Kinder v. State

• Decision Date: 08 December 2000
• Docket Number: No. 2D00-764.,2D00-764.
• Citation: 779 So.2d 512
• Parties: Kevin KINDER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

779 So.2d 512

Kevin KINDER, Petitioner, v. STATE of Florida, Respondent.

No. 2D00-764.

District Court of Appeal of Florida, Second District.

December 8, 2000.

Julianne M. Holt, Public Defender, and Stephen J. Stanley, Assistant Public Defender, Tampa, for Petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, Miami, for Respondent.

ORDER ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

This court has considered the State's motion for rehearing en banc, motion for rehearing, and motion for certification of a question of great public importance together with the response filed by the petitioner Kevin Kinder.

We deny the motions for rehearing which primarily reiterate the arguments presented in the State's response to Kinder's initial petition. We comment, however, on the State's argument that this court's opinion does not address the State's contention that "even absent a timely request for continuance within the initial 30 day period, good cause for a delay can be demonstrated after the expiration of the 30 days." The State asserts that "[i]n the context of the instant case, but for the threatening hurricane, this case would have proceeded in a timely manner, with pre-trial motions, the appointment of counsel, the setting and/or waiving of a trial date, etc. It was an act of God which prevented that from occurring on the scheduled date, and that act of God set in motion the subsequent chain of events." We declined to address this issue in our opinion because the state never sought a continuance either within the initial period or after its expiration. Therefore, the issue was not addressed by the trial court and is not properly before this court.

Moreover the "act of God," accounted for only one of the forty-four days that transpired before Kinder was served with the petition for commitment and appointed counsel. And, the "act of God" cannot be said to have set in motion the subsequent chain of events which consisted of the State's failure to take any action in this case. In fact, the trial court action was not stayed during the proceedings in this court and still the State did not proceed to trial until August 14, 2000, some eleven months after the ex parte probable cause hearing that resulted in Kinder's confinement.

We grant, however, the motion for certification, withdraw the prior opinion filed July 7, 2000, and substitute the attached opinion therefor.

PER CURIAM.

Kevin Kinder petitions this court for a writ of prohibition quashing the trial court order which denied his motion to dismiss the commitment petition filed against him pursuant to the Involuntary Commitment of Sexually Violent Predators Act (hereinafter "the Act").¹ We treat the petition for writ of prohibition as a petition for writ of mandamus, and for the reasons explained below, direct the trial court to order Kinder's release.

Kinder was convicted of a lewd and lascivious act on a minor and sentenced to prison. He was due to be released from prison on September 3, 1999. On that date, the State filed a petition seeking to have Kinder involuntarily committed pursuant to the Act. On that same date, at an ex parte hearing, the trial court found probable cause to believe that Kinder was a sexually violent predator and ordered him transferred to the Department of Children and Families, to be held pending a commitment trial.

Kinder was scheduled to be brought to court for an indigency determination and possible appointment of counsel on September 21, 1999. However, due to a hurricane warning, the courthouse was closed that day and no hearing was held. Kinder was first brought before the court on October 18, 1999, some forty-four days after he was ordered detained. On that date, Kinder was first served with the commitment petition and counsel was appointed to represent him.

Kinder immediately moved to dismiss the commitment petition on the grounds that he had not been brought to trial within the thirty-day period provided by the Act and that no continuance had been sought or granted. The Act provides in pertinent part:

(1) Within 30 days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.

(2) The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the interests of justice, when the person will not be substantially prejudiced.

§ 394.916, Fla. Stat. (1999).

The trial court denied the motion, finding that the thirty-day limit imposed by the Act was directory rather than mandatory, that it was within the trial court's discretion whether to impose a sanction of dismissal, and that dismissal was not appropriate in this case because Kinder had not established irreparable harm. The instant petition followed.

We first consider whether the thirty-day time limit provided for by the Act is mandatory or merely directory. As noted, the Act provides that the detainee "shall" be brought to trial within thirty days of the probable cause hearing, absent a continuance. The use of the word "shall" is generally mandatory, although it may be merely directory under appropriate circumstances. See Belcher Oil Co. v. Dade County, 271 So.2d 118 (Fla.1972)

. Its interpretation depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute. See S.R. v. State, 346 So.2d 1018 (Fla.1977). Generally, "shall" is interpreted to be mandatory where it refers to some action preceding the possible deprivation of a substantive right and directory where it relates to some immaterial matter in which compliance is a matter of convenience. See Neal v. Bryant, 149 So.2d 529 (Fla.1962).

Under the Act, once a commitment petition is filed and probable cause is found to exist, the detainee is required to be held without possibility of release until he or she is brought to trial. See § 394.915(5), Fla. Stat. (1999). The only limit placed upon this detention is the statutory provision providing that a detainee be brought to trial within thirty days of his or her initial detention. Moreover, although section 394.916, Florida Statutes (1999), allows for the thirty-day period to be continued, it also provides that such continuance may only be granted when the detainee will not be substantially prejudiced by it. See § 394.916(2). We conclude that the intent of the legislature in enacting the thirty-day time limit was to ensure that...