
    In the Interest of D.A.T., a Child Petitioner, v. Gregory L. COLER, as Secretary of the Department of Health and Rehabilitative Services, Jay Kassack, as Assistant Secretary Children, Youth and Families The Department of Health and Rehabilitative Services, Delores G. Dry, as District Administrator, The Department of Health and Rehabilitative Services, William Fine, as Superintendent Southwest Florida Juvenile Detention Center, and The State of Florida, Department of Health and Rehabilitative Services, Respondents.
    No. 89-02614.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1989.
    Douglas M. Midgley, Public Defender, Fort Myers, for petitioner.
    Anthony N. DeLuccia, Jr., Dist. Legal Counsel, State of Fla., Dept, of Health and Rehabilitative Services, Fort Myers, for respondents.
   PER CURIAM.

Petitioner, a juvenile who has been adjudicated delinquent and committed to the authority of the Department of Health and Rehabilitative Services (HRS), seeks a writ of mandamus to compel HRS to comply with section 959.12, Florida Statutes (1987), by placing him in a commitment program. We grant the petition, which we treat as one for a writ of habeas corpus. See In the interest of C.M.T. v. Department of Health and Rehabilitative Services, 550 So.2d 126 (Fla. 1st DCA 1989).

We agree with petitioner’s argument and the decisions in C.M.T. and B.E.O. v. State, 544 So.2d 1175 (Fla. 5th DCA 1989), that section 959.12 requires HRS to remove a juvenile from detention and place him or her in a commitment program within five days after the juvenile has been committed to HRS. Although we are not unsympathetic with HRS’s contention that it is unable to comply with the statute because it lacks the resources, that argument is more appropriately addressed to the legislature. We note that section 39.09(3)(e), which provides that HRS submit a list of three commitment placement options, of which options the trial court ranks in order of preference, also states: “The recommendation of the court shall be followed if the commitment resource is available.” Further, section 959.011(3) authorizes HRS to transfer persons from one facility or program to another, including furlough in the community. In no event is the juvenile to remain in detention more than the statutory limit after he or she has been committed to HRS.

Accordingly, the petition is granted, and the case is remanded with directions to HRS to comply with section 959.12.

DANAHY, A.C.J., and PARKER and PATTERSON, JJ., concur.  