Roberts v State of Florida
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2009
GORMAN J. ROBERTS,
Petitioner,
v.
STATE OF FLORIDA and AL LAMBERTI, as Sheriff of Broward County,
Florida,
Respondents.
No. 4D09-2376
[June 30, 2009]
PER CURIAM.
On our own motion we withdraw the opinion issued on June 26,
2009, and substitute the following:
Petitioner Gorman J. Roberts filed this habeas corpus petition seeking
release from his detention following a decision by the magistrate to deny
release on bond. We grant the petition a n d remand for further
proceedings forthwith.
Petitioner Roberts was arrested for aggravated battery with a deadly
weapon, criminal mischief and violation of an injunction for protection
from domestic violence. Upon arrest, n o bond was set. At a first
appearance hearing, the presiding judge held him without bond on each
count on the grounds that he was a danger to the community. This
finding came after the prosecutor told the judge that petitioner had a
prior conviction for loitering and for shooting/throwing a deadly missile.
The prosecutor also told the court that petitioner’s offenses violated an
injunction previously entered. Defense counsel’s objection and argument
that the charges were bondable offenses was overruled summarily by the
judge.
The prosecutor did not move for pretrial detention pursuant to Florida
Rule of Criminal Procedure 3.132. The magistrate failed to consider
whether there were any conditions of release which could reasonably
protect the community from risk of physical harm. Florida Rule of
Criminal Procedure 3.131(b).
In these circumstances, petitioner is
entitled to habeas corpus relief. See, e.g., Rodriguez v. Jenne, 963 So. 2d
933 (Fla. 4th DCA 2007). See also Lee v. State, 956 So. 2d 1292 (Fla. 4th
DCA 2007).
Respondent has filed a response to this court’s order to show cause
agreeing that the case should be remanded for a hearing on the subject
of bond.
Accordingly, we grant the petition for writ of habeas corpus and
remand to the trial court for further bond proceedings forthwith and in
accordance with this opinion.
POLEN, FARMER and MAY, JJ., concur.
*
*
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Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Eric M. Beller, Judge; L.T.
Case No. 09-11121CF10A.
Howard Finkelstein, Public Defender, a n d Joseph R. Chloupek,
Assistant Public Defender, Fort Lauderdale, for petitioner.
Bill McCollum, Attorney General, Tallahassee, and James J. Carney,
Assistant Attorney General, West Palm Beach, for respondent State of
Florida.
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