Petition for Writ of Habeas Corpus, A Case of Original
Jurisdiction. LWR CT. NO: 2018-CJ-001627-A-OR
Wesley, Public Defender, and Caley Aidif, Assistant Public
Defender, Orlando, for Petitioner.
Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark
Wall, for Respondent.
child, petitions this court for a writ of habeas corpus,
claiming that the trial court recalculated her Risk
Assessment Instrument (RAI) incorrectly, resulting in her
being unlawfully placed in secure detention rather than home
confinement while she awaits her delinquency hearing that is
scheduled for June 5, 2018. We grant the petition, in part,
so that the trial court may correct the erroneous RAI
scoring. However, we otherwise deny the petition because
section 985.255(1)(e), Florida Statutes (2018), allows the
trial court to order continued secure detention when, as
here, the child is charged with the illegal possession of a
firearm. Accordingly, we remand and direct the trial court to
conduct further proceedings consistent with this opinion.
arrested A.B. following a traffic stop of the car in which
she was a passenger. The driver admitted to police that there
was marijuana in the car. Besides the marijuana, a search of
the vehicle revealed a backpack between A.B.'s legs and
her car seat that contained a .380 caliber pistol. There were
five rounds in the magazine and one in the chamber. A
petition for delinquency charged A.B. with possession of a
firearm by a person found previously to have committed a
felony-level delinquent act (count 1) and illegally carrying
a concealed firearm (count 2).
original RAI scored A.B. at fourteen points, which justified
secure detention. That score was calculated by including ten
points under section III(A)(3) for "possession of a
firearm . . . by a youth previously adjudicated"; one
point for her prior felony; and three more points under
section III(F) for illegal possession of a firearm. At her
detention hearing, A.B. correctly objected to the three
points scored in section III(F) as effectively double scoring
her possession of the concealed firearm; the State properly
agreed with this objection. See D.P., a Child, v.
State, 8 So.3d 1203 (Fla. 5th DCA 2009).
trial court then recalculated the RAI by assigning eight
points under section III(A)(5) for "all other second
degree felonies . . . "; one point under III(B)(3) for
one prior felony adjudication or adjudication withheld; and
three points under III(F) for mandatory aggravating
circumstances: illegal possession of a firearm. The trial
court's recalculation totaled twelve points, which again
justified secure detention. A.B. again objected that the
trial court was improperly double counting the firearm
possession as both a second-degree felony and a mandatory
aggravating circumstance. A.B. argued to the trial court and
this court that proper RAI scoring would have assigned ten
points for possession of the firearm, as originally done,
together with one point for her prior felony, for a total of
eleven points for which home detention would have been
appropriate. The court overruled her objection and A.B.
remains in secure detention.
agree with A.B. that the trial court erred under these facts
in its recalculation of her RAI by scoring her single act of
illegal possession of a firearm under two different
categories. In a similar case, M.W. v. Department of
Juvenile Justice, 15 So.3d 782 (Fla. 1st DCA 2009), the
A violation of section 790.23(1)(b) is a second-degree
felony, and unless otherwise specified, the RAI assesses
eight points where the most serious current offense is a
second-degree felony. Where the violation involves
"possession of a firearm or concealed weapon by a youth
previously adjudicated or with adjudication withheld for a
crime that would be a felony if committed by an adult, "
the RAI calls for the assessment of 10 points, rather than 8.
Given the nature of M.W.'s offense, he was correctly
assessed 10 points under the RAI category addressing his most
serious current offense.
Id. at 783. The court concluded that the three
points for "Mandatory Aggravating Circumstance: Illegal
possession of a firearm, " should be removed.
Id. at 784. Accordingly, the correct calculation for
A.B.'s RAI, as her counsel suggested, is a resulting
score of eleven, which would not justify secure detention,
based only on the RAI. However, our analysis does not end
court can consider whether a statutory exception exists so
that the nature of a child's placement or detention would
not be determined by the RAI score. Specifically, as the
State has argued to this court, sections 985.255(1) and
(1)(e) provide that the trial court may order continued
secure detention if the child is charged with illegal
possession of a firearm. § 985.255(1)(e), Fla. Stat.
Thus, the court on remand could properly impose secure
detention based on that section. However, "[i]f the
court orders a placement more restrictive than indicated by
the results of the risk assessment instrument, the court
shall state, in writing, clear and convincing reasons for
such placement." § 985.255(3)(b), Fla. Stat.
reasons set forth above, we grant the petition in part and
deny it in part. The trial court shall hold a further
detention hearing, not later than June 4, 2018, for the
purpose of properly recalculating A.B.'s RAI as eleven
points. At that detention hearing, the trial court shall also
consider whether secure detention is appropriate for A.B.
based upon section 985.255(1)(e), and if so, it shall enter
an appropriate ...