Opinion
No. 4D99-1373.
Opinion filed April 26, 2000.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert J. Fogan, Judge; L.T. No. 96-13457 DL00A.
Richard L. Jorandby, Public Defender, and Maxine Williams, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Lara J. Edelstein, Assistant Attorney General, Fort Lauderdale, for appellee.
K. G. appeals from a delinquency order finding that she violated conditions of her juvenile court aftercare program. She also appeals the order denying her motion for rehearing as untimely. We reverse.
Appellant was committed to a Level 4 program on February 14, 1997. The disposition order required that she be placed on community control following her furlough from the Level 4 program. Sometime after entry of the order, the Department of Juvenile Justice (DJJ) administratively transferred appellant to a more restrictive Level 8 program. After appellant attended the Level 8 program, DJJ placed appellant on aftercare with supervision by Florida Ocean Sciences Institute, Inc., Student And Family Enhancement (FOSI).
At a status hearing held on January 25, 1999, appellant's juvenile probation officer (JPO) stated that appellant was in violation of aftercare. Additionally, a FOSI aftercare counselor presented an affidavit alleging that appellant violated aftercare by leaving home without permission, disobeying curfew, and absconding from FOSI. Upon the state's motion, the court took appellant into custody. The court proceeded with a hearing and took testimony from the FOSI counselor and appellant's father. Although the JPO had not filed her violation report, she was allowed to testify pursuant to agreement of counsel that she would file her report later. The court found that appellant violated her aftercare, committed her to a Level 8 program, and detained her pending placement. The JPO filed an affidavit of violation of community control later that afternoon. On February 18, 1999, the court entered an amended disposition order finding appellant guilty of violation of "community control (aftercare)" and committing her to a Level 8 program with aftercare.
On March 17, 1999, at another status conference, defense counsel asserted that the violations of aftercare were improperly charged, and that the February 18, 1999 commitment order entered upon those violations was void. He informed the court that appellant's original disposition order of February 14, 1997 imposed a Level 4 commitment but did not include a provision for aftercare. The court heard testimony from various court personnel to determine whether appellant was placed on aftercare as part of the February 1997 disposition order. The DJJ in-court liaison witness confirmed that the disposition order did not contain a condition of aftercare. She also pointed out that the February 18, 1999 amended order committing appellant to a Level 8 program with aftercare was entered as a result of an allegation of appellant's violation of community control, although at the time of the alleged violation, appellant was not on community control but on aftercare. After considering testimony from FOSI concerning the reasons for appellant's placement on a Level 8 program, the court ruled that the February 18, 1999 order was valid and entered another amended disposition order, dated March 17, 1999, that committed appellant to a Level 8 program for the aftercare violations.
On March 29, 1999, appellant's counsel filed a motion for rehearing, contending that the trial court lacked jurisdiction to commit appellant for an aftercare violation because aftercare was not made a condition of the February 1997 disposition order. The court granted the state's motion to strike the motion for rehearing as untimely because it was not filed within ten days of the disposition order. However, the state concedes on appeal that the motion was timely filed.
The state acknowledges the absence of an order requiring appellant to participate in aftercare upon completion of her commitment program, but argues that no error occurred in recommitting appellant for violating aftercare because a statutory provision put her on constructive notice of a requirement to participate in aftercare. In support of this argument, the state cites section 985.316, Florida Statutes (1997), which, in relevant part, states:
(2) Whenever a delinquent child is committed to a residential program operated by a private vendor under contract, the department may negotiate with such vendor to provide intensive aftercare for the child in the home community following successful completion of the residential program. Intensive aftercare shall involve regular contact between the child and the staff of the vendor with whom the child has developed a relationship during the course of the commitment program. Contingent upon specific appropriation, a contract for intensive aftercare provided by the residential commitment program vendor shall provide for caseload of 10 or fewer children, intensive aftercare for 1 year, and a transfer of the ongoing case management and reentry responsibilities from the department to the vendor at the time the vendor admits the child into the commitment program. The department shall annually seek the necessary resources to provide intensive aftercare.
. . .
(5) It is the legislative intent that, to prevent recidivism of juvenile offenders, reentry and aftercare services be provided statewide to each juvenile who returns to his or her community from a residential commitment program. Accordingly, the Legislature further intends that reentry and aftercare services be included in the continuum of care.
The state urges us to interpret section 985.316, as requiring a juvenile to participate in aftercare after a commitment, with or without a court order. The state argues that since an aftercare condition is statutorily authorized or mandated, the juvenile has constructive notice of this condition. However, the statute merely informs DJJ of the services that should be available upon a child's completion of a residential commitment program. It does not authorize DJJ to unilaterally impose aftercare as a condition upon release from commitment.
Aftercare is similar to juvenile probation (community control), in that the juvenile is supervised in the community following completion of a commitment program. See § 985.03(57), Fla. Stat. (1999). Community control is an individualized program, during which a juvenile's freedom is restricted to home or noninstitutional quarters in lieu of commitment to DJJ. See § 985.03(13), Fla. Stat. (1999). Like community control, a juvenile's aftercare can be violated and revoked. See § 985.231(1)(a)(1)c, Fla. Stat. (1999). A juvenile cannot be adjudicated delinquent for violating community control absent a showing that juvenile was on community control. D.S.S. v. State, 560 So.2d 345 (Fla.5th DCA 1990). See also Waldron v. State, 670 So.2d 1155, 1157 (Fla.4th DCA 1996) (a defendant's probation or community control may not be revoked for violation of a condition or requirement imposed unilaterally by a probation officer but not by sentencing order).
Similarly, juveniles cannot be adjudicated delinquent for violating aftercare, when aftercare was not a condition imposed by the court. We, therefore, reverse appellant's adjudication of delinquency for violation of aftercare and vacate the disposition orders of February 18, 1999 and March 17, 1999.
REVERSED and REMANDED.
KLEIN and HAZOURI, JJ., concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.