          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               D.R., a Child,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-3254

                            [October 21, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Moses Baker, Judge; L.T. Case No. 502013CJ003679A.

   Antony P. Ryan, Regional Counsel and Louis G. Carres, Special
Assistant Conflict Counsel of Office of Criminal Conflict and Civil Regional
Counsel, Fourth District, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   We revisit E.A.R. v. State, 4 So. 3d 614 (Fla. 2009), and its proper
application in juvenile dispositions in this appeal. A juvenile appeals his
commitment to a low risk program after being adjudicated guilty of grand
theft. He argues the trial court failed to properly follow E.A.R. We disagree
and affirm.

   After finding the juvenile guilty as charged, the trial court requested a
comprehensive evaluation, staffing, and predisposition report. In light of
E.A.R., the court requested the Department of Juvenile Justice (“DJJ”) to
advise “as to an appropriate restrictiveness level should the Court decide
that commitment as opposed to probation would be in order.”

   In the predisposition report, the DJJ recommended the juvenile be
placed on probation due to the serious nature of the offense, and its belief
that he would benefit from structured supervision and services in the
home. However, because the court ordered the DJJ “to provide a
recommendation . . . as to the restrictiveness level appropriate to meet the
child’s needs,” it alternatively recommended a low risk commitment
program.

   The trial court held the disposition hearing over three days. At the last
hearing, the State argued that the DJJ had attempted to modify the
juvenile’s conduct numerous times through diversion and probation to no
avail. It detailed his delinquency history. It argued the juvenile was “not
amenable to probation,” and asked for commitment to the DJJ. Defense
counsel explained the juvenile had been on probation for the last nine
months without reoffending, and requested probation.

   The trial court found:

      [I]n this instance it is absolutely clear that probation services
      in the community are no longer warranted. All of those things
      have been tried and they have failed.

      It is too very telling that these are some very serious offenses.
      Robberies, Grand Theft, Batteries on School Board
      Employees, things of that nature.            The State clearly
      articulated the reasons why probation has failed. I don’t
      believe that you missed any of the facts that I observed.

      The only thing that might be mitigating is that although he
      does have some problems in school, he did attend summer
      school and he was promoted.

      But for the reasons articulated in the Pre-Disposition Report,
      the Comprehensive Evaluation, the testimony before me,
      probation is no longer appropriate. It has been tried and
      unfortunately it has failed.

      So therefore we must now go to the 2nd step. And the 2nd
      step is the appropriate restrictiveness level.

The State concurred with the recommendation for non-secure residential
commitment; defense counsel did not respond.

   The trial court then found, “[b]ased upon the evaluation of the [DJJ]
and the [E.A.R.] Supreme Court decision no further legal analysis is
required because I am accepting the evaluation of the [DJJ]. . . . At this
point the [c]ourt will commit him to a non-secure residential commitment
level.” The court found under section 985.433(7)(a), Florida Statutes, and
consistent with the alternative recommendation, that the juvenile’s needs

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could be met in a non-secure residential commitment program. The court
entered a written commitment order. From this disposition order, the
juvenile now appeals.

   He argues the court erred in rejecting the DJJ’s probation
recommendation and ordering a residential commitment program without
engaging in an E.A.R. analysis. He suggests that our decisions require
such an analysis under these circumstances. The State responds that the
court properly followed the DJJ’s recommendation and committed the
juvenile to a non-secure residential program. It argues E.A.R. does not
apply to the court’s initial decision to adjudicate and commit a juvenile; it
applies only when the court departs from the recommended restrictiveness
level of commitment.

   “A trial court’s departure from the DJJ recommendation is reviewed for
abuse of discretion. However, whether a juvenile court has employed the
proper legal standard in providing its departure reasons is a question of
law subject to de novo review.” D.R.R. v. State, 94 So. 3d 680, 681 (Fla.
4th DCA 2012) (internal citation omitted).

   The issues for our consideration are: (1) whether E.A.R. applies to the
court’s initial decision to adjudicate and commit a juvenile; and (2)
whether E.A.R. findings are required when a court imposes an alternative
recommendation to commit the juvenile at the DJJ’s recommended
restrictiveness level. We have not had the opportunity to address these
issues in our prior opinions.

   Section 985.433, Florida Statutes (2014), governs “[d]isposition
hearings in delinquency cases.” § 985.433, Fla. Stat. Subsection (6)
provides “[t]he first determination to be made by the court is a
determination of the suitability or nonsuitability for adjudication and
commitment of the child to the [DJJ]. This determination shall include
consideration of the recommendations of the [DJJ], which may include a
predisposition report.” Id. § 985.433(6). Subsection (7) then requires the
determination to be in writing or on the hearing record and include specific
findings for the reasons the court chose commitment. Id. § 985.433(7).

   In making a determination, “[t]he [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.” Id. § 985.433(7)(a).

      The court shall commit the child to the [DJJ] at the
      restrictiveness level identified or may order placement at a

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      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].

Id. § 985.433(7)(b).

    In E.A.R., our supreme court stated, “[t]he precise issue . . . is whether
chapter 985, Florida Statutes (2007), requires juvenile courts to justify
departures from the [DJJ’s] recommended dispositions by explaining a
judge’s ‘reasons’ for a departure in terms of the characteristics of the
imposed restrictiveness level vis-à-vis the rehabilitative needs of the child.”
Id. at 616–17 (emphasis added) (footnotes omitted). “[O]nce the DJJ has
identified the restrictiveness level—and thereby the commitment
facilities—that are most appropriate in terms of the child’s individual
rehabilitative needs . . . it would defeat the legislative scheme of chapter
985 to allow the juvenile court to depart . . . for just any ‘reason . . . .’” Id.
at 618.

    Since E.A.R., we have routinely reversed dispositions when a court
orders commitment at a restrictiveness level different from that
recommended by the DJJ without making the requisite findings. See, e.g.,
B.N. v. State, 39 So. 3d 515 (Fla. 4th DCA 2010) (reversing commitment to
a moderate risk program where the DJJ recommended probation); S.B. v.
State, 16 So. 3d 256 (Fla. 4th DCA 2009) (reversing commitment to a
moderate risk program contrary to the DJJ’s probation recommendation);
E.E. v. State, 7 So. 3d 1140 (Fla. 4th DCA 2009) (reversing commitment to
a moderate risk program over the DJJ’s recommendation of probation due
to insufficient findings under E.A.R.). But, in each of these cases, the DJJ
neither made an alternative commitment nor a restrictiveness level
recommendation.

   More recently, the First and Second District Courts of Appeal have held
that E.A.R. applies only to the restrictiveness level of commitment after the
court initially determines whether to commit the juvenile. D.G. v. State,
170 So. 3d 1 (Fla. 2d DCA 2015); J.B.S. v. State, 90 So. 3d 961 (Fla. 1st
DCA 2012). Their approach is completely consistent with E.A.R.

    In J.B.S., the DJJ predisposition report recommended probation, but
the court committed the juvenile, and asked the DJJ for a restrictiveness
level recommendation. Id. at 962–63. The court then followed the DJJ’s
restrictiveness recommendation of a moderate risk facility. Id. at 964. The
juvenile appealed arguing that the court erred in not applying E.A.R. in its
initial determination to commit the juvenile over the DJJ’s

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recommendation of probation.

   The First District held:

      After reviewing the statutes and the express language of
      E.A.R., we agree with the trial court that E.A.R. does not apply
      to the initial determination made under section 985.433(6),
      which gives the trial court wide discretion in determining the
      suitability of commitment of the child to the [DJJ]. E.A.R.
      addressed the “precise issue” of the meaning to be accorded
      subsection (7)(b) of section 985.433. The requirements of
      subsection (7)(b) do not come into play here, because the trial
      court did not depart from the restrictiveness level
      recommended by DJJ. Specifically, the trial court considered
      the PDR, ordered a further multidisciplinary assessment and,
      after receiving the recommendation from DJJ as to a
      restrictiveness level, followed that recommendation.

Id. at 967.

   In B.K.A. v. State, 122 So. 3d 928 (Fla. 1st DCA 2013), the First District
further explained:

      Probation is not a restrictiveness level because it is a limitation
      on the freedom of the child “in lieu of commitment to the custody
      of the department.” § 985.03(44), Fla. Stat. In contrast,
      “restrictiveness level” is defined as the level of “programming
      and security provided by programs that service . . . committed
      children.” § 985.03(46), Fla. Stat. “Restrictiveness level”
      refers to “levels of commitment,” and probation is not included
      in the list of these levels. § 985.03(46)(a)–(e), Fla. Stat. (lowest
      restrictiveness level is “minimal risk non-residential,”
      applicable to committed youth who remain in the community).

Id. (alteration in original) (emphasis added).

    The Second District joined the First District in bifurcating the
disposition process and applying E.A.R. only to the second step in the
process. D.G., 170 So. 3d at 1–6. There, the DJJ recommended probation.
Id. at 2. However, the court committed the juvenile to a high-risk sex
offender   program,     without    obtaining    a    restrictiveness  level
recommendation from the DJJ or making findings consistent with E.A.R.
Id. The Second District found no error in the court’s choice of commitment
over probation. Id. at 3.

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    The Second District noted that the “court was obliged in the second
step of the disposition process to determine the appropriate restrictiveness
level of the commitment.” Id. “The Florida Supreme Court’s decision in
[E.A.R.] involved this second step and, specifically, the type of reasons that
would warrant a court’s disregard of DJJ’s recommended commitment
level.”    Id.   It reversed because the court “imposed a high-risk
restrictiveness level without first obtaining the DJJ’s recommendation.”
Id. at 4, 6.

    We now join the First and Second District Courts of Appeal in holding
that E.A.R. findings are unnecessary for the court’s initial decision of
whether to commit a juvenile even where the DJJ recommends probation.
Those requirements apply only to the second step of the disposition
process when a court departs from the recommended restrictiveness level
of the commitment.

    Here, the court requested a predisposition report from the DJJ, and
specifically asked for a restrictiveness level recommendation if the court
chose to commit the juvenile.1 The DJJ recommended probation, but also
included a restrictiveness level recommendation of a non-secure
residential program. Once the court chose to commit the juvenile contrary
to the initial DJJ probation recommendation, it articulated its findings in
support of commitment.         It then followed the DJJ’s recommended
restrictiveness level, eliminating the need to make E.A.R. findings.

    Affirmed.

CIKLIN, C.J., and FORST, J., concur.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.




1 We are aware of Department of Juvenile Justice v. State, 151 So. 3d 561 (Fla. 1st
DCA 2014), where the First District quashed an omnibus order requiring the DJJ
to recommend a restrictiveness level in all of its predisposition reports. Id. at
561. “By contravening the statute, the circuit court judge violated the separation
of powers doctrine and thereby acted in excess of his jurisdiction.” Id. Neither
party has cited this decision. We find the case distinguishable based upon its
omnibus nature.

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