisposition report shall be ordered for any child for whom a

residential commitment disposition is anticipated or recommended by an

officer of the court or by the [DJJ].” Thus, if commitment is anticipated or

recommended, a predisposition report is not optional. Further, the DJJ

“shall recommend to the court the most appropriate placement and

treatment plan, specifically identifying the restrictiveness level most

appropriate for the child if commitment is recommended.” § 985.433(7)(a),

Fla. Stat. (2020). Before making a final disposition, the trial court “shall

consider the child’s entire assessment and predisposition report and shall



                                     8
review the records of earlier judicial proceedings.” § 985.43(2); see also §

985.433(7)(a). Further, the trial court “shall commit the child to the [DJJ] at

the restrictiveness level identified or may order placement at a different

restrictiveness level.” § 985.433(7)(b). However, if the trial court disregards

the restrictiveness level recommended by the DJJ, the trial court “shall

state for the record the reasons that establish by a preponderance of the

evidence why the court is disregarding the assessment of the child and the

restrictiveness level recommended by the [DJJ].” § 985.433(7)(b).

      The record before this Court reflects that the trial court circumvented

this procedure.   Although the trial court found that V.L.H. violated her

probation and then adjudicated her delinquent, the trial court entered the

Disposition   Order   without   receiving    a   predisposition   report    that

recommended commitment and identified a restrictiveness level.              The

predisposition report prepared in February 2020 recommended probation,

not commitment and/or identify a restrictiveness level, and did not address

future commitment and/or restrictiveness level.           Further, the post-

disposition report did not recommend commitment and/or a restrictiveness

level, but merely reflected the trial court’s ruling on December 1, 2020.

      The State argues that a new predisposition order is not required

when a trial court finds that a child has violated her probation, adjudicates



                                      9
the child, and then commits the child to the DJJ, relying on section

985.439, Florida Statutes (2020), which is titled “Violation of probation or

postcommitment probation.” Section 985.439(4) provides that following a

hearing, if the trial court finds that a child has violated the conditions of

probation or postcommitment probation, the trial court “shall enter an order

revoking, modifying, or continuing probation or postcommitment probation,”

and “[i]In each such case, the court shall enter a new disposition order and,

in addition to the sanctions set forth in this section, may impose any

sanction the court could have imposed at the original disposition hearing.”

The State argues that because the statute does not provide that a new

predisposition report is required to enter a new predisposition order

following a violation of probation, a new predisposition report is not

required. The State further argues that V.L.H. was on notice that the DJJ

was recommending commitment because the affidavit of violation of

probation stated so.

     The State has not cited to any case specifically supporting its

position. However, F.L.P. v. State, 

292 So. 3d 791

(Fla. 4th DCA 2020),

supports V.L.H.’s position. After F.L.P. allegedly violated his probation, the

DJJ “recommended he remain on probation and furnished a PDR

[predisposition report] that contained a probation recommendation but no



                                     10
alternative commitment recommendation.”

Id. at 793.

Thus, it appears that

following F.L.P.’s alleged violation of probation, a new disposition report

was prepared by the DJJ.         Thereafter, the State disagreed with the

recommendation and sought commitment. The trial court ordered F.L.P.

committed to a non-secure facility, and F.L.P. appealed.

      On appeal, the Fourth District provided that “[s]ection 985.433,

Florida Statutes (2018), delineates the procedural requirements a trial

court’s disposition decision must meet after a juvenile has been adjudicated

delinquent.” The court then quotes section 985.433(7)(b), which provides:

      The court shall commit the child to the [DJJ] 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 the court is disregarding the assessment of the
      child and the restrictiveness level recommended by the [DJJ].

F.L.P., 292 So. 3d at 793-94

. The Fourth District discussed the analysis

the trial court must conduct prior to departing from the DJJ’s

recommendation.      Thus, this case suggests that prior to entering a

disposition following a violation of probation, the DJJ is required to submit a

predisposition report recommending a restrictiveness level if commitment is

recommended. See also M.J. v. State, 

212 So. 3d 534

(Fla. 1st DCA

2017) (noting that the case involved a situation where M.J. admitted to

violating his probation for a second time, and the trial court ordered the DJJ

                                      11
to prepare a predisposition report); P.Y. v. State, 

976 So. 2d 1168

(Fla. 1st

DCA 2008) (noting that the case involved a situation where trial court

disregarded the DJJ’s recommendation in a predisposition report to restore

P.Y. to probation after he violated probation). Although section 985.439(4)

only states that a “new disposition order” is required after a probation

violation, but does not mention a new predisposition report, section

985.439(4) should not be read in isolation, but in pari materia with sections

985.43 and 985.433, which sets forth the procedures for the entry of a

disposition order.   For example, as stated above, section 985.44(1)(a)

provides, in part, that a “predisposition report shall be ordered for any child

for whom a residential commitment disposition is anticipated or

recommended by an officer of the court or by the [DJJ],” and section

985.44(2) provides that the trial court is required to review the

predisposition report before making a final disposition. Further, section

985.433 provides that the DJJ “shall recommend to the court the most

appropriate placement and treatment plan, specifically identifying the

restrictiveness level most appropriate for the child if commitment is

recommended.” § 985.433(7)(a), Fla. Stat. (2020).

      In the instant case, V.L.H. was adjudicated delinquent after the trial

court found that she violated her probation.       Thus, prior to entering a



                                      12
disposition, the DJJ was required to prepare a predisposition report

recommending continued probation or commitment to the DJJ, and if

recommending commitment, identifying a recommended restrictiveness

level.     The DJJ’s February 2020 predisposition report recommended

probation,     not   commitment,    and    did   not   contain   any   alternative

recommendations as to commitment and/or restrictiveness level if the trial

court should decide to commit V.L.H. in the future. Further, the DJJ’s post-

disposition report merely sets forth the trial court’s disposition entered on

December 1, 2020, following the probation violation hearing.                Thus,

V.L.H.’s argument has merit.         Accordingly, we reverse the Disposition

Order entered on December 1, 2020, and remand for a new disposition

hearing before a different judge, during which hearing the trial court must

consider a proper disposition report prepared by the DJJ, which hearing

must be conducted on an expedited basis.

         Affirmed, in part, and remanded with directions; reversed, in part.




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