STATE v. BIRCHFIELD, 718 So.2d 202 (Fla.App. 4 Dist. 1998)

STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. RICHARD BIRCHFIELD, Appellee.

No. 97-3953District Court of Appeal of Florida, Fourth District.
July 15, 1998 Rehearing Denied August 26, 1998

Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T. No. 97-8175 CF10A.

Carol A. Gart, Fort Lauderdale, and Gregory D. Venz, Tallahassee, for appellant.

Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for appellee.

PER CURIAM.

We reverse the trial court’s order holding the appellant, Department of Children and Family Services, in contempt for failing to place the appellee in the Mentally Retarded Defendant Program as previously ordered by the court. The trial court violated the separation of powers doctrine in considering the appellant’s ability to move funds in order to comply with its mandate. See State Department of Health Rehabilitative Servs. v. Brooke, 573 So.2d 363, 371 (Fla. 1st DCA

Page 203

1991) (transfers of appropriated monies among agency programs are strictly within agency’s discretion, and member of judiciary may not direct an executiveagency to spend its money in a particular way). In basing its contempt finding on appellant’s ability to move funds, the trial court’s order was tantamount to an order directing the agency how to spend its funds.

REVERSED AND REMANDED.

GUNTHER, WARNER and SHAHOOD, JJ., concur.