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Ysaza v. State

Florida Court of Appeals, Fourth District

June 14, 2017

OMAR YSAZA, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael Davis, Judge; L.T. Case No. 17-01263CF10A.

          Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for petitioner.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for respondent.

          ON PETITIONER'S MOTION FOR CLARIFICATION

          Gerber, J.

         We grant the defendant-petitioner's motion for clarification, withdraw this Court's opinion issued May 10, 2017, and substitute this opinion.

         The defendant petitions for a writ of habeas corpus. He is charged with numerous first degree felonies punishable by life. He argues that the first appearance judge erred in holding him without bond without determining whether the probable cause affidavit established that proof of guilt was evident or the presumption was great. We agree that the first appearance judge erred in this regard. However, we conclude the error was harmless because the probable cause affidavit establishes that proof of the defendant's guilt is evident and the presumption is great. Therefore, we deny the petition without prejudice for petitioner to request an Arthur[1] hearing before the assigned judge.

         Procedural History

         At first appearance, the judge found probable cause for the offenses. The State asked that the defendant be held without bond, arguing that the probable cause affidavit established proof of guilt was evident or the presumption was great.

         The defendant responded that the State had not expressed an intent to file a motion for pretrial detention and that he could not be detained without bond based on only a probable cause finding. The defendant asked that, if the first appearance judge was finding only probable cause, then the State should be required to file a motion for pretrial detention to be heard by the judge to whom the case would be assigned.

         The State replied that it had not filed a motion for pretrial detention, and it was asking that the defendant be held without bond because the defendant was charged with offenses punishable by life and the probable cause affidavit established proof of guilt was evident or the presumption was great.

         The first appearance judge believed that, pursuant to Brackett v. State, 773 So.2d 564 (Fla. 4th DCA 2000), it could order the defendant held without bond at first appearance pending an Arthur hearing with the judge to whom the case would be assigned. The defendant objected that the first appearance judge would at least have to make a finding that proof of guilt was evident or the presumption was great. However, the first appearance judge stated that he read Brackett to indicate that the "proof evident, presumption great" finding does not have to occur at first appearance, and that "a full evidentiary Arthur hearing with witnesses, subpoenas, sworn statements is most appropriate" with the judge to whom the case would be assigned. The first appearance judge concluded by suggesting that defense counsel seek relief from this Court.

         This petition followed. The defendant argues that the first appearance judge erred in holding him without bond without determining whether the probable cause affidavit established that proof of guilt was evident or the presumption was great. In its response to this Court's order to show cause, the State acknowledges that the "first appearance [judge] may have misinterpreted Brackett's requirement that the first appearance [judge] make the determination whether the State satisfied 'the proof of guilt evident and the presumption ...


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