       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                              D.L.T., a child,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2528

                              [June 5, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Charles A. Schwab, Judge; L.T. Case Nos.
562015CJ000950C,         562016CJ001017A,          562017CJ000886A,
562018CJ000260A,     562018CJ000384A,        562018CJ000388A        and
562018CJ000501A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   D.L.T., a child, appeals his disposition entered below in which the trial
court departed from the recommendation for disposition by the
Department of Juvenile Justice (“DJJ”). DJJ’s predisposition report
recommended commitment to a non-secure facility. The trial court
committed D.L.T. to a high-risk commitment program, after determining
he violated probation in multiple ways, including new law violations. At
the time of disposition, D.L.T. was on probation for seven cases.

   On appeal, D.L.T. argues that the trial court’s explanation for departing
from the DJJ’s recommendation was inadequate under E.A.R. v. State, 4
So. 3d 614 (Fla. 2009). Specifically, he contends the trial court failed to
articulate the potential lengths of stay associated with each level of
restrictiveness, as well as the trial court’s understanding of the treatment
programs and services available at the various levels. Our review of the
record confirms D.L.T.’s argument is correct. The problem is the record
does not reflect that the defense preserved this particular argument which
is now made for the first time on appeal.

    Generally, “unpreserved claims of error cannot be raised on appeal
absent fundamental error.” State v. Kettell, 980 So. 2d 1061, 1068 (Fla.
2008) (citing Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)). Although
failure to comply with E.A.R. constitutes fundamental error, the absence
of any objection at the time of disposition, followed by the failure to file a
motion to correct a disposition error pursuant to Florida Rule of Juvenile
Procedure 8.135(b), precludes consideration even of fundamental
disposition errors on direct appeal. C.C. v. State, 150 So. 3d 216, 217 (Fla.
4th DCA 2014); A.L.B. v. State, 23 So. 3d 190, 191 (Fla. 1st DCA 2009)
(affirming disposition despite fundamental error due to noncompliance
with E.A.R.).

  However, we write to remind trial judges of what we said in D.V. v. State,
216 So. 3d 3 (Fla. 4th DCA 2017):

         In E.A.R., the supreme court reined in the discretion of trial
      judges to deviate upward from the DJJ recommendations by
      requiring a significant level of detail supported by both the
      record of the disposition hearing and the characteristics of
      various restrictiveness levels.      Applying the statutory
      framework, the supreme court determined that to deviate from
      a DJJ recommendation, the trial court must:

            (1) Articulate an understanding of the respective
            characteristics of the opposing restrictiveness
            levels . . . including (but not limited to) the type of
            child that each restrictiveness level is designed to
            serve, the potential “lengths of stay” associated
            with each level, and the divergent treatment
            programs and services available to the juvenile at
            these levels (the DJJ possesses the expertise to
            provide this information); and

            (2) Then logically and persuasively explain why, in
            light of these differing characteristics, one level is
            better suited to serving both the rehabilitative
            needs of the juvenile—in the least restrictive
            setting—and maintaining the ability of the State to
            protect the public from further acts of delinquency.




                                      2
      E.A.R., 4 So.3d at 638; see also B.N. v. State, 39 So. 3d 515,
      517 (Fla. 4th DCA 2010).

      Additionally, the trial court’s explanation for deviating from
      the DJJ’s recommendation

               must provide a legally sufficient foundation for
               “disregarding” the DJJ’s professional assessment
               and PDR [Predisposition Report] 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.

      Id.

         “While a trial court, working routinely with juveniles, may
      have insight into the types of programs provided at certain
      juvenile detention facilities, E.A.R. requires a trial court place
      that knowledge on the record if the judge intends to rely on
      these types of findings to support deviations.” D.R.R. v. State,
      94 So. 3d 680, 683 (Fla. 4th DCA 2012) (internal citation
      omitted). These reasons must sufficiently explain why the
      court’s decision provides for the child “the most appropriate
      dispositional service in the least restrictive available setting.”
      E.A.R., 4 So. 3d at 638 (quoting § 985.03(21)).

Id. at 10 (first alteration in original) (emphases added).

    We also write to remind the trial court and appellate defense counsel of
the requirements to preserve disposition errors and the necessity to
comply with Florida Rule of Juvenile Procedure 8.135(b) to preserve relief
for fundamental error.

   Affirmed.

GERBER, C.J., and MAY, J., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.



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