final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Habeas Corpus. Lower Tribunal No.
J. Martinez, Public Defender and Jeffrey Paul DeSousa,
Assistant Public Defender, for petitioner.
Jo Bondi, Attorney General and Kayla H. McNab, Assistant
Attorney General, for respondent.
SUAREZ, SALTER and FERNANDEZ, JJ.
Moise Harvey petitions this Court for a writ of habeas
corpus, claiming the trial court's grant of the
state's motion for pretrial detention and revocation of
bond is unlawful. We grant the petition for habeas corpus.
record shows that Petitioner Moise Harvey is charged with a
non-violent, third-degree felony and a misdemeanor after he
allegedly attempted to cash a couple of forged checks. He was
initially released on bond pending trial, set for September
11, 2017. Petitioner was given oral notice of that hearing
date at his arraignment on July 3, 2017. Due to Hurricane
Irma, the Eleventh Judicial Circuit was closed beginning
September 7, reopening for normal operations on September 18,
2017. As the courthouse was shuttered for the storm on the
scheduled date of Petitioner's trial, at a subsequent
hearing on September 20 the trial judge took a court
continuance and set the case for trial on October 2.
Petitioner was not present in the courtroom on September 20,
having never been notified-either orally or in writing-that
his case would be called that day for any purpose. When he
failed to appear for the hearing on October 2, 2017, a
warrant was issued for his arrest. The Petitioner's
bondsman moved to quash the warrant, and the Petitioner
voluntarily appeared at the subsequent hearing on November 9,
2017. He explained to the trial court that he did not come to
court on September 11 because "it was like, after the
hurricane, like, the day after, " and he had no
electricity or cell phone charge.
review of the transcript from the hearing on November 9, 2017
shows that the trial court revoked the Petitioner's
existing bond and, rather than set a higher bond or impose
additional conditions of pretrial release, invited the State
to move for pretrial detention. After hearing defense counsel
strenuously argue against pretrial detention, the trial court
found the Petitioner's failure to appear at the last
scheduled hearing to be willful, and found that there were no
conditions of release that could "reasonably protect the
community from physical harm to persons or assure the
presence of the accused at trial." The trial court
revoked the Petitioner's bond, granted the state's
motion for pretrial detention and incarcerated the Petitioner
to await his January 16, 2018 trial date.
907.041, Florida Statutes (2017), provides that it is the
intent of the Legislature to create a presumption in favor of
pretrial release, whether on non-monetary or monetary
conditions. Florida Rule of Criminal Procedure 3.131, states
in relevant portion:
(a) Right to Pretrial Release. Unless charged with a capital
offense or an offense punishable by life imprisonment and the
proof of guilt is evident or the presumption is great, every
person charged with a crime or violation of municipal or
county ordinance shall be entitled to pretrial release on
reasonable conditions . . . . If no conditions of release can
reasonably protect the community from risk of physical harm
to persons, assure the presence of the accused at trial, or
assure the integrity of the judicial process, the accused may
Fla. R. Crim. P. 3.131(a). Further, it is the State's
burden to show the need for pretrial detention. Fla. R. Crim.
P. 3.132(c)(1). Not only did the State in this case fail to
show that the Petitioner's failure to appear at his last
court date was willful, it also failed to show that there
were less onerous conditions that could be imposed to assure
the Petitioner's appearance at future court dates.
See, e.g., State v. Blair, 39 So.3d 1190,
1191-92 (Fla. 2010) ("Pretrial detention may not be
ordered based on a failure to appear unless the court finds
that the failure to appear was willful."); Williams
v. State, 68 So.3d 1010, 1011 (Fla. 4th DCA 2011).
"[E]ven where a defendant has violated pretrial release
conditions, such as through a failure to appear, " there
is a "presumption in favor of release" that the
State may overcome only by showing that other available
measures will be insufficient to guarantee the
defendant's presence at future hearings. Blair,
39 So.3d at 1194-95; see also Mendoza v. Cross, 143
So.3d 1155, 1157 (Fla. 3d DCA 2014) (holding that, despite
defendant's two prior failures to appear in the same
case, that trial court erred in detaining defendant pretrial
without making a finding that no conditions of release could
assure his presence). A pretrial detention order must contain
findings of fact and conclusions of law showing that the
constitutional and statutory criteria for pretrial detention
are met. See Fla. R. Crim. P. 3.132(c)(2); §
907.041(4)(i), Fla. Stat. (2017); State v. Paul, 783
So.2d 1042 (Fla. 2001).
insufficient evidence of willfulness in this record. The
Petitioner's failure to attend his last hearing was not
willful; South Florida was still recovering from Hurricane
Irma a few days earlier and the Petitioner had no power, no
generator, and no way to charge his phone. He lives with an
aunt but received mail at a different address and was not
notified by his bondsman of the new hearing date. He
testified that he attempted to contact the court but could
not verify that it was open. We therefore grant the writ of
habeas corpus. The trial court shall, no later than 5:00 p.m.
Wednesday, November 22, 2017, conduct a hearing pursuant to
Florida Rules of Criminal Procedure 3.131 and 3.132, and
section 907.041, Florida Statutes (2017). The Defendant shall
remain in custody pending the determination of pretrial
opinion shall take effect immediately notwithstanding the
filing or ...