SC09-1135 – In Re: Amendments To Florida Rule of Criminal Procedure 3.132

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State: Florida

Court: Supreme Court

Docket No: SC09-1135

Case Date: 09/17/2009

Preview:Supreme Court of Florida
____________ No. SC09-1135 ____________

IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.132.

[September 17, 2009] PER CURIAM. In In re Amendments to the Florida Rules of Criminal Procedure, No. SC09159 (Fla. petition filed Jan. 30, 2009), the Criminal Procedure Rules Committee (Committee) filed its regular-cycle report proposing amendments to a number of rules of criminal procedure. Pursuant to an order issued on July 1, 2009, we severed the Committee's proposed amendment to Florida Rule of Criminal Procedure 3.132 (Pretrial Detention) for individual consideration and to permit additional comment, under case number SC09-1135. The Committee proposes amending rule 3.132 to require that at the first appearance, the judicial officer determine whether the defendant should be detained, even if the State has not filed a motion for pretrial detention or the motion is facially insufficient. At present, the rule has been interpreted by the

appellate courts to require that, if the State does not file a motion for pretrial detention or the motion is facially insufficient, the court must proceed to determine the conditions of pretrial release. See Resendes v. Bradshaw, 935 So. 2d 19 (Fla. 4th DCA 2006); Nguyen v. State, 925 So. 2d 435 (Fla. 5th DCA 2006); Golden v. Crow, 862 So. 2d 903 (Fla. 2d DCA 2003). The proposed amendment was prompted by Judge Sawaya's concurring opinion in Ho v. State, 929 So. 2d 1155 (Fla. 5th DCA 2006), which questioned whether the language of rules 3.131 and 3.132 required the interpretation given by the appellate courts. A comment was received by the Florida Public Defender Association (FPDA), opposing the mandatory directive that requires the court to initiate a determination of pretrial detention absent a motion by the State. The FPDA relies on the language of section 907.041, Florida Statutes (2008), which specifically contemplates that the State will file a motion for pretrial detention, and the language of section 907.041(4)(g), which states the "state attorney has the burden of showing the need for pretrial detention." The FPDA contrasts the language of section 907.041 with section 903.0471, Florida Statutes (2008), violation of condition of pretrial release, which expressly allows the court to revoke bond "on its own motion" if it finds probable cause to believe that the defendant committed a new crime while on bond.

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The language that the Committee proposes deleting from rule 3.132(a) was straightforward and currently provides that if the State does not file a motion for pretrial detention or the motion is facially insufficient, "the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)." Article I, section 14 of the Florida Constitution, provides that unless the defendant is "charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions." However, article I, section 14 further provides that "[i]f no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained." The Committee correctly observes that section 907.041, pretrial detention and release, provides in part "that persons committing serious criminal of fenses, posing a threat to the safety of the community or the integrity of the judicial process, or failing to appear at trial be detained upon arrest."

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