Criminal Procedure: Custody and Release

Custody and Release

• A person must be informed of the crime they are being charged with, provided a copy of the complaint, and given their Miranda warnings within 24 hours of arrest at a First Appearance before a judicial officer.

Pretrial Detention

• A delay in presentment entitles the defendant to immediate release, but not to a dismissal of charges.
• The court has discretion to detain or not to detain a defendant under Fla.R.Crim.P. 3.131.
• In cases involving a dangerous crime, the prosecution will file a motion for pretrial detention, which will require a hearing to determine whether there is a facially sufficient motion and probable cause exists to hold the defendant in custody pending a final pretrial detention hearing.

Release

• Release of the defendant is conditioned on the court's discretion in holding an accused to protect the community, assure their appearance at trial, and assure the integrity of the judicial process.
• The court may also require a monetary bond (Fla.R.Crim.P. 3.131(b)).

Bonds

• A requirement for bail may not be imposed solely as preventative detention prior to trial (Harp v. Hinckley, 410 So.2d 619 (Fla. 4th DCA 1982)).
• The court will consider various factors, including the nature and circumstances of the offense, weight of evidence, defendant's family ties, length of residence, employment, history, financial resources, mental condition, and past conduct.
• The court may specify conditions for the release on bail to include restrictions on travel, association, and other reasonable conditions to assure an appearance (F.S.§907.041).
• The court may modify or revoke the conditions of the release on bail, and the state may bring a motion to modify or forfeit the bond.

Breach of Bond

• Upon breach of the bond or violation of any conditions of release, the court may revoke the bond and have the defendant taken into custody or may increase or reduce the amount of the bond (Fla.R.Crim.P. 3.131(c),(f)).

Unable or Fails to Post Bond

• If a defendant is incarcerated and unable to post bond and requests a trial by jury, they will be transferred within five days to the jail of the court that will provide a trial by jury (F.S.§932.65).

Final Detention Order

• The prosecution will file a motion for pretrial detention at the First Appearance when a defendant is charged with a dangerous crime.
• If the prosecution provides a facially sufficient motion and probable cause exists, the defendant will be held in custody until a Final Detention Hearing is held.
• The final hearing must be held within five days of the filing of the motion or the date of taking the person into custody, whichever is later.
• The prosecution has the burden of showing beyond a reasonable doubt the need for pretrial detention.

Probable Cause Hearing

• A defendant in custody who was charged with an offense shall have a non-adversary probable cause hearing within 48 hours of their arrest.
• If probable cause to detain the defendant is not established, the defendant shall be released on their own recognizance.

Length of Detention

• A defendant may not be detained for more than 90 days prior to trial unless a trial delay is requested by the defendant (Fla.R.Crim.P. 3.132(d)).

Total Time for Filing Formal Charges

• For defendants in custody, formal charges must be filed within 30 days from the arrest date or from the date of service of a capias for arrest.
• If no charges are filed, on the 30th day, the court shall:
  • Order the automatic release of the defendant on the 33rd day; or
  • With a showing of good cause by the State, order release on the 40th day.
• A defendant shall not remain in custody beyond 40 days without being formally charged (Fla.R.Crim.P. 3.134).