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 
2

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.
3

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.