
    Danny TIBURCIO, Petitioner, v. STATE of Florida, et al., Respondent.
    No. 5D12-2296.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2012.
    Robert Wesley, Public Defender, and Daniel S. Spencer, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks release from the Florida State Hospital because he is incompetent to proceed on his criminal charges and cannot be restored to competency in the foreseeable future. Petitioner also seeks dismissal of the pending charges. The State concedes that Petitioner’s continued detention is unlawful, but argues that the dismissal of the charges is premature because five years have not elapsed since Petitioner was found incompetent. See Fla. R.Crim. P. 3.213(a)(1). We agree with the State on both issues.

Accordingly, we grant the Petition in part and deny it in part. We direct the trial court to order Petitioner’s release. Although the State has indicated that it does not intend to seek civil commitment at this time, this decision is without prejudice to the State instituting civil commitment proceedings.

PETITION GRANTED IN PART; DENIED IN PART.

ORFINGER, C.J., TORPY and COHEN, JJ., concur.  