JM v. State, 939 So. 2d 1138 (Fla. 5th DCA 2006). · Go Syfert
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JM v. State, 939 So. 2d 1138 (Fla. 5th DCA 2006). Cases Citing This Book View Copy Cite
9 citation events (9 in the last 25 years) across 2 distinct courts.
Strongest positive: E.A.R. v. State (fla, 2009-01-30)
Top citers, strongest first. 4 distinct citers. How cited ↗
examined Cited as authority (rule) E.A.R. v. State (3×)
Fla. · 2009 · confidence medium
See, e.g., N.B. v. State, 911 So.2d 833, 835-36 (Fla. 1st DCA 2005); M.S. v. State, 927 So.2d 1044, 1046 (Fla. 2d DCA 2006); J.M. v. State, 939 So.2d 1138, 1139 (Fla. 5th DCA 2006).
examined Cited as authority (rule) EAR v. State (3×)
Fla. · 2009 · confidence medium
See, e.g., N.B. v. State, 911 So.2d 833, 835-36 (Fla. 1st DCA 2005); M.S. v. State, 927 So.2d 1044, 1046 (Fla. 2d DCA 2006); J.M. v. State, 939 So.2d 1138, 1139 (Fla. 5th DCA 2006).
discussed Cited as authority (rule) E.A.R. v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Thus in A.G. v. State, 737 So.2d 1244, 1247 (Fla. 5th DCA 1999), the court wrote: “Not only must the court state in writing or on the record its reasons for disregarding the recommended level, but in addition, the reasons must reference the characteristics of the restrictiveness level vis-a-vis the needs of the child.” Although A.G. cited A.C.N. in support of this proposition, the case expanded the language of A.C.N. by changing the phrase “have reference to” to “reference.” See also J.M. v. State, 939 So.2d 1138, 1139 (Fla. 5th DCA 2006) (relying on A.G. for the proposition that a…
discussed Cited as authority (rule) EAR v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Thus in A.G. v. State, 737 So.2d 1244, 1247 (Fla. 5th DCA 1999), the court wrote: "Not only must the court state in writing or on the record its reasons for disregarding the recommended level, but in addition, the reasons must reference the characteristics of the restrictiveness level vis-à-vis the needs of the child." Although A.G. cited A.C.N. in support of this proposition, the case expanded the language of A.C.N. by changing the phrase "have reference to" to "reference." See also J.M. v. State, 939 So.2d 1138, 1139 (Fla. 5th DCA 2006) (relying on A.G. for the proposition that a judge disr…
Retrieving the full opinion text from the archive…
J.M., A CHILD, Appellant,
v.
STATE OF FLORIDA, Appellee.
Case No. 5D05-4367, Case No. 5D05-4368, Case No. 5D05-4369.
District Court of Appeal of Florida, Fifth District.
Oct 13, 2006.
939 So. 2d 1138
Per Curiam.
Published

Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

In this delinquency case consolidating three appeals, J.M. challenges a disposition order committing him to a level 8 placement despite the Department of Juvenile Justice's recommendation that he be committed to a level 6 placement. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.145(b)(1). We reverse the disposition order in case number 05-4367, but the disposition orders in case numbers 05-4368 and 05-4369 are affirmed.[1]

To disregard DJJ's commitment recommendation a trial court must state its reasons and "must reference the characteristics of the restrictiveness level vis-à-vis the needs of the child." A.G., 737 So. 2d 1244, 1247 (Fla. 5th DCA 1999). See also T.N. v. State, 929 So. 2d 1133, 1136-37 (Fla. 5th DCA 2006); C.M.L. v. State, 895 So. 2d 495, 496 (Fla. 5th DCA 2005); T.S. v. State, 801 So. 2d 171, 172 (Fla. 5th DCA 2001). Here, the trial court gave reasons, the primary one being J.M.'s failures to appear for hearings. The court, however, did not make reference to the characteristics of a level 8 program vis-à-vis J.M.'s needs. Indeed, the court did not mention J.M.'s needs at all. The statutory definition of high-risk residential programs states that "[p]lacement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels." § 985.03(46)(d), Fla. Stat. (2005). Nothing in this case indicates that the court was concerned about public safety with respect to J.M. Even the court's gang comment — the evidentiary support for which is unclear — was directed toward keeping J.M. away from gang members rather than protecting the public from J.M. See A.W v. State, 862 So. 2d 858 (Fla. 4th DCA 2003).

Accordingly, we reverse the trial court's order in case number 05-4367 and remand for sentencing in accordance with the DJJ's recommendation or a sentence that is justified by the record with stated reasons. See G.L. v. State, 31 Fla. L. Weekly D2383 (Fla. 5th DCA Sept. 15, 2006).

AFFIRMED in part; REVERSED in part AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.

1 Appellant received sentences of time served in the latter two cases and makes no challenge to these dispositions on appeal.