Opinion
No. 89-2561.
June 12, 1990.
Appeal from the Circuit Court, Dade County, Seymour Gelber, J.
Bennett H. Brummer, Public Defender, and Joseph Louis Campbell, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Ivy R. Ginsberg, Asst. Atty. Gen., for appellee.
Before HUBBART, FERGUSON and GODERICH, JJ.
The respondent, M.F., appeals an adjudication of delinquency. We affirm.
The respondent contends that the trial court erred in denying his motion to dismiss the amended petition for delinquency where the amended petition actually alleged an entirely new charge and where the state orally amended the petition sixty-nine days after he was taken into custody in violation of section 39.05(6), Florida Statutes (1989). We disagree. This case is controlled by Rule 8.110(c), Florida Rules of Juvenile Procedure (1989), which provides:
Section 39.05(6), Florida Statutes (1989) states:
On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the child was taken into custody. The court may grant an extension of time, not to exceed an additional 15 days, upon such motion by the state attorney for good cause shown.
§ 39.05(6), Fla. Stat. (1989).
At any time prior to the adjudicatory hearing an amended petition may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child. A continuance may be granted upon motion and a showing that the amendment prejudices or materially affects any party.
Rule 8.110(c), Fla.R.Juv.P. (1989).
In the present case, the state made an oral motion to amend the petition to change the type of controlled substance that the respondent was charged with selling, delivering or possessing with intent to sell or deliver from cannabis to cocaine. Defense counsel objected and the state agreed to a continuance. The cause was rescheduled and respondent was given over a month to prepare for the hearing. The trial court's granting of the continuance mooted respondent's claim that he was prejudiced in the preparation of his defense. We are aware of the fact that the sale of cannabis is a third-degree felony, while the sale of cocaine is a second-degree felony. However, unlike criminal law, the respondent in a juvenile proceeding is adjudicated delinquent and not convicted of a crime. In the Interest of E.M., 362 So.2d 427 (Fla. 4th DCA 1978). Therefore, we find that the timely filing of the initial petition which adequately informed the respondent that he was being charged with the sale or delivery of a controlled substance operated to toll the statutory filing period. See L.G.R. v. State, 485 So.2d 13 (Fla. 3d DCA 1986). Accordingly, we find no error in the trial court's denial of respondent's motion to dismiss the amended petition and affirm the adjudication of delinquency.
Affirmed.