DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

F.L.P, a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Nos. 4D19-362 & 4D19-697

[March 25, 2020]

Consolidated appeal from the Circuit Court for the Fifteenth Judicial 

Circuit, Palm Beach County; Luis Delgado, Judge; L.T. Case Nos. 

16CJ001925ASB, 17CJ000922ASB, 17CJ001243ASB, 17CJ002014ASB, 

17CJ002015ASB, 17CJ002017ASB, 17CJ002019ASB, 17CJ002107ASB 

and 17CJ002109ASB.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Georgina JimenezOrosa, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

F.L.P., a juvenile, appeals a final order adjudicating him delinquent and 

committing him to a non-secure facility. Appellant argues that the trial 

court failed to meet the requirements of E.A.R. v. State, 4 So. 3d 614 (Fla. 

2009), by departing from the DJJ’s probation recommendation, and

alternatively, failing to order a predisposition report (“PDR”) with a 

commitment recommendation. We agree the trial court failed to meet 

E.A.R.’s requirements and reverse.

Appellant pled guilty to multiple counts of burglary and theft as a minor

and was sentenced to a probationary term. After Appellant allegedly 

violated his probation, DJJ recommended he remain on probation and 

furnished a PDR that contained a probation recommendation but no 

alternative commitment recommendation. The State disagreed with the 

DJJ’s probation recommendation and advocated for commitment.
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At the hearing, the following exchange took place:

THE COURT: [Appellant], you’re trying, I don’t want to take 

that away from you, but based on everything I’ve heard today, 

I do believe commitment is appropriate. As far as the 

recommendation of [the DJJ], for restrictiveness level?

DJJ: Unsecure.

THE COURT: State.

THE STATE: Secure.

THE COURT: You’re asking for a high?

THE STATE: Yes.

THE COURT: Defense?

DEFENSE COUNSEL: If the Court is not inclined to place the 

child back on probation the most appropriate would be nonsecure.

The trial court then ordered Appellant committed to a non-secured facility. 

This appeal followed.

“We review the trial court’s departure from the DJJ recommendation 

for an abuse of discretion. However, the question of whether the court has 

used the proper legal standard to provide its departure reasons is a 

question of law that is reviewed de novo.” C.C. v. State, 276 So. 3d 14, 17 

(Fla. 4th DCA 2019) (citation omitted).

Section 985.433, Florida Statutes (2018), delineates the procedural 

requirements a trial court’s disposition decision must meet after a juvenile 

has been adjudicated delinquent. Subsection 7(b) of that statute provides 

in pertinent part:

The court shall commit the child to the [DJJ] at the 

restrictiveness level identified or may order placement at a 

different restrictiveness level. The court shall state for the 

record the reasons that establish by a preponderance of the 

evidence why the court is disregarding the assessment of the 

child and the restrictiveness level recommended by the [DJJ].
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§ 985.433(7)(b), Fla. Stat. (2018).

The Florida Supreme Court applied this statutory mandate in E.A.R., 

announcing “a new, more rigorous analysis that a trial court must conduct 

before departing from the DJJ’s recommendation.” C.M.H. v. State, 25 So. 

3d 678, 679 (Fla. 1st DCA 2010). There, the Court held that the trial court 

must take the following steps before lawfully departing from the DJJ’s

recommendation:

(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 . . . 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.

E.A.R., 4 So. 3d at 633. The trial court’s stated “reasons” for departing 

from the DJJ’s recommendation “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.” Id. at 634. 

However, “E.A.R. findings are unnecessary for the court’s initial 

decision of whether to commit a juvenile even where the DJJ recommends 

probation. Those requirements apply only to the second step of the 

disposition process when a court departs from the recommended 

restrictiveness level of the commitment.” D.R. v. State, 178 So. 3d 478, 

482 (Fla. 4th DCA 2015). The trial court errs if the DJJ only recommends 

probation and it commits the juvenile without requesting a DJJ 

restrictiveness recommendation for the commitment. See D.A.H. v. State, 

212 So. 3d 399, 399 (Fla. 4th DCA 2017).

In B.K.A. v. State, 122 So. 3d 928, 929 (Fla. 1st DCA 2013), the DJJ 

provided a PDR that recommended probation and did not provide an 

alternate commitment recommendation. The trial court determined the 
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juvenile should be committed to a low-risk residential program. Id. The 

First District reversed, holding that the trial court erred by not complying 

with the second step of E.A.R.:

The trial court’s error was in ordering a level of commitment 

without requesting a further multidisciplinary assessment 

and follow-up predisposition report . . . Once the trial court 

receives a recommendation from the [DJJ] of the “most 

appropriate placement and treatment plan, specifically 

identifying the restrictiveness level most appropriate for the 

child,” as required by section 985.433(7)(a), the court may 

proceed with step two of the disposition in these cases in 

terms of the level of commitment of the child. A 

recommendation of “probation” by DJJ, without any 

alternative analysis and recommendation in the event the 

court determines that the child should be adjudicated 

delinquent and committed to the Department, is insufficient 

to allow the juvenile court to proceed with a final commitment 

disposition under section 985.433(7), Florida Statutes.

Id. at 930-31 (citation omitted) (emphasis added).

In this case, the trial court erred by not requesting that the DJJ submit 

an additional PDR to determine the restrictiveness level for Appellant’s 

commitment. See C.C., 276 So. 3d at 17. Here, the PDR did not provide 

an alternate commitment recommendation, so the trial court did not have 

the benefit of a multidisciplinary assessment and DJJ recommendation to 

determine the appropriate level of commitment for Appellant. See B.K.A., 

122 So. 3d at 929. The DJJ representative’s one-worded recommendation 

at the disposition hearing did not provide sufficient DJJ input for the trial 

court to comply with the second step of E.A.R. See id.; see also D.A.H., 

212 So. 3d at 399 (finding that the trial court must request a 

restrictiveness level recommendation from DJJ prior to ordering 

commitment if DJJ did not provide one).

Additionally, the trial court failed to articulate on the record an 

understanding of the respective characteristics of the restrictiveness levels 

under consideration. See E.A.R., 4 So. 3d at 638. Here, the trial court did 

not explain why the non-secure level was better suited to serving 

Appellant’s rehabilitative needs, nor did the court explain how such a 

commitment would maintain the ability of the State to protect the public 

from further acts of delinquency. See id. (identifying these two inquiries 

as prerequisites to departing from a DJJ recommendation); see also

C.M.H., 25 So. 3d at 680 (same). 
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For these reasons, the trial court’s disposition order did not comply 

with the dictates of E.A.R. We reverse and remand to provide the trial 

court an opportunity to conduct a new disposition hearing and to enter a 

disposition order in accord with this opinion. 

Reversed and remanded.

WARNER and KUNTZ, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.