Opinion
Case No. 4D02-2810.
Opinion filed September 18, 2002. Order Denying Rehearing February 26, 2003.
Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case No. 00-12861 DL.
Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for petitioner.
Robert A. Butterworth, Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for respondent.
Charlie Grist, Attorney General, Tallahassee, and Donna M. Hoffman, Assistant Attorney General, West Palm Beach, for respondent on motion for rehearing.
A juvenile petitions for habeas corpus relief after the trial court denied her motion to terminate the Department of Juvenile Justice's aftercare program for her. She alleged the court did not orally pronounce aftercare, even though it was included in the written disposition order. We deny the petition.
Although the child is no longer in a residential commitment, actual incarceration is not required for habeas relief, as long as the conditions of release constitute significant restraints on the child's liberty. See Sellers v. Bridges, 15 So.2d 293, 294 (Fla. 1943).
After violating her probation on a misdemeanor battery adjudication, the juvenile came before the court for disposition. The judge committed her to a level six residential treatment program but did not verbally order conditional release to follow. However, the written delinquency disposition order required the child to be placed on conditional release upon completion of the commitment program. She appealed her disposition, during which her attorney filed a motion to correct the disposition because a misdemeanor adjudication did not qualify for level six treatment. The court agreed and entered a new disposition order, which included an order for postcommitment conditional release. The appeal was then voluntarily dismissed.
Aftercare is a form of probation. The terms "aftercare," "conditional release" and "postcommitment probation" appear to be interchangeable. In 2000, the Legislature amended section 985.231(1)(a)1., substituting "conditional release" for "aftercare." See Ch. 2000-135, § 31, Laws of Fla. In 2001, subsection (1)(a)1 was again amended. Following "postcommitment probation," the legislature deleted "or conditional release supervision." See Ch. 2001-125, § 24, Laws of Fla.
Upon completing the commitment program, the juvenile filed a motion to terminate aftercare on the ground that the court never orally pronounced aftercare or conditional release. She relied on L.S. v. Department of Juvenile Justice, 779 So.2d 633, 635 (Fla. 1st DCA 2001), for the proposition that conditional release or aftercare needed to be orally pronounced at sentencing in order to be included in the written disposition. However, L.S. is distinguishable where aftercare was neither included in the written order of disposition nor orally pronounced by the trial judge. Thus, the first district concluded the aftercare was not validly ordered.
Florida Rule of Juvenile Procedure 8.115 provides for disposition hearings. Nowhere in the rule is oral pronouncement of the disposition required, as compared to Florida Rule of Criminal Procedure 3.700(b). At a juvenile disposition hearing, the court may receive information and reports which may assist it in making the disposition determination. It then is required to prepare a disposition order which the clerk distributes to the child and other participants at the hearing. See Fla. R. Juv. P. 8.115(c). The rules of juvenile procedure do not require the court to pronounce the disposition in court. In this respect, juvenile disposition is quite different than adult sentencing where the oral pronouncement is the sentence. In juvenile proceedings, the written disposition order is the disposition. Therefore, having included conditional release as part of the disposition order, the court properly denied the juvenile's motion to terminate aftercare.
We recognize that many cases have suggested disposition orders are required to conform to the oral pronouncement. See A.L. v. State, 790 So.2d 1149, 1150 (Fla. 2d DCA 2001); S.D.W. v. State, 746 So.2d 1232, 1234 (Fla. 1st DCA 1999); C.A. v. State, 685 So.2d 1036, 1037 (Fla. 3d DCA 1997); T.A.R. v. State, 640 So.2d 222, 222 (Fla. 5th DCA 1994); L.M. v. State, 610 So.2d 1314, 1317 (Fla. 1st DCA 1992). In reaching their results, those cases either cited to cases involving adult sentencing or to no authority at all.
Finally, even if it was error not to conform the written disposition order to the oral pronouncement, Rule 8.135(b) provides for a procedure and a period of time to correct such error, which this juvenile used to reduce the level of commitment. Once that period passes, the rule provides only for correction of an illegal disposition. We have held in adult sentencing that failure of the written sentence to conform to the oral pronouncement is not an error rendering the sentence illegal. See Campbell v. State, 718 So.2d 886, 886 (Fla. 4th DCA 1998). Therefore, the juvenile would not be entitled to relief for an illegal disposition as she did not timely challenge what, at most, is a disposition error.
For these reasons we deny the petition.
KLEIN and MAY, JJ., concur.
ON MOTION FOR REHEARING
We deny the motion for rehearing. Petitioner contends that failing to require oral pronouncement of the disposition violates due process, citing to State v. Williams, 712 So.2d 762, 764 (Fla. 1998), and Justice v. State, 674 So.2d 123, 125 (Fla. 1996). However, in each of those cases the supreme court acknowledged that the preference of the oral imposition of sentence over the written order was a matter of judicial policy. See id. It is not constitutionally compelled. Indeed, in Hill v. U.S. ex rel Wampler, 298 U.S. 460, 464 (1936), Justice Cardozo stated "[t]he only sentence known to the law is the sentence or judgment entered upon the records of the court."
In Justice, the supreme court addressed the question of whether special conditions of probation must be orally stated at sentencing. The court noted,
The requirement that special conditions of probation be pronounced in open court at the time of sentencing arises in part from Florida Rule of Criminal Procedure 3.700(b), which mandates that the sentence or other final disposition `shall be pronounced in open court.' The requirement also addresses due process concerns that a defendant have notice and an opportunity to object. See generally Olvey v. State, 609 So.2d 640 (Fla. 2d DCA 1992).
674 So.2d at 125. In Olvey, the court did suggest that oral pronouncement of the sentence was necessary to allow the defendant the opportunity to object contemporaneously and preserve the issue for appeal. However, at the time Olvey was decided, Rule 3.800 did not permit a post-sentence motion to correct a sentencing error. That provision was not added until 1996. Due process is satisfied by preserving a defendant's opportunity to object to a sentence through filing a motion to correct a sentencing error. See Fla.R.Crim.P. 3.800(b).
When the Florida Rules of Criminal Procedure were adopted in 1968, Rule 3.700 was included as a rewrite of section 921.05, Florida Statutes (1966), which required the pronouncement of a sentence in open court. See Washington v. Mayo, 77 So.2d 620, 622 (Fla. 1955).
Similarly, under Florida Rule of Juvenile Procedure 8.135(b) a juvenile may object to a disposition order by filing a motion to correct. Therefore, the juvenile's due process rights are preserved, not only by permitting the juvenile to present information and argument to the court at the disposition hearing, but also by moving to correct a disposition when actually entered.
We certify conflict, however, with A.L. v. State, 790 So.2d 1149, 1150 (Fla. 2d DCA 2001); S.D.W. v. State, 746 So.2d 1232, 1234 (Fla. 1st DCA 1999); C.A. v. State, 685 So.2d 1036, 1037 (Fla. 3d DCA 1997); T.A.R. v. State, 640 So.2d 222, 222 (Fla. 5th DCA 1994); and L.M. v. State, 610 So.2d 1314, 1317 (Fla. 1st DCA 1992).
KLEIN and MAY, JJ., concur.