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Pretrial Detention without Bond in Broward County First Appearances

If you’re arrested, you’re supposed to be taken before a judicial officer within 24 hours of arrest for a first appearance. Florida Rule of Criminal Procedure 3.131(b) requires the court at a first appearance to decide pretrial release conditions for eligible defendants, except where the State has moved for pretrial detention.

In a recent Broward County criminal appeal involving consolidated proceedings, the petitioners argued that pretrial detention without bond was not appropriate. The defendants were charged with felonies punishable by life. At their first appearance, the court found there was probable cause to believe they’d committed the crimes with which they were charged. It refused to set bond without first deciding whether a probable cause affidavit established proof of guilt was clear or the presumption was great. The petitioners argued the refusal to set bond or make requisite findings violated Florida Constitution Article I, section 14.

In order to hold a defendant without bond before an Arthur hearing, a first appearance judge needs to find that the probable cause affidavit shows proof of guilt is evident or the presumption is great. The appellate court explained that at a first appearance, the court needed to make a finding about whether the probable cause affidavit or something else shown to the court established proof of guilt was clear or the presumption great as grounds to deny pretrial release without bond. When this very tough standard is met, and the court decides not to set bond, the defendant can later ask that the bond be set aside and ask for a full Arthur hearing. At a full Arthur hearing, a defendant can put forward evidence and ask the court to use its discretion to set bond.

In the four consolidated cases before the appellate court, the first appearance judge found probable cause and wouldn’t set bond without deciding whether proof of guilt was evident or the presumption as great. The prosecutor hadn’t file an intention to file a motion for pretrial detention, and the judge didn’t follow the procedures used to hold a defendant awaiting a pretrial detention hearing.

The appellate court issued an order to show cause. The prosecutor acknowledged that the first appearance judge had made a mistake in not finding proof of guilt was evident or presumption was great, but argued this mistake was merely harmless error. The prosecutor argued there would be no useful purpose served in sending the case back for another hearing before a first appearance judge because the defendant could ask the judge to whom the case was assigned to hold a full Arthur hearing where the defendant could challenge the proof and show release on bail was the right decision.

The appellate court reviewed the probable cause affidavits and agreed with the prosecutor that the affidavits showed proof of guilt was evident or the presumption great. It found the error harmless under case law and denied the petitions without prejudice. It also said that the first appearance judge should make the determination and not put the determination off to be determined by the assigned judge or an appellate court. It explained that bond shouldn’t be denied at a first appearance without the first appearance court making the findings required by the Florida Constitution, article I, section 14.

Evan Hoffman is a former prosecutor and experienced Broward County criminal defense attorney who provides legal representation for individuals facing serious criminal charges. If you have an upcoming first appearance, the Hoffman Firm offers a free, confidential consultation in which our attorney will review your case and help you understand all of your legal options. Call us at (954) 524-4474 or (800) 223-1866, or contact us via our online form.

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