5D06-1198 Viet Ho v.State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-1198

Case Date: 05/29/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

VIET HO, Petitioner, v. STATE OF FLORIDA, Respondent. ________________________________/ Opinion filed June 2, 2006 Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction. Michael D. Dicembre, Orlando, for Petitioner. Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Respondent. Case No. 5D06-1198

PER CURIAM. Viet Ho was charged with one count of conspiracy to traffic in MDMA (400 grams or more) and one count of conspiracy to traffic in cannabis (25 pounds or more). After a hearing, the trial court denied bond. Ho asserts that since the State did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, bond cannot be denied. We agree, grant Ho's petition for writ of habeas corpus, and direct the trial court to conduct a rule 3.131 pretrial release hearing. This decision is without prejudice for

the State to file a motion for pretrial detention, should it choose to do so. See Nguyen v. State, 925 So. 2d 435 (Fla. 5th DCA 2006); Griffith v. State, 914 So. 2d 1053 (Fla. 5th DCA 2005). The trial court is directed to hold the hearing no later than three business days following the issuance of this opinion. PETITION GRANTED; CAUSE REMANDED.

SHARP, W. and THOMPSON, JJ., concur. SAWAYA, J., concurs specially, with opinion.

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Case No. 5D06-1198 SAWAYA, J., concurring specially. The issue here is whether a motion for pretrial detention filed by the state is a necessary prerequisite to detaining a criminal defendant prior to trial when the defendant is charged with an offense that may subject him or her to pretrial detention pursuant to section 907.041, Florida Statutes (2005), and the defendant is found to be a danger to the community, a flight risk, or one who will undermine the integrity of the judicial process. Precedent emanating from this court, see Nguyen v. State, 925 So. 2d 435 (Fla. 5th DCA 2006), and Griffith v. State, 914 So. 2d 1053 (Fla. 5th DCA 2005), and from the Second District Court, see Golden v. Crow, 862 So. 2d 903 (Fla. 2d DCA 2003), holds that it is. It is difficult to determine from the language of rules 3.131 and 3.132, Florida Rules of Criminal Procedure, whether the Florida Supreme Court intended a motion for pretrial detention to be a necessary prerequisite. I believe that if this is indeed what the court intended, far too much discretion is taken away from the trial court to hold an accused without bond, and too much discretion is placed in the hands of the prosecutor to make that determination. Moreover, I believe that such a requirement contravenes the expressed purpose of section 907.041, which provides, in pertinent part, that "[i]t is the policy of this state that persons committing serious criminal offenses, posing a threat to the safety of the community or the integrity of the judicial process, or failing to appear at trial be detained upon arrest."

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