M.L.J., Appellant, v. STATE (2012)

M.L.J. appeals the trial court's disposition order finding that he violated section 877.03, Florida Statutes (2009), which prohibits disorderly conduct. The trial court withheld adjudication and placed M.L.J. on probation. We have jurisdiction. See Fla. R.App. P. 9.145(b)(1) (providing for appeal of an order of adjudication of delinquency or withholding adjudication of delinquency or any disposition order entered thereon).¹ We affirm the delinquency finding but reverse for the trial court to enter a proper disposition order.

The charge against M.L.J. arose from a schoolyard tussle with another boy. M.L.J. said that he acted in self-defense; the other boy was the aggressor. M.L.J. argues on appeal that fundamental error or ineffective assistance of trial counsel on the face of the record occurred where counsel failed to move for a judgment of dismissal based on self-defense. We are unpersuaded.

When charged with disorderly conduct, a defendant who does not initiate the fight and acts to protect himself or herself from the attacker may assert self-defense. S.D.G. v. State, 919 So.2d 704, 705 (Fla. 5th DCA 2006). The defense applies only if the defendant did not provoke the fight. D.M.L. v. State, 773 So.2d 1216, 1217 (Fla. 3d DCA 2000). However, our record reflects disputed facts as to whether M.L.J. was the aggressor. See, e.g., Rasley v. State, 878 So.2d 473, 476 (Fla. 1st DCA 2004); Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002); Hoffman v. State, 708 So.2d 962, 964 (Fla. 5th DCA 1998). On such disputed facts, a motion for judgment of dismissal would have failed. We observe, nonetheless, that M.L.J.'s counsel pleaded strenuously in her closing argument to the trial court that M.L.J. acted in self-defense. We see neither fundamental error nor ineffective assistance of counsel on the face of the record.

M.L.J. argues, and the State concedes, that we must reverse and remand M.L.J.'s case for entry of a separate disposition order for the disorderly conduct offense. See Fla. R. Juv. P. 8.115(d); W.S.G. v. State, 32 So.3d 725, 726 (Fla. 2d DCA 2010) (holding that entering one order of commitment in two separate cases constituted error and reiterating that each case requires a separate disposition order); G.V. v. State, 863 So.2d 1271, 1272 (Fla. 2d DCA 2004) (reversing and remanding for entry of separate disposition orders). M.L.J. preserved this issue by filing a motion to correct disposition error which was deemed denied when not ruled upon within thirty days by the trial court. See Fla. R. Juv. P. 8.135(b)(1), (2).

Affirmed in part, reversed in part, and remanded with directions.

LaROSE, Judge.

CASANUEVA and WALLACE, JJ., Concur.