5D08-598 M.B. v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-598

Case Date: 03/02/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

M.B., A CHILD, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant. ________________________________/ Opinion filed March 6, 2009 Appeal from the Circuit Court for Orange County, Anthony H. Johnson, Judge. James S. Purdy, Public Defender, and Michael Olshefski and Kathryn Rollison Radtke, Assistant Public Defenders, Daytona Beach, for Appellant/CrossAppellee. Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant. Case No. 5D08-598

PER CURIAM. M.B., a juvenile, appeals the trial court's commitment of him to a Level 6 residential program despite the Department of Juvenile Justice's recommendation that he be placed on probation. The State cross-appeals the trial court's order declaring

sections 985.433(7)(a) and (b), Florida Statutes, unconstitutional. jurisdiction. Fla. R. App. P. 9.140(b)(1)(A) and 9.140(c)(1)(K).

This Court has

We are unable to address the first issue because M.B. failed to preserve the issue in accordance with Florida Rule of Juvenile Procedure 8.135. I.B. v. State, 816 So. 2d 230, 231 (Fla. 5th DCA 2002). As for the cross-appeal, the trial court held sections 985.433(7)(a) and (b) unconstitutional based on the separation of powers doctrine. The trial court reached this conclusion based on the premise that the statute places sentencing discretion solely within the province of the Department of Juvenile Justice.1 We disagree and reverse. See

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