Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 19, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-232 Lower Tribunal No. 19-23517 ________________ Patrick Arnold Davis, Petitioner, vs. Daniel Junior, etc., et al., Respondents. 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 Ivy R. Ginsberg, Assistant Attorney General, for respondent State of Florida. Before SCALES, GORDO and LOBREE, JJ. PER CURIAM. Patrick Arnold Davis petitioned this Court to issue a writ of habeas corpus because, at the adversary preliminary hearing conducted below, the State adduced only hearsay testimony that Davis’s license had been suspended as a habitual traffic offender. We have granted the petition, and issued the writ, for the following reasons. On December 19, 2019, Davis was arrested for driving while his license was suspended as a habitual traffic offender, a felony, pursuant to section 322.34 of the Florida Statutes (2019). On December 20, 2019, the first appearance judge set Davis’s bond at $1,500. After the State failed to charge Davis by information within twenty-one days of his arrest, Davis sought an adversary preliminary hearing to determine whether probable cause existed to believe both that a felony offense had been committed and that Davis had committed it. See Fla. R. Crim. P. 3.133(b)(1),(5). At the January 24, 2020 adversary preliminary hearing, the State called one witness, the arresting officer who conducted the traffic stop. The officer testified that Davis was the driver, and the only occupant, of the vehicle. Over defense counsel’s hearsay objection, the trial court permitted the officer to further testify that, after learning Davis’s identification, the officer had “run his identification” (i.e., conducted a records check) that “revealed the fact that [Davis] was a habitual traffic offender.” The State did not adduce a computer printout of Davis’s driving 2 record, see § 322.201, Fla. Stat. (2019), or otherwise seek to move Davis’s driving history into evidence. The trial court determined that probable cause existed that Davis had driven while his license was suspended as a habitual traffic offender and also denied defense counsel’s request that Davis be released on his own recognizance. The lower court did not, however, reduce its probable cause findings to a written order. See Fla. R. Crim. P. 3.133(b)(5) (“A finding that probable cause does or does not exist shall be made in writing, signed by the judge, and, together with the evidence received in the cause, shall be filed with the clerk of the circuit court.”). On January 30, 2020, Davis petitioned this Court for habeas corpus relief. The State concedes that, at the January 24, 2020 adversary preliminary hearing, it presented no non-hearsay testimony that Davis’s driver’s license had been suspended as a habitual traffic offender. Nonetheless, the State suggests that, similar to a nonadversary probable cause determination conducted under rule 3.133(a),1 it may rely exclusively on hearsay evidence in an adversary preliminary hearing conducted under rule 3.133(b). We disagree. In Evans, the First District rejected this very argument, noting that “[u]nlike Rule 3.133(a), Rule 3.133(b) does not 1 Evans v. Seagraves, 922 So. 2d 318, 321 (Fla. 1st DC 2006) (“Hearsay may, indeed, suffice in proceedings under Rule 3.133(a), which provides for a nonadversary probable cause determination within forty-eight hours of the defendant’s arrest, where the arrest was not made pursuant to an arrest warrant.”). 3 permit the state to rely wholly on a complaint (even if sworn), on another affidavit or on any other evidence inadmissible at trial. Rule 3.133(b)(3) provides instead that all witnesses shall be examined in the presence of the defendant and may be cross-examined.” Evans, 922 So. 2d at 321-22. In addition, our sister court noted that “Rule 3.133(b)(5) provides that the judge shall cause the defendant to be held to answer to the circuit court, only if it appears to the judge ‘from the evidence’ that there is probable cause to believe that the defendant has committed the offense.” Id. at 322. We agree with the First District that, in a rule 3.133(b) adversary probable cause hearing, the State cannot rely solely on hearsay evidence to meet its burden. For these reasons, we have granted the petition for writ of habeas corpus with instructions that Davis be released on his own recognizance in case F19-23517. 4