NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

RUSSELL INSKO, ) ) Petitioner, ) ) v. ) Case No. 2D15-2487 ) STATE OF FLORIDA, ) ) Respondent. ) ) Opinion filed December 30, 2015. Petition for Writ of Habeas Corpus to the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge. Julianne M. Holt, Public Defender, and Robert S. Mactavish, Assistant Public Defender, Tampa, for Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondent.

PER CURIAM.

Russell Insko was committed under the Involuntary Civil Commit ment of Sexually Violent Predators Act (the Act) on August 5, 2008, fol lowing his no contest plea to the charge of lewd and lascivious conduct for soliciting a p erson under sixteen years old. Mr. Insko appealed the order of involuntary civil commitm ent; his appellate counsel-2- filed an Anders 1 brief; and this court affirmed. In re Commitment of Insko, 29 So. 3d 1127 (Fla. 2d DCA 2010) (table decision). In June 2015, he fil ed a petition for writ of prohibition, asking this court to prohibit the circuit court fr om continuing to deem him a sexually violent predator and contending that he is entitled to immediate release from the Florida Civil Commitment Center (FCCC) located in DeSoto Co unty. He contends that the State did not initiate the commitment proceedings whil e he was in lawful custody, so the trial court lacked jurisdiction to adjudicate t he civil commitment petition. A writ of prohibition is preventive, not corrective, so it can not be issued to reverse an order that is already entered, and it is not appropr iate when the challenged proceedings have been completed. Sparkman v. McClure, 498 So. 2d 892, 895 (Fla. 1986). But the legality of Mr. Insko's continued detention und er the Act is cognizable in a petition for writ of habeas cor pus. See Bishop v. Sheldon, 6 8 So. 3d 259, 260-61 (Fla. 2d DCA 2010) (holding a petition for writ of habeas corpus is a ppropriate to challenge continued illegal detention under the Act based on a claim that the circuit court did not have jurisdiction because the committed person was not in lawfu l custody at the time that proceedings under the Act were commenced) (citing Murray v . Regier, 872 So. 2d 217, 223 (Fla. 2002)). Accordingly, we treat Mr. Insko's petit ion as a petition for writ of habeas corpus. See Fla. R. App. P. 9.040(c). The facts before this court are not disputed. Mr. Insko was f ound guilty by a jury of lewd and lascivious conduct for soliciting a person u nder sixteen years old. He appealed, and this court held that the trial court erred in adm itting certain evidence and remanded the case for a new trial. Insko v. State, 884 So. 2d 312 (Fla. 2d DCA 2004).

1 Anders v. California, 386 U.S. 738 (1967).-3- Following remand, on February 14, 2005, Mr. Insko entered into a plea agreement to the criminal offense in exchange for a time-served sentence. T o simplify the calculation, the trial court determined that it would sentence Mr. Insko to 3.2 years of imprisonment with credit for 458 days of jail time served, nunc pro tunc to February 20, 2003. The court explained to Mr. Insko that the sentence it in tended to impose expired prior to that date: "You have done more than 3.2 years." The S tate raised no objection and, in fact, indicated its agreement to this sentence. Althou gh Mr. Insko pleaded to a time-served sentence, he was not released that day. He was det ained at the Hillsborough County Jail until February 15, 2005, at 7:58 p.m., when the State initiated commitment proceedings under section 394.9135(1) Florida Statut es (2004), by transferring him to the FCCC. In Larimore v. State, 2 So. 3d 101, 117 (Fla. 2008), the supre me court held that the State must initiate commitment proceedings while the person to be committed is in lawful custody "in order for the circuit court to have jurisdiction to adjudicate the commitment petition." Id. In State v. Phillips , 119 So. 3d 1233, 1242 (Fla. 2013), the supreme court determined that the "lawful cust ody" requirement explained in Larimore requires the State to initiate commitment proceedings under section 394.9135(1) prior to the expiration of an incarcerative sentence.

We hold that lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiratio n of sentence date. When the anticipated release of a corrected sen tence is imminent, the DOC may properly initiate the transfer of the ind ividual to the custody of the DCF prior to the expiration of the individua l's incarcerative sentence pursuant to section 394.9135(1). Conver sely, if the State first initiates co mmitment proceedings under section 394.9135(1) after the actual expiration of sentence date—which was accelerated due to credit for time-served and/or an award of ga in--4- time—the individual is not in lawful custody and the circuit co urt is without jurisdiction to adjudicate the commitment petition.

Phillips, 119 So. 3d at 1242; see also Morel v. State, 138 So. 3d 1122, 1126 (Fla. 4th DCA 2014) (holding that "no court in Florida had jurisdiction t o allow the State to initiate civil commitment proceedings against Defendant on April 18 once the State entered into the agreement with Defendant on April 17 to reduce the sentence to 120 months, creating the situation where Defendant was then continuing to s erve time on an expired sentence, not a sentence to expire in the future ") (citing Phillips, 119 So. 3d at 1242)).

Mr. Insko was sentenced on Febr uary 14, 2005. The trial court suggested a sentence of 3.2 years with credit for time served, knowing th at Mr. Insko had served more than 3.2 years, and the State agreed. Thus, without consi dering any gain time that Mr. Insko may have earned, the appendices provided by Mr. Insko in support of his petition reveal that his sentence expired approximately two wee ks before the State initiated commitment proceeding s. Under the law explained in L arimore and Phillips, Mr. Insko was not in lawful custody at the time the civil commi tment petition was filed, and so the trial court lacked jurisdiction to consider the peti tion. Thus, we are compelled to grant the petition for writ of habeas corpus. Accordingly, the petition for writ of habeas corpus is granted in circuit court

case number 05-CA-1645. Mr. Insko shall be released from commi tment imposed in

that case. 2 See Alachua Reg'l Juvenile Det. Ctr. v. T.O., 684 So. 2d 814, 816 (Fla.

2 Because this court converted Mr. Insko's petition for writ of p rohibition to a petition for writ of habeas cor pus, the Department of Childre n and Families was not a party to this proceeding. However, the FCCC is within this cou rt's territorial jurisdiction, and this court expects that the Department will implement this court’s direction as it would a discharge order from the circuit court.-5- 1996) (holding that a district court of appeal may discharge a person if the court that entered the detention order was "without jurisdiction to do so" ). Petition granted.

CASANUEVA, CRENSHAW, and LUCAS, JJ., Concur.