Opinion
Case No. 4D04-540.
Opinion filed March 3, 2004.
Petition for writ of habeas corpus to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Ronald V. Alvarez, Judge, L.T. Case No. 03CJ007184A02.
Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for respondent.
Petitioner is charged with robbery and three drug charges. He was placed on home detention on December 23, 2003. The detention order reads: "child waives 21 days on home detention."
On February 6, 2004, a juvenile probation officer requested an authorization to take petitioner into custody for violating the home detention contract. Petitioner was picked up on February 9th.
Petitioner appeared before the juvenile judge for a detention hearing on February 10th. The February 9th risk assessment prepared by the Department of Juvenile Justice shows that petitioner scored out to secure detention. There was confusion on the part of the prosecutor and the defense attorney as to the correct procedure. Observing that there was an entire docket waiting and the "bullets [were] flying fast and furious," the trial court entered an order that petitioner would be held in secure detention for "a period not to exceed 21 days," giving the attorneys time to file motions and provide the court with appropriate law. The court indicated its willingness to hold an immediate hearing.
Petitioner filed this petition for writ of habeas corpus. We are not aware that he filed any motion in the circuit court before filing the petition.
On this record, it appears that petitioner waived the requirement of section 985.215(5)(c), Florida Statutes (2002) that he not be held in "secure, nonsecure, or home detention" for more than 21 days. He was given a detention hearing consistent with section 985.215(2) within 24 hours after being taken into custody on February 9th. He is charged with robbery, a second degree felony, so his detention is authorized under section 985.215(2)(f). There does not need to be an entirely new basis for the detention after the February 9th arrest.
We distinguish this case from L.K. v. State, 729 So.2d 1011 (Fla. 4th DCA 1999), which held that a child cannot waive the 15-day limit on secure detention when a child has been committed to the Department of Juvenile Justice "awaiting dispositional placement." § 985.215(10)(a)1., Fla. Stat. (2002). The mandatory language of that section — "such continued detention . . . may not exceed 15 days after commitment . . . except as otherwise provided in this subsection" — differs from the statute's treatment of the 21-day limit on detention contained in section 985.215(5)(c). Section 985.215(5)(f) allows for extensions of the 21-day limit for continuances "on motion of the child or his or her counsel." The record suggests such an accommodation since the initial placement in home detention was on December 23rd, and the case was not set for a disposition hearing until March.
The judge ordered secure detention, but limited it to 21 days. Given petitioner's earlier waiver of the 21-day rule, this order was more lenient than what would have been permitted, an order placing petitioner in secure detention without limitation. Had petitioner not waived the 21-day rule, his continued detention would be subject to habeas relief, since his time in secure and home detention exceeded even the 30-day limit authorized by section 985.215(5)(g).
The controlling statute contemplates that there can be a change in the nature of detention prior to an adjudicatory hearing. Section 985.215(8) authorizes the Department of Juvenile Justice to transfer a child from home detention care to secure detention care "if significantly changed circumstances warrant such transfer." Section 985.215(9), which applies to a child on release status, authorizes placement into secure, nonsecure, or home detention after a court hearing where a risk assessment instrument, "rescored based on newly discovered evidence or changed circumstances with the results recommending detention, is introduced into evidence."
Habeas corpus is the proper remedy where confinement is contrary to constitutional principles or where a juvenile's detention violates the detention statute. See A.S. v. Byrd, 777 So.2d 1171 (Fla. 4th DCA 2001);Pompey v. Cochran, 685 So.2d 1007, 1010 (Fla. 4th DCA 1997) (en banc). There is neither a constitutional nor a statutory violation in this case on the face of this limited record sufficient to warrant habeas relief.
The dissent relies on R.G. v. State, 817 So.2d 1019 (Fla. 3d DCA 2002), but that case is distinguishable. There was no risk assessment of the juvenile in R.G., contrary to 985.213(2), Florida Statutes (2000). Here, there was a risk assessment available at the February 10th hearing. R.G. is a case where the juvenile violated the terms of his probation. This case involves pretrial detention. For that reason, section 985.215(10)(b) does not apply, because petitioner was not placed in home detention care "while awaiting placement in a low-risk or moderate-risk program." Cases such as S.B. v. Rayford, 717 So.2d 1107 (Fla. 3d DCA 1998) and J.B. v. Rayford, 707 So.2d 434 (Fla. 3d DCA 1998), which rely on section 985.215(10)(b), are therefore inapplicable as well.
Petition for writ of habeas corpus denied.
TAYLOR, J., concurs.
FARMER, C.J., dissents with opinion.
As an initial matter, I do not think that the child or defense counsel "waived" an objection to secure detention. Apart from the fact that the express waiver in the record explicitly applied only to home detention — but not by its terms to secure detention, a significantly different kind of detention — no waiver is deemed valid as to criminal trial or punishment under the Due Process Clause unless it amounts to "an intentional relinquishment or abandonment of a known right or privilege." Boykin v. Alabama, 395 U.S. 238 (1969); Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Blair v. State, 698 So.2d 1210 (Fla. 1997) (no constitutional infirmity in having defense counsel advise defendant of his rights so long as trial court confirms voluntary and intelligent nature of the waiver and ensures that defendant is fully aware of alternatives to proceeding with fewer than six jurors). In this case, there is nothing indicating that the trial judge confirmed expressly on the record that any waiver of rights relating to secure detention was voluntary and intelligent.
The majority implicitly suggests that it is constitutionally sufficient to infer a waiver of a legal objection to pretrial secure detention through the passive conduct of the child and defense counsel. Waiver by inference from passive conduct is difficult to square with the cases cited in the foregoing paragraph. In criminal law, express waivers in matters dealing with the principal procedural issues relating to the determination of guilt are required, not merely desirable. Surely if a confirmation by defendant and counsel on the record is required to waive a jury to determine guilt, then at least as much is required to agree to submit to confinement or a punishment before there is any determination of guilt.
On the merits the majority concludes that the secure detention in this case is authorized by section 985.215(2)(f). That section provides:
"Subject to the provisions of subsection (1), a child taken into custody and placed into nonsecure or home detention care or detained in secure detention care prior to a detention hearing may continue to be detained by the court if . . . the child is charged with a capital felony, a life felony, a felony of the first degree, a felony of the second degree that does not involve a violation of chapter 893, or a felony of the third degree that is also a crime of violence, including any such offense involving the use or possession of a firearm."
§ 985.215(2)(f), Fla. Stat. (2003). Here the child was placed in home detention upon an original charge of robbery. While placed on this nonsecure detention, he turned out not to be home when the government came calling, and so he was detained and taken before the court. Based on his failure to be home when required — an act that could be prosecuted as contempt of court, but has not been so prosecuted — the trial court ordered the secure detention that is the subject of this petition for habeas corpus. In short, the majority concludes that because the original charge was a second degree felony the child may now have his pretrial detention pending disposition of that charge increased from nonsecure home detention to secure detention simply because of his failure to be home when he should have been.
I think the majority's reasoning conflicts with the rationale of N.E.W. v. Portsey, 712 So.2d 1158 (Fla. 2d DCA 1998). In that case the child was serving community control as a disposition for previous delinquent acts that would be felonies if committed by adults. The child was then charged with committing new delinquent acts that would be misdemeanors. The child was taken into custody and placed into secure detention, which was approved by the trial judge as authorized under section 985.215(2)(f). In reversing this newly imposed secure detention, the Second District explained:
"In our order we concluded that there is no statutory authority to score a delinquent offense that has already been the subject of an adjudicatory hearing when a juvenile is picked up for a new offense. We now add the clarification that insofar as the earlier delinquency qualifies as a prior offense or affects the juvenile's legal status, it must be considered as part of the detention criteria. It may not, however, be treated a second time as a primary charge on which a detention determination is based. . . ."
Much the same mischief is afoot here. The trial judge had previously decided that home detention was appropriate for the pending charge. While secure detention might conceivably have been used pending an adjudicatory hearing, the statute requires a risk assessment instrument when such decisions are made. Although a RAI was completed by DJJ and available for consideration when the judge changed the detention from the home to secure detention in a facility, the record strongly implies that the judge did not want to consider the instrument.
§ 985.215(2), Fla. Stat. (2003) ("Unless a child is detained under paragraph (d) or paragraph (e), the court shall utilize the results of the risk assessment performed by the juvenile probation officer and, based on the criteria in this subsection, shall determine the need for continued detention.").
Perhaps even more important is that the punishment imposed for being absent from the home is both premature and illegal. The statute specifies the lawful sanctions for contempt by a juvenile and expresses a policy that courts limit their use of secure detention as punishment for contempt. § 985.216(1), Fla. Stat. (2003); see also A.A. v. Rolle, 604 So.2d 813, 815 (Fla. 1992) (recognizing that juvenile sanctions imposed for contempt may be limited by statute). For a first offense, a child may be placed in secure detention for not more than 5 days; for a second or succeeding offense not more than 15 days. § 985.216(2)(a), Fla. Stat. (2003). Even more important, a court cannot place a child in a secure facility as a sanction for contempt without first determining that an alternative punishment is inappropriate or unavailable or that the child had initially received an alternative sanction but failed to comply with the court's orders. Thus imposing 21 days of secure detention for not being home when required and therefore being in contempt of court amounts to levying punishment before the child is found guilty of anything — and an illegal punishment at that!
§ 985.216(4)(c) Fla. Stat. (2003) ("The court may not order that a child be placed in a secure facility for punishment for contempt unless the court determines that an alternative sanction is inappropriate or unavailable or that the child was initially ordered to an alternative sanction and did not comply with the alternative sanction. The court is encouraged to order a child to perform community service, up to the maximum number of hours, where appropriate before ordering that the child be placed in a secure facility as punishment for contempt of court.").
"`No, no!' said the Queen. `Sentence first — verdict afterwards.'" Charles L. Dodgson (a/k/a Lewis Carroll), ALICE'S ADVENTURES IN WONDERLAND, ch. 12 (1865).
The facts in R.G. v. State, 817 So.2d 1019 (Fla. 3d DCA 2002) suggest the outcome for the present case. In R.G., the trial court found that the child violated probation (not home detention) and ordered secure detention. The court noted that the child was not being detained based on the probation violation, however, but instead because the child violated a court order by not attending school. The Third District granted habeas relief because, whether the detention was based on a finding of delinquency or a finding of criminal contempt, the detention did not comply with the juvenile statutes. The court held that even if the secure detention was based on a finding that the child had committed a new delinquent act, the court would have been required to conduct a risk assessment, but no risk assessment had been made. If the detention were based on indirect criminal contempt, the court would have been required to provide the child with a copy of an order to show cause, alleging the facts supporting the contempt charge, but no show cause order had been issued.
As in R.G., the trial court here failed to comply with the provisions of section 985.216 pertaining to a finding of criminal contempt based on the alleged violation of home detention by the unauthorized absence. As I read the statutes cited above, where a child violates a pretrial order of home detention through a non-criminal act for which the trial court contemplates ordering secure detention, the court must use the contempt procedures of section 985.216. The court must first formally charge the child with criminal contempt for the alleged violation of pretrial home detention and then proceed accordingly. That was not done here.
Essentially, the court acted as it did here in some belief that it could impose an ad hoc procedure, short of contempt, to address a first violation of the home detention order. But nothing in the statutes authorizes or suggests such extemporization. When this chapter was recently rewritten extensively, the product that emerged demonstrated that the legislature intended to control the handling and disposition of juvenile delinquency cases in every way. All allowable punishments were carefully specified, as were the limitations, conditions and circumstances under which they could be employed.
If the legislature had intended for courts to be able to bypass the statutory provisions in favor of free form handling, there is no doubt in my mind they would have said so explicitly. They did not say so, and thus I think the trial judge was required by statute to address the child's noncompliance with the home detention order by statutory contempt. Judicial discretion may not be appended to cases controlled by rule-bound statutory schemes as complete as this one. And there is purpose in requiring the exercise of statutory contempt when children resist a Judge's order: perhaps with all the formalities of a contempt proceeding children are more likely to become imbued with both the obligatory nature of their duty to comply with lawful orders of the court and the severe consequences of refusing to do so.
It follows that the order of secure detention for 21 days amounts to illegal detention for which habeas corpus relief is available. I would grant the writ.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.