JOSE ALCAZAR v. THE STATE OF FLORIDA ( 2023 )

Third District Court of Appeal
State of Florida
Opinion filed March 8, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0083
Lower Tribunal No. F22-6632
________________
Jose Alcazar,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Habeas Corpus.
Law Offices of Jason T. Forman, PA, and Jason T. Forman and
Dalianett Corrales (Fort Lauderdale), for petitioner.
Ashley Moody, Attorney General and Katryna Santa Cruz, Assistant
Attorney General, for respondent.
Before EMAS, GORDO and BOKOR, JJ.
BOKOR, J.
Jose Alcazar stands accused, via an amended information, of
attempted first-degree murder after allegedly hiring an undercover officer to
kill his ex-girlfriend’s then-husband. Alcazar petitions for habeas relief from
pretrial detention, contending in pertinent part, that the acts allegedly
committed amount to, at most, preparatory acts in a solicitation scheme, but
fail to rise to the level of an overt act sufficient to ground a charge of
attempted first-degree murder. The State argues that Alcazar’s alleged acts
cross the line from mere preparation to an overt act well on the way to
consummation of the crime of attempted first-degree murder. As explained
below, we agree with the State and deny the petition.
Our sister court highlights the elements of a criminal attempt:
Under Florida law, criminal attempt occurs when a defendant
commits “any act toward the commission of [an offense
prohibited by law], but fails in the perpetration or is intercepted or
prevented in the execution thereof . . . .” § 777.04(1), Fla. Stat.
(2009). To establish the crime of attempt, the State must prove
the defendant intended to commit a crime, committed an overt
act towards its commission, and failed to successfully complete
the crime. See Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA
2010). The overt act element differentiates criminal attempt from
solicitation, the latter of which is completed when a person asks
another to commit a crime with the intent that the other commit
the crime. See State v. Johnson, 561 So. 2d 1321, 1323 (Fla.
4th DCA 1990); see also § 777.04(2), Fla. Stat. (2009). “An overt
act is one that manifests the pursuance of a criminal intent, going
beyond mere preparation to the actual commencement of the
crime.” Bist, 35 So. 3d at 941; see also Groneau v. State, 201
So. 2d 599, 603 (Fla. 4th DCA 1967) (explaining for the overt act
element to be established, “[t]here must be some appreciable
2
fragment of the crime committed and it must be in such progress
that it would be consummated unless interrupted by
circumstances independent of the will of the attempter.”).
“Drawing the distinction between a preparatory act and an overt
act is often difficult and depends on the facts of each case.” Bist,
35 So. 3d at 941.
Carlton v. State, 103 So. 3d 937, 939 (Fla. 5th DCA 2012). In Carlton, the
defendant’s actions constituted an overt act sufficient to satisfy this test for
attempted first-degree murder where the defendant approached the hitman
(undercover officer) with the intent to murder the victim, hired the undercover
officer, provided photographs, addresses, and personal information, made a
down payment, and discussed an alibi. See id. at 941.
The State presented testimony (or relied on testimony presented at a
prior hearing) that Alcazar solicited a hitman (undercover officer), provided
the hitman with the victim’s personal information, including a driver’s license,
credit card number, and photograph, contacted and met with the hitman,
provided $100 for surveillance, identified a location for the crime (the victim’s
driveway), asked for the murder to be staged as a robbery gone wrong, and
provided $400 as a down payment for the crime. Alcazar contends that the
act wouldn’t be consummated without additional discussion and plans, and
points us to Arias v. State, 593 So. 2d 260, 263 (Fla. 3d DCA 1992), in which
this court reversed a conviction of attempted first-degree murder and
3
concluded that the defendant’s actions constituted mere preparation and
lacked “overt acts nearing consummation of the crime.”
In Arias, the defendant discussed a murder plot with co-defendants
and gave one of them a bottle of Hycomine to give to the infant victim. See
id. However, the court explained that “[t]he plot to kill the child went no
further,” the co-defendant hadn’t committed to doing anything, and neither
the defendant or co-defendants took any additional steps toward planning or
completing the crime. Id. Arias provides no succor for Alcazar. 1 The
1
The dissent notes that “[i]t does not matter whether this panel agrees
with the holdings of Robinson or Arias.” We agree. While the dissent implies
(or maybe explicitly claims) that the panel is overruling Arias sub silento, the
reality is less dramatic. We disagree on the application of Arias to the facts
of this case. The dissent encourages us to apply precedent to the facts of
this case in the way it chooses, while ignoring that "[d]rawing the distinction
between a preparatory act and an overt act is often difficult and depends on
the facts of each case." Bist, 35 So. 3d at 941 (emphasis added). We find
that the facts of this case differ from the facts of Arias. The acts here rise to
the level of overt acts nearing consummation of the crime, therefore
mandating denial of the petition.
The dissent’s conclusory statement that Arias compels our granting of
the petition because the scheme in Arias “comes much closer to the requisite
overt act” lacks support in the record (but may be an inadvertent admission
by the dissent that Arias should be revisited and clarified). That the scheme
here involved greater detail and more overt acts on the way to commission
of the crime should be obvious on its face. Here, we have multiple meetings
or calls, first with an informant and then with the undercover officer “hitman,”
an exchange of money (including both payment of money for surveillance
and a down payment for the murder), formulation of a plan, provision of
personal information, and even a directive that the hitman murder the victim
in his own driveway and make it look like a robbery.
4
provision of the drug and request to murder the child in Arias is chilling, but
other than the recipient taking possession of the poison before contacting
the authorities, Arias lacks the amount and character of overt acts leading to
consummation present here. To apply Arias to these facts would all but
prevent any charge of attempted murder in a solicitation context, outside of
cases where the hitman pulls the trigger but misses the victim.
Arias involved an initial meeting, the handing of the drug to be used to
kill the infant, and nothing else in the way of planning or consummating the
crime. Arias provides the standard for mere preparation without sufficient,
overt acts.2 The evidence against Alcazar, on the other hand, mirrors almost
Similarly, Robinson v. State, 263 So. 2d 595 (Fla. 3d DCA 1972), offers
no support for Alcazar. The court in Robinson found the evidence insufficient
to establish a necessary overt act for the crime of attempted grand larceny.
Id. at 596–97. Robinson and an undercover officer met up for what was
supposed to be the purchase by the undercover officer of a stolen television.
See id. at 596. While a sale price was discussed in a phone call, and the
undercover officer met with Robinson, the crime progressed no further—
there was no agreement as to how the sale would be accomplished, and no
exchange of money. Id. Robinson presents the quintessential case of mere
planning and preparation with minimal overt acts. The dissent spends pages
trying to fit this case into Robinson and Arias. Robinson had minimal overt
acts while Arias had some. But Arias, importantly, demonstrated no indicia
of movement beyond the planning phase. Conversely, Alcazar committed
significant overt acts well on the way to consummation of the crime, as
explained throughout this opinion, and but for the fact that the hitman was an
undercover officer, the act would have likely been consummated with no
further preparation or action needed.
2
However, while the dissent insists the factual underpinnings of Arias
provide as much or greater indicia of overt acts on the way to consummation
5
exactly the facts of Carlton. “Had Carlton not hired an undercover detective,
he likely would have effectuated the murder of his ex-wife.” Carlton, 103 So.
3d at 941. Similarly, had Alcazar not hired an undercover detective, he would
likely have effectuated the murder of his ex-wife’s lover. Like Carlton, and
unlike Arias, the State presented sufficient evidence from which the trial court
could conclude the alleged scheme advanced from preparation to overt acts
putting the murder-for-hire scheme in motion. 3 See, e.g., Robinson, 263 So.
2d at 596–97 (“The overt act must reach far enough towards the
accomplishment of the desired result to amount to a commencement of the
consummation.”); see also Groneau, 201 So. 2d at 603.
as present here, a conclusion we reject, to the extent the en banc court or
Florida Supreme Court agrees with the dissent, the remedy should be en
banc or Florida Supreme Court review to clarify the threshold for an overt act
in this context—and in the process, overrule or clarify Arias.
3
The dissent explains that “factual impossibility is not a legal defense in
Florida . . . [but] the State’s effort to seek pretrial detention . . . under these
circumstances, brings with it certain practical difficulties.” Under the facts of
this case and applying the overt act requirement discussed in Arias and
Robinson, we see no such difficulty. Florida law doesn’t permit the defense
of factual impossibility, and here we have sufficient overt acts such that the
murder scheme was well on its way to fruition but for factors outside of
Alzazar’s control. See, e.g., State v. Rios, 409 So. 2d 241, 243–44 (Fla. 3d
DCA 1982) (“We further reject any suggestion that the defense of legal
impossibility should bar any criminal attempt prosecution, where, as here,
the crime which the defendant attempted was legally impossible to commit
due to the fact that the subject property was not stolen. The defense of legal
impossibility has never been adopted in Florida in any criminal attempt
prosecution and is generally discredited by the overwhelming weight of
authority in other jurisdictions.”).
6
Petition denied.
GORDO, J., concurs.
7
JOSE ALCAZAR V. STATE
3D23-83
EMAS, J., dissenting.
I respectfully dissent because we are bound by our own precedent
which, as applied to the instant case, compels this court to grant Alcazar’s
petition for writ of habeas corpus. While the State has offered sufficient
evidence to establish a reasonable probability that Alcazar committed the
crime of solicitation to commit first-degree murder, it has failed to offer
sufficient evidence to establish a substantial probability that Alcazar
committed the crime of attempted first-degree murder. As a result, Alcazar
cannot be held in pretrial detention and he is constitutionally entitled to a
reasonable bond.
This is the second petition for writ of habeas corpus filed by Alcazar,
and some procedural history is therefore necessary to place the case in its
proper context. For the limited purposes of this petition, the relevant facts are
not in dispute:
In April 2022, Jose Alcazar was initially charged with, inter alia,
solicitation of first-degree murder. The State filed a motion for pretrial
detention pursuant to section 907.041, Florida Statutes (2022), and Florida
Rule of Criminal Procedure 3.132, contending Alcazar should be held without
8
bond pursuant to section 907.041(4)(c)5., which authorizes the trial court to
order pretrial detention if it finds that:
1) the defendant is presently charged with a “dangerous
crime”;
2) there is a substantial probability that the defendant
committed such crime;
3) the factual circumstances of the crime indicate a disregard
for the safety of the community; and
4) there are no conditions of release reasonably sufficient to
protect the community from the risk of physical harm to
persons.
The term “dangerous crime” is expressly defined by section
907.041(4)(a), which lists twenty-two individual crimes (such as homicide,
kidnapping, robbery, sexual battery), designating each as a “dangerous
crime.”
The statute further provides that “[a]ttempting or conspiring to commit”
any of the twenty-two enumerated offenses constitutes a “dangerous crime.”
Importantly, however, solicitation to commit any of the enumerated offenses
is not legislatively designated as a dangerous crime. Nevertheless, following
a hearing, the trial court granted the State’s motion for pretrial detention
concluding that solicitation of first-degree murder, while not included within
the list set forth in the statute, qualified as a “dangerous crime,” and that the
State had satisfied the remaining requirements for pretrial detention.
9
In September 2022, Alcazar filed his first petition for writ of habeas
corpus, challenging the trial court’s order on the ground that solicitation of
first-degree murder is not a “dangerous crime” under section 907.041 and
thus could not serve as a basis for pretrial detention. This court, relying on
our holding in Hodges v. State, 327 So. 3d 923, 925 (Fla. 3d DCA 2021),4
concluded that the trial court was without authority to order pretrial detention
because “a dangerous crime can only be one that is enumerated in section
907.041(4)(a).” Alcazar v. State, 349 So. 3d 930, 935 (Fla. 3d DCA 2022).
This court further noted:
While the Legislature explicitly included attempt and conspiracy
in the “dangerous crimes” definition, it omitted solicitation. Based
on the plain language of the statute, we find no basis to expand
the list of enumerated “dangerous crimes” to cover a crime
specifically excluded from the definition.
Id.We granted Alcazar’s petition and remanded to the trial court for further
proceedings on the issue of pretrial release. On remand, the State amended
the charging document, adding the charge of attempted first-degree
murder—an offense enumerated as a “dangerous crime” under section
4
As this court noted in Alcazar I, our decision in Hodges held “section
907.041, Florida Statutes, contains an exhaustive list of those crimes
deemed by the legislature sufficiently dangerous to demonstrate the accused
poses a risk of harm to the community.” Alcazar v. State, 349 So. 3d 930,
935 (Fla. 3d DCA 2022).
10
907.041(4)(a). After a hearing, the trial court granted the motion for pretrial
detention upon the conclusion that the State established a substantial
probability that Alcazar committed the crime of attempted first-degree
murder. Alcazar has now filed a second petition for writ of habeas corpus,
this time challenging the sufficiency of the State’s evidence to establish the
crime of attempted first-degree murder.
I note this is an alleged “murder for hire” case. The allegation is that
Alcazar (a corrections officer) told an inmate there was an individual he
wanted to have killed. That individual is the husband of Alcazar’s girlfriend.
The inmate relayed this information to law enforcement, and was instructed
by law enforcement to tell Alcazar that he (the inmate) had a nephew who
could take care of this. A meeting was scheduled between the “nephew” (in
reality, an undercover officer) and Alcazar. There were two meetings,
portions of which were recorded by video, audio or both.
Accepting the majority’s statement of salient evidence in support of the
charge, the State’s ostensible support for the offense of attempted first-
degree murder was as follows:
Alcazar solicited a hitman (undercover officer), provided the
hitman with the victim’s personal information, including a driver’s
license, credit card number, and photograph, contacted and met
with the hitman, provided $100 for surveillance, identified a
location for the crime (the victim’s driveway), asked for the
11
murder to be staged as a robbery gone wrong, and provided
$400 as a down payment for the crime.
Maj. Op. at *3.
This evidence, while certainly enough to establish a substantial
probability that Alcazar committed solicitation of first-degree murder,5 is
simply insufficient under our binding precedent to establish a substantial
probability that Alcazar committed attempted first-degree murder.
While both solicitation and attempt are inchoate offenses, they require
different elements and acts. 6 As our sister court has noted:
With respect to the crime of solicitation, the great weight of
American authority holds as a general proposition that mere
criminal solicitation of another to commit a crime does not itself
constitute an attempt. Perkins, Criminal Law, 505, 508 (1957).
5
Section 777.04(2), Florida Statutes (2022) provides:
A person who solicits another to commit an offense prohibited by
law and in the course of such solicitation commands,
encourages, hires, or requests another person to engage in
specific conduct which would constitute such offense or an
attempt to commit such offense commits the offense of criminal
solicitation.
6
Conspicuously absent from this discussion is the inchoate offense of
conspiracy, due to the fact that Alcazar was meeting with an undercover
officer whom Alcazar believed would be the person committing the killing.
As the Florida Supreme Court has held: “[W]here two or more persons
conspire with another who is, unknown to them, a government agent acting
in the line of duty, to commit an offense under an agreement and an intention
that an essential ingredient of the offense is to be performed by, and only by,
such government agent, such persons may not legally be convicted of a
conspiracy.” King v. State, 104 So. 2d 730, 733 (Fla. 1958).
12
This proposition has been particularly applied to a charge of
attempted first degree murder where the facts established only
solicitation to commit that offense. . . .
***
The gist of criminal solicitation is enticement, whereas an attempt
requires an intent to commit a specific crime, an overt act and
failure to consummate that crime. This being true, to call
solicitation an attempt is to delete the element of overt act.
***
Solicitation may supply an element in the attempt concept, but
in and of itself, solicitation does not satisfy all these elements. To
merge attempts and solicitation bastardizes the concepts of each
and breeds further confusion in an area already wrought with
confusion.
Hutchinson v. State, 315 So. 2d 546, 548-49 (Fla. 2d DCA 1975) (citations
omitted).
This court’s own precedent compels the conclusion that Alcazar’s
alleged actions did not constitute the crime of attempted first-degree murder.
In Robinson v. State, 263 So. 2d 595, 596-97 (Fla. 3d DCA 1972), defendant
was charged with attempted grand larceny. 7 The acts engaged in by
Robinson were summarized in the opinion as follows:
7
In 1972, attempted larceny was a lesser included offense of larceny. In
1977, the Florida Legislature amended the definition of larceny (theft),
creating section 812.014 and providing that a person is guilty of theft if he
obtains or uses “or endeavors to obtain or to use” the property of another
with the requisite criminal intent. See Ch. 77-342, § 4, Laws of Florida. As
a result, the crime of theft includes an attempt to commit theft, State v. Sykes,
13
Charles S. Olesky, received a telephone call from an unknown
person asking whether he wanted to purchase a stolen television
set for four hundred dollars. Following the telephone call Olesky
contacted the police who later kept the rendezvous established
between Olesky and the caller. A police officer contacted the
defendant at the meeting place and while the two men sat in an
automobile the officer told defendant he had the money for the
television set when in fact he only had five dollars in an envelope.
Defendant stated the television set was nearby but he wanted
the money first and when the officer refused, defendant said ‘No
man, we don't do business that way’. Defendant then attempted
to leave the vehicle but the officer placed him under arrest.
Id. at 596.
Defendant was convicted of attempted grand larceny, and on appeal
this court reversed, holding the evidence was insufficient to establish the
overt act necessary for the crime of attempt:
An attempt to commit a crime involves the idea of an incompleted
act as distinguished from the complete act necessary for the
crime. The guiding principles necessary for an attempt were
given in Gustine v. State, 86 Fla. 24, 97 So. 207 (1923):
There must be an intent to commit a crime coupled
with an overt act apparently adopted to effect that
intent, carried beyond mere preparation, but falling
short of execution of the ultimate design.
The intent to commit a crime standing alone does not amount to
an attempt nor is preparation alone sufficient. The overt act
must reach far enough towards the accomplishment of the
desired result to amount to a commencement of the
consummation. There must be some appreciable fragment
of the crime committed and it must be in such progress that
434 So. 2d 326 (Fla. 1983) and there is no separate crime of attempted theft
in Florida. See Harriman v. State, 174 So. 3d 1044 (Fla. 1st DCA 2015).
14
it would be consummated unless interrupted by
circumstances independent of the will of the attempter.
Id. at 596-97 (emphasis added). See also Groneau v. State, 201 So. 2d 599,
603 (Fla 4th DCA 1967) (“Mere intention to commit a specific crime does not
amount to an attempt. Preparation alone is not sufficient. Something more is
required than mere menace, preparation or planning. The attempt is
complete and punishable, when an act is done with intent to commit the
crime, which is adapted to the perpetration of it, whether the purpose fails by
reason of interruption, or for other extrinsic cause. The act must reach far
enough towards the accomplishment of the desired result to amount to the
commencement of the consummation. There must be some appreciable
fragment of the crime committed and it must be in such progress that it would
be consummated unless interrupted by circumstances independent of the
will of the attempter. It is not, however, essential that the actor would have
actually succeeded if he had followed the course of conduct upon which he
had embarked”) (internal citations omitted).
Twenty years later, in Arias v. State, 593 So. 2d 260 (Fla. 3d DCA
1992), we reaffirmed our adherence to the analysis and holding in Robinson.
In Arias, the defendant was accused and convicted of attempting to murder
an infant who was born with severe birth defects. Jean Arias was the
15
Director of Nursing for a facility that provided medical care for children. Id. at
261. The infant was the granddaughter of the physician who ran the facility.
Shortly after the child was born, she was placed under twenty-four-hour
nursing supervision. Several nurses, including Arias, administered
medication periodically to ease the infant’s pain and suffering. Id. At some
point, Arias contacted a nurse, Judy Felsenstein, and told Felsenstein she
needed someone to work during Easter weekend. Arias also confided to
Felsenstein that she had a plan to kill the infant by administering an overdose
of pain medication. Id. Felsenstein recommended that Arias call Etiole
Means for this purpose. Means and Felsenstein had both worked with Arias
in the past, and Arias had replaced Means at a prior place of employment.
Id.Arias, Felsenstein and Means met at a restaurant and discussed the
plan to kill the infant. Arias told Means and Felsenstein that the infant’s
grandfather was aware of the plan and had approved of it. Id. at 262. Means
testified at the trial that, after she applied for the temporary nursing position,
Arias gave Means a bottle of medication, Hycomine, and was instructed to
administer it to the infant. A very small amount of that medication, if given to
the child, would have proven fatal. Id. Means was given the bottle of
Hycomine four days before the murder was to take place. After receiving the
16
medication, however, Means became worried and called police to tell them
about the murder plot. Before the plot was to be carried out, the police went
to Arias' home and arrested her. Id.Arias was convicted of attempted first-degree murder. She contended
on appeal that the evidence was insufficient to establish the crime of
attempted first-degree murder. We agreed and reversed, citing to Robinson
for the proposition that “[t]he overt act must reach far enough towards the
accomplishment of the desired result to amount to a commencement of the
consummation. There must be some appreciable fragment of the crime
committed . . . .” Id. at 263 (citing Robinson, 263 So. 2d at 596–97). We held
that “the acts committed by Arias were only those of preparation to commit
the crime and did not rise to the level of overt acts nearing consummation of
the crime. Therefore, the evidence was not sufficient to sustain a verdict of
attempted first degree murder.” Id.The acts of Alcazar in the instant case, like the acts of the nursing
director in Arias, while sufficient to support the charge of solicitation of first-
degree murder, are insufficient to support the charge of attempted first-
degree murder. In both cases, the State failed to meet the requirement of
Robinson that “[t]he overt act must reach far enough towards the
accomplishment of the desired result to amount to a commencement of the
17
consummation. There must be some appreciable fragment of the crime
committed. . . .” Robinson, 263 So. 2d at 596-97.
In fact, one could make a viable argument that the conduct of Jean
Arias—in particular, providing Means with the actual weapon to be used to
murder the child four days later—comes closer to the requisite overt act than
the conduct engaged in by Alcazar. By holding that Alcazar’s conduct
establishes attempted first-degree murder, the majority opinion blurs the
distinction between the discrete offenses of solicitation and attempt,
inconsistent with our binding precedent.
The majority posits that “[t]o apply Arias to these facts would all but
prevent any charge of attempted murder in a solicitation context, outside of
cases where the hitman pulls the trigger but misses the victim.” Maj. op. at
*5. The majority’s postulation, while perhaps overstated, does make a good
point. After all, it is the State which, in square-peg, round-hole fashion, has
decided to charge attempted murder in a murder-for-hire scheme that could
never have been consummated, given that the solicited “hitman” was an
undercover officer. And though factual impossibility is not a legal defense in
Florida,8 the State’s effort to seek pretrial detention by adding a charge of
attempted first-degree murder under these circumstances, brings with it
8
See Gaskin v. State, 869 So. 2d 646 (Fla. 3d DCA 2004).
18
certain practical difficulties. Chief among them is the difficulty in establishing
Alcazar engaged in an overt act that “must reach far enough towards the
accomplishment of the [murder] to amount to a commencement of the
consummation. There must be some appreciable fragment of the
[murder] committed and it must be in such progress that it would be
consummated unless interrupted by circumstances independent of the
will of the attempter.” Arias, 593 So. 2d at 263 (quoting Robinson, 263
So.2d at 596–97). The State has offered no overt act that meets the
requirements of Arias and Robinson. Instead, the State’s evidence showed:
Alcazar solicited a hitman (solicitation), provided the victim’s personal
information including a driver’s license, credit card number, and
photograph (mere preparation), contacted and met with the
hitman/undercover officer (solicitation and mere preparation), provided
$100 for surveillance (mere preparation), identified a location for the
crime (mere preparation), asked for the murder to be staged as a
robbery gone wrong (solicitation and mere preparation), and provided
$400 as a down payment for the crime (solicitation).
It does not matter whether this panel agrees with the holding of
Robinson or Arias. Further, it does not matter, were those cases being
decided today on a clean slate, whether the outcomes might be different.
And finally, it does not matter whether the Fifth District’s decision in Carlton
v. State, 103 So. 3d 937 (Fla. 5th DCA 2012) arguably supports the majority
decision. A panel of this district may not overrule, recede from, or decline to
19
follow its own binding precedent. Our holdings in Robinson and Arias may
be overruled only by the Florida Supreme Court or by this court in an en banc
proceeding. See In re Rule 9.331, Determination of Causes by a Dist. Court
of Appeal En Banc, 416 So. 2d 1127, 1128 (Fla. 1982) (observing that “a
three-judge panel of a district court should not overrule or recede from a prior
panel's ruling on an identical point of the law.” Instead, intra-district conflict
should be resolved by an en banc decision of the court pursuant to rule
9.331); Nat’l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., 347 So. 3d 63, 64
(Fla. 3d DCA 2020) (“Unless the Florida Supreme Court overrules a prior
panel's decision, a subsequent panel of this Court is not free to disregard,
and must follow, precedent of the prior panel. See Bean v. Univ. of Miami,
252 So. 3d 810, 821 (Fla. 3d DCA 2018). Only the Court, sitting en banc,
may recede from a prior panel's decision. See State v. Washington, 114 So.
3d 182, 188-89 (Fla. 3d DCA 2012)”).
Our decisions in Robinson and Arias have not been overruled or
receded from. Applying that precedent to the instant case, the State failed
to make the necessary showing to establish a substantial probability that
Alcazar committed attempted first-degree murder. As a result, the State’s
motion for pretrial detention should have been denied and the trial court
should have proceeded to set reasonable conditions of pretrial release.
20
I would grant the petition for writ of habeas corpus, and therefore
respectfully dissent from the majority’s opinion denying the petition.
21