        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                              J.Q., a Child,
                                Appellee.

                              No. 4D14-2565

                           [November 12, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos S. Rebollo, Judge; L.T. Case No. 11-003806DLA.

  Pamela Jo Bondi, Attorney General, Tallahassee, and James J.
Carney, Sr. Assistant Attorney General, West Palm Beach, for appellant.

  Carey Haughwout, Public Defender, and Ellen Griffin, Assistant
Public Defender, West Palm Beach, for appellee.

CIKLIN, C.J.

   The state appeals the trial court’s dismissal of a petition for
delinquency against J.Q., a minor. We agree with the state’s contention
that the trial court erred in sua sponte dismissing the petition prior to an
adjudicatory hearing and we reverse.

  We recently addressed a similar dismissal in State v. D.A., 171 So. 3d
229 (Fla. 4th DCA 2015), where we explained:

      On appeal, the State argues that the trial court erred in
      dismissing the petition based on our holding in [State v.
      W.D., 112 So. 3d 702 (Fla. 4th DCA 2013)]. In that case, we
      held that section 985.0301(6) “is fairly viewed as authorizing
      the court to elect to end its jurisdiction over a child at any
      time following the initial adjudicatory hearing—not as
      permitting the trial court to use its discretion to terminate
      jurisdiction to put an end to the prosecution before the case
      ever reaches adjudication on the merits.”          Id. at 704
      (emphasis added). Furthermore, a trial court is without
       authority to sua sponte dismiss a criminal prosecution
       “where, as here, no motion to dismiss has been filed.” State
       v. C.W., No. 4D14–1320, 2015 WL 3761242, at *1 (Fla. 4th
       DCA 2015). By sua sponte dismissing the delinquency
       petition, the trial court improperly encroached upon the
       State’s discretion to prosecute D.A. See id.

Id. at 230 (emphasis in original) (footnote omitted).

    The trial court relied on State v. A.A., 110 So. 3d 988 (Fla. 4th DCA
2013), in dismissing the petition. A.A., however, is distinguishable.
There, the state argued that the trial court lacked jurisdiction to dismiss
a juvenile case where the juvenile had not been served.1 This court
affirmed, holding that jurisdiction attached when the child was detained
and taken into custody. Id. Here, the trial court’s jurisdiction was not in
question.

  J.Q. properly and commendably concedes error. We therefore reverse
and remand for further proceedings.

    Reversed and remanded.

MAY and FORST, JJ., concur.

                               *       *        *

    Not final until disposition of timely filed motion for rehearing.




1Service of a summons is required where a delinquency petition is filed upon a
child not in detention:

       Upon the filing of a petition upon a child who is not detained by
       order of the court, the clerk shall issue a summons.          The
       summons shall require the person on whom it is served to appear
       for a hearing at a time and place specified. The time of the
       hearing shall not be less than 24 hours after service of the
       summons. The summons shall require the custodian to produce
       the child at the said time and place. A copy of the delinquency
       petition shall be attached to the summons.

Fla. R. Juv. P. 8.040(a)(1).

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