
    C.W.P., A Child, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 94-386.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1994.
    Joseph W. DuRocher, Public Defender, and Patti Zimmerman, Asst. Public Defender, Orlando, for petitioner.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for respondents.
   DAUKSCH, Judge.

Petitioner filed a petition for writ of habe-as corpus and tMs court ordered a response. The attorney general responded and this court considered both in reaching its decision to grant the writ and require the immediate release of the petitioner. This opimon explains the reason for the granting of the writ.

At issue was the authority of the court to order the secure detention of a juvenile who had been found guilty of a delinquent act. Here, the court found the child guilty of “loitering or prowling,” withheld adjudication of delinquency and ordered a disposition hearing twelve days later.

At the same time the finding of guilt was made, another order was rendered, finding: “There is probable cause [sic] that the child is () delinquent; () in contempt of court; OR the child has been found guilty of committing (7) a delinquent act; () contempt of court.” And as a reason for taking him into custody was the statement: “... (7) child was taken into custody in Open Court; ...”

Our review of the applicable statutes leads to the conclusion that the detention of this child was not done in a lawful manner. Section 39.042(1), Florida Statutes (1993) requires:

(1) All determinations and court orders regarding the use of secure, nonsecure, or home detention shall be based primarily upon findings that the child:
(a) Presents a substantial risk of not appearing at a subsequent hearing;
(b) Presents a substantial risk of inflicting bodily harm on others as evidenced by recent behavior;
(c) Presents a history of committing a serious property offense prior to adjudication, disposition, or placement; or
(d) Requests protection from imminent bodily harm.

There was no compliance with that statute. Further, there was no demonstration that subsections (2) and 3(a) were followed. Subsection (2) requires:

A child shall not be placed into detention care, whether secure, nonsecure, or home detention care, if appropriate less restrictive placement alternatives are available.

Subsection (3)(a) requires:

All determinations and court orders regarding placement of a child into detention care shall comply with all requirements and criteria provided in this part and shall be based on a risk assessment of the child.

Finding no legal reason for the secure detention of this child, we note the statutorily prohibited uses of detention for those juveniles yet to be found guilty of delinquent acts, as set out in section 39.043. Although that statute concerns those juveniles only alleged to be guilty, some guidance may be gained from legislative intent regarding the issue of secure detention.

We have considered H.L. v. Woolsey, 618 So.2d 268 (Fla. 1st DCA 1993), as cited by the state, but find it to be inapplicable because there the judge made a finding that the child might fail to appear in court later.

It is our determination that all orders of detention must be based upon record-supported written findings in compliance with section 39.042(1).

It is so ordered.

COBB, J., concurs.

THOMPSON, J., concurs specially with opinion.

THOMPSON, Judge,

concurring specially.

I agree that the writ should issue because the juvenile was not adjudicated delinquent; however, I hasten to add that had the juvenile been adjudicated delinquent, I would reach a different result. For the reasons outlined below, I do not agree that “all orders of detention must be based upon record-supported written findings in compliance with section 39.042(1).”

In January 1994, a petition was filed against the appellant, a juvenile, for the offense of loitering and prowling on 4 December 1993, a violation of section 866.021(1), Florida Statutes (1993). An attorney was appointed to represent the child on 6 January 1994 and the adjudicatory hearing (non-jury trial) was scheduled for 17 February 1994. After the adjudicatory hearing, the child was found guilty of committing a delinquent act, but he was not adjudicated a delinquent. The trial judge ordered the juvenile taken into custody and placed in secure detention. His dispositional hearing was scheduled for 1 March 1994,12 days after the adjudicatory hearing. The juvenile argues that he cannot be held in secure detention unless a detention risk assessment instrument (“RAI”) is completed and he scores high enough to be detained. I disagree. Had he been adjudicated delinquent, a RAI need not be completed. Section 39.044(5)(c), in my opinion, authorizes a child to be detained until this dispositional hearing.

This ease is controlled by H.L. v. Woolsey, 618 So.2d 268 (Fla. 1st DCA 1993). In Woolsey, our sister court held that the detention criteria in sections 39.044(2) and 39.044(5)(c) must be read in pari materia and a trial court had the statutory authority to detain a juvenile for up to 15 days in secure detention after the juvenile had been adjudicated delinquent and before a dispositional hearing was held. The juvenile must be released from secure detention at the end of 15 days if no dispositional hearing is held. See § 39.-044(5)(c), Fla.Stat., (1993); Id. The court noted that a RAI does not need to be completed. I agree. Had the child been adjudicated delinquent in this case, I would deny the writ relying upon Woolsey. 
      
      . § 39.042(3)(a), Fla.Stat. (1993)
     
      
      . Section 39.044(5)(c), Florida Statutes (1993) provides:
      No child shall be held in secure, nonsecure, or home detention care for more than 15 days following the entry of an order of adjudication unless an order of disposition pursuant to s. 39.054 has been entered by the court or unless a continuance, which shall not exceed 15 days, has been granted for cause. The detention center or facility superintendent shall request that the court order the release of any child held beyond 15 days without a grant of continuance.
     