Opinion
No. 92641.
October 8, 1998.
Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions Second District — Case No. 96-01814 (Hillsborough County).
James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Petitioner.
Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Respondent.
We have for review D.L.B. v. State, 707 So.2d 844 (Fla. 2d DCA 1998), based on conflict with E.D.P. v. State, 23 Fla. L. Weekly D348, ___ So.2d ___, 1998 WL 25483 (Fla. 1st DCA Jan.27, 1998), and other cases. We have jurisdiction. Art. V, § 3(b)( 3), Fla. Const. We approve D.L.B.
R.A.M. v. State, 695 So.2d 1308 (Fla. 1st DCA) review granted, 698 So.2d 1225 (Fla. 1997); J.P.M. v. State, 688 So.2d 458 (Fla. 1st DCA 1997); S.R. v. State, 683 So.2d 576 (Fla. 1st DCA 1996).
D.L.B. was found to be delinquent under the affray statute and the Department of Juvenile Justice recommended community control. The trial court rejected the department's recommendation and imposed a level-six restrictiveness commitment without remanding the case to the department for an alternative recommendation. The district court stated:
§ 870.01(1), Fla. Stat. (1995) (public fight or brawl is a first-degree misdemeanor).
We do not believe the statute requires the court, once it has already rejected the Department's non-commitment recommendation, to then ask the Department for a second recommendation. A request for a second recommendation would seem particularly unnecessary in view of section 39.052(4)(e)3., Florida Statutes (1995), the next paragraph of the statute, which allows the court to reject the Department's restrictions level recommendation provided the court state for the record the reasons for its deviation from the Department's recommendation. For these reasons we find ourselves in conflict with the First District in finding no error in the court's refusal to request a second recommendation from the Department.
D.L.B., 707 So.2d at 845.
The same issue was certified to us by the First District Court of Appeal in E.D.P.:
Does the trial judge, acting after a disposition hearing and based on specific reasons, have the authority to reject the department's community control recommendation without remanding the case to the Department for an alternative recommendation?
We answered the certified question in the affirmative. State v. E.D.P., No. 92,345, ___ So.2d ___ (Fla. Oct. 8, 1998). In accordance with our decision in E.D.P., we approve D.L.B. and disapprove R.A.M., J.P.M., and S.R. to the extent they are inconsistent with E.D.P.
It is so ordered.
HARDING, C.J., and OVERTON and WELLS, JJ., concur.
KOGAN, ANSTEAD and PARIENTE, JJ., dissent.