         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-5337
                  _____________________________

KYSHONDA WILLIAMS,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Mandamus—Original Jurisdiction.


                          May 30, 2019


PER CURIAM.

     Kyshonda Williams filed a petition for writ of mandamus to
compel the trial court in her pending criminal case to hold an
adversary preliminary hearing. We conclude that Petitioner does
not have a clear legal right to the hearing under rule 3.133(b) and
deny the petition.

     After Petitioner was arrested in September 2018, she posted
bail and was released with conditions. In November 2018, the
State formally charged her with two counts of possession of a
controlled substance, one count of use of a weapon in commission
of a felony, and one count of possession of cannabis. Later that
November, Petitioner filed a motion for an adversarial probable
cause hearing. She alleged that the pretrial release conditions
amounted to a restraint on her liberty and that the rules of
criminal procedure entitled her to an adversary preliminary
hearing. After denying Petitioner’s motion, the court modified her
pretrial release conditions. They included requiring her to avoid
illegal drugs, complete a urinalysis once a week, and avoid contact
with her co-defendant husband, except for allowing contact
through a third party “for purposes of childcare and parenting.”
Petitioner now seeks mandamus relief and to compel the trial court
to hold an adversary preliminary hearing.

     “In order to be entitled to a writ of mandamus, the petitioner
must have a clear legal right to the requested relief, the respondent
must have an indisputable legal duty to perform the requested
action, and the petitioner must have no other adequate remedy
available.” Fla. Agency for Health Care Admin. v. Zuckerman
Spaeder, LLP, 221 So. 3d 1260, 1263 (Fla. 1st DCA 2017) (citation
omitted). The right must already be clearly established and
mandamus may not be used to establish a right. Id.

    Petitioner contends that rules set forth her right to an
adversary preliminary hearing and the opportunity for release
with the conditions removed. Florida Rule of Criminal Procedure
3.133(b)(1) provides:

    A defendant who is not charged in an information or
    indictment within 21 days from the date of arrest or
    service of the capias on him or her shall have a right to
    an adversary preliminary hearing on any felony charge
    then pending against the defendant. The subsequent
    filing of an information or indictment shall not eliminate
    a defendant’s entitlement to this proceeding.

If, after a hearing, the court finds no probable cause, but an
information has been filed, then “the defendant shall be released
on recognizance,” without “any restraint on liberty other than
appearing for trial.” Fla. R. Crim. P. 3.133(b)(5).

     Contrary to Petitioner’s understanding of the rule, however,
this Court has held that no adversary preliminary hearing is
required where a defendant has posted bail and is already on
pretrial release. Dumlar v. State, 808 So. 2d 272, 273 (Fla. 1st DCA
2002); contra Santopolo v. State, 443 So. 2d 1059 (Fla. 2d DCA
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1984). In Dumlar, we concluded that because a defendant’s remedy
at such a rule 3.133(b)(5) hearing—release on recognizance—is
essentially the same as what the defendant already has received—
pretrial release after posting bail—that a hearing is not necessary.
Id. We said that the difference between release on recognizance
and release on bail “is not of such a magnitude that a Rule 3.133(b)
hearing is necessary.” Id. We recognize further that the rules
contemplate trial courts attaching conditions accompanying a
defendant’s release on bail. See Fla. R. Crim. P. 3.131 (requiring
defendants to comply with the conditions of pretrial release
ordered by the court).

     Thus, in view of Dumlar, we cannot conclude that Petitioner
has a clear legal right to an adversary preliminary hearing under
rule 3.133(b).

    Petition DENIED.

RAY, OSTERHAUS, and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Alex Christiano of Anabelle Dias, P.A., Tallahassee, for Petitioner.

Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau
Chief, Tallahassee, for Respondent.




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