       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                              D.A., a child,
                                Appellee.

                             No. 4D14-2564

                            [August 12, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos S. Rebollo, Judge; L.T. Case No. 11-9080DL00A.

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

   Joseph J. Pappacoda, Fort Lauderdale, for appellee.

DAMOORGIAN, J.

   In this appeal, the State challenges the trial court’s final order sua
sponte dismissing its petition for delinquency. We reverse and hold that
the trial court impermissibly relied on section 985.0301(6), Florida
Statutes (2014), to sua sponte dismiss the petition before the initial
adjudicatory hearing. See State v. W.D., 112 So. 3d 702, 703 (Fla. 4th
DCA 2013).

   By way of background, the State filed a delinquency petition against
D.A. in January of 2012, based on allegations that he trespassed on school
grounds. D.A. was scheduled for intake into a juvenile diversion program,
but failed to appear on the scheduled date. D.A. then was issued a capias
in April of 2012 for failure to appear. At the hearing on the petition more
than two years later, the State informed the trial court that, from its
understanding, D.A. was on a pickup order status. After noting it
appeared that the State had declined to extradite D.A. after he was
arrested in Colorado, the trial court sua sponte dismissed the petition for
delinquency.

   On appeal, the State argues that the trial court erred in dismissing the
petition based on our holding in W.D.1 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. Thus, in
light of our holding in W.D. and C.W., we reverse and remand the trial
court's order dismissing the State’s delinquency petition.

   Reversed and remanded.

GROSS and GERBER, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




   1   D.A. argues on appeal that the State waived prosecution by failure to
extradite him. D.A., however, provides no authority in support of this argument.
Alternatively, D.A. concedes error based on W.D.

                                       2
