Ysaza v. State

Full title: OMAR YSAZA, Petitioner, v. STATE OF FLORIDA, Respondent.

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Date published: May 10, 2017

No. 4D17-0612 (Fla. Dist. Ct. App. May. 10, 2017)

Opinion

No. 4D17-0612

05-10-2017

OMAR YSAZA, Petitioner, v. STATE OF FLORIDA, Respondent.

Howard Finkelstein Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael Davis, Judge; L.T. Case No. 17-01263CF10A. Howard Finkelstein Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for respondent. PER CURIAM.

The defendant petitions for a writ of habeas corpus. He is charged with numerous counts, each of which is a first degree felony punishable by life. He argues that he is illegally held without bond because the first appearance judge did not make an express finding that the proof of guilt is evident or the presumption great. See Art. I, § 14 Fla. Const. ("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.").

We deny the petition. Defendant is correct that the first appearance judge should have determined, as a threshold matter, whether defendant was entitled to bond. However, any error in the first appearance judge failing to make an express finding is harmless under the facts of this case. The probable cause affidavit established that defendant is charged with an offense punishable by life and the proof of defendant's guilt is evident and the presumption great. Denial is without prejudice for petitioner to file a motion to set bond and request a hearing under State v. Arthur, 390 So. 2d 717 (Fla. 1980). See, e.g., Brackett v. State, 773 So. 2d 564, 565 (Fla. 4th DCA 2000); Rosa v. State, 21 So. 3d 115, 116 (Fla. 5th DCA 2009).

Petition denied without prejudice. CIKLIN, C.J., GERBER and LEVINE, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.