       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           KELVIN DORCELY,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-1272

                           [October 24, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2014-
CF-011667-AXXX-MB.

  Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

                     ON MOTION FOR REHEARING

GROSS, J.

   We grant appellant’s motion for rehearing, withdraw our opinion dated
September 12, 2018, and substitute the following.

    The issue in this case is whether Kelvin Dorcely’s due process rights
were violated when the court found him unsuitable for juvenile sanctions,
revoked his juvenile sanction, and resentenced him as an adult. We affirm
the lower court’s orders in all respects and write to address the propriety
of the proceedings conducted below.

    Section 985.565, Florida Statutes (2016), addresses sentencing powers
and disposition alternatives for children prosecuted as adults. Section
985.565(4)(b) allows the court to impose juvenile sanctions in some cases.
If juvenile sanctions fail, however, section 985.565(4)(c) allows the court
to “revoke the previous adjudication, impose an adjudication of guilt, and
impose any sentence which it may lawfully impose . . . . ”
   In this case, Dorcely was sentenced under section 985.565(4)(b) to
juvenile probation. His disposition order contained the following language:

     THE YOUTH IS PLACED ON NOTICE THAT THE COURT MAY
     REVOKE THIS FINDING OF DELINQUENCY AND RESENTENCE
     THE YOUTH TO ADULT SANCTIONS SHOULD THE YOUTH
     PROVE UNSUITABLE FOR JUVENILE SANCTIONS . . . .

   Several months after he was placed on probation, the Department of
Juvenile Justice (“DJJ”) found that Dorcely was non-compliant with the
court-ordered sanctions, demonstrated anti-social behaviors, and
displayed disregard for authority figures. The DJJ filed a violation report
and an “affidavit of unsuitability” under section 985.565(4)(c), alleging that
Dorcely was unsuitable for juvenile sanctions because he had violated the
terms of his juvenile probation.

   Section 985.565(4)(c) requires “a hearing” and allows the court to find
a child unsuitable for juvenile sanctions “if the child commits a new
violation of law while under juvenile sanctions, if the child commits any
other violation of the conditions of juvenile sanctions, or if the child’s
actions are otherwise determined by the court to demonstrate a failure of
juvenile sanctions.” Id. The hearing must be an evidentiary hearing and
the defendant must be given adequate notice and the opportunity to
prepare and participate. Jones v. State, 336 So. 2d 1172, 1174-75 (Fla.
1976) (evidentiary hearing required); Powell v. State, 606 So. 2d 486, 488
(Fla. 5th DCA 1992) (defendant entitled to adequate notice and opportunity
to obtain and prepare witnesses, notice to the parents, and an updated
predisposition report).

   Here, Dorcely had two evidentiary hearings: an unsuitability hearing
under section 985.565(4)(c), and a resentencing hearing under section
985.565(3). Following the presentation of evidence and argument by
counsel at the unsuitability hearing, the court found that it was
“abundantly clear . . . that Mr. Dorcely is not suitable for juvenile
sanctions.” A year later, the court conducted the resentencing hearing
and sentenced Dorcely as an adult to ten years in prison. 1

   Dorcely makes two arguments on appeal. First, he argues that the trial
court lacked authority to revoke his juvenile sanction because the DJJ
only found him unsuitable for the juvenile sanction of probation, the DJJ
had not concluded that he was unsuitable for all juvenile sanctions. We

1   Dorcely’s underlying offense was attempted armed robbery.

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find that the court’s order, revoking Dorcely’s juvenile sanction and
imposing an adult sentence, is supported by the plain, unambiguous
language of section 985.565. The statute reads:

      If a child proves not to be suitable to a commitment program,
      juvenile probation program, or treatment program under
      paragraph (b), the department shall provide the sentencing
      court with a written report outlining the basis for its
      objections to the juvenile sanction and shall simultaneously
      provide a copy of the report to the state attorney and the
      defense counsel. The department shall schedule a hearing
      within 30 days. Upon hearing, the court may revoke the
      previous adjudication, impose an adjudication of guilt, and
      impose any sentence which it may lawfully impose . . . .

§ 985.565(4)(c) (emphasis added).

   The plain language used by the Legislature reveals that the DJJ must
commence unsuitability proceedings when a child proves “not to be
suitable to a commitment program, juvenile probation program, or
treatment program.” The Legislature’s choice of an indefinite article (“a”)
before the list of juvenile programs indicates that unsuitability proceedings
must be commenced by the DJJ if a child is deemed unsuitable for any
(not all) of the enumerated juvenile programs.

    The second clause of the section’s first sentence mandates that the DJJ
outline “the basis for its objections to the juvenile sanction.” The
Legislature’s choice of a definite article (“the”) preceding the phrase
“juvenile sanction” indicates that the Legislature intended to have the child
brought back to court whenever the specific sanction actually imposed has
failed.

    Under the statute, the DJJ has the responsibility to report the failure
of a juvenile sanction – whatever sanction was actually imposed. After the
DJJ commences the unsuitability proceeding, the judge has the discretion
to find the child unsuitable for all juvenile sanctions. Here, the trial court
did not exceed its authority under the statute because the statute does not
require that the DJJ find a failure of all juvenile sanctions before the court
can determine the child is not suitable for future juvenile sanctions.

   Dorcely’s second argument urging reversal is procedural. He argues
that the trial court erred when it allowed the State to introduce hearsay
evidence at the unsuitability hearing. We find the error, if any, was
harmless. There was competent, substantial, non-hearsay evidence upon

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which the court could rely in finding the child was not suitable for juvenile
sanctions.

   We find that the trial court afforded Dorcely due process before finding
him unsuitable for juvenile sanctions and imposing an adult sentence.
The DJJ abided by the express language of the statute when it commenced
the unsuitability proceeding after Dorcely proved not suitable for juvenile
probation. The court noticed and conducted an evidentiary unsuitability
hearing. The court’s finding that Dorcely was not suitable for juvenile
sanctions is supported by competent substantial evidence. The court’s
subsequent decision to revoke Dorcely’s juvenile sanction and impose an
adult sentence is permitted by the plain language of the statute.

   Affirmed.

CONNER and KLINGENSMITH, JJ., concur.




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