       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 12, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                 No. 3D18-1320
                            Lower Tribunal No. 13-1105
                               ________________


                                Jose Sardinas,
                                    Petitioner,

                                        vs.

        Daniel Junior, Director, Miami-Dade Corrections and
        Rehabilitation Department, and The State of Florida,
                                  Respondents.



     A Case of Original Jurisdiction – Habeas Corpus.

     Carlos J. Martinez, Public Defender, and James Odell, Assistant Public
Defender, for petitioner.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for respondent The State of Florida.


Before SALTER, LOGUE, and LINDSEY, JJ.

     LINDSEY, J.
        Jose Sardinas petitions this Court to issue a writ of habeas corpus ordering

the trial court to set conditions for his pretrial release. For the reasons set forth

below, we deny the petition.

        Mr. Sardinas was arrested on January 15, 2018 and charged with aggravated

assault with a deadly weapon. Since that time, Mr. Sardinas has failed to comply

with the conditions of his pretrial release on at least three separate occasions. His

most recent arrest stems from an alias capias issued on December 4, 2015 and

served on June 15, 2018.

        On June 24, 2018, Mr. Sardinas’ counsel filed a motion entitled, Motion to

Instate Bond, requesting that a bond be set and contending that the trial court

cannot hold him in pretrial detention without a written motion filed by the State.

The next day, on June 25, 2018, the State filed a motion entitled, State’s Motion to

Revoke the Defendant’s Bond Pursuant to Rule 3.131, wherein the State asserted

that:

              There has been a change in circumstances since the First
              Appearance Judge heard bond arguments: the Defendant
              has absconded the Honorable Court for over two years,
              demonstrating that the Defendant poses an increased risk
              of flight. This Court is bound to consider any condition
              deemed necessary to assure a defendant’s appearance as
              required, and the penalty the Defendant now faces
              increased flight liability since he has absconded this
              Court over two years. Therefore, the Defendant’s bond
              should reflect accordingly to assure his presence in court.




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The trial court heard both motions on June 25, 2018. At the hearing, Mr. Sardinas,

through counsel, represented that he has family in the community, is not working,

was originally released to the pretrial intervention (PTI) program, that there were

“some failures to appear,” and that his bond was revoked on December 4, 2015.

He further represented, through counsel, that he was willing to comply with any

requirement of the court, including house arrest with a monitor, yet was unable to

provide a current address.

      The State argued that the only way to secure Mr. Sardinas’ presence before

the court was to hold him in custody and expressed concern over the number of

years he had been absent from the court, that he was a flight risk and, that even on

house arrest, there would be no way to know where he is staying.

      At the conclusion of the hearing, the trial court stated: “Under the

circumstances, the [c]ourt is going to hold the defendant no bond and make a

finding that there is no condition of release that I can set that will reasonably

assure his appearance and the safety of the community against the factual

background I just reviewed.” The trial court based its determination to hold Mr.

Sardinas on the fact that: (1) it’s “a case involving violence,” (2) he is not “a native

and a citizen of the United States,” (3) he “has been missing for about three years

from the proceedings in this case, since the AC [alias capias],” (4) he is not

employed, and (5) he is homeless which gives rise to a concern that “we wouldn’t



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know where to find him potentially.” On June 29, 2018, the instant petition was

filed.

         In the petition, Mr. Sardinas contends that the State’s motion was facially

insufficient to initiate pretrial detention proceedings pursuant to section 907.041,

Florida Statutes (2018), and Florida Rule of Criminal Procedure 3.131. As such,

Mr. Sardinas contends that “[w]hen the State does not file a motion for pretrial

detention a court ‘is not authorized to impose pretrial detention.’” Resendes v.

Bradshaw, 935 So. 2d 19, 20 (Fla. 4th DCA 2006).

         In Bratton v. Ryan, this Court explained that:

               In State v. Paul, 783 So. 2d 1042, 1051 (Fla. 2001), the
               Florida Supreme Court held that when a defendant
               breaches a bond condition and his bond is revoked, the
               trial court may deny the defendant's subsequent request
               for a new bond, but the trial court's discretion is limited
               by Florida statutes. Section 907.041(4)(c)(7) provides
               that:

                      (c) The court may order pretrial detention if
                      it finds a substantial probability, based on a
                      defendant's past and present patterns of
                      behavior, the criteria in s. 903.046, and any
                      other relevant facts, that any of the
                      following circumstances exist:

                      ....

                      7. The defendant has violated one or more
                      conditions of pretrial release or bond for the
                      offense currently before the court and the
                      violation, in the discretion of the court,
                      supports a finding that no conditions of


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                   release can reasonably protect the
                   community from risk of physical harm to
                   persons or assure the presence of the
                   accused at trial[.]

             Among the criteria in section 903.046 that the trial court
             may consider is "[t]he defendant's past and present
             conduct, including . . . failure to appear at court
             proceedings." § 903.046(2)(d).

133 So. 3d 1158, 1159 (Fla. 3d DCA 2014) (alterations in original).

      In Bratton, the defendant’s bond was revoked for failing to appear for a

pretrial sounding after receiving notice. Id. at 1159. The defendant contended he

was “entitled to a full hearing and findings by the trial court pursuant to sections

907.041 and 903.046, Florida Statutes (2014)[.]” Id. This Court granted the

petition and reversed because the trial court failed to make the requisite findings.

Id.

      Here, the trial court considered at least five factors in determining that no

conditions of release can reasonably protect the community from risk of physical

harm to persons or assure the presence of the accused at trial.           Further, the

transcript of the hearing reflects that the following exchange occurred between the

trial court and Mr. Sardinas’ counsel:

             THE COURT: Okay, and the State didn’t actually move
             for pretrial detention, right?

             [MR. SARDINAS’ COUNSEL]: Correct, Your Honor.




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THE COURT: Okay. So you want me to review it and set
a bond if that’s appropriate, right?

[MR. SARDINAS’ COUNSEL]: Yes, Your Honor.

THE COURT: Okay. Tell me Mr. Sardinas’s
background; tell me a little bit about his - - his ties to the
community, his background.
       What was the original bond set at and what - -
even if I feel that it was a willful failure to appear, you
maintain that I still should take a look at it, and see if
there’s appropriate bond that can be set, right?

[MR. SARDINAS’ COUNSEL]: Correct, Your Honor.

THE COURT: Okay. So tell me a little bit about your
client - -

....

THE COURT: Okay. Any other things you need to tell
me before I hear from the State?

[MR. SARDINAS’ COUNSEL]: No, Your Honor.

....

THE COURT: Okay. State, what do you want to tell me
about this from your perspective?

[THE STATE]: Your Honor, so from a procedural
standpoint first, in case it was not clear in the past, the
State is making a motion to increase or revoke the
defendant’s bond - -

THE COURT: Okay.

[THE STATE]: So there’d be a point that they’re asking
for a written motion, the State does have a written motion
today.


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             THE COURT: Okay.

             [THE STATE]: If that pleases the Court and pleases the
             defense attorney, so now it is in writing that we are
             requesting to revoke the defendant’s bond pursuant to
             Rule 3.131.

             THE COURT: Okay, if you do that, aren’t the - - is - -
             procedurally, are they entitled to some additional time? I
             don’t know if they want to have it heard today or not?

             [THE STATE]: Your honor, if they do want additional
             time, it’s fine. This is a standard motion. . . .

To the extent Mr. Sardinas alleges in the instant petition that the trial court could

not order pretrial detention absent a written motion filed by the State, the State

expressly clarified on the record that it had filed a written motion and was seeking

to revoke Mr. Sardinas’ bond pursuant to Rule 3.131. Further once the State made

clear on the record that it was seeking to have Mr. Sardinas held in custody, there

was neither an objection to the form of the State’s request nor a request for a

different form of written motion.

      In addition, the trial court specifically raised the issue as to whether Mr.

Sardinas needed additional time to respond to the State’s motion (to which the

State responded it had no objection). The trial court then inquired as to whether

Mr. Sardinas wanted the court to hear the State’s motion or whether he needed

additional time to respond. Although Mr. Sardinas did argue, through counsel, for




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some form of pretrial release, he neither objected to the State’s motion being heard

nor accepted the trial court’s invitation to take additional time.

      PETITION DENIED.




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