Opinion
No. 95-0053.
July 5, 1995.
Appeal from the Circuit Court, St. Lucie County, Scott M. Kenney, J.
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.
Upon adjudicating T.R. guilty of aggravated battery, the trial judge committed him to HRS in a low risk residential program. Five months later, HRS moved to modify the order of commitment on the grounds that the level imposed was not available for juveniles convicted of aggravated battery. After a hearing on the motion, at which the juvenile voluntarily absented himself, the judge modified the commitment from a low risk to a moderate risk residential program. T.R. appeals. We affirm.
We note as we did in Fink v. Holt, 609 So.2d 1333 (Fla. 4th DCA 1992), that under rules 9.110(d) and 9.900(a) the caption must contain the name and designation of at least one party on each side. Fla.R.App.P. 9.110(d) ("The caption shall contain the name of the lower tribunal, the name and designation of at least 1 party on each side, and the case number in the lower tribunal."). [e.s.] The requirement also applies when there is an appeal from a delinquency proceeding under chapter 39. Of course, in the interest of confidentiality, we use only the initials of the juvenile, not the name.
T.R.'s principal argument on appeal is that subsection (8) of the disposition statute, section 39.054 Florida Statutes (1993), limited the power of the judge to modify the commitment order to the period within 60 days after its entry. T.R. relies on D.W.J. v. State, 397 So.2d 722 (Fla. 1st DCA 1981), which construed the statute in the manner T.R. contends under indistinguishable facts. We disagree with the first district's construction of subsection (8) and certify conflict.
As we read the statute, it is merely the power to suspend a commitment order and impose probation that is limited by the 60-day provision. Where the trial judge instead changes the level of the risk in a commitment because of the unavailability of the original risk level imposed, the 60-day provision is inapplicable. Instead, subsection (3) governs, and it lacks any specific time constraint on the judge's power to make such a modification.
AFFIRMED.
GUNTHER, C.J., and GLICKSTEIN, J., concur.