Malik Sands v. Sherea Green, Etc.

• Court: District Court of Appeal of Florida
• Decided: December 12, 2024
• Docket: 3D2024-2206
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 12, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-2206 Lower Tribunal No. F23-25560 ________________

Malik Sands, Petitioner,

vs.

Sherea Green, etc., et al., Respondents.

A Case of Original Jurisdiction – Habeas Corpus.

Carlos J. Martinez, Public Defender, and Jennifer Thornton, Assistant Public Defender, for petitioner.

Sherea Green, Director, Miami-Dade Department of Corrections and Rehabilitation, Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for respondents.

Before LINDSEY, MILLER, and GORDO, JJ.

MILLER, J. Petitioner, Malik Sands, seeks relief in habeas corpus from his pretrial

confinement in the Dade County Jail. In his petition, he contends the trial

court erred in issuing an alias capias based on his failure to appear at a

pretrial conference because his attorney duly filed a written waiver of

appearance excusing his appearance pursuant to Florida Rule of Criminal

Procedure 3.180(a)(3). We agree and grant the petition.1

I

Sands was arrested and charged with one count of vehicular homicide,

in violation of section 782.071(1)(a), Florida Statutes (2023), one count of

driving under the influence (“DUI”) manslaughter, in violation of section

316.193(3)(c)(3)(a), Florida Statutes (2023), and one count of no valid

driver’s license with death, in violation of section 322.34(6), Florida Statutes

(2023). After determining he was indigent, the trial court appointed the Public

Defender’s Office to represent him. The assigned attorney executed a

waiver of his appearance at future pretrial conferences. A second waiver

was subsequently filed with the clerk.

1 We note that the State commendably conceded error in its response to the petition and joined in Sand’s request that we grant the petition for writ of habeas corpus, quash the alias capias, and direct that Sands be immediately released with his original bond and conditions reinstated.

2 Sands posted bond and was released from custody. Some ten months

later, the case was set for a pretrial conference. Sands did not appear, and

his attorney invoked the waiver of appearance for the proposition that

physical appearance was not required. The trial court issued an alias capias.

The following day, defense counsel filed a written motion to vacate the

alias capias. The court entertained the motion the next day, at which time

Sands was present. Observing that Sands had neither provided an

explanation for his absence nor updated his address, the court took him into

custody on the alias capias. Sands remains in custody without bond.

II

Florida Rule of Criminal Procedure 3.180(a)(3) requires the accused

be present at pretrial conferences, unless his or her “presence is waived in

writing or on the record by the defendant or by the defendant’s counsel with

the defendant’s consent.” Despite a waiver, the trial court is authorized to

require a defendant to be present “if there is a good reason to do so.”

Charlemagne v. Guevara, 183 So. 3d 1261, 1263 (Fla. 3d DCA 2016). Under

such circumstances, “defense counsel and the defendant must be clearly

advised that the defendant’s personal presence is required, notwithstanding

the waiver of presence.” Cruz v. State, 822 So. 2d 595, 595 (Fla. 3d DCA

2002).

3 III

Here, defense counsel filed not one, but two written waivers. The

record is devoid of any indication that Sands and his counsel were clearly

advised that his presence was required at the pretrial conference. Under

these circumstances, there was no legal basis for the issuance of the alias

capias. Charlemagne, 183 So. 3d at 1264; see also Jimenez v. State, 201

So. 3d 214, 216 (Fla. 2d DCA 2016) (“The trial court’s refusal to accept [the

defendant]’s written waiver of appearance, its requirement that all

defendants attend all disposition hearings and pretrial conferences, and its

prohibition against attorney-filed waivers of a defendant’s appearance are in

direct contravention of Florida Rules of Criminal Procedure 3.180(a)(3) and

3.220(o)(1), which permit a defendant to waive his appearance at any pretrial

conference.”); McDermott v. State, 824 So. 2d 333, 333 (Fla. 3d DCA 2002)

(directing trial court to accept written waiver and finding no legal basis for

bench warrant); Lynch v. State, 736 So. 2d 1221, 1221 (Fla. 5th DCA 1999)

(finding mandatory appearance requirements and trial court’s refusal to

accept waiver directly contravened rule 3.180); Stout v. State, 795 So. 2d

227, 228 (Fla. 4th DCA 2001) (adopting Lynch’s reasoning and holding trial

court erred in refusing petitioner’s written waiver); McCutchen v. State, 358

So. 3d 1292, 1292 (Fla. 3d DCA 2023) (quashing bench warrant where trial

4 court did not notify petitioner of mandatory attendance); Cannon v. State,

253 So. 3d 1200, 1201 (Fla. 2d DCA 2018) (“Although we understand the

trial court’s frustration that [the defendant] did not personally appear for the

hearings, based on the record before us we conclude that adequate notice

was not provided to [the defendant] that he had to personally appear at

the . . . hearing despite his waiver of appearance.”); Reynolds v. State, 696

So. 2d 1275, 1275 (Fla. 5th DCA 1997) (quashing capias where petitioner

waived appearance in writing and notice of “sounding” hearing did not inform

petitioner her presence was required); Lopez Hernandez v. State, 277 So.

3d 137, 139–40 (Fla. 4th DCA 2019) (noting presence can be required for

good cause but granting petitions where defendants’ mandatory appearance

lacked clearly stated reasons); Scott v. State, 307 So. 3d 106, 107 (Fla. 3d

DCA 2020) (requiring trial court to accept waiver of appearance when good

cause to override waiver is lacking); Perozo v. State, 239 So. 3d 793, 793

(Fla. 3d DCA 2018) (same); Walters v. State, 905 So. 2d 974, 977 (Fla. 1st

DCA 2005) (“[A]bsent a finding of good cause for requiring the presence of

the defendant at a pre-trial conference, the trial court does not possess the

discretion to deny a defendant the ability to waive his appearance at pre-trial

proceedings . . . .”) (internal citation omitted).

IV

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

alias capias, and direct that Sands be immediately released with his original

bond and conditions reinstated.

Petition granted.