SCHWARTZ v. NEUMANN (1999)

 Petitioner Steven Schwartz filed a petition for writ of habeas corpus, seeking relief from a trial court order granting the state's motion for pretrial detention.   The trial court granted the motion based on its findings (1) that Petitioner had breached conditions of his release under a pretrial intervention program deferred prosecution agreement, as well as the conditions of a restraining order issued in accordance with the agreement;  and (2) that there were no conditions of release sufficient to protect the community from the risk of physical harm.   However, the respondent concedes that the state failed to prove the existence of at least one of the four circumstances listed in section 907.041(4)(b).   Absent such proof, we must vacate the pretrial detention order.   See Paul v. Jenne, 728 So.2d 1167 (Fla. 4th DCA 1999);  Metzger v. Cochran, 694 So.2d 842 (Fla. 4th DCA 1997).   However, the trial court's findings support further proceedings pursuant to rule 3.131(a), Florida Rules of Criminal Procedure and section 903.046, Florida Statutes (1997) to determine petitioner's entitlement to pretrial release.   We also note that there remains pending a psychiatric evaluation and an unfinished Baker Act proceeding that may bear upon the need for confinement in a mental health facility for appropriate treatment.

Accordingly, we grant habeas corpus and we vacate the pretrial detention order.   We remand this cause to the trial court to promptly conduct further proceedings to determine petitioner's entitlement to pretrial release and/or for further proceedings pursuant to the Baker Act.

Clerk is directed to issue mandate concurrently with this opinion.

ON MOTION FOR REHEARING

We deny respondent's motion for rehearing.   However, we substitute the following opinion for that issued by this court on March 31, 1999.

Petitioner Steven Schwartz filed a petition for writ of habeas corpus, seeking relief from a trial court order granting the state's motion for pretrial detention.   The trial court granted the motion based on its findings (1) that Petitioner had breached conditions of his release under a pretrial intervention program deferred prosecution agreement, as well as the conditions of a restraining order issued in accordance with the agreement;  and (2) that there were no conditions of release sufficient to protect the community from the risk of physical harm.   However, the state failed to prove the existence of at least one of the four circumstances listed in section 907.041(4)(b).  Absent such proof, we must vacate the pretrial detention order.   See Paul v. Jenne, 24 Fla. L. Weekly D581, 728 So.2d 1167 (Fla. 4th DCA 1999);  Metzger v. Cochran, 694 So.2d 842 (Fla. 4th DCA 1997).   However, the trial court's findings support further proceedings pursuant to rule 3.131(a), Florida Rules of Criminal Procedure and section 903.046, Florida Statutes (1997) to determine petitioner's entitlement to pretrial release.   We also note that there remains pending a psychiatric evaluation and an unfinished Baker Act proceeding that may bear upon the need for confinement in a mental health facility for appropriate treatment.

Accordingly, we grant habeas corpus and we vacate the pretrial detention order.   We remand this cause to the trial court to promptly conduct further proceedings to determine petitioner's entitlement to pretrial release and/or for further proceedings pursuant to the Baker Act.

Clerk is directed to issue mandate concurrently with this opinion.

PER CURIAM.

DELL, WARNER and HAZOURI, JJ., concur.