        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

        FRANCHY LOPEZ HERNANDEZ and GENEROSO BANOS,
                         Petitioners,

                                        v.

                             STATE OF FLORIDA,
                                Respondent.

                       Nos. 4D19-1413 and 4D19-1428

                               [August 14, 2019]

   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



1
 As the underlying facts of these two consolidated cases differ slightly, they will
be discussed separately.
  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 ordered that
he appear by phone at the next calendar call in June.

   The instant petition followed.

                              Banos v. State

   In November 2017, Banos was charged with battery on a law
enforcement officer. In June 2018, Banos signed a 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.”

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   On May 6, 2019, Banos was scheduled for calendar call, where counsel
appeared on his behalf and informed the court that Banos was a dialysis
patient and had a signed waiver of appearance. Counsel objected to the
court’s requirement that he appear at calendar call that day.

   The court responded that it had a “right on all its cases to make an
inquiry to the defendant so we know where we’re at, so the client knows
where it’s at, what’s going on in terms of any offers. And the waiver was
signed last June.”

   The court ultimately required that Banos appear by phone at the next
calendar call on May 20th.

   The instant petition followed.

                                    Analysis

   The Florida Rules of Criminal Procedure permit a defendant to waive
his or her appearance in writing at any pretrial conference. See Fla. R.
Crim. P. 3.180(a)(3); see also Fla. R. Crim. P. 3.220(o)(1) (“The trial court
may hold 1 or more pretrial conferences, with trial counsel present, to
consider such matters as will promote a fair and expeditious trial. The
defendant shall be present unless the defendant waives this in writing.”)
(emphasis added).

    In Lynch v. State, 736 So. 2d 1221, 1221-22 (Fla. 5th DCA 1999), the
Fifth District granted a petition for mandamus where the trial court
refused to accept a waiver of appearance at the outset of the defendant’s
case. The Fifth District determined that the trial court’s requirement was
in direct contravention of the rules of criminal procedure. Id. at 1221.

   This Court adopted the reasoning in Lynch. Stout v. State, 795 So. 2d
227, 228 (Fla. 4th DCA 2001) (granting petition for mandamus where trial
court required that defendants be present at pretrial status conferences
because “most pleas were . . . entered at status conferences”).

    The Third District distinguished Lynch and Stout and determined that
a “trial court can require the personal presence of the defendant in court,
notwithstanding [a] waiver, if there is a good reason to do so.” Cruz v.
State, 822 So. 2d 595, 596 (Fla. 3d DCA 2002) (citations omitted); see also
Jimenez v. State, 201 So. 3d 214, 216-17 (Fla. 2d DCA 2016) (prohibiting
trial court’s “direct contravention” of rules of criminal procedure when the
court required that all defendants attend disposition and pretrial hearings,

                                       3
but noting that a court may require attendance if there is “good reason to
do so”).

   Here, we note that unlike Lynch and Stout, the court did not have a
blanket policy of requiring that the defendants be present at the outset.
Instead, the court initially honored the waivers, but after calendar calls
were repeatedly continued, the court then rejected the waivers and decided
to require that the defendants appear in court and then subsequently by
phone.

   That basis is more compelling in Banos’s case, where the court
attempted to articulate good cause when the court stated that it had “a
right on all its cases to make an inquiry to the defendant so we know where
we’re at, so the client knows what’s going on in terms of any offers.”
Nevertheless, there is nothing in the record to suggest that requiring his
presence would have resulted in the case being resolved, or that there was
even a plea offer extended from the State.

    Unlike Banos’s case, where the court attempted to articulate a reason
for requiring his presence, in Hernandez’s case, the court’s sole reasoning
was based on the number of times that the case had been continued.
There was no indication of what value would occur by requiring that
Hernandez appear in court.

   In short, because there was no clearly stated basis for requiring that
either Hernandez or Banos appear in court or any specific articulation of
what would be achieved if they appeared, we grant the petitions.

   Petitions granted; writ of mandamus issued.

WARNER, MAY and GERBER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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