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Pre-trial Release in Florida: The Basics


Any discussion of pre-trial release in criminal cases must begin with the Constitutional prohibition on excessive bail. The Eighth Amendment provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". In Stack v. Boyle, 342 U.S. 1 (1951), the United States Supreme Court held that a bail amount is excessive under the Eighth Amendment if it is "higher than is reasonably calculated to ensure the defendant's presence at trial." Also, every person accused of a crime is presumed innocent unless he or she enters a plea of guilty (or no contest), or is found guilty by a judge or jury. Detaining a person without bail, when that person is presumed to be innocent of the charges, does not make alot of sense. In Florida, there are a number of statutes and rules of criminal procedure governing the circumstances under which a person may be released on his or her own recognizance, on bond, or held without bond. This post provides a generalized overview of the laws governing pre-trial release, and detention, in Florida.

You should first be aware that every person arrested in this state must be brought before a judge, either in person or by audiovisual electronic device, within twenty four hours of arrest. This is typically referred to as a "first appearance" or "advisory" hearing. Unless charged with a capital offense, or a felony punishable by life imprisonment - where the "proof of guilt is evident or the presumption is great" - persons charged with a crime or violation of a municipal or county ordinance are entitled to pre-trial release on reasonable conditions. In situations where the offense is not a capital or punishable by life felony, the bond is set in accordance with a schedule wherein pre-determined amounts correspond to different types of offenses. The pre-set bond amount will depend on whether the offense is a felony or misdemeanor, and the degree of such offense. A first degree felony will, for example, have a higher bond amount than a third degree felony as the former is a more serious crime.

At the advisory hearing, the court will first determine whether the arrest affidavit, prepared by the law enforcement officer, establishes probable cause to hold the person in lieu of bond. If not, the judge will typically continue the first appearance hearing for twenty-four to seventy-two hours so that any defects in the arrest affidavit, which negate the finding of probable cause, can be cured. If the affidavit is not thereafter amended by the arresting officer, the accused person will typically be released on his or her own recognizance, or on a lesser bond amount (where, for example, the person is arrested for possession of controlled substance (a third degree felony) and the affidavit only establishes probable cause for possession of parpahernalia (a first degree misdemeanor), the bond amount will be adjusted accordingly). Next, the court will determine whether the pre-set bond amount is appropriate. If the court determines that it is excessive (based on, for example, lack of criminal history, no evidence of failing to appear for court hearings in the past, and/or victim input), it will be reduced. If the court determines that the amount is too low, the court can raise it (which is rare).

Where the person is charged with a capital or PBL felony, he or she will usually be held on no bond until a much more in-depth hearing can be held. In Florida, this is referred to as an "Arthur Hearing". At an Arthur hearing, the defense will argue to the court that (1) the evidence against the accused person is insufficient to hold him or her on no bond (or a constructive no bond); (2) the accused is not a danger to the community; and (3) the accused is not a flight risk. At an Arthur hearing, the state has the burden of proof and will seek to establish the opposite. These are essentially mini-trials and can last for several hours.

There is also a presumption in favor of release on non-monetary conditions, unless the person is charged with a "dangerous crime". Dangerous crimes, for purposes of pre-trial release and/or detention include the following: Arson, Aggravated Assault, Aggravated Battery, Illegal use of explosives, Child abuse or aggravated child abuse, abuse of an elderly person or disabled adult, Aircraft piracy, Kidnapping, Homicide, Manslaughter, Sexual Battery, Robbery, Carjacking, Lewd, lascivious or indecent assault upon or in the presence of a child under the age of 16 years, Sexual activity with a child 12 years of age or older but less than 18, Burglary of a dwelling, Stalking and aggravated stalking, Acts of domestic violence, Home invasion robbery, Acts of terrorism, manufacturing controlled substances, or attempting or conspiring to commit such crime.

The court is required, at a first appearance hearing, to impose the first of the following conditions that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or "assure the the integrity of the judicial process":

  • personal recognizance of the defendant (again, there is a presumption in favor of release on non-monetary conditions for non-dangerous crimes);
  • execution of an unsecured appearance bond in an amount specified by the judge;
  • placement of restrictions on the travel, association, or place of abode of the defendant during the period of release;
  • placement of the defendant in the custody of a designated person or organization agreeing to supervise the defendant (such as a parent);
  • execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof, or
  • any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

"Other conditions" may include, for example, a requirement that the accused wear ankle monitor to ensure that he or she remains in the county or remains confined to his of her residence. In many instances, "other conditions" will be imposed not just to ensure the appearance of the accused at trial, but to protect the community or certain individuals from harm. For example, where alcohol was a factor in the alleged commission of the crime, the court may require no alcohol as a condition of release, whether on personal recognizance or bond. In more serious cases, or where the person is charged with DUI and has prior DUI offenses, the court may require the person to wear a SCRAM monitor which detects alcohol in the body. In a domestic violence situation, the court may require the accused to have no contact with the alleged victim, or may allow it only after the accused has completed a number of domestic violence counseling classes.

In assessing the propriety of the bond amount and any associated conditions, Florida law requires the court to consider the nature and circumstances of the offense charged, the penalty provided by law, the weight of evidence against the defendant, the defendant's family ties, length of residence in the community, employment history, financial resources, need for substance abuse evaluation or treatment, the defendant's mental condition, his or her past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings, the nature and probability of danger that the defendant's release poses to the community, the source of funds used to post bail, and whether the defendant is already on pre-trial release for a criminal offense or is on probation or parole.

In Florida, a court may order pre-trial detention if it finds a substantial probability that any of the following circumstances exist:

  • the defendant has previously violated conditions of release and that no conditions of release are reasonably likely to assure the defendant's appearance at subsequent proceedings;
  • 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 reasonable 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 committed the crime (remember the presumption of innocence), and that no conditions of release will reasonably assure the defendant's appearance at subsequent criminal proceedings;
  • the defendant is charged with DUI manslaughter, there is a substantial probability that the defendant committed the crime, and the defendant poses a threat of harm to the community;
  • the defendant was on probation, parole, or other release pending completion of sentence or on pre-trial release for a dangerous crime at the time the current offense was committed;
  • the defendant has violated one or more conditions of pre-trial 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; or
  • the defendant has been sentenced as a prison releasee re offender, habitual violent felony offender, three-time violent felony offender, or violent career criminal, or the state attorney files notice seeking that the defendant be sentenced as such, there is a substantial probability that the defendant committed the offense, and there are no conditions of release that can reasonably protect the community from risk of physical harm or ensure the presence of the accused at trial.

When a person charged with a crime for which pre-trial detention could be ordered is arrested, the arresting agency is required to notify the state attorney of the arrest and must provide the state attorney with the following information: the nature and circumstances of the offense, the nature of any physical evidence seized and contents of any statement 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 pre-trial detention hearing must be held within five days of the state's filing of a notice to seek such detention. Once again, the burden is on the state which, here, must show "the need for detention".

The vast majority of people arrested for criminal offenses in Florida are released either before the advisory hearing, at the advisory hearing, or at a bond hearing which is usually held within a couple of weeks after arrest. For those that cannot make bond, the State is required to file formal charges within 21 days of arrest or the accused person is entitled to an adversarial probable cause hearing. At his hearing, the state will usually call the arresting officer to testify as to his or her observations and circumstances of the arrest to establish the existence of probable cause. The accused is entitled to cross examine the arresting officer and may elect to call witnesses as well. If the court finds that there is no probable cause to hold the accused person, he or she will be released. This, however, does not preclude the state from thereafter filing formal charges. If the court determines that probable cause does exist, the accused will be detained. If he or she still cannot make bond, the state must file formal criminal charges by the 33rd day or the accused will, at that point, be released.

Where a person is released pre trial, willfully fails to appear for a mandatory court hearing, and thereafter voluntarily appears or surrenders, he or she is not entitled to a recognizance bond. If the person is arrested at any time following forfeiture of the bond, he or she is not eligible for a recognizance bond or any form of bond that does not require a monetary commitment equal to or greater than $2,000.00 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater.

There are a couple of exceptions to the general rule that a person is entitled to reasonable bond upon being arrested other than what was discussed above. These include domestic violence offenses and probation violations. I have had numerous victims of alleged domestic violence contact me after their spouse or other family member was arrested, quite upset that the person is being held on no bond. Pursuant to Florida Statutes section 741.2901(3), a defendant arrested for an act of domestic violence shall be held in custody until brought before the court for admittance to bail. This is why the words no-bond are stamped or written on the face of the arrest affidavit. In determining an appropriate bond amount in these types of cases, the court will consider the safety of the victim, the victim's children, and "any other person who may be in danger if the defendant is released".

Similar provisions apply to probation violations. Pursuant to Florida Statutes section 948.06(1)(d)2., if the probationer does not admit the violation at the first appearance hearing, the court may "commit the probationer or may release the person with or without bail to await further hearing". The judge issuing the VOP warrant will usually set no bond. It is rare that a judge at an advisory for first appearance hearing will set a bond after the judge issuing the warrant has set no bond. The person will typcially have to be brought before the original judge to either set a bond or resolve the VOP if he or she is to be released.

As a final note folks, please be aware of this: if you are released on bond or ROR, and you commit a new offense, you can rest assured that the state will file a motion to revoke the bond (or ROR). The court will almost always grant that motion and you will remain in custody until your cases are resolved. Unless you are looking for free accomodations, I really cannot overstate the importance of not committing a new law violation while you are on pre-trial release.

I hope this post was helpful. Specific questions should be directed to an experienced St. Petersburg, Clearwater, or Tampa area criminal defense attorney.