Third District Court of Appeal
State of Florida
Opinion filed June 25, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1355
Lower Tribunal No. F21-3740
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Wesley Ward,
Petitioner,
vs.
Daniel Junior, etc., et al.,
Respondents.
A Case of Original Jurisdiction – Habeas Corpus.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger,
Assistant Public Defender, for petitioner.
Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney
General, for respondent The State of Florida; and Abigail Price-Williams,
Miami-Dade County Attorney and Benjamin D. Simon, Assistant County
Attorney, for respondent Daniel Junior.
Before EMAS, C.J., and HENDON, and MILLER, JJ.
MILLER, J.
Petitioner, Wesley Ward, seeks relief in habeas corpus, contending he
is being illegally detained in custody without bond. Following our own
independent review of the record and the State’s proper concession of error,
we grant the petition.
Ward was charged by information with possession of a concealed
weapon by a convicted felon, in violation of sections 790.23(1)(a) and
775.087(4), Florida Statutes, and possession of a controlled substance, in
violation of section 893.13(6)(a), Florida Statutes. The lower tribunal initially
set a monetary bond, but, after Ward sought a bond modification, he was
released on house arrest. Ward then violated the conditions of his release
and was ordered back into custody, to be held without bond. A motion to
reinstate previous release conditions proved unfruitful, and the instant
petition ensued.
Article I, section 14 of the Florida Constitution provides,
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 be detained.
Echoing these principles, Florida Rule of Criminal Procedure 3.131 states,
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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 be detained.
Here, it is axiomatic Ward was charged with bondable offenses. He
committed no new law violation, and the State failed to file a written motion
for pretrial detention. See § 907.041(4)(c)(5), Fla. Stat. As we held in
Ginsberg v. Ryan, 60 So. 3d 475, 477 (Fla. 3d DCA 2011) and numerous
cases since,
A defendant who violates a condition of his pretrial release
forfeits his right to continued release under the original bond, but
does not forfeit altogether his constitutional right to pretrial
release. A trial court's authority to hold the defendant without
any bond is circumscribed by the provisions of section 907.041,
see State v. Paul, 783 So. 2d 1042 (Fla. 2001), and the trial court
must consider and follow the pertinent provisions of the pretrial
detention statute, as well as Rules 3.131 and 3.132. Roby v.
State, 795 So. 2d 189 (Fla. 3d DCA 2001). “A final order of
pretrial detention shall be entered only after a hearing . . . [and]
shall be held within [five] days of the filing of the motion or the
date of taking the person in custody . . . whichever is later.” Fla.
R. Crim. P. 3.132(c)(1). The defendant “is entitled to be
represented by counsel, to present witnesses and evidence and
to cross-examine witnesses.” § 907.041(4)(h). Finally, the
pretrial detention order “shall contain findings of fact and
conclusions of law to support it.” § 907.041(4)(i); Fla. R. Crim.
P. 3.132(2).
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See Joseph v. Junior, No. 3D21-1025, 46 Fla. L. Weekly D1103 (Fla. 3d
DCA May 11, 2021); Orfelia v. Junior, 3D21-1052, 46 Fla. L. Weekly D1065
(Fla. 3d DCA May 7, 2021); Guzman v. Junior, 211 So. 3d 1098, 1099 (Fla.
3d DCA 2017); Bratton v. Ryan, 133 So. 3d 1158, 1159 (Fla. 3d DCA 2014).
Accordingly, we grant the petition for writ of habeas corpus and remand
this cause to the trial court. The State shall have no more than three
business days following the issuance of this opinion to file a legally sufficient
motion for pretrial detention. Should the State fail to file such a motion, the
trial court shall immediately conduct a hearing pursuant to Florida Rule of
Criminal Procedure 3.131 to determine appropriate conditions of release.
The defendant shall remain in custody pending the determination of pretrial
release or detention.
This opinion shall take effect immediately notwithstanding the filing or
disposition of any motion for rehearing.
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