NICOLAS GIOVANNI KEY

v.

STATE OF FLORIDA

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

Case No. 6D2026-1546 Lower Tribunal No. 2025-CF-012209

NICOLAS GIOVANNI KEY, Petitioner, v. STATE OF FLORIDA, Respondent.

Petition for Writ of Habeas Corpus to the Circuit Court for Orange County. July 28, 2026

MIZE, J.

Petitioner, Nicolas Giovanni Key, filed in this Court a petition for writ of habeas corpus (the “Petition") asserting that a capias warrant issued by the trial court for Petitioner's arrest constitutes an unlawful restraint on his liberty. Because Petitioner is not in custody at this time, the petition must be denied.

The Petition and Proceedings Below

The Petition alleges that on September 30, 2025, Petitioner was arrested for Aggravated Assault with a Deadly Weapon and Battery (Domestic Violence). The State filed an Information for these charges on December 11, 2025. The trial court conducted an arraignment on January 22, 2026. Prior to the arraignment, Petitioner's counsel filed, among other things, a Written Plea of Not Guilty and Waiver of Arraignment. At the arraignment, the trial court scheduled a pretrial conference for March³, 2026 at 1:30p.m. Later that same day, the trial court issued a "Uniform Order Setting Felony Case Management Conference, Pre-Trial Conference and Trial," confirming that the pretrial conference would be held on Tuesday, March³, 2026 at 1:30p.m. The order stated, as such orders typically do, that the defendant's presence at the pretrial conference could be waived.¹ Upon reviewing the order, Petitioner's counsel advised Petitioner that Petitioner's counsel would orally waive Petitioner's appearance at the conference and that, accordingly, Petitioner need not appear at the conference.

On February 27, 2026, the trial court issued a new order rescheduling Petitioner's pretrial conference for March³, 2026 at 9:00 a.m. The order stated in bolded language at the top of the order that it was "corrected to reflect March 3rd Pre Trial Conference at 9am instead of¹:30pm.” The Petition asserts that while Petitioner's counsel reviewed the order rescheduling the pretrial conference, the language and formatting of the order were “virtually identical" to the court's prior order, and so he simply did not notice the change in the time for the pretrial

With no appearance from Petitioner or his counsel at the pretrial conference, the trial court issued a no-bond capias warrant for Petitioner's arrest. Upon learning of the capias warrant, Petitioner's counsel filed a Motion to Withdraw Capias, which the trial court denied. Counsel then filed a more extensive Amended Motion to Quash Capias, which the trial court also denied. Finally, Petitioner's counsel filed a Motion for Reconsideration or Clarification of Order Denying Defendant's Amended Motion to Quash Capias. After the trial court denied that motion as well, the Petitioner filed his Petition in this court. As of the filing of the Petition, the capias warrant had not been executed and the Petitioner remained out of custody. Since the filing of the Petition, this court has received no information from either party indicating that the warrant has been executed or that the Petitioner is in custody. As a result of the capias warrant, the clerk of the trial court notified the surety on Petitioner's bond that the bond would be forfeited.

In the Petition, Petitioner asserts that the trial court deprived him of reasonable notice of the pretrial conference by changing the time of the conference less than 72 hours before the conference was scheduled to occur. This was less than two business days' notice, as the order changing the time of the pretrial conference was issued late on a Friday afternoon and the new time for the conference was the following Tuesday at 9:00 a.m. Petitioner also argues that the trial court erred by issuing the capias warrant without first finding that Petitioner's failure to appear at the pretrial conference was willful or knowing and that no conditions of release could secure Petitioner's presence in court. Lastly, Petitioner asserts that the trial court fundamentally erred by ordering the forfeiture of the Petitioner's bond because, under section 903.26(1), Florida Statutes, a bond cannot be forfeited unless the surety is provided with at least 72 hours' advance notice of the required court appearance.

Importantly, Petitioner concedes in his Petition that a writ of habeas corpus is normally a proper remedy only when the petitioner is in physical custody. Petitioner contends, however, that a writ of habeas corpus is also available "to those petitioners who are under a significant restraint on liberty," and that where a trial court has improperly issued a warrant in violation of procedural rules, a constructive restraint on liberty is established such that the petitioner need not wait for execution of the warrant to seek a writ of habeas corpus.

Analysis

While Petitioner alleges a sympathetic situation, and he may be entitled to seek relief in the trial court or in this court once he is in custody, we cannot agree that Petitioner can obtain a writ of habeas corpus when he is not in the present custody of a government authority.

Section 79.01, Florida Statutes, governs writs of habeas corpus, and provides:

When any person detained in custody, whether charged with a criminal offense or not, applies to the Supreme Court or any justice thereof, or to any district court of appeal or any judge thereof or to any circuit judge for a writ of habeas corpus and shows by affidavit or evidence probable cause to believe that he or she is detained without lawful authority, the court, justice, or judge to whom such application is made shall grant the writ forthwith, against the person in whose custody the applicant is detained and returnable immediately before any of the courts, justices, or judges as the writ directs. (Emphasis added).

Importantly, the statute describes the status of a person who may seek relief in the present tense, i.e., a person who is "detained in custody." By its plain language, the statute does not apply to persons who are not yet "detained" but who will be detained in the future. See Morris v. Muniz, 252 So. 3d 1143, 1162-63

Applying section 79.01, the Florida Supreme Court has expressly held that a writ of habeas corpus should not issue where the petition does not show probable cause that the petitioner "is detained in custody without lawful authority."³ Sullivan v. State ex rel. McCrory, 49 So. 2d 794, 796 (Fla. 1951); see also Starr v. Smith, 77 So. 2d 834, 834 (Fla. 1955) (holding that an applicant who is not in custody is not entitled to a writ of habeas corpus). Complying with this holding, multiple district courts have acknowledged that a petitioner cannot obtain a writ of habeas corpus unless he is in the custody of a government authority. Lambertson v. State, 479 So. 2d 773, 774 (Fla. 5th DCA 1985) (“The petitioner is admittedly not in custody and is avoiding arrest. A petitioner who is not in custody is not entitled to a writ of habeas corpus."); North v. State, 217 So. 2d 608, 609 (Fla. 1st DCA inquire without delay into the cause of the prisoner's imprisonment, and shall either discharge the prisoner, admit him or her to bail or remand him or her to custody, as the law and the evidence require . . . ." (emphasis added)).

1969) (“[A] habeas corpus action will not lie unless it affirmatively appears that the petitioner is in custody and is entitled to be released from such custody."); Quarles v. State, 56 So. 3d 857, 858 (Fla. 1st DCA 2011) (“In order to state a prima facie case for a writ of habeas corpus, the complaint must allege:¹) that the petitioner is currently detained in custody; and show²) by affidavit or evidence probable cause to believe that he or she is detained without lawful authority." (quoting § 79.01, Fla. Stat. (internal quotations omitted))); Hernandez v. State, 390 So. 3d 677 (Fla. 3d DCA 2024) (“It is well-settled that a petitioner seeking relief in habeas corpus must demonstrate he or she is in custody.").

In support of his argument that a petitioner may seek a writ of habeas corpus where a trial court has improperly issued a warrant and that warrant has not yet been executed nor has the petitioner turned himself in, Petitioner relies on a line of cases in which district courts issued writs of habeas corpus and quashed capias warrants that trial courts improperly issued after defendants did not appear at pretrial conferences or arraignments, even though the trial courts never advised the defendants that their personal presence was required. In those cases, the district courts found that the trial courts erred by entering capias warrants based on defendants' failures to appear where the defendants did not receive prior notice that their personal presence was required. See Westberry v. State, 246 So. 3d 1308, 1309 (Fla. 3d DCA 2018); McCutchen v. State, 358 So. 3d 1292 (Fla. 3d DCA

2023); Cannon v. State, 253 So. 3d 1200, 1201 (Fla. 2d DCA 2018); Cruz v. State, 822 So. 2d 595, 596 (Fla. 3d DCA 2002); Charlemagne v. Guevara, 183 So. 3d 1261, 1263 (Fla. 3d DCA 2016); Cilien v. State, 424 So. 3d 536, 538 (Fla. 3d DCA 2025). However, in none of these cases did the district court's opinion state that the capias warrant had not yet been executed or that the petitioner was not in custody at the time the writ of habeas corpus was issued. Indeed, in Charlemagne and Cilien, the opinions both note that the petitioner was arrested or in custody pursuant to the warrant. Charlemagne, 183 So. 3d at 1263 (“Charlemagne remains in custody."); Cilien, 424 So. 3d at 538 (“Petitioner was later arrested on that bench warrant."). Therefore, these cases do not stand for the proposition that a petitioner may seek a writ of habeas corpus to quash a capias warrant where the warrant has not been executed and the petitioner is not yet in physical custody.⁵

Petitioner also argues that "custody" does not require actual physical custody but can properly reach petitioners "who are under significant restraint on liberty." Petitioner cites to a concurrence in Sandstrom v. Kolski, in which the concurring judge argued that a petitioner was in custody where he was subject to a requirement to appear in court at a future date. 305 So. 2d 75, 76 (Fla. 3d DCA 1974) (Nathan, J., concurring). However, the concurring judge's position was expressly rejected by the majority in that case. Id.

Petitioner also points to Hensley v. Municipal Court, San Jose Milpitas Judicial District, in which the United States Supreme Court held that a writ of habeas corpus could be issued to a petitioner who was released on his own recognizance by a state court pending execution of his sentence for a state court conviction. 411 U.S. 345, 351 (1973). However, while the petitioner in Hensley was not in actual physical custody when he sought the writ of habeas corpus, he was actively and presently subject to multiple restraints on his liberty as a of these opinions. See Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005) (“А prior opinion has precedential value only to the extent that it is possible to determine from the opinion that the material facts are sufficiently similar. Moreover, it is elementary that the holding in an appellate decision is limited to the actual facts recited in the opinion." (internal citations, quotation and alterations omitted)).

condition of his release pending execution of his sentence. Id. at 348. Petitioner in this case is not currently subject to present restraints on his liberty – he is subject to an order to impose future restraints that has not yet been implemented because he has not been arrested nor turned himself in.⁷

At bottom, Petitioner argues that we should replace the present tense words "detained in custody" in section 79.01 with the future looking words, “subject to future detainment." We have no authority to alter the statute in this manner. While we do not exclude the possibility that "custody" may indeed include

Conclusion

For all of the above reasons, the petition for writ of habeas corpus is denied. This denial is without prejudice for Petitioner to seek any appropriate relief in the trial court or this court in the event he is actually detained.

PETITION DENIED.

GANNAM, J., concurs. SMITH, J., concurs in result only.

Brent Lightfoot, of Lightfoot Law, P.A., Orlando, for Petitioner.

James Uthmeier, Attorney General, Tallahassee, and Daniel Caldwell, Assistant Attorney General, Daytona Beach, for Respondent.