MALAVE v. STATE (1999)

District Court of Appeal of Florida,Fourth District.

Freddie L. MALAVE, Petitioner, v. STATE of Florida, Respondent.

No. 99–0377

Decided: February 10, 1999

Richard L. Jorandby, Public Defender, Jo Ann Baron, and Benjamin W. Maserang, Assistant Public Defenders, West Palm Beach, for petitioner. Robert A. Butterworth, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondent.

The petition for writ of habeas corpus is granted. At the January 29, 1999 hearing which the trial court set to allow petitioner to explain his failure to appear in court, petitioner testified that the person with whom he had arranged to give him a ride to court had taken a detour which caused petitioner to be late. The January 29 hearing did not resolve the question of whether petitioner's failure to appear was willful or merely negligent and the trial court did not make any finding that the failure to appear was willful. See Wilson v. State, 669 So.2d 312 (Fla. 5th DCA 1996). Petitioner's bond shall be reinstated and he shall be released forthwith.

The transcript of the hearing demonstrates that the trial court found that petitioner's efforts were insufficient to ensure his arrival in court on time. The failure to make adequate travel arrangements is tantamount to a finding of wilfulness sufficient to support the court's order.

PER CURIAM.

FARMER and STEVENSON, JJ., concur. GROSS, J., dissents with opinion.

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