What is pre-trial release?
It is the policy of the state of Florida that persons committing serious criminal offenses, posing a threat to the safety of the community or the integrity of the judicial process, or persons failing to appear at trial—must be detained upon arrest. However, persons found to meet specified criteria must be released under certain conditions until proceedings are concluded and adjudication has been determined.
The primary consideration is the overall protection of the community from risk of physical harm to persons by these individuals. Thus the purpose behind Florida’s policy of pretrial detention and release is to assure that those persons posing a threat to society are detained, while reducing the costs for incarceration by releasing, until trial, those persons not considered a danger to the community, and/or those who meet certain criteria. It is the intent of the Legislature that the primary consideration be the protection of the community from risk of physical harm to persons.
There is a presumption in favor of pretrial release on nonmonetary conditions for a defendant who is granted pretrial release unless such defendant is charged with a dangerous crime as defined below. Said defendant shall be released on monetary conditions if it is determined that such conditions are required to assure the presence of the person at trial or at other proceedings; to protect the community from risk of physical harm to persons; to assure the presence of the accused at trial; or to assure the integrity of the judicial process.
No defendant will be released on nonmonetary conditions under the supervision of a pretrial release service, unless the service certifies to the court that it has investigated or otherwise verified:
- The circumstances of the accused’s family, employment, financial resources, character, mental condition, and length of residence in the community;
- The accused’s record: of convictions; of appearances at court proceedings; of flight to avoid prosecution; or of failure to appear at court proceedings;
- Other facts necessary to assist the court in its determination of the indigency of the accused and whether she or he should be released under the supervision of the service.
“Dangerous crime” means any of the following:
- Aggravated assault;
- Aggravated battery;
- Illegal use of explosives;
- Child abuse or aggravated child abuse;
- Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;
- Aircraft piracy;
- Sexual battery;
- Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
- Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority;
- Burglary of a dwelling;
- Stalking and aggravated stalking;
- Act of domestic violence
- Home invasion robbery;
- Act of terrorism
- Manufacturing any controlled substances in violation of chapter 893 Fla. Stat.; and
- Attempting or conspiring to commit any such crime.
If the accused is charged with a dangerous crime, and he/she is denied nonmonetary pretrial release at their first appearance hearing, the court retains the discretion to release the accused on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant such a release.
In its discretion, 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, and any other relevant facts, that any of the following circumstances exists:
- The defendant has previously violated court-imposed conditions of release and that no newly imposed condition of release will reasonably prevent the obstruction of the judicial process.
- The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process.
- The defendant is charged with trafficking in controlled substances, that there is a substantial probability that the defendant has in fact committed the offense, and that no conditions of release will reasonably assure the defendant’s appearance at subsequent criminal proceedings.
- The defendant is charged with DUI manslaughter, and that there is a substantial probability that the defendant committed the crime and that the defendant poses a threat of harm to the community; conditions that would support a finding by the court pursuant to this subparagraph that the defendant poses a threat of harm to the community include,
- The defendant poses the threat of harm to the community. The court may conclude the defendant poses a threat to the community 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.
- The defendant was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed; or
- The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.
Responsibility of arresting agency once an individual has been charged with a crime for which pretrial detention could be ordered.
When a defendant is arrested and charged with a crime for which pretrial detention is reasonable and/or required, the arresting agency must promptly notify the state attorney of the arrest and must provide the state attorney with such information as the arresting agency has obtained relative to:
- The nature and circumstances of the offense charged;
- The nature of any physical evidence seized and the contents of any statements obtained from the defendant or any witness;
- The defendant’s family ties, residence, employment, financial condition, and mental condition; and
- The defendant’s past conduct and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings.
A defendant can only be detained for a maximum period of 24 hours without an order from the state attorney legally mandating said pretrial detention
General Procedural and Temporal Aspects of the Pretrial Detention Hearing
The pretrial detention hearing must be held within 5 days of the filing by the state attorney of a complaint to seek pretrial detention.
A defendant may request a continuance, however no continuance shall be for longer than 5 days unless there are extenuating circumstances.
A defendant may be detained pending the hearing.
The state attorney shall be entitled to one continuance for good cause.
At the pretrial hearing, the state attorney has the burden of showing the need for pretrial detention.
At the pretrial hearing, a defendant is entitled: to be represented by counsel; to present witnesses and evidence; and to cross-examine witnesses.
The court is permitted to admit relevant evidence without complying with the rules of evidence, but evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible.
No testimony by a defendant at a pretrial release hearing will be admissible to prove guilt at any other judicial proceeding, but such testimony may be admitted in an action for perjury, based upon the defendant’s statements made at the pretrial detention hearing, or for impeachment.
–What this means– is that a defendant’s testimony at a pretrial hearing can only be introduced to the court as a basis to show that a defendant may or may not have previously lied on the stand. The testimony cannot be introduced as substantive evidence of guilt in order to establish and secure a conviction for the crime charged.
The pretrial detention order of the court must be based strictly upon evidence produced at the pretrial hearing and must contain findings of fact and conclusions of law to support it. The order must be made either in writing or orally on the record, by the court, within 24 hours of the pretrial detention hearing.
If a defendant is subsequently convicted at trial following the issuance of a pretrial detention order and if imprisonment is imposed, the time the defendant was held under the pretrial detention order will be credited as time served and will abate the length of the sentence imposed by the court accordingly.
A defendant will be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the current legal basis for detention of the defendant.
In Florida, a defendant who manufactures any controlled substances in violation of Chapter 893 Florida Statutes is presumed to pose a threat of harm to the community and accordingly, said factual circumstances of such an egregious crime indicates a disregard for the safety of the community.
As such, a court must order pretrial detention, and not grant any pretrial release, if the court finds that there is a substantial probability that a defendant charged with manufacturing any substances in violation of Chapter 893 committed such a crime and if the court finds that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.