D.B. v. State, 89-1091
| Citation | 14 Fla. L. Weekly 1414,544 So.2d 1108 |
| Decision Date | 13 June 1989 |
| Docket Number | No. 89-1091,89-1091 |
| Parties | 14 Fla. L. Weekly 1414 D.B., a child, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Acting Director of Crim. Appeals, for appellee.
D.B. was approached by a police officer who observed the juvenile drop a piece of paper on the ground. When the paper was found to contain two pieces of crack cocaine, D.B. was detained. On April 22, 1989, a detention hearing was held before the Leon County Circuit Court, Juvenile Division. The Public Defender was appointed to represent the child and objected to his continued detention on the basis that the statutory criteria for detention were not met. The trial court overruled the objection and ordered the child securely detained. A second hearing was held on April 24 with the same result, except that detention was ordered to be secure or non-secure at the discretion of the Department of Health and Rehabilitative Services.
D.B. then petitioned this court for a writ of habeas corpus, contending that the lower tribunal's determinations that he met the criteria for continued detention under § 39.032(3)(d)3, Fla.Stat. (Supp.1988), were incorrect. We ordered respondent to show cause and directed petitioner to supply this court with the transcripts of any hearings held below, or a statement of evidence if such transcripts were unavailable. We subsequently determined that we have appellate jurisdiction pursuant to § 39.032(6)(a) and so elected to treat the petition as a notice of appeal and an initial brief and the response as an answer brief. See Rule 9.040(c), Florida Rules of Appellate Procedure.
The court was then provided with a stipulated statement of the evidence signed by the attorneys who handled the proceedings in the lower tribunal and approved by the court. Therein it is stated that:
[T]he District Intake Counselor for HRS testified that the child's prior history consisted of three (3) prior burglaries and a loitering and prowling, all of which were handled nonjudicially by the J.A.S.P. Program. The child also had a prior petit theft which was judicially referred to the J.A.S.P. Program and was terminated successfully on November 9, 1988. [The counselor] indicated the child had never previously been detained, was not currently under any supervision by the Department, and had never previously been supervised by the Department.
This court granted the relief sought by appellant by unpublished order with a commitment to subsequently explain its reasoning in this opinion.
The state has taken the position that appellant may be detained on the basis of his prior record, and relies specifically on § 39.032(3)(d)3. This statute was substantially revised by the 1988 Florida Legislature and now provides in pertinent part that a child may continue to be detained if:
(d) The child is charged with a serious property crime as defined in s. 810.02(2) and (3); or with the possession, sale or manufacture of or trafficking in a controlled substance, which if committed by an adult would be a felony, and:
1. He is already detained or has been released and is awaiting final disposition of his case;
2. He has a record of failure to appear at court hearings;
3. He has a record of law violations prior to court hearings;
4. He has a record of violent conduct resulting in physical injury to others; or
5. He has a record of adjudications for serious property offenses....
In the instant case there is no dispute that D.B. is charged with possession of a controlled substance which if committed by an adult would be a felony. Likewise, there is no allegation that subsections (3)(d)1, 2, 4, or 5 are applicable to the facts presented here. Thus, the issue squarely before us is the proper interpretation of § 39.032(3)(d)3, whether D.B. "has a record of law violations prior to court hearings."
The state urges us to interpret the statute so the intake counselor's testimony...
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