Third District Court of Appeal
State of Florida
Opinion filed October 14, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1669
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, P.A., Jason T. Forman and
Dalianett Corrales (Fort Lauderdale), for petitioner.
Ashley Moody, Attorney General, and Katryna Santa Cruz, Assistant
Attorney General, for respondent.
Before FERNANDEZ, C.J., and GORDO and LOBREE, JJ.
GORDO, J.
Jose Alcazar petitions this Court for a writ of habeas corpus arguing
the trial court improperly granted the State’s motion for pretrial detention.
We have jurisdiction. Fla. R. App. P. 9.030(b)(3). We grant the petition for
writ of habeas corpus and remand to the trial court for proceedings
consistent with this opinion.
In April 2022, the State of Florida filed an information and charged
Alcazar—a correctional officer—with solicitation of first-degree murder,
introduction of contraband into a state correctional institution, unlawful use
of a communications device in commission of a felony, two counts of
unlawful compensation and armed possession of cocaine with the intent to
sell, manufacture, or deliver. The State subsequently filed a motion for
pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132 and
section 907.041, Florida Statutes. Alcazar then filed a motion to set bond.
The trial court held a full evidentiary hearing and granted the motion
for pretrial detention pursuant to section 907.041(4)(c)5., Florida Statutes.
In doing so, it found Alcazar was presently charged with a dangerous
crime, there was a substantial probability that Alcazar committed the crime,
the factual circumstances demonstrated Alcazar’s disregard for the safety
of the victim and community, that Alcazar was a threat to both and there
2
were no conditions of release that could assure the safety of the victim and
community from the risk of physical harm.
Alcazar filed a motion for reconsideration which the trial court
ultimately denied finding no conditions of release could assure the safety of
the victim and community. This petition followed.
I. STANDARD OF REVIEW
“A petition for writ of habeas corpus is the proper vehicle to challenge
an order of pretrial detention or release.” Hodges v. State,
327 So. 3d 923,
924 (Fla. 3d DCA 2021). We review de novo legal conclusions regarding
the meaning of a statute. BellSouth Telecomm., Inc. v. Meeks,
863 So. 2d
287, 289 (Fla. 2003) (“Statutory interpretation is a question of law subject to
de novo review.”). We review the trial court’s factual determinations under
an abuse of discretion standard and look to determine whether competent
substantial evidence exists in the record to support the trial court’s findings
of fact. See Garcia v. Junior,
325 So. 3d 220, 222 (Fla. 3d DCA 2021).
II. TRIAL COURT’S FACTUAL FINDINGS
“[I]n reviewing the record for abuse of discretion, we only determine if
the facts in evidence provide competent substantial evidence for each of
the trial court’s findings.” Garcia, 325 So. 3d at 226. Here, the trial court
found pretrial detention was warranted pursuant to section 907.041(4)(c)5.,
3
because: (1) Alcazar was charged with a dangerous crime; (2) there was a
substantial probability Alcazar committed the crime based on the evidence
and testimony provided by the State; (3) the factual circumstances showed
a disregard for the safety of the victim and community and Alcazar posed a
significant threat to both; and (4) there were no conditions of release that
could assure the safety of the victim and community.
A. Substantial Probability Alcazar Committed Solicitation of First-
Degree Murder
The trial court found a substantial probability that Alcazar committed
solicitation of first-degree murder based on the evidence presented at the
hearing. The State presented testimony from a State Attorney Investigator,
an undercover officer who met with Alcazar and recordings of all
conversations that occurred between the undercover officer and Alcazar
during the solicitation. We find no abuse of discretion in the trial court’s
finding that a substantial probability exists that Alcazar committed the
crime.
B. Disregard for the Safety of the Victim and Community
The trial court next found the factual circumstances demonstrated
Alcazar’s disregard for the safety of this victim and the community. Here,
the State presented evidence that Alcazar paid the undercover officer to
4
surveil the intended victim, wanted the intended victim’s murder to look like
a robbery and paid the undercover officer in furtherance of the solicitation.
Under these circumstances, we find the trial court did not abuse its
discretion in finding Alcazar had a disregard for the safety of this victim and
the community.
C. There Were No Conditions of Release Reasonably Sufficient to
Protect the Community and the Victim From the Risk of Physical
Harm—No Ties To the Community
The trial court finally found that no conditions of release were
reasonably sufficient to protect the community and victim from the risk of
physical harm. The State presented evidence that Alcazar had no
connection to Miami-Dade County and significant connections to Mexico.
Evidence adduced at the hearing showed Alcazar was a Mexican citizen
and had traveled to Mexico approximately eleven times in the last three
years. It further provided evidence that a GPS monitoring system could not
sufficiently restrain Alcazar to assure the safety of the victim and
community because notifications of tampering or flight could be delayed by
over a day. As such, we find the trial court did not abuse its discretion in
finding that no conditions of release were reasonably sufficient to protect
the community and victim from the risk of physical harm.
5
III. TRIAL COURT’S LEGAL CONCLUSIONS
In Florida, an accused has the right to obtain their release pending
trial pursuant to article I, section 14, of the Florida Constitution, which
provides:
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.
Art. I, § 14, Fla. Const. “The ‘capital or life offense’ exception applies when
a person is charged with a crime punishable by capital punishment or life
imprisonment, and the State can demonstrate ‘the proof of guilt is evident
or the presumption is great.’ The ‘pretrial detention’ exception applies
when, regardless of the level of crime charged, the State can demonstrate
that no conditions of release will protect the community, ensure the
presence of the accused at trial, or assure the integrity of the judicial
process.” Thourtman v. Junior,
275 So. 3d 726, 731 (Fla. 3d DCA 2019).
The Florida Legislature has “provided comprehensive guidelines for when
an original application for bail may be denied as codified in section
6
907.041, Florida Statutes.” State v. Blair,
39 So. 3d 1190, 1192 (Fla.
2010).
Section 907.041 states “[i]t is the intent of the Legislature to create a
presumption in favor of release on nonmonetary conditions for any person
who is granted pretrial release unless such person is charged with a
dangerous crime as defined in subsection (4).” § 907.041(3)(a), Fla. Stat.
Section 907.041(4) provides:
(a) As used in this subsection, “dangerous
crime” means any of the following:
1. Arson;
2. Aggravated assault;
3. Aggravated battery;
4. Illegal use of explosives;
5. Child abuse or aggravated child abuse;
6. Abuse of an elderly person or disabled adult, or
aggravated abuse of an elderly person or disabled
adult;
7. Aircraft piracy;
8. Kidnapping;
9. Homicide;
10. Manslaughter;
11. Sexual battery;
12. Robbery;
13. Carjacking;
14. Lewd, lascivious, or indecent assault or act
upon or in presence of a child under the age of 16
years;
15. Sexual activity with a child, who is 12 years of
age or older but less than 18 years of age, by or at
solicitation of person in familial or custodial
authority;
16. Burglary of a dwelling;
17. Stalking and aggravated stalking;
7
18. Act of domestic violence as defined in s. 741.28;
19. Home invasion robbery;
20. Act of terrorism as defined in s. 775.30;
21. Manufacturing any substances in violation of
chapter 893;
22. Attempting or conspiring to commit any such
crime; and
23. Human trafficking.
§ 907.041(4)(a), Fla. Stat. (emphasis added)
The State argued for, and the trial court ordered pretrial detention
based on section 907.041(4)(c)5. which states:
(c) The court may order pretrial detention if it finds a
substantial probability, based on a defendant’s past
and present patterns of behavior, the criteria in s.
903.046, and any other relevant facts, that any of
the following circumstances exist:
...
5. The defendant poses the threat of harm to the
community. The court may so conclude, if it finds
that the defendant is presently charged with a
dangerous crime, that there is a substantial
probability that the defendant committed such
crime, that the factual circumstances of the crime
indicate a disregard for the safety of the community,
and that there are no conditions of release
reasonably sufficient to protect the community from
the risk of physical harm to persons;
...
§ 907.041(4)(c)5., Fla. Stat. (emphasis added).
The plain language of this section 907.041(4)(c)5. establishes that a
trial court can order pretrial detention under that section if it finds the
defendant “is presently charged with a dangerous crime.” §
8
907.041(4)(c)5., Fla. Stat. Here, the trial court, relying on Watkins v.
Lamberti,
82 So. 3d 825, 826 (Fla. 4th DCA 2011), found solicitation of first-
degree murder constituted a dangerous crime. Our Court, however, has
previously found a dangerous crime can only be one that is enumerated in
section 907.041(4)(a). See Hodges v. State,
327 So. 3d 923, 925 (Fla. 3d
DCA 2021) (“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.”)
(emphasis added).
Solicitation of first-degree murder is not listed as a dangerous crime
under section 907.041(4)(a). The State urges this Court to follow Watkins
and determine solicitation of first-degree murder is a dangerous crime, but
we are limited by the language of the statute. 1 Section 907.041(4)(a)
specifically provides a list of crimes that qualify as dangerous crimes “as
used in this subsection.” 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
1
Even if we were inclined to follow Watkins, which we are not, a panel of
this Court is not free to deviate from a holding on the same issue that was
rendered by a prior panel.
9
list of enumerated “dangerous crimes” to cover a crime specifically
excluded from the definition.
The State also argues there was sufficient competent, substantial
evidence presented for the trial court to find Alcazar’s solicitation of murder
became attempted murder. Review of the record, transcripts and the trial
court’s order, however, show no such finding was made and we decline the
invitation to do so in the first instance here. Further, the information only
lists solicitation of first-degree murder.
“A trial court’s authority to hold the defendant without any bond is
circumscribed by the provisions of section 907.041, and the trial court must
consider and follow the pertinent provisions of the pretrial detention statute,
as well as [Florida Rules of Criminal Procedure] 3.131 and 3.132.”
Ginsberg v. Ryan,
60 So. 3d 475, 477 (Fla. 3d DCA 2011) (internal
citations omitted). Essentially, “a court is required to consider the
requirements of section 907.041 and [rules] 3.131 and 3.132 before
denying a request for pretrial release.”
Id.
Rules 3.131 and 3.132 provide the proper procedure for a trial court
to deny a request for pretrial release. Initially, the State must file a motion
seeking pretrial detention within twenty-four hours of the defendant's arrest.
Fla. R. Crim. P. 3.132(a); § 907.041(4)(e), (g). The motion must set “forth
10
with particularity the grounds and the essential facts on which pretrial
detention is sought and [must certify] that the state attorney has received
testimony under oath supporting the grounds and the essential facts
alleged in the motion.” Fla. R. Crim. P. 3.132(a). If “the State indicates to
the court that it does not intend to file a motion for pretrial detention, . . . or
files a motion that is facially insufficient, the judicial officer shall proceed to
determine the conditions of release pursuant to the provisions of rule
3.131(b).” Fla. R. Crim. P. 3.132(a).
If, however, “the motion for pretrial detention is facially sufficient, the
judicial officer shall proceed to determine whether there is probable cause
that the person committed the offense. If probable cause is found, the
person may be detained in custody pending a final hearing on pretrial
detention.” Fla. R. Crim. P. 3.132(a). At the final hearing, the State “has
the burden of showing beyond a reasonable doubt the need for pretrial
detention pursuant to the criteria in section 907.041, Florida Statutes.” Fla.
R. Crim. P. 3.132(c)(1).
We therefore grant the petition for habeas corpus and remand this
cause to the trial court. The State shall have no more than three business
days following the issuance of this opinion to file a legally sufficient motion
for pretrial detention. Should the State fail to file such a motion, the trial
11
court shall immediately thereafter conduct a hearing pursuant to rule 3.131
to evaluate the appropriate conditions of release or detention. The
defendant shall remain in custody pending the determination of pretrial
release or detention.
This opinion shall take effect immediately notwithstanding the filing or
disposition of any motion for rehearing.
Granted.
12
