DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BENJAMIN COFFIELD,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
No. 4D20-2250
[April 28, 2021]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John Joseph Murphy, Judge; L.T. Case
No. 16-000042CF10A.
Sean T. Marcus of The Law Offices of Sean Marcus, PLLC, Hialeah, for
petitioner.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard,
Assistant Attorney General, West Palm Beach, for respondent.
ON MOTION FOR REHEARING
GROSS, J.
We grant petitioner’s motion for rehearing and withdraw our order
entered on December 16, 2020.
Petitioner was arrested for “interference with custody,” a third degree
felony, under section 787.03(2), Florida Statutes (2015). More than
twenty-one days after the arrest, the state filed an information charging
petitioner with interference with custody. On that charge, bond was set
at $2,500 at first appearance. Petitioner posted bond on that charge, but
remained in custody on charges unrelated to this case.
Almost ten months after the arrest, the state filed an amended
information adding the charge of lewd and lascivious battery. Two weeks
later, the state served a capias on the new charge upon petitioner at the
jail.
The court held an Arthur 1 hearing on the new charge and denied bond,
finding the proof evident and presumption great.
Sometime later, petitioner moved for an adversarial preliminary hearing
under Florida Rule of Criminal Procedure 3.133(b). As to the lewd and
lascivious battery charge, the trial court denied the motion because the
information was filed before the defendant was served with a capias.
The rule governing an adversary preliminary hearing provides:
A defendant who is not charged in an information or
indictment within 21 days from the date of arrest or service of
the capias on him or her shall have a right to an adversary
preliminary hearing on any felony charge then pending
against the defendant. The subsequent filing of an
information or indictment shall not eliminate a defendant’s
entitlement to this proceeding.
Fla. R. Crim. P. 3.133(b)(1).
As to the interference with custody charge, the state did not file an
information charging that crime until more than twenty-one days had
passed from the date of petitioner’s arrest. Even though petitioner had
posted bond as to that charge, he was nonetheless entitled to an adversary
preliminary hearing. See Bell v. State, 361 So. 2d 818 (Fla. 4th DCA 1978)
(holding that if the State fails to file charges within 21 days from an arrest,
a defendant is entitled to an adversary preliminary hearing even after being
released on a charge).
As to the lewd and lascivious battery charge, the trial court ruled that
Rule 3.133(b)(1) did not apply because the new charge preceded the arrest.
Crucial to this case is how Rule 3.133(b)(1) applies to the lewd and
lascivious battery charge.
We agree with the analysis in Beicke v. Boone, 527 So. 2d 273 (Fla. 1st
DCA 1988). In that case, the First District held that where the state has
not filed charges within twenty-one days of arrest, the defendant is entitled
to an adversary preliminary hearing on all charges pending as a result of
the criminal episode at the time of the adversary preliminary hearing.
1 State v. Arthur, 390 So. 2d 717 (Fla. 1980).
2
The defendant in Beicke was arrested for aggravated battery. When the
state did not file an information within twenty-one days, the defendant
moved for an adversary preliminary hearing. Id. at 274. Twenty-six days
after the arrest, the state filed an information charging the defendant with
both aggravated battery and aggravated assault. Id. At the adversary
preliminary hearing, the state presented no evidence and “conceded that
defendant was entitled to release on his own recognizance on the
aggravated battery charge.” Id. But the trial court ruled that the
defendant was subject to bail on the aggravated assault charge, which it
set at $5,000.
The First District reversed, holding that the defendant was entitled to
be released on the aggravated assault charge because the state had
presented no evidence at the adversary preliminary hearing. The court
held that “the proper construction of the phrase ‘any felony charge then
pending against him’ in Rule 3.133(b)(1) is to include all charges pending
as a result of the criminal episode at the time of the [adversary preliminary]
hearing, not just those made at the time of the arrest.” Id. at 275.
(Emphasis supplied).
The First District reasoned:
The purpose of Rule 3.133(b), it seems to us, is to protect
persons held in custody from remaining there indefinitely on
account of the state’s failure to file formal charges against
them. See Rule 3.131 (the predecessor rule as adopted in
1972) Author’s Comments, 33 West’s Florida Statutes
Annotated. The rule provides for two sanctions against the
state for its failure to file within 21 days: First, the
requirement of presenting evidence at an adversary hearing,
and second, the release of the defendant if probable cause is
not established at the hearing. We do not see how the
respondents’ interpretation of Rule 3.133(b) serves to promote
that purpose because, as petitioner has pointed out, more
than one crime can be charged as a result of many criminal
episodes and the defendant’s rights under 3.133(b) should not
be contingent upon the charges the arresting officer chooses
to include or omit from the complaint.
Id. at 274–75.
Here, petitioner was entitled to a preliminary hearing on the
interference with custody charge. Because the lewd and lascivious battery
charge arose out of the interference with custody of the minor, petitioner
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was entitled to a preliminary hearing on that charge as well. The Arthur
hearing was not a substitute for an adversary preliminary hearing. The
state relied solely on hearsay at the Arthur hearing. We have held that the
state may not rely solely on inadmissible hearsay at an adversary
preliminary hearing. Perry v. Bradshaw, 43 So. 3d 180, 181 (Fla. 4th DCA
2010) (following Evans v. Seagraves, 922 So. 2d 318 (Fla. 1st DCA 2006)).
For these reasons, we grant the petition for certiorari and remand to
the circuit court to conduct an adversary preliminary hearing consistent
with this opinion.
Petition granted and case remanded for proceedings consistent with this
opinion.
WARNER, J., concurs.
MAY, J., dissents with opinion.
MAY, J., dissenting.
I disagree with the majority that the defendant is entitled to an
adversary preliminary hearing on the subsequently added charge of lewd
and lascivious battery. I therefore dissent from the granting of the motion
for rehearing and new majority opinion.
The majority correctly lays out the facts. The State initially arrested
the defendant in January 2016 for interference with the custody of a
minor, a third-degree felony. The probable cause affidavit also listed a
violation of “parole/community control.” More than 21 days elapsed before
the State filed an information charging the defendant with interference
with custody. Bond was set at $2,500. The defendant posted bond but
remained in custody due to the parole hold.
The victim later disclosed that she had sex with defendant, and the
State then filed an amended information adding a lewd and lascivious
battery charge. The State served the defendant with the capias for the new
lewd and lascivious battery charge at the jail in October. The “parole hold”
was then removed in October 2016.
The court held an Arthur hearing on the new lewd and lascivious battery
charge in March 2017. The State relied on its “Arthur hearing packet;” no
witnesses testified. The court denied bond, finding the proof evident and
the presumption great.
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More than three years later, in May 2020, the defendant filed a motion
to reconsider bond (based on the COVID-19 pandemic) and requested an
“adversary preliminary hearing” under rule 3.133(b). The court denied the
defendant’s request, finding the defendant was “not entitled to an
adversary preliminary hearing on the instant lewd and lascivious battery
charge because it was filed by Information on September 29, 2016 and
before the service of the capias on October 13, 2016.”
The defendant then petitioned this court for writs of certiorari and
mandamus. We initially denied the petitions. On the motion for rehearing,
however, the majority decided that even though the information on the
lewd and lascivious battery charge was filed before service of the capias
and while the defendant was in custody, the defendant was still entitled to
an adversary preliminary hearing because the State filed the initial
information on the interference with custody charge beyond the 21-day
time deadline. I disagree.
Before we may grant certiorari relief, the petitioner must establish: (1)
a departure from the essential requirements of law; (2) resulting in
material injury; (3) that cannot be corrected on post-judgment appeal.
Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011). To be entitled to
mandamus relief, the petitioner (1) must have a clear legal right to the
relief; (2) the respondent must have an indisputable legal duty to perform
the requested action; and (3) the petitioner must have no other adequate
remedy at law. Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000).
The rule governing adversary preliminary hearings provides: “A
defendant who is not charged in an information or indictment within 21
days from the date of arrest or service of the capias on him or her shall
have a right to an adversary preliminary hearing on any felony charge then
pending against the defendant. The subsequent filing of an information or
indictment shall not eliminate a defendant’s entitlement to this
proceeding.” Fla. R. Crim. P. 3.133(b)(1) (emphasis supplied).
The defendant argues that the amended information was filed more
than 21 days after his initial arrest, and the rule entitles him to an
adversary preliminary hearing “on all felony charges then pending
against the defendant.” He argues that allowing the State to “break up”
charges would contravene the plain language of the rule and create a “loop
hole” that would “encourage the state – on every case – to hold off on
charging the most serious offenses, and later add those charges by way of
information.”
5
The fatal flaw in the defendant’s argument is that the lewd and
lascivious battery charge could not have been filed within 21 days of the
initial arrest because the victim did not disclose that she had sex with
defendant until months after the initial arrest. The lewd and lascivious
battery offense is distinct and does not arise out of the same criminal
episode as the interference with custody count for which defendant was
initially arrested.
These facts distinguish this case from Beicke v. Boone, 527 So. 2d 273
(Fla. 1st DCA 1988). There, the court held that “the proper construction
of the phrase ‘any felony charge then pending against him’ in Rule
3.133(b)(1) is to include all charges pending as a result of the criminal
episode at the time of the [adversary preliminary] hearing, not just those
made at the time of the arrest.” Id. at 275. (Emphasis supplied).
In Beicke, the State simply added an aggravated assault charge based
on the same acts that led to the initial arrest – the defendant striking his
girlfriend and chasing her. There were no later-discovered acts that led to
a distinct charge like here. The rationale of Beicke that “the defendant's
rights under 3.133(b) should not be contingent upon the charges the
arresting officer chooses to include or omit from the complaint” is
inapplicable. Neither the arresting officer, nor the State, could have
brought the lewd and lascivious battery charge within twenty-one days of
the defendant’s arrest because evidence of that crime was not discovered
until much later.
Here, the alleged acts that led to the interference with custody count
was the defendant maliciously interfering with a parent’s right to custody
by detaining/concealing the victim, who was a runaway. The lewd and
lascivious battery count is based on defendant having sex with the victim,
a fact that was not revealed until months following the defendant’s initial
arrest.
While the offenses are sufficiently connected to be joined under rule
3.150(a), the State could have filed the lewd and lascivious battery count
in a separate case with a new information. The information adding the
newly discovered lewd and lascivious battery offense was filed before
defendant was served with the capias, and the 21-day time limit in rule
3.133(b)(1) was not violated as to this count.
As to the interference with custody count, the majority is correct that
we held in Bell v. State, 312 So.2d 818 (Fla. 4th DCA 1978), that a
defendant is entitled to an adversary preliminary hearing even if he has
posted bond. But see Santopolo v. State, 443 So. 2d 1059 (Fla. 2d DCA
6
1984); Dumlar v. State, 808 So. 2d 272 (Fla. 1st DCA 2002) (disagreeing
with Bell). But such a hearing will not result in the defendant’s release in
this case.
Both certiorari and mandamus are discretionary writs that must be
used with caution and only when compelling circumstances merit
extraordinary relief. See Combs v. State, 436 So. 2d 93, 96 (Fla. 1983)
(recognizing that the writ of certiorari is discretionary and that “[t]he
district courts should exercise this discretion only when there has been a
violation of a clearly established principle of law resulting in a miscarriage
of justice”); State ex rel. Haft v. Adams, 238 So. 2d 843, 844 (Fla. 1970)
(“[M]andamus is a discretionary writ that is awarded, not as a matter of
right, but in the exercise of a sound judicial discretion and upon equitable
principles.”).
Defendant did not request an adversary preliminary hearing prior to
posting bond, prior to the new charges being filed, or prior to the capias
on the new charge being served. In fact, he waited more than four years
from his initial arrest and three and a half years after the capias was
served on the new charge to make his request.
Defendant’s remedy should probable cause not be established for the
interference with custody count at an adversary preliminary hearing would
be release on his own recognizance. Fla. R. Crim. 3.133(b)(5). However,
as it currently stands, he will not be entitled to release from custody
because, as explained above, he is properly held without bond on the lewd
and lascivious battery charge. Thus, there are no compelling
circumstances, at this time, that would warrant this Court exercising its
discretionary writ jurisdiction to grant relief as to the interference with
custody count.
Accordingly, I respectfully dissent and stand by our original decision to
deny the petitions without prejudice to defendant requesting an adversary
preliminary hearing on the interference with custody count should he be
discharged or granted pretrial release on the lewd and lascivious battery
charge.
* * *
7