IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

 NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

M.D.E., A CHILD,

Petitioner,

v. Case No. 5D16-4150

STATE OF FLORIDA,

Respondent.

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Opinion filed December 9, 2016

Petition for Writ of Habeas Corpus,

A Case of Original Jurisdiction.

Robert Wesley, Public Defender, and 

Aaron Zeilberger, Assistant Public 

Defender, Orlando, for Petitioner.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Marjorie Vincent-Tripp, 

Assistant Attorney General, Daytona 

Beach, for Respondent.

PER CURIAM.

Petitioner, M.D.E., a child, filed a petition for writ of habeas corpus alleging he is 

entitled to release pursuant to section 985.26(2), Florida Statutes (2016). Section 

985.26(2) provides:

A child may not be held in secure or nonsecure 

detention care under a special detention order for more than 

21 days unless an adjudicatory hearing for the case has been 

commenced in good faith by the court. However, upon good 
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cause being shown that the nature of the charge requires 

additional time for the prosecution or defense of the case, the 

court may extend the length of detention for an additional 9 

days if the child is charged with an offense that would be, if 

committed by an adult, a capital felony, a life felony, a felony 

of the first degree, or a felony of the second degree involving 

violence against any individual.

§ 985.26(2), Fla. Stat. 

Petitioner was charged with battery on a licensed security officer and taken into 

custody on November 18, 2016. The November 19, 2016 detention order directed that 

Petitioner be released from detention status no later than 5:00 p.m. on the 21st day, 

December 9, 2016, unless an order of continuance had been granted.1 On December 6, 

2016, the trial court set the adjudicatory hearing for December 12, 2016. The Court 

ordered Petitioner to remain in secure detention until trial.

Petitioner argues that the continued detention to December 12, 2016 is erroneous, 

as no motion for a continuance or an extension of the 21 day period was filed. The State 

filed a response conceding the December 6, 2016 order did not indicate that the 

adjudicatory hearing was commenced or that there was good cause for a continuance, 

and agreed that Petitioner is entitled to relief. "[A] juvenile held in detention for more than 

 

1 The State contends the 21st day is December 9 and Petitioner contends it is 

December 8. The "twenty-one-day maximum does not include the initial twenty-four hours 

under which the child may be placed in custody at the JPO's discretion prior to the 

detention hearing"; however, "the twenty-one days should be counted such that the first 

day of detention under a court order . . . is included in the count. This method of counting 

ensures that a child is not held in detention more than the imposed number of days." 

M.A.M. v. Vurro, 2 So. 3d 388, 390, 391 n.2 (Fla. 2d DCA 2009). While Petitioner was 

taken into custody on November 18, 2016, the detention order was entered on November 

19, 2016. Including the first day of detention under court order in the 21 day calculation, 

but not the initial 24 hour detention prior to the order, the 21st day is today December 9, 

2016.
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twenty-one days during which no continuances have been granted is entitled to 

immediate release unless there have been new charges filed against the child in the 

interim." Z.R. v. State, 596 So. 2d 723, 724 (Fla. 5th DCA 1992); see also J.S. v. State, 

182 So. 3d 890 (Fla. 5th DCA 2016). Petitioner is entitled to be released by 5:00 p.m. 

today.

Accordingly, we grant the petition for habeas corpus and order Petitioner’s release

by 5:00 p.m. today.

PETITION GRANTED. 

ORFINGER, COHEN and LAMBERT, JJ., concur.