Opinion
No. 4D07-2129.
April 23, 2008.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Elizabeth A. Metzger, Judge; L.T. Case No. 562007CJ000594A.
Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
Appellant A.T., a sixteen-year-old child, appeals the disposition order committing her to the care of the Department of Juvenile Justice for placement in a level eight high risk residential program.
A.T. argues that the "characteristics vis-à-vis the needs" test is the most workable test for trial courts to use in deciding whether to depart from the Department's Predisposition Report recommendation. In E.A.R. v. State, No. 4D07-1061, 4D07-3228, 2008 WL 583791 at *1 (Fla. 4th DCA March 5, 2008), this court rejected this argument and certified conflict with M.S. v. State, 927 So. 2d 1044, 1046 (Fla. 2d DCA 2006). We again note conflict as we did in E.A.R. v. State.
A.T. also argues that upwardly departing after a juvenile disposition has already been imposed violates double jeopardy. We concur with the reasoning of the third district in J.E. v. State, 676 So. 2d 39, 40 (Fla. 3d DCA 1996). There is no double jeopardy violation as the departure only increased the restrictiveness level. It was not a resentencing.
Affirmed.
GROSS and MAY, JJ., concur.
Not final until disposition of timely filed motion for rehearing