BILLY JAMES BARTON

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

BILLY JAMES BARTON,

Petitioner,

v. Case No. 5D21-168

STATE OF FLORIDA,

Respondent.

________________________________/

Opinion filed January 26, 2021

Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.

Matthews R. Bark of Matthews R. Bark, P.A., Altamonte Springs, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Pamela

J.

Koller, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Billy James Barton petitions this Court for an emergency writ of habeas corpus, alleging he is being unlawfully detained in Marion County when he should be eligible for pretrial release. The State commendably concedes that Petitioner is entitled to pretrial release regarding his arrest in Marion County. We agree and remand with instructions

2 for the court in Marion County to promptly conduct a hearing to set a reasonable bond or other appropriate conditions for Petitioner’s pretrial release. Petitioner was first arrested in Citrus County and charged with misdemeanor resisting arrest. While he was out on bond for the Citrus County case, he was arrested in Marion County and charged with possession of methamphetamine, and possession of cocaine, less than 28 grams. He was denied bail in the Marion County case because he allegedly committed the Marion County offenses while out on bond from Citrus County. “When a defendant commits a new offense while out on bond, the trial court can, sua sponte, revoke the bond in the earlier offense.” Rodriguez v. State, 269 So. 3d 639, 640 (Fla. 5th DCA 2019) (citing Parker v. State, 843 So. 2d 871, 878 (Fla. 2003)). Thus, Petitioner’s bond in the Citrus County case could have been revoked. However, the trial court erred in refusing bond regarding Petitioner’s Marion case simply because he was already on pretrial release when he supposedly committed the crimes in Marion County. “Parker alone cannot be used as a basis to hold a defendant without bond as to any charges for which the defendant was not already on a form of pretrial release.” Alexander v. Judd, 930 So. 2d 847, 849 (Fla. 2d DCA 2006); see Rodriguez, 269 So. 3d at 640. Every person charged with a crime that is not a capital offense or offense punishable by life imprisonment is entitled to pretrial release on reasonable conditions, unless no condition of release can reasonably protect the community and assure the defendant’s presence in court. See Art. I, § 14, Fla. Const.; see also Fla. R. Crim. P. 3.131(a) (2020). Petitioner is not charged with a capital offense or one punishable by imprisonment for life. Furthermore, the State has not filed a motion seeking pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132(a). If the State does not

ORFINGER, EDWARDS and TRAVER, JJ., concur.

1 The petition is granted without prejudice to the State to file a motion for pretrial detention, should it choose to do so. See Kendall v. State, 290 So. 3d 150 (Fla. 5th DCA 2020); Rodriguez v. State, 269 So. 3d 639, 640 (Fla. 5th DCA 2019). We are confident that if the State, on remand, asks the trial court to consider Petitioner’s prior criminal record or his track record for attending court in setting reasonable conditions for pretrial release, it will offer admissible evidence regarding same.