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Hernandez v. State

Florida Court of Appeals, Fourth District

August 14, 2019

FRANCHY LOPEZ HERNANDEZ and GENEROSO BANOS, Petitioners,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Consolidated petitions for writ of mandamus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barbara A. McCarthy, Judge; L.T. Case Nos. 17006590CF10A and 17012944CF10A.

          Howard Finkelstein, Public Defender, and Gustavo Martinez, Assistant Public Defender, Fort Lauderdale, for petitioners.

          Ashley Moody, Attorney General, Tallahassee, Georgina Jimenez-Orosa, and Joseph D. Coronato, Jr., Assistant Attorneys General, West Palm Beach, for respondent.

          PER CURIAM.

         Franchy Lopez Hernandez and Generoso Banos filed petitions for writs of mandamus seeking to compel the trial court to accept their written waivers of appearance for calendar call hearings.

         We grant the petitions because the trial court did not specifically articulate why their presence was mandatory or what value would occur by requiring their appearances.[1]

         Background

         Hernandez v. State

         In July 2017, Hernandez was charged with one count of grand theft. In December 2017, he filed his written waiver of appearance, which stated:

COMES NOW the Defendant, through undersigned counsel, pursuant to Florida Rules of Criminal Procedure 3.180(a)(3), and 3.220(o)(1), and Lynch v. State, 736 So.2d 1221 (Fla. 5th DCA 1999) and Stout v. State, 795 So.2d 227 (Fla. 4th DCA 2001) hereby files this written waiver of his/her appearance from any Pretrial Conferences which may occur during the pendency of this case.
"I hereby waive my appearance at any Pretrial Conferences which may occur in the above-styled case."

         On May 6, 2019, Hernandez was scheduled for calendar call, and his counsel appeared on his behalf. Once the case was called, the court noted that there had been "ten calendar calls, all continued." Counsel explained that Hernandez's job restricted him from taking days off work and informed the court that Hernandez had a signed waiver of appearance filed with the court.

         The court responded that it had been almost a year since the waiver was signed and ordered that Hernandez appear on May 20, 2019. Hernandez appeared as required on that date, and the court ...


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