      Third District Court of Appeal
                               State of Florida

                          Opinion filed August 7, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-1863
                           Lower Tribunal No. 14-666
                              ________________


                            Juan Ospina Mendoza,
                                  Petitioner,

                                        vs.

                           Ray Cross, etc., et al.,
                                  Respondents.



     A Case of Original Jurisdiction – Habeas Corpus.

     David J. Sobel (Fort Lauderdale), for petitioner.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for respondents.


Before SHEPHERD, C.J., and SUAREZ and EMAS, JJ.

     EMAS, J.
          While out of custody on bond, Juan Mendoza failed to appear for his trial on

June 23, 2014. The trial court estreated his bond and issued a warrant for his

arrest.

          Mendoza’s attorney thereafter filed a motion to quash the warrant, asserting

that Mendoza failed to appear that day because he overslept. A hearing was

scheduled on that motion for June 27, but Mendoza failed to appear at that hearing.

It was later rescheduled for July 2. Prior to July 2, however, Mendoza was arrested

in Hernando County on the outstanding warrant, and thereafter held without bond.

          Mendoza hired new counsel who filed a motion to set bond, which was

heard before the trial judge.       At that hearing, the trial judge determined that

Mendoza’s failure to appear for trial based on having overslept was willful, denied

the motion to set bond, and continued to hold Mendoza in custody and without

bond pending trial.

          Mendoza filed the instant petition for writ of habeas corpus, contending that

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

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

risk of physical harm to person and to assure Mendoza’s appearance in court. We

agree.

          A review of the transcript reveals that, although the trial court did make a

finding that Mendoza wilfully violated a condition of pretrial release by his failure



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to appear for trial, it failed to make the additional finding required under section

907.041(4), 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:

         ....

         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.

         § 904.071(4)(c)7., Fla. Stat. (2014). See also Art. I, § 14, Fla. Const.; Fla. R.

Crim. P. 3.131(a).

         A defendant may not be held without bond (i.e., pretrial detention) upon the

sole finding that the defendant violated a condition of pretrial release by willfully

failing to appear. Rather the trial court must make the additional finding that no

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

harm to persons or assure the presence of the defendant at trial. State v. Blair, 39

So. 3d 1190 (Fla. 3d DCA 2010).

         We decline to adopt the State’s view that this judicial determination may be

implied from the transcript,1 especially given the constitutional dimension of an

1   In its response to the petition, the State contended that a “judicial determination at

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accused’s right to pretrial release.2 Moreover, the trial court’s “pretrial detention

order shall be based solely on evidence produced at the hearing and 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.” Fla. R. Crim. P. 3.132(c)(2) (emphasis

added). Finally, even if we were so inclined, a review of the transcript reveals no

such implied determination.

      We therefore 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.




a bond hearing may be expressly stated or implied from the transcript”, citing
Blair, 39 So. 3d at 1194. The Court in Blair made no such pronouncement, but
rather merely observed, in its analysis, that “[a]fter a careful review of the bond
hearing transcript, it does not appear that the trial court ever made such a
determination, either expressly or impliedly.”
2 Article I, section 14 of the Florida Constitution provides:



      Unless charged with a capital offense or an offense punishable by life
      imprisonment and the proof of guilt is evident or the presumption is
      great, every person charged with a crime or violation of municipal or
      county ordinance shall be entitled to pretrial release on reasonable
      conditions. If no conditions of release can reasonably protect the
      community from risk of physical harm to persons, assure the presence
      of the accused at trial, or assure the integrity of the judicial process,
      the accused may be detained.

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