Floridadefense.com Podcast - #1FDP-Juvenile Crimes

Brad Post, Host, Create the Movement

Mike Kenny, Attorney, Bauer, Crider and Parry

Brad Post, Host, Create the Movement: Welcome floridadefense.com podcast. We are speaking to Tampa juvenile defense lawyer Mike Kenny. Mike, how are you doing?

Mike Kenny, Attorney, Bauer, Crider and Parry: I'm doing very well. How are you doing?

B: Good. Good. We are just going to be talking about juvenile crimes during this series of podcasts. And the first one we’re going to do an overview of the different juvenile crimes that you guys work with.

M: Yes. The juvenile area is kind of a unique area. The state of Florida prosecutes crimes. There’s a statute, every crime, every criminal act that is that is determined to be illegal, there's a specific statute for it. So, everything that is prosecuted in an adult court can get prosecuted in juvenile court, but there's a completely different way that it's handled. They’re called delinquency actions. And if a person is convicted of committing a crime while a juvenile they’re adjudicated delinquent. They're not really convicted of a crime, so to speak, at least technically speaking.

So, there’s a whole different process involved. And it's really important if someone's involved in a juvenile matter that they seek advice and representation from a lawyer who's got some familiarity with that area. Because while a lawyer may know criminal law very well, juvenile court is a completely different arena. There’s certain practices, and obviously some policy, that a lawyer’s going need to know to most effectively represent his or her client.

So, what happens is in a juvenile case a person is either arrested, or not. If they’re arrested they’re taken to the juvenile detention center. And there is an assessment. And an assessment is – a thing called Face Sheet is drawn up, and it basically scores the particular criminal act the juveniles is accused of, as well as any prior history. That Face Sheet is going to come up with a number. And that number will tell the court whether or not this juvenile is supposed to stay in secure detention for a specific period of time - the maximum being 21 days, essentially. Or, home detention, or maybe some other pretrial limit or pretrial requirement.

So, secure detention means that the judge, if the judge looks this person's crime and determines that there is probable cause a crime has been committed, and determines that the person scores for secure detention, that person is going to stay in a juvenile detention center for 21 days. There is no bond. A person can't be bonded out. There is no amount of money that can be paid to secure person’s release until they come back to court.

Now, what a person can do, and what I have done, is lawyers can file a motion with the court, and ask the court to consider releasing the person to home detention from the juvenile detention facility. And at that point in time there could be hearing where the judge is presented with facts that demonstrate that there is no risk of harm to the public if the juvenile is released. And that the juvenile will be assuredly coming back safely to court at his next hearing. And sometimes judges will agree to release, especially if there’s some issues with the factual scenario described. A lot of times things change once police are called, and some new facts come to light. And sometimes that can be helpful in presenting some scenarios to the judge where it might be more appropriate to have a juvenile at home in the care of his parents.

And that's the first detention - secure detention. It’s the highest form detention. And the court will actually charge for any type of detention. He’ll charge the family an amount to keep that person in custody. It’s not huge amount, but the judge will make a determination if the family has an ability to pay, and then assess that person a cost-per-day for that type of detention.

The next level of detention is home detention. And that's where the judge will order that the juvenile stay at home, and have certain conditions like maybe a curfew, follow certain rules at home, and follow certain rules at school. That also will have a certain cost assessed per day. Which is usually somewhere from 1 to 3 dollars a day. To where the court will determine that that person has to pay that amount in order to have that home detention supervised by the Department of Juvenile Justice.

I mentioned the Department of Juvenile Justice. That's why when a person is involved in a juvenile matter, you’re going to want a lawyer that has some familiarity with the area. Because the Department of Juvenile Justice is a very major aspect of juvenile court. The Department of Juvenile Justice has a role to where they advise the court of what an appropriate sentence would be.

When a juvenile is arrested for juvenile crime, or at least charged with a juvenile matter, the Department of Juvenile Justice does an investigation. They meet with the family. They look at the allegations of the crime, and the DJJ makes an assessment of whether, or not, this juvenile is at risk to reoffend. They have categories. They have high risk down to moderate risk, or low to moderate risk, and finally low risk. And the DJJ will make an assessment based upon the level of risk a juvenile has, and that assessment is pretty much what the judge’s limit is. Meaning, the DJJ may make an assessment for probation, a withhold of adjudication, and things like that. And when they make that assessment the judge is pretty much going to have to follow that assessment, unless he or she makes specific findings on the record why the judge would like to depart, or go above, that recommendation from the Department of Juvenile Justice.

It’s been my experience, a lot of times, when a person gets charged with a juvenile matter, when I see what the recommendations is from DJJ, I kind of realize that that is kind of what the cap is going to be, so to speak. Things can get worse, of course, as time goes on, but you at least know in the very beginning that the DJJ’s making a certain recommendation. That’s what the judge is essentially going give. And that's when it becomes crucial for the attorney to know whether or not that's a that's a good way to resolve the case. Or, whether they need to come up some type of maybe plea negotiation with the prosecutor to sometimes avoid certain things that that might have a negative impact in the future on a juvenile’s life.

B: What is that risk assessment based on?

M: They talk about prior history, the home environment, whether not there’s a stable home environment, education - there's a whole bunch of things that go into it.

B: Okay.

M: A lawyer, who’s representing someone on a criminal matter, oftentimes knows before this assessment happens, that a juvenile’s been arrested. So, I get called all the time when a juvenile gets arrested. And one of the first things I’m going to tell the families is, “Listen, you’re going to get a call from the Department of Juvenile Justice. They’re going to want to have a meeting with you and the family.” That’s when you talk to the family, and say, “We want to put our best foot forward in the situation.” And you kind of explain the process to them. And a lot of times you can reach out to whoever's doing the assessment to kind of give them, you know, your family’s side. What may not necessarily be reflected in some paperwork. And that can sometimes have an impact on the assessment. I think the more information that someone from the Department of Juvenile Justice has, the better at making an appropriate recommendation, at least a recommendation that is more appropriate for what the needs of your client might be.

B: So, the DJJ, they come back with the recommended sentence. And have you seen very many times where they go above and beyond? Or, it’s usually less? Or, it just kind of depends?

M: Well, the DJJ makes a recommendation, and then what the sentences is going to be up to the judge. But case precedent is pretty significant.

B: Okay.

M: To suggest that judges really can't go beyond what's recommended, unless there are unique circumstances that the judge can demonstrate on the record why he or she might give someone a harsher penalty. For instance, you know, a person who first gets charged the juvenile crime, most of the time is going be either given something from a very minimum of judicial warning, to maybe some pure supervision probation to get certain requirements performed. It's very rare that they’re going to be sent away to a program. Almost never happens the first time. The judge can't just go from a recommendation of a judicial warning, to sending some juvenile away to a program. Unless, there's a really good record demonstrated why the judge is going to depart from the findings of the Department of Juvenile Justice.

B: So, it's important for a parent, or even a juvenile, to hire a defense attorney like Bauer, Crider and Parry early in the process. Correct?

M: It’s very important. Early in the process is, a lot of things that happen, and it’s kind of hard to go back and fix things. I’ll tell you one of the most important things when we’re talking about early in the process, in juvenile cases there's this rare benefit that juveniles occasionally have. And that's called the Juvenile Arbitration Program. And the Juvenile Arbitration Program, there are certain crimes that aren't significant, to the extent that they may not be felonies, or very serious felonies. They may be some misdemeanors of sorts. And an officer, who say investigates the juvenile, has the discretion to refer the case that he's investigated to the Department of juvenile Justice for the Juvenile Arbitration Program. In that circumstance, the officer does not submit a report or a complaint to the state attorney's office. The state attorney’s office never even sees it. It goes to the Juvenile Arbitration Program. And if the juvenile agrees to comply with the program, he’s given certain requirements to perform. And if he performs them appropriately the case is closed. Essentially it never gets filed, and there's really no criminal history at all, except for maybe some type of investigation. That is a wonderful benefit. Why it's important to get involved early, because, if the officer does not exercise his discretion to do that, and he submits it to the state attorney's office, once the prosecutor files charges, the Juvenile Arbitration Program is no longer available.

So, timing is very important. I have in cases tried to intervene if I see that the prosecutor hasn’t made a filing decision yet, and if I can convey to the prosecutor that, “Hey this is more appropriately handled in the Juvenile Arbitration Program.” Sometimes, the prosecutor will send it back and recommend it going to the Juvenile Arbitration Program, and the case gets dismissed. And the reason why that's so important is because, even though these are juvenile cases, there’s still a history of some type. And you can end up having a case closed out without there being any history at all. The last thing any mom or dad wants is to have their 12, 13, 14-year-old child to start life off with a criminal history before he’s even gotten his foot in the door in the world - as far as finding a job and going to college.

B: Good. We’re going to be breaking it down over the next few podcasts. We’re going to be going over theft, and sex crimes, and battery. So join us for our next edition of floridadefense.com podcast.