       Third District Court of Appeal
                              State of Florida

                          Opinion filed July 27, 2018.
                             ________________

                               No. 3D18-1469
                          Lower Tribunal No. 18-8993
                             ________________


                            Pamela Westberry,
                                   Petitioner,

                                      vs.

                           The State of Florida,
                                  Respondent.


      A Case of Original Jurisdiction – Habeas Corpus.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for petitioner.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for respondent.


Before LAGOA, EMAS, and LOGUE, JJ.

      LOGUE, J.
      Pamela Westberry petitions this court for a writ of habeas corpus to quash an

alias capias, or bench warrant, issued for her arrest. Based on well-established

precedent and the State’s commendable confession of error, we grant the petition.

      Westberry was arrested for possession of narcotics. Through counsel she

filed a written waiver of her right to be present at pretrial conferences as authorized

by Florida Rule of Criminal Procedure 3.180(a)(3). After the information was

filed, she entered a plea of not guilty through counsel, which was accepted by the

court. Later, when Westberry was not present at a hearing which the trial court

had set to review plea negotiations, the trial court over objection issued an alias

capias, concluding that Westberry was “noticed to appear” and that “no good cause

has been provided for her failure to appear.” Westberry then petitioned this court

for a writ of habeas corpus.

      The trial court erred because Westberry had properly waived her presence in

court under Florida Rule of Criminal Procedure 3.180(a)(3). While, “if there is

good reason to do so, a trial court may require the presence of the defendant in

court even when the defendant has filed a written waiver,” the trial court must

clearly advise defense counsel and the defendant that the defendant’s personal

presence is required. Charlemagne v. Guevara, 183 So. 3d 1261, 1263 (Fla. 3d

DCA 2016) (citing Cruz v. State, 822 So. 2d 595, 596 (Fla. 3d DCA 2002)). Here,




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the record does not indicate that the trial court clearly advised Westberry that her

presence was required. The State has so conceded.

      Accordingly, we grant the petition for writ of habeas corpus and quash the

alias capias. This decision shall take effect immediately, notwithstanding the filing

of any post-opinion motions.




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