              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT



J. D. P.,                                  )
                                           )
             Appellant,                    )
                                           )
v.                                         )         Case No. 2D16-4072
                                           )
STATE OF FLORIDA,                          )
                                           )
             Appellee.                     )
                                           )

Opinion filed March 20, 2019.

Appeal from the Circuit Court for Lee
County; Amy R. Hawthorne, Judge.

Howard L. Dimmig, II, Public Defender,
and Karen M. Kinney, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellee.


CASE, JAMES R., Associate Senior Judge.

             J.D.P. appeals the disposition order adjudicating him delinquent and

committing him to the Department of Juvenile Justice. On appeal, J.D.P. argues that

the juvenile court erred in departing from the DJJ's recommended disposition without

making adequate findings on the record. We agree and reverse.
              The DJJ initially completed a predisposition report (PDR) recommending

that the court withhold adjudication and sentence J.D.P. to probation. At his June 14,

2016, hearing, the juvenile court considered the DJJ's PDR but did not adjudicate J.D.P.

or determine an appropriate disposition. Instead it ordered the DJJ to come up with a

commitment level after hearing testimony from the victims' family. Based on this

testimony, the court concluded that "I don't think the Department has adequately

considered everything in this case so I'm ordering a staffing."

              The DJJ conducted another review of J.D.P.'s case consistent with the

factors provided in section 985.433(6), Florida Statutes (2016). It issued an amended

PDR and attached a memo, again recommending probation. However, in light of the

court's request, the DJJ also recommended in the alternative that a nonsecure

commitment level be imposed as a suspended sentence if J.D.P. failed to comply with

the treatment requirements of his probation. At his August 11, 2016, hearing, a

successor judge considered whether adjudication should be withheld and J.D.P. should

be sentenced to probation consistent with the DJJ's recommendations but concluded

that in light of the prior judge's ruling on the record, she lacked the discretion to do

anything but adjudicate J.D.P. delinquent and commit him to the custody of the DJJ.

This was error.

              We review the trial court's order adjudicating and committing a juvenile to

the custody of the DJJ for an abuse of discretion. E.A.R. v. State, 4 So. 3d 614, 637

(Fla. 2009). "The disposition statute requires a two-step process. In the first step, the

court must decide whether to adjudicate and commit the child to the custody of DJJ or

instead to withhold adjudication and place the child on probation." D.G. v. State, 170

So. 3d 1, 3 (Fla. 2d DCA 2015) (citing § 985.433(6)). "If the court determines that it

                                             -2-
should adjudicate the child and commit him or her to the custody of the DJJ, it is

required to state this determination on the record or in writing." E.A.R., 4 So. 3d at 624.

Neither judge in this case determined on the record that J.D.P. should be adjudicated

and committed, nor did they make "a specific finding of the reasons for the decision to

adjudicate and to commit the child to the department." Id. (quoting § 985.433(7)).

Accordingly, we must reverse.

              Furthermore, the juvenile court erred when it sentenced J.D.P. to a

commitment level inconsistent with the recommendations of the DJJ without making

adequate factual findings justifying the departure. Only when the court determines that

the child should be adjudicated and committed, should it then proceed to the second

step of the disposition process and determine the appropriate restrictiveness level of

commitment. D.G., 170 So. 3d at 3. The Florida Supreme Court has explained that

when departing from the DJJ's recommended disposition, the juvenile court must state

              "reasons[]" [that] must provide a legally sufficient foundation
              for "disregarding" the DJJ's professional assessment and
              PDR by identifying significant information that the DJJ has
              overlooked, failed to sufficiently consider, or misconstrued
              with regard to the child's programmatic, rehabilitative needs
              along with the risks that the unrehabilitated child poses to
              the public.

E.A.R., 4 So. 3d at 638.

              At the initial disposition hearing in the instant case, the juvenile court

requested a commitment recommendation from the DJJ based on its determination that

the DJJ had not considered the duration of the charged offense or the victims'

statements. However, the DJJ's representative stated that these factors were

considered at the initial staffing. Defense counsel also clarified that information

regarding the charged offenses was included in the packet provided to the DJJ prior to

                                            -3-
the staffing. Furthermore, in preparing the amended PDR that was presented to the

successor judge, the DJJ expressly considered all of these factors and maintained its

recommendation of supervision or, in the alternative, a suspended sentence to a

nonsecure commitment facility. None of the factors identified by either judge in this

case were sufficient to support a deviation from the recommended disposition of the

DJJ. See R.A. v. State, 117 So. 3d 1181, 1183 (Fla. 2d DCA 2013) ("The supreme

court specifically held that the juvenile court's mere regurgitation or parroting of

information in the DJJ's comprehensive assessment and PDR is insufficient to establish

acceptable reasons why the court is disregarding those documents and the DJJ's

recommended disposition." (citing E.A.R., 4 So. 3d at 638)).

              Because the trial court abused its discretion in adjudicating J.D.P. without

making the statutorily required findings and in deviating from the recommended

disposition of the DJJ without sufficient explanation and based on factors already

considered by the DJJ, we reverse and remand for proceedings consistent with this

opinion.

              Reversed and remanded with instructions.


KELLY and SALARIO, JJ., Concur.




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