Andrade v. State
| Decision Date | 13 October 2021 |
| Docket Number | No. 4D21-1472,4D21-1472 |
| Citation | 328 So.3d 307 |
| Parties | Javier E. ANDRADE, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Gordon Weekes, Public Defender, and James K. Rubin, Assistant Public Defender, Fort Lauderdale, for petitioner.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for respondent.
Petitioner Javier Andrade, charged with attempted burglary of a dwelling, seeks certiorari review of the trial court's order revoking his admission to a drug court pretrial intervention program. The petitioner also requests a writ of mandamus compelling the trial court to admit him to the program. As set forth below, we grant the petitioner's request for a writ of certiorari, deny the request for a writ of mandamus, and remand for further proceedings at the trial court level.
After being arrested and charged with attempted burglary of a dwelling, Petitioner sought admission to pretrial intervention drug court. Following a hearing on this request, the trial court found that Petitioner met the criteria for admission and granted his request. This led to a pre-determination hearing before a different judge. The State argued that the purported victim in this case was provided neither notice nor an opportunity to be consulted regarding her view on Petitioner's participation in a pretrial diversion program, in violation of section 960.001(1)(g)1.c., Florida Statutes (2020).1 The second judge agreed, and the purported victim was permitted to testify at the pre-determination hearing. She urged the court to exclude Petitioner from acceptance to the drug court program, based on the history and severity of Petitioner's conduct directed toward the purported victim.
After hearing this testimony, the trial court denied Petitioner's request for admission to the drug court program, finding "due to the charge and the victim's objections the defendant is not eligible for drug court over defense objection" (emphasis added). This ruling is the subject of Petitioner's challenge.
"To obtain certiorari relief, a petitioner must demonstrate that the order in question departs from the essential requirements of law, and that the petitioner ... has suffered irreparable harm." Simeone v. State , 276 So. 3d 797, 803 (Fla. 4th DCA 2019).
We find no error in the trial court permitting and considering the purported victim's testimony at the second hearing. However, although a victim's objections must be heard and considered, they are not determinative.
Section 948.08(6)(b), Florida Statutes (2020), provides the criteria "for voluntary admission into a pretrial substance abuse education and treatment intervention program, including a treatment-based drug court program." A defendant is eligible for voluntary admission if he or she:
§ 948.08(6)(b) 1.– 4., Fla. Stat. (2020). The "pretrial intervention program" statute further provides that, "[f]or purposes of this subsection, the term ‘nonviolent felony’ means a third degree felony violation of chapter 810 or any other felony offense that is not a forcible felony as defined in s. 776.08." § 948.08(6)(a), Fla. Stat. (2020).
With the possible exception of section 948.08(6)(b) 1., Petitioner meets the eligibility requirements. Although the State argues that "attempted burglary of a dwelling" is not a "nonviolent felony," it is "a third degree felony violation of chapter 810" and thus a "nonviolent felony" per section 946.08(6)(a). See Bergin v. State , 109 So. 3d 300, 300 (Fla. 4th DCA 2013) (); Ramsey v. State , 562 So. 2d 394, 394 n.2 (Fla. 5th DCA 1990) (); Butler v. State , 513 So. 2d 780, 780 (Fla. 1st DCA 1987) (same).
If the trial court determines that Petitioner meets all of section 948.08(6)(b) ’s eligibility requirements, including section 948.08(6)(b) 1., "[u]pon motion of either party or the court's own motion, and with the agreement of the defendant, the court shall admit an eligible person into a pretrial substance abuse education and treatment intervention program ...." § 948.08(6)(c), Fla. Stat. (2020) (emphasis added). This is subject to three exceptions that neither party contends are applicable here. Thus, if Petitioner met the eligibility requirements of section 948.08(6)(b), the trial court shall admit him into the program, regardless of the inclinations of either the purported victim or the trial court.
Petitioner has established that the trial court departed from the essential requirements of law by finding, "due to the...
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