04-14-2011 Release OPINIONS 3D11-0924 GINSBERG V. RYAN

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State: Florida

Court: Florida Third District Court

Docket No: 3D11-0924

Case Date: 04/14/2011

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2011
Opinion filed April 14, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D11-924 Lower Tribunal No. 10-12369 ________________

Barry Ginsberg,
Petitioner, vs.

Timothy Ryan, Director, Miami-Dade County Corrections and Rehabilitation Department, and the State of Florida,
Respondents.

A Petition for Writ of Habeas Corpus from the Circuit Court for MiamiDade County, Mary Barzee Flores, Judge. Carlos J. Martinez, Public Defender, and Joanna G. Ingalls, Assistant Public Defender, for petitioner. Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for respondent the State of Florida. Before SHEPHERD, SALTER and EMAS, JJ. EMAS, J.

The defendant, Barry Ginsberg, petitions this Court for a writ of habeas corpus, asserting that his pretrial incarceration without bond is unlawful. We grant the petition for writ of habeas corpus and remand to the trial court to hold a hearing pursuant to section 907.041, Florida Statutes (2010) and Florida Rules of Criminal Procedure 3.131 and 3.132. On April 29, 2010, the State of Florida ("State") filed an information charging the defendant with DUI causing serious bodily injury; felony DUI (third or subsequent conviction); battery on a law enforcement officer; and resisting an officer with violence. At first appearance, the judge set a bond of $25,000. The defendant, unable to post the bond, requested an alternative form of pretrial release. On June 18, 2010, the trial court granted pretrial release, conditioned on twenty-four hour, electronically monitored house arrest. As a further condition of his release, the defendant was required to remain at home, and was permitted to leave only for scheduled and approved doctor appointments or to attend court. The trial court set an alternate bond of "no bond." On June 29, 2010, an affidavit of monitored release violation was filed, alleging the defendant left his residence without permission, and that the GPS tracking device on the defendant revealed that he went to a residential area and was nowhere near a doctor's office, hospital or pharmacy. Accordingly, the defendant was taken into custody.

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At each of three subsequent hearings, the trial court denied the defendant's request to reinstate house arrest, and denied defendant's multiple requests to reinstate the bond. On March 28, 2011, the State made an ore tenus motion with the court to deny any bond for the defendant. The trial court allowed the defendant to address the court on this issue, and then denied pretrial release and the defendant's motion to set bond. As of today, the defendant has been in custody for more than nine months. Under the Florida Constitution, a defendant charged with a criminal offense is entitled to bond as a matter of right: 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. Article I,

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