Florida/Georgia Personal Injury & Workers Compensation

...Cent.Code § 25-03.3-11 (2002); S.C.Code Ann. § 44-48-80 (West 2002). Florida, by way of contrast, only requires the multidisciplinary team to give its recommendation and assessment to the state attorney within seventy-two hours of the person's detention. § 394.9135(2), Fla....

...y as possible. Requiring that an adversarial probable cause hearing be held within five days after a request for one places that decision in the hands of the party best equipped to decide whether or not to exercise that right. Later the court noted: Section 394.9135(3) contemplates that a judge will make an ex parte probable cause determination immediately after the state attorney's filing of a petition....

...In the event that a person's anticipated release becomes immediate, the agency with jurisdiction must transfer the individual to the Department of Children and Families and within seventy-two hours of transfer, the multidisciplinary team shall assess the person. § 394.9135(2), Fla....

...Within 72 hours, a multidisciplinary team must assess the individual and provide a written recommendation to the state attorney. The state attorney then has 48 hours to file a probable cause petition with the circuit court; otherwise the individual is released. § 394.9135, Fla....

...If the State fails to have a person who has been convicted of a qualifying offense assessed before his or her release date, then rather than releasing the person, the agency with jurisdiction over that person must transfer him or her to a secure facility operated by the Department of Children and Families. See § 394.9135....

...order to allow the multidisciplinary team to perform its assessment and for the state attorney to make a decision whether to file a commitment petition and to obtain an ex parte probable cause order directing the person's continued confinement. See § 394.9135....

...ther probable cause exists to hold the person as a sexually violent predator. This is consistent with our legal historical precedents requiring a probable cause determination prior to a person's seizure." Id. at 719. The Gordon court also found that section 394.9135 provides a "safety valve for a situation where `the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate.'" Id....

...4), which begins the detailed process under that section, see §§ 394.913(1)-(4), or by transferring the individual to the custody of the Department of Children and Family Services upon that person's "immediate release from total confinement" under section 394.9135(1), Florida Statutes (2004). This latter procedure is followed to initiate commitment proceedings where it is anticipated that the individual will be immediately released from "total confinement" for any reason. See § 394.9135(1), Fla....

...iolent predator, "the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person's incarcerative sentence expires." § 394.915(1), Fla. Stat. (2004) (emphasis added). Similarly, section 394.9135(3), which applies in cases where the individual is in total confinement but subject to immediate release, instructs that upon finding probable cause in a proceeding initiated under that section, "the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part." § 394.9135(3), Fla. Stat. (2004) (emphasis added). Section 394.9135 is predicated on the underlying premise that the individual is in custody when initial steps are taken in the commitment process, addressing what must happen when "the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason." § 394.9135(1), Fla....

...[4] Additionally, this section would *110 apply where an inmate is about to be immediately released from an incarcerative sentence and the detailed procedures of section 394.913 and section 394.915(1) [5] have not yet been followed to initiate commitment proceedings and retain the person in custody. Section 394.9135(1) provides that where an individual currently in total confinement is about to be released, "the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility." § 394.9135(1), Fla. Stat. (2004). This provision allows the multidisciplinary team seventy-two hours after this transfer to "assess whether the person meets the definition of a sexually violent predator." § 394.9135(2), Fla....

...." Id. After that, within forty-eight hours of receipt of the written assessment and recommendation from the team, the state attorney has the option of filing a petition with the circuit court alleging that the person is a sexually violent predator. § 394.9135(3), Fla....

...If a petition is timely filed pursuant to this section and the judge determines that there is probable cause, then "the judge shall order the person to be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part." § 394.9135(3), Fla....

...Therefore, as to the question of custody, we conclude that it is clear from a reading of all of the related provisions that the legislative intent of the Jimmy Ryce Act is that the person is in lawful custody *111 at the time any initial steps are taken in the commitment process under either section 394.913 or 394.9135....

...o allow the state to initiate Jimmy Ryce proceedings against an individual who is not in lawful custody. Jurisdiction Under the Act Because the First District based its conclusion that custody is not required under the Act on sections 394.913(4) and 394.9135(4), Florida Statutes (2003), a close examination of the text of those and the other provisions of sections 394.913 and 394.9135 is required to determine the legislative intent and legal effect of subsection (4) of each statute in the context of the entire statute....

...The text of section 394.913(4), Florida Statutes (2004), provides as follows: (4) The provisions of this section are not jurisdictional, and failure to comply with them in no way prevents the state attorney from proceeding against a person otherwise subject to the provisions of this part. Section 394.9135(4), Florida Statutes (2004), also relied on by the First District Court of Appeal, states: (4) The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a...

...me frames for notice of the inmate's release, the composition, duties and deadlines for the multidisciplinary team, and other specific matters relating to the assessment of the person—not the fact of the release or status of custody. We now turn to section 394.9135(4). Even though section 394.9135 is replete with references to the individual being in custody, the First District read the provisions of section 394.9135(4) to dispense with all custody requirements in the section. A close reading of the actual text of subsection (4), however, shows that it refers only to "failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense." § 394.9135(4), Fla. Stat. (2004) (emphasis added). The time limitations in section 394.9135 all pertain to actions that occur after the inmate has come into the custody of the Department of Children and Family Services directly from his or her incarcerative sentence, to be held in a secure facility by that department....

...e two sections that provide time limitations—subsection (2) (seventy-two hours for the multidisciplinary team to make an assessment) and subsection (3) (forty-eight hours for the state attorney to file the petition). [6] The only time limitation in section 394.9135 that would result in release if not met is *113 the requirement that the state attorney file the petition within forty-eight hours pursuant to subsection (3)....

...a multidisciplinary team has made an assessment, and after the state attorney has failed to comply with a time limitation applicable to the filing of the petition, where that failure has resulted in the offender's release. The Legislative intent of section 394.9135(4) appears to be a "safety valve" solely to prevent persons from bringing challenges to civil commitment proceedings on technical grounds, such as the giving of late notice of the anticipated release that is mandated by section 394.9135(1)(a) or the late filing by the state attorney....

...e no steps have been taken in the commitment process, is no mere technical requirement that the Legislature has indicated is waived under subsection (4). Therefore, based on the actual text of the jurisdictional disclaimer, the legislative intent of section 394.9135(4) is that the state attorney retains the right to file a petition even if the person is released as a result of the state attorney's failure to comply with the forty-eight hour time limitation after the multidisciplinary team has acted....

...This is also supported by the title of the section: "Immediate releases from total confinement; transfer of person to department; time limitations on assessment, notification, and filing petition to hold in custody; filing petition after release. " § 394.9135, Fla. Stat. (2004) (emphases added); see Horowitz, 959 So.2d at 182. Even under the circumstances described in section 394.9135 where the person is released as a result of the state attorney's failure to comply with the time limitations, steps in the commitment proceedings would have already been taken while that person was still in custody, pursuant to sections 394.9135(1) and (2). Thus, the jurisdictional disclaimer contained in section 394.9135(4) should not be extended beyond its actual text to dispense with the custody requirement where no steps in the proceedings have been initiated. Neither section 394.913(4) nor section 394.9135(4) can be read in isolation....

...This requires us, as we have done here, to "look not only to the words themselves but also to `the context in which the language lies.'" Horowitz, 959 So.2d at 182 (quoting Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995)). To construe sections 394.913(4) and 394.9135(4) to allow proceedings to be initiated after a person has been released from custody and is living in society, where no part of the process, was begun while the person was in lawful custody, would require us to look only at those discrete subsections in isolation; and under the *114 construction placed on the provisions by the First District, would also render without effect the other, detailed requirements of sections 394.913 and 394.9135....

...ed prior to its amendment in 1999. Tanguay, 880 So.2d at 535. Significantly, the statute in effect in Tanguay spoke in terms of the individual being "taken into custody," a provision that does not appear in the text of the current section 394.915 or 394.9135....

...*115 (2) Upon the expiration of the incarcerative sentence and before the release from custody of a person.... § 394.915, Fla. Stat. (2004) (emphases added). Moreover, former section 916.35 made no reference to the expiration of the person's incarcerative sentence, as does the amended version of the statute. [7] Section 394.9135 was also added in 1999, providing procedures to be followed where the anticipated release of an inmate from total confinement becomes immediate for any reason—statutory procedures which were not applicable to the Court's decision in Tanguay....

...," there is no longer any statutory basis on which to hold that there is no "in custody" requirement in the Jimmy Ryce Act. Accordingly, Tanguay does not control our construction of the 2004 statutes or the jurisdictional disclaimers, first, because section 394.9135 now clearly spells out what is to occur when an inmate is to be immediately released and is expressly premised on the inmate being in custody; second, because section 394.915 has been amended to state that the person for whom probabl...

...hen the State takes steps to initiate commitment proceedings pursuant to the Jimmy Ryce Act in order for the circuit court to have jurisdiction to adjudicate the commitment petition. When effect is given to all the provisions of sections 394.913 and 394.9135, we conclude that the Legislature clearly intends that the individual be in lawful custody when steps are taken to initiate civil commitment proceedings under the Act....

...custody of the Department of Corrections or the Department of Juvenile Justice and is being held in any other secure facility for any reason. § 394.912(11), Fla. Stat. (2004). [3] Section 394.913(1) provides in pertinent part: Except as provided in s. 394.9135, the written notice [to the multidisciplinary team] must be given: (a) At least 545 days prior to the anticipated release from total confinement of a person serving a sentence in the custody of the Department of Corrections, except that i...

...totally confined for a period of less than 545 days, written notice must be given as soon as practicable. § 394.913(1), Fla. Stat. (2004). [4] This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of Florida, which added section 394.9135....

..." Fla. S. Comm. on Child. & Fams., CS for SB 2192 (1999) Staff Analysis 25 (Mar. 30, 1999) [hereinafter Child. & Fams. Comm. SB 2192 Analysis]; see also Fla. S. Comm. on Judiciary, CS for SB 2192 (1999) Staff Analysis 12 (Apr. 8, 1999) (stating that section 394.9135 "provide[s] an expedited involuntary civil commitment process for a person whose release becomes imminent due to factors such as successful gain-time challenges and early release statutes") [hereinafter Judiciary Comm....

...vide its recommendation within forty-five days ), the State may still proceed against the person. Tanguay, 880 So.2d at 536 (emphasis added). [8] In this case Larimore's entire resentencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody an order for immediate release for any reason....

...g the State's petition for involuntary civil commitment in which the State alleges that Mr. Gordon is a sexually violent predator. Because Mr. Gordon was not in custody at the time that he was seized pursuant to a seventy-two-hour hold authorized by section 394.9135, Florida Statutes (2000), but instead had been released from the custody of the Department of Corrections (DOC) and was in the civilian population, we hold that the Jimmy Ryce Involuntary Civil Commitment of Sexually Violent Predator...

...Gordon's release from custody, he was arrested on the warrant and held in the county jail. On that day, Mr. Gordon was transported from the county jail to Martin Treatment Center for diagnosis. On April 10, 2000, the multidisciplinary team, pursuant to section 394.9135, recommended to the State that it proceed with civil commitment under the Act....

...This is consistent with our legal historical precedents requiring a probable cause determination prior to a person's seizure. However, the Act contains a safety valve for a situation where "the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate." § 394.9135(1)....

...ened. The constitutionality of this type of seizure has yet to be resolved and is not presently before us. In the present case, Mr. Gordon was not transferred to the custody of the DCF upon his immediate release from total confinement as required by section 394.9135(1), but was instead released into civilian society by way of a Greyhound bus....

...nto custody pursuant to the DCF's warrant. There is no provision in the Act for commencing proceedings against a person under the Act where he or she is not in custody and is, in fact, living in society. Rather, the Act contemplates that pursuant to section 394.9135(1), when the release from total confinement becomes immediate, the person will be, at that time, transferred to the custody of the DCF to be held in a secure facility. Clearly, that person would be securely guarded during the transfer to the secure facility. Under section 394.9135(1), a person against whom involuntary civil commitment proceedings are appropriately commenced will always be in custody immediately prior to the commencement of the proceedings....

...n released into society but thereafter has been recaptured. The State argues that it may proceed against Mr. Gordon under the Act even though he was not in custody at the time proceedings commenced. In support of this argument, the State cites to subsection 394.9135(4), which states: The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case, and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part. Subsection (3) of section 394.9135 states that, in the "safety valve" situation, if a petition is not filed within forty-eight hours after the written assessment, the person shall be immediately released....

...d by Valdez v. Moore, 745 So.2d 1009 (Fla. 4th DCA 1999). We grant the petition and quash the lower court's order, because we find no due process violation in this case which, unlike Valdez, involved the immediate release *558 provisions of the Act, section 394.9135, Florida Statutes (1999)....

...As a result of that decision, the lower court conducted a resentencing hearing on January 6, 2000. The court sentenced Kobel, who was not present at the hearing, to time served and ordered his immediate release from prison. Pursuant to the immediate release provision of the Act, section 394.9135, Kobel was transferred from prison to the Martin County Treatment Center for evaluation by the multidisciplinary team ("the team") to determine whether he should be committed as a sexually violent predator under the Act....

...es that decision in the hands of the party best equipped to decide whether or not to exercise that right. Valdez and Meadows did not discuss how the five-day rule would apply under the "immediate release" provision of the Ryce Act, [4] which states: 394.9135 Immediate releases from total confinement; transfer of person to department; time limitations on assessment, notification, and filing petition to hold in custody; filing petition after release.— *562 (1) If the anticipated release from tota...

...which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part. § 394.9135, Fla. Stat. (1999). [5] Since the state was proceeding under section 394.9135, the lower court departed from the essential requirements of law in construing Valdez to require an adversarial hearing to be held within five days of the expiration of Kobel's criminal sentence. Under section 394.9135(2), during the first three days after the expiration of a criminal sentence, the team may still assess the Ryce Act respondent to determine whether he qualifies for civil commitment. If the team recommends commitment, the state attorney has 48 hours to file a petition seeking commitment. See § 394.9135(3), Fla....

...If no petition is filed, the detainee "shall be immediately released." Id. If a petition is filed, and a judge "determines that there is probable cause to believe" that the detainee is a sexually violent predator, the judge "shall order" continued detention. Id. Under the immediate release provisions of section 394.9135, it is not feasible to require that an adversarial hearing be held no later than the fifth day after release from criminal incarceration, when the State has until the fifth day to file the petition....

...Section 394.915(2) further states that the respondent "shall be provided with notice of, and an opportunity to appear in person at, an adversarial hearing." Yet there is no time frame within which counsel must be appointed for Ryce Act proceedings under section 394.9135, either by statute or by case law. For the foregoing reasons, we hold that in an immediate release situation under section 394.9135, Valdez 's five-day period for holding an adversarial probable cause hearing begins to run from the date upon which a request for a hearing is made. Section 394.9135(3) contemplates that a judge will make an ex parte probable cause determination immediately after the state attorney's filing of a petition....

...mitment. Once that finding was made, the judge was required to order that Kobel "be maintained in custody and held in an appropriate secure facility for further proceedings in accordance" with the Act, Part V of Chapter 394, Florida Statutes (1999). § 394.9135(3), Fla....

...ying an acceptable time frame between initial civil confinement and the adversarial probable cause hearing. [4] The petition in Meadows v. Krischer, 24 Fla. L. Weekly D2576, ___ So.2d ___, 1999 WL 1037986 (Fla. 4th DCA Nov.17, 1999), was filed under section 394.9135, the day prior to Meadows's release date from prison....

...On August 26, prior to Meadows' release date, the State filed a petition for a probable cause determination that Meadows qualified for continued detention pending a trial to determine whether he should be committed to a secure facility for long-term treatment as a sexually violent predator. See § 394.9135(3)....

...ether the respondent meets the definition of a sexually violent predator. The Department of Children and Family Services then provides the recommendation to the state attorney for the possible filing of a commitment petition. See §§ 394.913(3)(e), 394.9135(3)....

...The next day, DOC apparently determined to seek Gordon's detention under the Act. DOC contacted DCF, which issued a warrant for Gordon's arrest. On April 8, 2000, Gordon was arrested and held in the county jail. On April 10, a multidisciplinary team, pursuant to section 394.9135, Florida Statutes (1999), recommended to the State that it begin civil commitment proceedings against Gordon under the Act and a petition was filed....

...The district court next determined that the Act contemplated that the circuit court would make its probable cause determination prior to the expiration of the defendant's criminal sentence. The court noted that in situations where the expiration of a defendant's criminal sentence becomes imminent, section 394.9135 provides that the defendant would be transferred to the custody of DCF and held in a secured facility for a 72-hour period until a determination is made as to whether the defendant is subject to the Act. Because Gordon was not transferred to the custody of DCF in accordance with section 394.9135, but instead was released into society upon his immediate release from DOC custody, the court concluded he was not "in custody" for purposes of the Act....

...At the time he became entitled to release with no pending commitment petition, there was no authority to continue to hold Tanguay. Subsequent to both the expiration of his sentence and the filing of the petition in this case, the Legislature enacted section 394.9135, Florida Statutes (1999), to allow the State to transfer a defendant to DCF custody upon entitlement to immediate release and pending the filing of a petition for civil commitment....

...99-222, §§ 7, 29, Laws of Fla. In this case, Tanguay's juvenile delinquency commitment expired on February 24, 1999, his nineteenth birthday, and the civil commitment petition was filed sixteen days later, more than two months before the effective date of section 394.9135....

...Therefore, I conclude that the requirement that the defendant be "in custody" when the petition is filed means lawful custody pursuant to a prison sentence or juvenile commitment, or, for confinements concluding after the May 26, 1999, effective date of section 394.9135, a transfer to DCF custody pending the filing of a petition....

release from total confinement” *1220under section 394.9135(1), Florida Statutes (2004). Larimore, 2 So

...See, e.g., § 394.913, Fla. Stat. (1999)(requiring notice of anticipated release to the state attorney and a multi-disciplinary team appointed by the Florida Department of Children and Families of all potential committees under the Act)(emphasis added); § 394.9135, Fla....

...Const., [4] even though the Act does not expressly require either a verified petition or affidavits. The Act provides, in pertinent part, that a person convicted of a sexually violent offense, who is scheduled for release from confinement, is to be assessed by a multidisciplinary team of mental health professionals. See § 394.9135(2), Fla....

...gage in acts of sexual violence." § 394.912(10)(b). After receiving the team's written assessment and recommendation, the state attorney may petition to have the person involuntarily committed, "stating facts sufficient to support such allegation." § 394.9135(3)....

...The court set forth that once the finding of probable cause had been made, the trial judge was required to order that the detainee "`be maintained in custody and held in an appropriate secure facility for further proceedings in accordance' with the [Jimmy Ryce] Act, Part V of Chapter 394, Florida Statutes (1999). § 394.9135(3), Fla....

...tes (2000). [2] The Act now provides that a person may be held beyond the expiration of his or her sentence for seventy-two hours in order to be evaluated and for an additional forty-eight hours to enable the State to file a commitment petition. See § 394.9135, Fla.Stat....

...However, the provisions *357 of section 394.913 are not jurisdictional, and the failure to comply with them does not prevent the state attorney from proceeding pursuant to the Act by filing a commitment petition in circuit court. § 394.913(3), Fla. Stat. (1999). See also § 394.914, Fla. Stat. (1999). In addition, section 394.9135, Florida Statutes (1999) (a new section created by the amendment), provides that if anticipated release from total confinement becomes immediate for any reason, the person shall be transferred upon release to the custody of the Depar...

...attorney may file a commitment petition within 48 hours after receipt of the written assessment and recommendation. Ch. 99-222, § 7, at 1378-79, Laws of Fla. If the petition is not filed within 48 hours, the person is entitled to immediate release. § 394.9135(3), Fla. Stat. (1999). However, the provisions of section 394.9135 are not jurisdictional, and failure to comply with the time limitations, which results in the release of the person, is not dispositive of the case and does not prevent the state attorney from proceeding under the Act. § 394.9135(4), Fla....

...n as a sexually violent predator, it "shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person's incarcerative sentence expires." Ch. 99-222, § 9, at 1379-80, Laws of Fla. See also § 394.9135(3), Fla....

...egally detained from June 13 to June 16, that does not divest the circuit court of jurisdiction to adjudicate the commitment petition"); Washington v. State, 866 So.2d 725, 727 (Fla. 3d DCA 2004) (Cope, J., specially concurring) ("The time limits of section 394.9135 are not jurisdictional, and a release of an individual from custody does not prevent the State from instituting proceedings under the Act")....

...nst those persons in custody at the moment the proceedings are commenced; there *358 is no provision in the Act for proceeding against those persons who are on supervision but no longer in custody. Id. at 719-20. The court rejected the argument that section 394.9135(4) allowed the state to start proceedings against a person who is not in custody. Id. at 720. We choose not to follow Gordon. The Fifth District in Moore correctly criticized Gordon on the grounds that it (1) failed to follow the plain statutory language to the effect that the requirements of section 394.9135 are not jurisdictional and (2) could not be reconciled with the supreme court's decision in Tanguay....

...18, 2002, for a determination of whether he should be subject to involuntary commitment as meeting the definition of a “sexually violent predator” under the Jimmy Ryce Act. In accordance with the Act’s immediate release provisions set forth in section 394.9135, Florida Statutes (2002), Morel was then transferred to the FCCC in DeSoto County, which is located within the Twelfth Judicial Circuit....

...Hendricks, 521 U.S. 346, 369 , 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997) (concluding that Kansas’s Sexually Violent *232 Predators Act establishes a civil rather than a criminal detention scheme). Commitment proceedings were instituted against Morel pursuant to section 394.9135, Florida Statutes (2002), which provides for expedited procedures when the anticipated release from total confinement “becomes immediate for any reason.” § 394.9135(1), Fla....

...if the detained person meets the definition of a sexually violent predator under the Act and if he or she suffers from a mental disorder that makes it likely that the person will commit another sexually violent offense if not confined. §§ 394.192, 394.9135(2), Fla....

...Stat. (2002). Under these expedited procedures, the state attorney may file a petition with the circuit court alleging that the person is a sexually violent predator within forty-eight hours after receipt of the written assessment and recommendation. § 394.9135(3), Fla....

...Stat. The filing of the petition triggers a new round of proceedings. If a petition is filed within this applicable timeframe, the judge must then “determinen that there is probable cause to believe that the person is a sexually violent predator.” § 394.9135(1), Fla. Stat. (2002). After a court finds probable cause, “the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.” § 394.9135(3), Fla....

...be denied as moot. Where a defendant is truly entitled to immediate release, he should be given an effective remedy. [3] D. On the merits, however, I agree that the defendant is not entitled to immediate release. That is so because the provisions of section 394.9135, Florida Statutes (2000), apply to him and render the civil commitment petition timely. The legislature in 1999 amended the Jimmy Ryce Act to provide a procedure to be followed where a defendant's anticipated release from confinement "becomes immediate for any reason...." Id. § 394.9135(1) (emphasis added); ch....

...one year in advance of the anticipated date of release. § 394.913(1), Fla. Stat. Such inmates are referred to the multidisciplinary team for evaluation, which then makes a recommendation whether civil commitment proceedings should be initiated. Id. Section 394.9135 establishes the procedure where the anticipated release of an inmate becomes immediate for any reason. Id. § 394.9135(1). The classic example of such a release would be in a situation in which the defendant has been resentenced to a shorter sentence, or has been granted additional credit for time served. Under section 394.9135, where an inmate meets the statutory definition but is granted immediate release, the inmate is to be transferred to a secure facility operated by the Department of Child and Family Services. Id. § 394.9135(1). There is a seventy-two hour period of evaluation, followed by a forty-eight hour period in which the state attorney makes a decision whether to file a civil commitment petition. Id. § 394.9135(2)-(3)....

...If a petition is filed and the judge determines that there is probable cause to believe that the person is a sexually violent predator under the statutory definition, then the person will be held in an appropriate secure facility for further proceedings under the Act. Id. § 394.9135(3). The time limits of section 394.9135 are not jurisdictional, and a release of an individual from custody does not prevent the State from instituting proceedings under the Act. Id. § 394.9135(4)....

...the State filed the civil commitment petition. Even if it could be said that the defendant's custody was unlawful on that date, the defendant would not be entitled to immediate release. That *728 is so because whenever a release becomes "immediate," section 394.9135 mandates a transfer to the Department of Children and Family Services for evaluation and a determination whether to file a petition. In this case, an evaluation has long since been completed, a petition has already been filed, the transfer has occurred, and a probable cause determination has already been made. The defendant thus remains in lawful custody under section 394.9135....

...e meets the definition of a sexually violent predator under section 394.913(1), Florida Statutes; or (2) when an inmate's release is imminent, the individual is transferred to the custody of the Department of Children and Family Services pursuant to section 394.9135, Florida Statutes, after which a multidisciplinary team makes an expedited evaluation....

...rguing that the time requirements under the statute had run before the petition was filed because he was unlawfully detained in jail three days before being transferred to the custody of DCF. He relied on State v. Atkinson, 831 So.2d 172 (Fla.2002). Section 394.9135, Florida Statutes (2000), sets out a detailed procedure which the state must follow under the Act, when release from total confinement of a person to be committed becomes "immediate for any reason." § 394.9135(1), Fla. Stat. (2000). It provides: 394.9135....

...equirements set forth in the above-quoted statute. Within 72 hours after the transfer, Ducharme was assessed, and the resulting report was provided to the state. (Ducharme was transferred on June 16 and the report was given to the state on June 19.) § 394.9135(2), Fla. Stat. (2000). Thereafter, 394.9135 provides that the state has 48 hours after receipt of the report (here, on June 19), in which to petition the circuit court....

...ate attorney as provided in section 394.913(1), Florida Statutes (1999), or by transferring *262 the person to the custody of the Department of Children and Family Services (DCF) when the person is immediately released for some reason as provided in section 394.9135(1)....

...In its response to Bishop's habeas petition, the State argues that Bishop's reliance on Larimore and Atkinson is misplaced. The State relies on a footnote in Larimore in which the court stated as follows: In this case, Larimore's entire resentencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason....

...ate the Act became effective. Because the resentencing here would have resulted in Bishop's immediate release, the State contends that it properly filed its commitment petition on that same date and was entitled to proceed against Bishop pursuant to section 394.9135....

...t applicable to a person who has been released into society but thereafter has been recaptured." Gordon, 839 So.2d at 720. In so ruling, the Gordon court rejected the State's argument that it was entitled to proceed against the defendant in light of section 394.9135(4), Florida Statutes, which states: "The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offens...

...tion (4) to mean that the state attorney or the DCF may start proceedings against a person who is not in custody, since, as stated, that person would not be subject to the provisions of the Act." Id. To date, no other appellate court has interpreted section 394.9135(4) in the same way as Gordon. In fact, appellate judges from two other courts, including this court, interpret the scope of section 394.9135(4) somewhat differently. In State v. Ducharme, 881 So.2d 70, 73 (Fla. 5th DCA 2004) rev. dismissed, 895 So.2d 405 (Fla.2005)( Ducharme I ) (Sawaya, C.J., concurring in part and dissenting in part), Judge Sawaya noted that the "provisions of section 394.9135 are not jurisdictional, and noncompliance by the state does not prevent it from instituting proceedings under the Act." Judge Sawaya also explained the proper application of section 394.9135 as follows: Section 394.9135 applies when the release from total confinement of the person to be committed becomes "immediate for any reason." § 394.9135(1), Fla. Stat. (2000) (emphasis added). In my view, a typical example of such a release would be the trial court's acceptance of a plea from a defendant and the imposition of a sentence to credit for time served. The procedure established by section 394.9135 requires that in instances such as this, the person will be transferred to the Department of Children and Family Services for evaluation and a determination whether to file a petition. § 394.9135(1), Fla. Stat. (2000). The state will have 72 hours after transfer within which to assess the individual to determine whether he or she meets the criteria for a sexually violent predator. § 394.9135(2), Fla. Stat. (2000). The state will then have 48 hours after receipt of the assessment report to subsequently file the commitment petition. § 394.9135(3), Fla....

...se to believe that the person is a sexually violent predator under the statutory definition, "the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part." § 394.9135(3), Fla....

...denied, 895 So.2d 1068 (Fla.2005) (Cope, J., specially concurring), Judge Cope explicitly concluded that the "release of an individual from custody does not prevent the State from instituting proceedings under the Act." Both Judge Sawaya's and Judge Cope's analyses of section 394.9135, particularly section 394.9135(4), follow the plain statutory language to the effect that the requirements of section 394.9135 are not jurisdictional. To the extent that Gordon's *504 interpretation of section 394.9135(4) differs, we respectfully disagree with Gordon....

...Under the statute, the agency holding the individual "who has been convicted of a sexually violent offense" has a mandatory duty to transfer that individual to DCF for assessment when that individual's "anticipated release" becomes "immediate for any reason." See § 394.9135(1), Fla....

...lihood of severe harm to the State in proceeding with the commitment proceedings if Ducharme is released and the order of dismissal that caused his release is subsequently reversed. Commitment proceedings were instituted against Ducharme pursuant to section 394.9135, Florida Statutes (2000). Section 394.9135 applies when the release from total confinement of the person to be committed becomes "immediate for any reason." § 394.9135(1), Fla. Stat. (2000) (emphasis added). In my view, a typical example of such a release would be the trial court's acceptance of a plea from a defendant and the imposition of a sentence to credit for time served. The procedure established by section 394.9135 requires that in instances such as this, the person will be transferred to the Department of Children and Family Services for evaluation and a determination whether to file a petition. § 394.9135(1), Fla. Stat. (2000). The state will have 72 hours after transfer within which to assess the individual to determine whether he or she meets the criteria for a sexually violent predator. § 394.9135(2), Fla. Stat. (2000). The state will then have 48 hours after receipt of the assessment report to subsequently file the commitment petition. § 394.9135(3), Fla....

...se to believe that the person is a sexually violent predator under the statutory definition, "the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part." § 394.9135(3), Fla. Stat. (2000). I read this part of the statute to be mandatory. Moreover, the provisions of section 394.9135 are not jurisdictional, and noncompliance by the state does not prevent it from instituting proceedings under the Act. § 394.9135(4), Fla. Stat. (2000). It appears to me that the State complied with the requirements of section 394.9135....

...When he entered his plea and was sentenced to a term of incarceration in the Department of Corrections with credit for time served, Ducharme was transferred to the Department of Children and Families and evaluated, and a petition was filed in accordance with section 394.9135....

...Moreover, Ducharme was afforded an adversarial probable cause hearing that resulted in a finding that he met the criteria of a sexually violent predator under the Act. Ducharme, therefore, is required to remain in a secure facility pursuant to section *74 394.9135(3) and may not be released. Accordingly, I conclude that Ducharme remains in lawful custody under section 394.9135 and that his due process constitutional rights have not been violated....

...secure facility because the order of release is stayed pending review by the appellate court. It therefore could legitimately be argued that it is appropriate to stay the order of dismissal rendered in a commitment proceeding properly brought under section 394.9135, especially when a finding of probable cause has been made by the trial court that the person meets the criteria of a sexually violent predator....

...After release from prison in 2000, Ducharme was brought back to Florida where he was charged with violating his probation stemming from convictions for two counts of aggravated assault involving forced sexual activity with an unwilling victim. In my view, this case exemplifies why the Legislature enacted section 394.9135(3), Florida Statutes, which provides that once probable cause has been established that a person is a sexually violent predator, he or she must remain in a secure facility and shall not be released....

...4th DCA 2005) (“We note that the de novo standard of review used here for this issue is in conflict with the abuse of discretion standard of review used in the third and fifth districts.”). Our decision is controlled by post-April 23, 2002 Florida Supreme Court decisions interpreting the immediate release provision, section 394.9135(1) of the Jimmy Ryce Act, and its application only to those “persons currently in custody who have been convicted of a sexually violent offense ....”§ 394.925, Fla....

...se becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility. § 394.9135(1), Fla. Stat. (2012). Recently in State v. Phillips, the Florida Supreme Court concluded: [S]ection 394.9135 was enacted as a safety valve for certain situations, including where a postconviction court or an appellate court rules in the defendant’s favor, thereby entitling the defendant to credit for time previously served and/or gain-time. We do not find, however, any intention on the part of the Legislature to authorize the State to first travel under section 394.9135 after an inmate’s sentence expires. To the contrary, the staff analyses explain that section 394.9135 addresses situations where a release “will become immediate” or “becomes imminent.” Thus, section 394.9135 would be utilized in situations where the award of credit and/or gain-time causes an incarcerative sentence to expire in the immediate future. ... We hold that lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiration of sentence date....

...When the anticipated release of a corrected sentence is imminent, the DOC may properly initiate the transfer of the individual to the custody of DCF prior to the expiration of the individual’s in-carcerative sentence .... Conversely, if the State first initiates commitment 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 gain- time — the individual is not in lawful custody and the circuit court is without jurisdiction to adjudicate the commitment petition....

...We grant the motion to dismiss. At a hearing on January 23, 2002, the trial court denied Wagner's petition to dismiss the commitment proceeding filed against him by the State, but concluded that he was entitled to immediate release from custody pursuant to section 394.9135, Florida Statutes (2001)....

...led off the street as was the case in Gordon. In the present case, Mr. Sirmons, due to an administrative error, was released from prison after the filing of the petition. Otherwise, he would have been immediately subject to the procedure outlined in section 394.9135....

...and ordered the DOC to award Phillips the original jail and prison credit in addition to the credit for the 177 days.... 1 On December 6, 2005, Phillips was released from the DOC and was transferred to the Florida Civil Commitment Center pursuant to section 394.9135(1), Florida Statutes (2005)....

...We now explain the reasoning behind our decision to approve the district court’s decision below. ANALYSIS The specific issue we are to decide is whether an inmate is in lawful custody at the time the State commences commitment proceedings pursuant to section 394.9135(1), Florida Statutes (2005), of the Involuntary Civil Commitment of Sexually Violent Predators Act, commonly known as the “Jimmy Ryce Act” (the Act), when the inmate’s sentence has actually expired due to postconviction credit for time previously served and/or an award of gain-time....

...nvolving the furnishing of written notice to the multidisciplinary team and state attorney at least 545 days prior to the anticipated release from total confinement if the individual is serving a sentence in the Department of Corrections (DOC)), and section 394.9135 (involving the transfer of the individual to the custody of DCF if the anticipated release from total confinement becomes immediate for any reason)....

...t’s decision in Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003). 9 Larimore, 2 So.3d at 104-05 . In Larimore , we clearly held that lawful custody is required whether the State is initiating commitment proceedings pursuant to section 394.913 or 394.9135 of the Act: [A]s to the question of custody, we conclude that it is clear from a reading of all of the related provisions that the legislative intent of the Jimmy Ryce Act is that the person is in lawful custody at the time any initial steps are taken in the commitment process under either section 391.913 or 391.9135....

...Lawful custody is required “in order for the circuit court to have jurisdiction to adjudicate the commitment petition.” Id. at 117 . We explained that if the judge finds that there is probable cause to believe an individual is a sexually violent predator pursuant to section 394.9135, then “the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.” Id. at 109 . Therefore, “[s]ection 394.9135 is predicated on the underlying premise that the individual is in custody when initial steps are taken in the commitment process, addressing what must happen when ‘the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason.’ ” Id. (quoting § 394.9135(1), Fla. Stat. (2004)). In addition, we found that the jurisdictional disclaimer provision in section 394.9135(4) “should not be extended beyond its actual text to dispense with the custody requirement where no steps in the proceedings have been initiated.” Id....

...n was filed — did not control our construction of the Act. Id. at 114. We explained that the language “taken into custody” under section 916.35(1), the statute in effect in Tanguay , did not appear in the current version of sections 394.915 or 394.9135....

...Instead, if the judge finds that probable cause exists, under section 394.915, the judge shall order that the individual “re *1241 main in custody.” 10 Id. With “remain in custody” replacing “taken into custody” coupled with the Legislature’s enactment of section 394.9135, “providing for special procedures where immediate release is anticipated,” we held that “there is no longer any statutory basis on which to hold that there is no ‘in custody’ requirement in the Jimmy Ryce Act.” Id....

...The DOC applied this court-ordered credit which, along with gain-time, resulted in a recalculated expiration of sentence date of August 31, 2005. Thereafter, on December 6, 2005, the State commenced commitment proceedings against Phillips by having the DOC transfer Phillips to the custody of the DCF pursuant to section 394.9135(1), which provides: If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the [DCF] to be held in an appropriate secure facility. § 394.9135(1), Fla. Stat. (2005). We initially determine that Larimore’s construction of section 394.9135 controls the issue before us. Therefore, in order for the circuit court to properly exercise jurisdiction over the commitment petition, the individual must have been in lawful custody at the time the initial steps were taken under section 394.9135....

...Phillips contends he was not in lawful custody; the State disagrees. The State argues that Larimore implies that an incarcerative sentence subject to an immediate termination due to a proper award of gain-time or credit for time previously served is “lawful custody” under section 394.9135, citing to footnotes four and eight of the opinion. We are not persuaded by the State’s definition of “lawful custody” under section 394.9135. In Larimore , we stated that section 394.9135(1), “would occur, for example, where the inmate obtains an order for release from an incarcerative sentence.” 2 So.3d at 109 . We then said in footnote four: This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of Florida, which added section 394.9135....

...early judicially mandated release from prison.” Fla. S. Comm, on Child. & Fams., CS for SB 2192 (1999) Staff Analysis 25 (Mar. 30, 1999); see also Fla. S. Comm, on Judiciary, CS for SB 2192 (1999) Staff Analysis 12 (Apr. 8, 1999) (stating that section 394.9135 “provide[s] an expedited involuntary civil commitment process for a person whose release becomes imminent due to factors such as successful gain-time challenges and early release statutes”)....

...The section is intended to assist the Department of Children and Families and state attorneys with expediting cases in such circumstances. Child. & Fams. Comm. SB 2192 Analysis at 25; Judiciary Comm. SB 2192 Analysis at 12. Id. at 109 n. 4. It is clear that the staff analyses quoted in footnote four demonstrate that section 394.9135 was enacted as a safety valve for certain situations, including where a postconviction court or an appellate court rules in the defendant’s favor, thereby entitling the defendant to credit for time previously served and/or gain-time. We do not find, however, any intention on the part of the Legislature to authorize the State to first travel under section 394.9135 after an inmate’s sentence expires. To the contrary, the staff analy-ses explain that section 394.9135 addresses situations where a release “will become immediate” or “becomes imminent.” Thus, section 394.9135 would be utilized in situations where the award of credit and/or gain-time causes an incarcerative sentence to expire in the immediate future....

...After stating our holding in Larimore— that the Act requires individuals to be in lawful custody when commitment proceedings are initiated — we said in footnote eight: In this case Larimore’s entire resen-tencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason....

...at 117 n. 8. We emphasized “while in lawful custody” and thus the issue contemplated in footnote eight hinges on whether or not the State initiated commitment proceedings while the individual was in lawful custody. We hold that lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiration of sentence date. When the anticipated release of a corrected sentence is imminent, the DOC may properly initiate the transfer of the individual to the custody of the DCF prior to the expiration of the individual’s incarcerative sentence pursuant to section 394.9135(1). Conversely, if the State first initiates commitment 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 gain-time — the individual is not in lawful custody and the circuit court is without jurisdiction to adjudicate the commitment petition....

...aterally deprive a circuit court of jurisdiction over a commitment petition. In other words, whether a circuit court has jurisdiction over a commitment petition does not rest solely on the action or inaction of the defendant. Separate and apart from section 394.9135, the State is authorized to initiate commitment proceedings under section 394.913....

...f the Act but ‘would be contrary to the basic tenets of fairness and due process.’ ” 2 So.3d at 115 (quoting Atkinson, 831 So.2d at 174 ). Contrary to the State’s contention, approving the decision of the district court below does not render section 394.9135 meaningless. Section 394.9135 “would apply where an inmate is about to be immediately released from an incarcerative sentence and the detailed procedures of section 394.913 and section 394.915(1) have not yet been followed to initiate commitment proceedings and retain the person in custody.” Id. at 109-10 (footnote omitted). In addition, section 394.9135 would conceivably apply to executive clemency proceedings pursuant to Chapter 940, Florida Statutes, as well as conditional medical releases under section 947.149, Florida Statutes....

...."Lawful custody” is expressed once in the Act, referring to an individual's status for the crime of escape or attempting to escape. See § 394.927(1), Fla. Stat. (2005). . The term “total confinement” appears in both commitment procedures, sections 394.913 and 394.9135....

...See § 394.913(1)(a), Fla. Stat. (2005) ("[WJritten notice must be given: At least 545 days prior to the anticipated release from total confinement of a person serving a sentence in the custody of the Department of Corrections_”) (emphasis added); § 394.9135(1), Fla....

...See § 394.913(4), Fla. Stat. (2005) ("The provisions of this section are not jurisdictional, and failure to comply with them in no way prevents the state attorney from proceeding against a person otherwise subject to the provisions of this part.”); § 394.9135(4), Fla....

...in which he contended that his continued detention was illegal because the expert's reports attached to the State's petition were inaccurate and legally insufficient and because the State had failed to comply with various time standards set forth in section 394.9135, Florida Statutes (2000)....

...The State filed its petition seeking Ennis's civil commitment before his release from prison. The time requirements that Ennis alleges the State failed to meet apply only to those cases in which the petition is not filed before the respondent's release from custody. See § 394.9135, Fla....

...se is going to be immediately released from prison, the person is transferred upon release to DCF custody, and the multidisciplinary team must determine within seventy-two hours whether the person meets the definition of a sexually violent predator. § 394.9135(1), (2). If it determines that the person does not meet the definition, “that person shall be immediately released.” § 394.9135(3)....

...trial court finds probable cause to believe the person is a sexually violent predator, the trial court orders the person to be held in a secure facility for a trial within thirty days to determine the question by clear and convincing evidence. §§ .394.9135(3), 394.915, 394.916(1), 394.917(1)....

with the various time standards set forth in section 394.9135, Florida Statutes (2003). The trial court

...In addition, section 394.929 provides that “[t]he Department of Children and Family Services is responsible for all costs relating to the evaluation and treatment of persons committed to the department’s [Department of Children and Families] custody as sexually violent predators.” See also § 394.9135(1), Fla....

...ied the State Attorney, the Florida Department of Corrections, and the Florida Civil Commitment Center (“Center”) that because Barber may qualify for involuntary commitment under the Jimmy Ryce Act, DCF was issuing a detainer against him. See § 394.9135(1), Fla. Stat....

...2  On Monday, September 15, 2014, the DCF’s Multidisciplinary Team submitted its written assessment and recommendation to the State Attorney, finding that Barber met the definition of a sexual predator under the Act. See § 394.9135(2), Fla. Stat. The next day, September 16, 2014, at 11:06 a.m., the State Attorney filed a petition with the circuit court, alleging Barber to be a sexually violent predator. Id. § 394.9135(3)....

...sentencing hearing, and from that moment onward, his custody was unlawful, precluding the State from initiating a Jimmy Ryce Act proceeding against him. 2 As to the first issue, we conclude that the State’s petition complied with the requirements of section 394.9135(1)(a), Florida Statutes. As the State concedes, this section provides the only statutory grant of authority that could apply to Barber’s situation, thereby rendering compliance with other subsections (394.9135(1)(b), 394.9125(1), and 394.9125(2)) immaterial....

...convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the department to be held in an appropriate secure facility. § 394.9135(1)(a), Fla....

...(2014). 4 As mentioned in footnote one supra, charges in two of the six offenses described in the report were dismissed in their entirety due to an inability to locate the victims. 5 petition is facially valid under the authority of section 394.9135(1)(a). As to the second issue, Barber argues that the State’s petition was untimely (by less than an hour) because it was not filed within the 120-hour time limit in section 394.9125(4)(a), Florida Statutes. But section 394.9125 does not apply. Instead, section 394.9135 applies with its own, distinct time table (with rounding-up provisions) for the Multidisciplinary Team to provide its written assessment/recommendation (72 hours) 5 and for the State Attorney thereafter to file a petition (48 hours)....

...6 Here, Barber was transferred on Thursday, September 11, 2014, resulting in the 72-hour period ending on a weekend, Sunday, September 14, 2014. Accordingly, the Multidisciplinary Team’s assessment/recommendation had to be filed “within the next working day,” which was Monday, September 15, 2014. The 5 Section 394.9135(2), Florida Statutes, states: Within 72 hours after transfer pursuant to paragraph (1)(a) ....

...mendation from the multidisciplinary team, the state attorney, as designated in s. 394.913, may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support the allegation.” § 394.9135(3), Fla....

...Its petition, filed at 11:06 a.m. on Tuesday, September 16, 2014, was not only timely, but a day early. Finally, Barber argues he was not in lawful custody at the time of his transfer to the Center, and was therefore not “totally confined” as contemplated by subsection 394.9135(1)(a)....

...In Reed, this Court held that the trial court lacked jurisdiction because Reed’s sentence had expired the day prior to his transfer; as such, he was not in “lawful custody.” As noted in Reed, our supreme court in State v. Phillips, 119 So. 3d 1233, 1236-37 (Fla. 2013), held that “lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiration of sentence date.” (Emphasis added). Because Barber’s transfer took place on the same day that he was sentenced, his sentence date had not yet expired....

...ated for a few more days and understood that commitment proceedings would probably be initiated against him. To accept Barber’s argument, that he was no longer in lawful custody after the sentencing hearing concluded at 10:23 a.m., would render section 394.9135 irrelevant, which was specifically written to provide transfer authority in situations where an “immediate” release occurs, such as Barber’s time-served sentence. Finding no basis for relief, we deny Barber’s petition....

...004), which begins the detailed process under that section, see § 394.913(1)-(4), or by transferring the individual to the custody of the Department of Children and Family Services upon that person's "immediate release from total confinement" under section 394.9135(1), Florida Statutes (2004)....

...s was initiated. See Larimore, 2 So.3d at 110-11 (concluding that "the legislative intent of the Jimmy Ryce Act is that the person is in lawful custody at the time any initial steps are taken in the commitment process under either section 394.913 or 394.9135")....

Act proceedings against Evans, relying on section 394.9135, Florida Statutes. That statute provides:

release. That is so because the provisions of section 394.9135, Florida Statutes (2000), apply to him and

...In this case, that appellate court would be the Fourth District Court of Appeal. Petition for Writ of Mandamus DISMISSED. COBB and ORFINGER, R.B., JJ., concur. . We elect to treat his petition as one for mandamus relief. . DCF is the entity responsible for placing detainees in “an appropriate secure facility.” *1081 See § 394.9135(1), Fla....

...and, in fact, indicated its agreement to this sentence. Although Mr. Insko pleaded to a time-served sentence, he was not released that day. He was detained 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 Statutes (2004), by transferring him to the FCCC. In Larimore v....

...adjudicate the commitment petition." Id. In State v. Phillips, 119 So. 3d 1233, 1242 (Fla. 2013), the supreme court determined that the "lawful custody" 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 expiration of sentence date....

...When the anticipated release of a corrected sentence is imminent, the DOC may properly initiate the transfer of the individual to the custody of the DCF prior to the expiration of the individual's incarcerative sentence pursuant to section 394.9135(1). Conversely, if the State first initiates commitment 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 gain- -3-  time—the individual is not...

person’s incarcerative sentence expires.” Id. Section 394.9135 provides for expedited procedures when the

...d to serve any more time. Rompre asserted that he was not in legal confinement when he was transferred for evaluation and the commitment petition was served, because there had been a complete failure to comply with the time requirements set forth in section 394.9135....

...That the Defendant was detained by the Department of Corrections beyond his release date for the purpose of an evaluation to determine if he met the criteria for commitment under Florida Statute 394.910 through 394.930. 4. That the State of Florida failed to comply with the provisions of Florida Statute 394.9135....

...tody. The State argues that the trial court erred in releasing Rompre based on a determination that his sentence expired on August 31, 2000, which made both the assessment by the multi-disciplinary team and the petition for commitment untimely under section 394.9135, Florida Statutes (2000)....

...rial court at the August 30, 2000 sentencing hearing. Finally, the State contends that even if Rompre’s sentence expired on August 31, 2000 and he *457 was entitled to release because of the failure to comply with the time limitations set forth in section 394.9135, it was error to dismiss the State’s petition in its entirety because of subsection (4) of Section 394.9135 of the statute, which authorizes the State to proceed even if the inmate has been released....

...15 months to 25 months in the DOC. . He noted that rule 3.800(b) states, “Motions may be filed by the state under this subdivision only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.” . Section 394.9135 provides: Immediate releases from total confinement; transfer of person to department; time limitations on assessment, notification, and filing petition to hold in custody; filing petition after release (1) If the anticipated release...

...and prison credit in addition to the credit for the 177 days he spent in custody prior to the revocation of his probation. On December 6, 2005, Phillips was released from the DOC and was transferred to the Florida Civil Commitment Center pursuant to section 394.9135(1), Florida Statutes (2005)....

...r 2005. Cf. Atkinson, 831 So.2d at 174 (holding that defendant who was resentenced because his prior sentence had been imposed pursuant to unconstitutional sentencing guidelines was not in lawful custody when his sentence expired). We recognize that section 394.9135 provides a procedure for the DOC to initiate commitment proceedings under the Act when the release of an inmate convicted of a qualifying offense "becomes immediate for any reason." However, this "`safety valve'" does not apply becau...

...e the State may initiate commitment proceedings. Larimore, 2 So.3d at 105, 117 (quoting Gordon v. Regier, 839 So.2d 715, 719 (Fla. 2d DCA 2003)). Thus, even though Phillips' release became immediate upon his resentencing by the postconviction court, section 394.9135 was inapplicable....

...In its response to Phillips' petition the State argues that Phillips' reliance on Larimore is misplaced based on a footnote in Larimore in which the court stated as follows: In this case, Larimore's entire resentencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason....

...Campion, 823 So.2d 159, 159 (Fla. 4th DCA 2002); see also Larimore v. State, 2 So.3d 101, 117 (Fla.2008) (quashing decision denying petition for writ of prohibition sought to request dismissal of civil commitment petition based on lack of jurisdiction). [3] Section 394.9135(1), Florida Statutes (2005), provides as follows: If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility. [4] Section 394.9135(2) requires the multidisciplinary team to determine whether the person qualifies as a sexually violent predator within seventy-two hours....

...predator and ordered that he be maintained in DCF custody at the FCCC pending further order. On December 9, 2013, Reed filed a motion to dismiss the petition for lack of jurisdiction. The motion argued that (1) Reed was not in “total confinement”4 when in section 394.9135(2) expired on May 28, 2013. This is not a jurisdictional defect, see § 394.9135(4), Fla. Stat. (2012); Larimore v. State, 2 So. 3d 101, 112-13 (Fla 2008), and Reed does not argue that he was prejudiced by the tardy report. 3 See § 394.9135(3), Fla....

...a sexually violent offense in one of two ways: (1) under section 394.913, Florida Statutes, by giving notice to the multidisciplinary team and state attorney at least 545 days before the person’s anticipated release from total confinement; or (2) under section 394.9135, Florida Statutes, by transferring the person to the custody of DCF upon immediate release from total confinement. See 2 So. 3d at 108. Here, the State initiated the commitment process under section 394.9135. Section 394.9135(1) provides that when a person who has been convicted of a sexually violent offense is about to be released, “the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of...

...upon – meaning, “immediately or very soon after”5 – the person’s release from total confinement, the Florida Supreme Court recently held that the transfer must occur prior to the expiration of the person’s sentence: We hold that lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiration of sentence date....

...When the anticipated release of a corrected sentence is imminent, the DOC may properly initiate the transfer of the individual to the custody of the DCF prior to the expiration of the individual's incarcerative sentence pursuant to section 394.9135(1). Conversely, if the State first initiates commitment 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 gain-time—the individual is not in lawful custody and the circuit court...

...3d 1233, 1242 (Fla. 2013); see also Larimore, 2 So. 3d at 110-11 (“[T]he legislative intent of the Jimmy Ryce Act is that the person is in lawful custody at the time any initial steps are taken in the commitment process under either section 394.913 or 394.9135.”) (emphasis added); State v....

...2d 172, 174 (Fla. 2002) (construing the Jimmy Ryce Act to require “lawful custody,” rather than “actual custody”). 6 5 See, e.g., http://dictionary.reference.com/browse/upon?s=t 6 We share Judge Lawson’s views that the judicial gloss placed upon section 394.9135 by these decisions renders the statute largely meaningless, but we are nevertheless bound by these decisions....

...18, 2002, to cover its failure to fully think through the consequences of the agreement it entered into on April 17, 2002. Id. (citations omitted and emphasis in original). The same is true here; the State cannot utilize section 394.9135(1) on May 24, 2013, to cover its failure to fully think through the consequences of the time-served plea agreement it entered into on May 23, 2013. We have fully considered all of the State’s arguments in support of the tri...

...Reed obtained an order for immediate release while he was in lawful custody, not after his sentence had expired. We are not persuaded by this argument. The State is correct that Larimore and Phillips did not address the question of whether section 394.9135 would allow the State to take steps to initiate a commitment proceeding against a person who, like Reed, obtains an order for immediate release while he was in lawful custody. See Larimore, 2 So. 3d at 117 n.8 (“[W]e do not reach 8 the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason.”) (emphasis in original); Phillips, 119 So....

...However, as we read the broad language in Phillips, even if the person obtained an order for immediate release while in lawful custody, the State would still have to take steps to initiate the commitment process before the person’s sentence expires. See 119 So. 3d at 1242 (“We hold that lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiration of sentence date.”)....

...CTION OVER A PETITION FILED UNDER THE JIMMY RYCE ACT AGAINST A PERSON WHO OBTAINS AN ORDER FOR IMMEDIATE RELEASE WHILE IN LAWFUL CUSTODY WHERE THE COMMITMENT PROCESS IS INITIATED UNDER SECTION 394.9135, FLORIDA STATUTES, AFTER THE PERSON’S SENTENCE EXPIRED BUT BEFORE HE IS ACTUALLY RELEASED? PETITION GRANTED; QUESTION CERTIFIED. LEWIS, C.J., WOLF and WETHERELL, JJ., CONCUR....

...In this case, that appellate court would be the Fourth District Court of Appeal. Petition for Writ of Mandamus DISMISSED. COBB and ORFINGER, R.B., JJ., concur. . We elect to treat his petition as one for mandamus relief. . DCF is the entity responsible for placing detainees in “an appropriate secure facility.” See § 394.9135(1), Fla....

...e: DOES A TRIAL COURT HAVE JURISDICTION OVER A PETITION FILED UNDER THE JIMMY RYCE ACT AGAINST A PERSON WHO OBTAINS AN ORDER FOR IMMEDIATE RELEASE WHILE IN LAWFUL CUSTODY WHERE THE COMMITMENT PROCESS IS INITIATED UNDER SECTION 394.9135, FLORIDA STATUTES, AFTER THE PERSON’S SENTENCE EXPIRED BUT BEFORE HE IS ACTUALLY RELEASED? After further consideration, we have determined that we should exercise our discretion and discharge jurisdiction....