STEVEN LAX v. CARMINE MARCENO (2023)

Petitioner, Steven Lax (“Lax”), was arrested and subsequently charged by Information with: (1) First-Degree Burglary While Armed (Structure) With A Firearm; (2) Aggravated Battery with a Deadly Weapon; (3) Aggravated Assault with a Deadly Weapon; and (4) Kidnapping. The State filed a Motion for Pretrial Detention pursuant to section 907.041(4)(c)(5), Florida Statutes (2019). At the hearing on the motion, the trial court found that Lax posed a threat of harm to the community under section 907.041(4)(c)(5). The trial court granted the State's motion.

In his Amended Emergency Petition for Writ of Habeas Corpus, Lax argues, among other things, that the trial court failed to make a finding that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons posed by Lax. We agree with Lax on this point.¹

Section 907.041(4)(c)(5) provides:

(c) The court may order pretrial detention if it finds a substantial probability, based on a defendant's past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exist:

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5. The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.

§ 907.041(4)(c)(5), Fla. Stat. (2019) (emphasis added). Thus, in order for a court to conclude that a defendant poses a threat of harm to the community under section 907.041(4)(c)(5), the court must make findings that each of the criteria set forth in section 907.041(4)(c)(5) have been met. Florida Rule of Criminal Procedure 3.132(c)(2) reiterates this requirement. Fla. R. Crim. P. 3.132(c)(2) (“The court's pretrial detention order․shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record.”); see also § 907.041(4)(i), Fla. Stat. (2019) (same).

At the hearing on the Motion for Pretrial Detention, the trial court orally made several of the required findings. It made no oral finding, however, regarding whether there were conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons posed by Lax. The trial court's written order is devoid of any finding on that issue.

For these reasons, we grant the Petition and order the trial court to perform a new hearing on the Motion for Pretrial Detention on an expedited basis. At the hearing, the trial court must make a finding as to whether any conditions of release are reasonably sufficient to protect the community from the risk of physical harm to persons posed by Lax.

FOOTNOTES

1.   We find the other arguments made in the petition to be without merit.

MIZE, J.

SASSO, C.J., and WHITE, J., concur.