MARION GORDEL MCCUTCHEN v. THE STATE OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed May 3, 2023.
________________
No. 3D23-473
Lower Tribunal No. AGPA77E
________________
Marion Gordel McCutchen,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Habeas Corpus.
Carlos J. Martinez, Public Defender, and John Eddy Morrison,
Assistant Public Defender, for petitioner.
Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for respondent.
Before SCALES, MILLER and LOBREE, JJ.
On Confession of Error
PER CURIAM.
Petitioner Marion Gordel McCutchen petitions this Court for a writ of
habeas corpus or, in the alternative, a writ of mandamus to quash a bench
warrant issued in the County Court of Miami-Dade County. On respondent
State of Florida’s commendable confession of error, we grant the petition for
writ of habeas corpus and quash the trial court’s bench warrant.
On July 27, 2022, Petitioner was arrested for driving without a valid
driver’s license and for driving a vehicle with an expired tag. Petitioner
executed an Acknowledgement of Appointment of the Public Defender to
represent him, which included a waiver of his presence at all pre-trial
conferences, pursuant to Florida Rule of Criminal Procedure 3.180(a)(3).
Petitioner’s case was on a calendar for a status report on March 3,
2023. At this hearing, when Petitioner did not appear, the trial court issued a
bench warrant for Petitioner’s arrest with a $250 bond, despite the Public
Defender informing the trial court that Petitioner had waived his presence in
court. Our record reflects, and the State concedes, that the trial court erred
by not providing advance notice to Petitioner, through counsel, that his
presence in court was required before issuing the bench warrant. See
Westberry v. State, 246 So. 3d 1308, 1309 (Fla. 3d DCA 2018).
Petition for writ of habeas corpus granted; bench warrant quashed.
2