DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

E.M., A Child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Nos. 4D17-3557, 4D17-3568, 4D17-3566, 4D17-3564, 4D17-3563, 

4D17-3561, 4D17-3560, and 4D17-3558

[March 27, 2019]

Consolidated appeals from the Circuit Court for the Nineteenth Judicial 

Circuit, St. Lucie County; Michael Heisey, Judge; L.T. Case Nos. 

562016CJ000769A, 562017CJ000697A, 562017CJ000556A, 

562017CJ000472A, 562017CJ000390B, 562017CJ000153A, 

562017CJ000012A, and 562016CJ000910C.

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy, 

Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

A juvenile appeals a disposition order that includes a five-day detention 

sanction for direct criminal contempt. He argues: (1) the evidence does 

not support a direct criminal contempt finding; (2) the court erred in 

departing from the Department of Juvenile Justice’s (“DJJ”) recommended 

disposition; and (3) the court erred in failing to make the required findings 

in a written contempt order. We affirm on issues one and two, but we 

agree with him on issue three. We reverse and remand the case to the trial 

court for entry of a written order on the direct criminal contempt finding.

The twelve-year-old juvenile pleaded no contest to four cases and was 

placed on probation. The following week, he admitted to violating 

probation in those cases, and entered a no contest plea to four new 

substantive offenses. While awaiting his disposition hearing, the juvenile 

was arrested for a curfew violation and attended a detention hearing.
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At the hearing, the court found probable cause for the probation 

violation based on the arrest affidavit. The State recommended secure 

detention until the disposition hearing. Defense counsel requested the 

juvenile be released to home detention with an electronic monitor.

At that point, the juvenile said something indiscernible. The judge then 

reminded him that he had just pleaded to four cases the week before and 

was back for having tampered with the electronic monitor. The judge 

advised him that he was going to securely detain him for twenty-one days 

to keep him out of trouble until his disposition hearing for his own good. 

Immediately following that decision, the juvenile engaged in a verbal 

exchange with the trial court, which resulted in the court declaring the 

juvenile to be in direct criminal contempt. The trial court allowed the 

juvenile to explain why the contempt finding should not be entered and to 

mitigate the sanction. The court then signed a detention order placing the 

juvenile in secure detention for twenty-one days with an additional five 

days for direct criminal contempt. The trial court did not enter a written 

contempt order containing the requisite findings.

The DJJ completed a predisposition report, which recommended 

adjudication of delinquency and placement in a non-secure residential 

program, followed by post-commitment probation. At the disposition 

hearing, the State requested the trial court depart from the DJJ’s 

recommendation in favor of a high-risk placement. Defense counsel 

argued against the departure, reminding the court of the rehabilitative 

purpose of juvenile justice and the juvenile’s young age.

The court ordered the juvenile to a high-risk residential program. The 

court then explained the reasons for its departure from the DJJ’s 

recommendation and subsequently entered a written order detailing the 

reasons for its departure. The order noted:

The record before the court also established that [the juvenile] 

was uncontrollable by his father, grandmother or JPO and 

during the numerous times before the court he shared little to 

no discernable remorse for his actions. While he was on 

probation he was detained in the detention center on at least 

six secure detention orders and on October 9, 2017, after 

entering an open plea to the court, [the juvenile] was held in 

direct criminal contempt for his conduct in court.

The court identified five findings from the DJJ recommendation that 
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did not support the non-secure placement: 

1. Level of Risk to Re-offend: “High.”

2. The youth is noncompliant with all services.

3. Youth is only thirteen years old, but chooses to violate all 

rules with every chance he gets.

4. Father is incarcerated, mother doesn’t want to deal with 

the youth’s issues as she stated that the youth refuses to 

listen to her and follow the rules at home. 

5. Not one of the court ordered sanctions have been satisfied 

while the youth has been on probation.

. . . .

Having considered the facts of each case as stated above, the 

continued pattern of escalating criminal behavior, the services 

that have been offered and failed to rehabilitate [the juvenile], 

the need to protect the community from future criminal acts, 

and the specific needs of the youth as outlined in the various 

evaluations completed; the court has determined that the 

most appropriate placement to address the youths [sic] needs 

is in a High Risk residential program. Simply put, this youth’s 

needs cannot be addressed successfully in the time frame 

non-secure residential programs are structured. His high risk 

needs cannot be met in a program designed for low to 

moderate risk youth. The court respects the effort the 

Department of Juvenile Justice has put forth in preparing 

their recommendation for this youth, but on these specific 

cases, the Department has under weighed [the juvenile’s]

needs and the length of time, high risk programming, and high 

risk security of the High Risk program level is needed.

From this order, the juvenile now appeals.

We have reviewed the record and departure order entered in this case 

and find that the record supports the trial court’s contempt finding and 

departure from the DJJ’s recommended disposition. See Murrell v. State, 

595 So. 2d 1049, 1050 (Fla. 4th DCA 1992); E.A.R. v. State, 4 So. 3d 614, 

638–39 (Fla. 2009). We therefore dispense with further comment on these 

two issues. 
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There is merit, however, in the third issue raised, as acknowledged by 

the State. The juvenile argues the trial court erred in failing to strictly 

follow the procedures of Florida Rule of Criminal Procedure 3.830. Such 

a failure constitutes fundamental error. See A.W. v. State, 137 So. 3d 521, 

522 (Fla. 4th DCA 2014). 

A finding of direct criminal contempt by a juvenile is governed by 

Florida Rule of Juvenile Procedure 8.150. The trial court must follow six 

steps, two of which are:

2. The judgment of guilt shall include a recital of those facts 

upon which the adjudication of guilt is based.

. . .

5. The judgment shall be signed by the judge and entered of 

record.

J.A.H. v. State, 20 So. 3d 425, 427 (Fla. 1st DCA 2009) (quoting Fisher v. 

State, 482 So. 2d 587, 588 (Fla. 1st DCA 1986)). Here, the court skipped 

steps two and five.

“The proper remedy for a trial court’s failure to strictly adhere to the 

requirements of Rule 3.830 is a new hearing at which the rule will be 

followed.” Swain v. State, 226 So. 3d 250, 252 (Fla. 4th DCA 2017). “Even 

technical errors, such as a failure to recite in the judgment those facts 

upon which the adjudication of guilt was based, require a reversal.” 

Fisher, 482 So. 2d at 588; see also J.A.H., 20 So. 3d at 428. Here, the 

error is in the lack of a written order.

For this reason, we reverse and remand the case to the trial court to 

enter the requisite written order.

Affirmed in part; reversed in part; and remanded.

CIKLIN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.