       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 11, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-545
                     Lower Tribunal Nos. 16-1773, 16-1899
                             ________________


                           Ida Kendrick-Nelson,
                                    Petitioner,

                                        vs.

                      Marydell Guevara, etc., et al.,
                                  Respondents.



      A Case of Original Jurisdiction – Habeas Corpus.

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant
Attorney General; Abigail Price-Williams, Miami-Dade County Attorney, and
Benjamin D. Simon, Assistant County Attorney, for respondents.


Before EMAS, LOGUE and SCALES, JJ.

      EMAS, J.
      Kendrick-Nelson filed a petition for writ of habeas corpus, contending that

the trial court failed to make the necessary findings and determination that her

violation of a condition of release (i.e., her failure to appear) was willful and that

there were no reasonable conditions of pretrial release to protect the community

from risk of physical harm to person and to assure Kendrick-Nelson’s appearance

in court.

      A review of the record reveals that the trial court failed to make the

necessary findings.1    Before a trial court may order pretrial detention of a

defendant for violating a condition of release by a failure to appear, the court must

find that the failure to appear was willful. State v. Blair, 39 So. 3d 1190, 1191

(Fla. 2010). The trial court did not make a finding of willfulness.

      Further, the trial court failed to make the additional finding required by

section 907.041, Florida Statutes (2016), which provides in pertinent part:

      (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 exists:


1 We have previously rejected the State’s argument that these findings could be
implied from the transcript. Mendoza v. Cross, 143 So. 3d 1155, 1157 (Fla. 3d
DCA 2014) (observing that “[w]e decline to hold that this judicial determination
may be implied from the transcript, especially given the constitutional dimension
of an accused's right to pretrial release.”). See also Fla. R. Crim. P. 3.132(c)(2)
(providing “[t]he court's pretrial detention order. . . shall contain findings of fact
and conclusions of law to support it. The order shall be made either in writing or
orally on the record.”).

                                          2
      ....

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

§ 907.041(4)(c)7., Fla. Stat. (2016) (emphasis added). See also Art. I, § 14, Fla.

Const.; Fla. R. Crim. P. 3.131(a).

      Given the absence of any such findings, we grant the petition, withhold

formal issuance of the writ, and direct the trial court to immediately conduct a

hearing and for further proceedings consistent with this opinion. This opinion shall

become effective immediately, notwithstanding the filing of any motion for

rehearing.

      Petition granted.




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