Opinion
Case No. 96-4928.
Opinion filed July 22, 1997.
An appeal from the Circuit Court for Duval County. A.C. Soud, Jr., Judge.
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
Robert A. Butterworth, Attorney General, and Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
Appellant was adjudicated delinquent for committing the offense of burglary. The Department of Juvenile Justice filed a predisposition report recommending that appellant be placed on community control. The trial court rejected the recommendation and, without receiving a further recommendation as to a restrictiveness level, imposed a minimum-risk (level 2) commitment. This was error. Section 39.052(4)(e)2, Florida Statutes, requires the court to receive and consider a recommendation from the Department as to a restrictiveness level before ordering a commitment. We therefore reverse the order of commitment and remand the case for further proceedings consistent with this opinion. See R.D. v. State, 22 Fla. L. Weekly D1235 (Fla. 1st DCA May 13, 1997); J.P.M. v. State, 688 So.2d 458 (Fla. 1st DCA 1997); K.Y.L. and N.L. v. State, 685 So.2d 1380 (Fla. 1st DCA 1997); S.R. v. State, 683 So.2d 576 (Fla. 1st DCA 1996).
We reject the State's argument that appellant was required to preserve this issue for review according to the procedure in section 924.051(4), Florida Statutes (Supp. 1996). See R.A.M. v. State, Case No. 97-536 (Fla. 1st DCA June 27, 1997); T.M.B. v. State, 689 So.2d 1215 (Fla. 1st DCA 1997). As in R.A.M., we certify the following question to the supreme court:
DOES SECTION 924.051(4), FLORIDA STATUTES (SUPP. 1996), APPLY IN JUVENILE DELINQUENCY PROCEEDINGS?
REVERSED and REMANDED.
WEBSTER and PADOVANO, JJ., Concur.