JL v. McCormick

671 So. 2d 202 (1996)

J.L., a child, Petitioner,
v.
Tim McCORMICK, as Superintendent, Southwest Florida Juvenile Detention Center, Department of Juvenile Justice, Respondent.

No. 96-01052.

District Court of Appeal of Florida, Second District.

March 20, 1996.

Douglas M. Midgley, Public Defender, and Angelique B. Agoston, Assistant Public Defender, Fort Myers, for Petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and Tracy L. Martinell, Assistant Attorney General, Tampa, for Respondent.

PER CURIAM.

This emergency petition for writ of habeas corpus seeks the release of J.L. from an order of secure detention entered February 27, 1996. The parties to this proceeding agree that the child scored zero points on his detention risk assessment instrument. The court detained him because of his failure to appear in court to answer to a delinquency petition alleging he had committed an affray, an offense which would be a misdemeanor if committed by an adult.

Section 39.044(2), Florida Statutes (1995), does not provide for the continued detention of a child prior to his adjudication unless certain preconditions are met, none of which pertain to J.L. His detention is unlawful. S.J. v. State, 596 So. 2d 1181 (Fla. 5th DCA 1992); W.N. v. Fryer, 572 So. 2d 24 (Fla. 4th DCA 1990).

We grant the petition for writ of habeas corpus, and order the child released from the detention ordered by the trial court on February 27, 1996, unless he has been afforded an adjudicatory hearing.

CAMPBELL, A.C.J., and SCHOONOVER and WHATLEY, JJ., concur.