89-1719 | Fla. Dist. Ct. App. | Nov 21, 1989
In the Interest of J.S., a Child, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
Michael E. Allen, Public Defender, David P. Gauldin, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Cynthia Shaw, Asst. Atty. Gen., for appellee.
NIMMONS, Judge.
After an adjudicatory hearing, the trial court determined that J.S., a 12-year-old child, had committed burglary of a structure and petit theft. The court withheld adjudication of delinquency and placed him on community control. The order stated, in pertinent part:
ORDERED that said Community Control Program remain in effect for an indeterminate period not to exceed said Child's 19th birthday, but not less than 180 days as to Count I, and as to Count II, a term of 180 days, to run concurrent with Count I.
J.S. asserts on appeal that the term of community control imposed by the court was in excess of the maximum allowed by law. We agree.
Section 39.11(1)(a)1., Florida Statutes (1987), provides in pertinent part:
1. Community control programs for children shall be supervised by the department *328 or by any other person or agency specifically authorized by the court... . When supervision or a program of public service is ordered by the court, the duration of such supervision or program shall not be longer than the sentence that could be imposed if the child were committed for the offense.
Under the provisions of Section 39.11(4)[1], a child may not be committed for a period in excess of the time to which an adult could be incarcerated for the equivalent offense.
Burglary of a structure is a third degree felony punishable by a maximum term of incarceration of 5 years. Therefore, the outer limit of the indeterminate period specified by the trial court, to wit: J.S.'s 19th birthday, is in excess of the maximum allowable under Chapter 39. Also, the 180-day period specified by the court for the petit theft count is in excess of the period allowable. The maximum period as to this count is 60 days.
Accordingly, the appealed order is reversed with respect to the duration of community control and the cause is remanded for modification of the order in conformance with this opinion.
ERVIN, J., and WILLIS, BEN C. (Ret.), Associate Judge, concur.
NOTES
[1] Section 39.11(4) provides:
(4) Any commitment of a delinquent child to the department shall be for an indeterminate period of time, but that time shall not exceed the maximum term of imprisonment which an adult may serve for the same offense.