Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DEREK BENOIT, Petitioner, v. KURT A. HOFFMAN, SHERIFF OF SARASOTA COUNTY, Respondent. No. 2D23-708 April 26, 2023 Petition for Writ of Habeas Corpus to the Circuit Court for Sarasota County; Andrea McHugh, Judge. Larry L. Eger, Public Defender, and Aaron Getty, Assistant Public Defender, Sarasota, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Sonia C. Lawson, Assistant Attorney General, Tampa, for Respondent. KHOUZAM, Judge. Derek Benoit filed a petition for writ of habeas corpus challenging his detention after the revocation of his pretrial release. Because the judge presiding over Mr. Benoit's first appearance in one case did not have authority to revoke his bond in a separate case, we grant the petition. Mr. Benoit was arrested and charged with fleeing to elude in case number 22-CF-13079. Judge Donna Padar was assigned to that case; Mr. Benoit posted bond and was released. A few months later, Mr. Benoit was arrested and charged with misdemeanor battery in case number 23-MM-2996. Judge Andrea McHugh was the assigned judge. At Mr. Benoit's first appearance, the State orally moved to revoke his bond in the earlier case, 22-CF-13079, and Judge McHugh revoked the bond. Mr. Benoit claims, and we agree, that pursuant to Florida Rule of Criminal Procedure 3.131, Judge McHugh lacked authority to revoke his pretrial release in case number 22-CF-13079 because the case had been assigned to another judge. Our recent opinion in Little v. Gualtieri, 353 So. 3d 675 (Fla. 2d DCA 2022), is instructive. In Little, the emergency duty judge revoked the defendant's bond based on "oral motion and testimony" alleging that the defendant had consumed alcohol about fifteen days earlier in violation of his pretrial release conditions. Id. at 676. We held that under rule 3.131(d), the duty judge lacked the authority to revoke the bond because the case was already assigned to a trial judge and there was no exigency. Id. at 677. Rule 3.131(d) provides in pertinent part: No judge or a court of equal or inferior jurisdiction may modify or set a condition of release, unless the judge: (A) imposed the conditions of bail or set the amount of bond required; (B) is the chief judge of the circuit in which the defendant is to be tried; (C) has been assigned to preside over the criminal trial of the defendant; or (D) is the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release. 2 "[T]he rule does not empower an alternate judge such as an emergency duty judge to 'modify or set a condition of release.' " Little, 353 So. 3d at 677 (quoting Fla. R. Crim. P. 3.131(d)). The State's reliance on Parker v. State, 843 So. 2d 871 (Fla. 2003), is misplaced. In Parker, the defendant had been arrested and released on bond in one case when he was subsequently arrested for a new crime. Id. at 873. As here, the defendant's bond was revoked in the earlier case. Id. But in Parker, that was done at a hearing in the older case by the judge overseeing that case. Id. The facts here, in which the judge on the subsequent case revoked bond in the earlier case, are distinguishable. In accordance with Little and rule 3.131(d), we conclude that the first appearance judge in the instant case lacked the authority to revoke Mr. Benoit's pretrial release in case number 22-CF-13079. The petition for writ of habeas corpus is granted to the extent that Mr. Benoit's pretrial release conditions in case number 22-CF-13079 shall be reinstated without prejudice to the State filing an appropriate motion to revoke pretrial release. The petition for writ of habeas corpus is granted. VILLANTI and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 3