The Florida Senate

907.041  Pretrial detention and release.--

(1)  LEGISLATIVE INTENT.--It is the policy of this state that persons committing serious criminal offenses, 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. However, persons found to meet specified criteria shall be released under certain conditions until proceedings are concluded and adjudication has been determined. The Legislature finds that this policy of pretrial detention and release will assure the detention of those persons posing a threat to society while reducing the costs for incarceration by releasing, until trial, those persons not considered a danger to the community 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.

(2)  RULES OF PROCEDURE.--Procedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court.

(3)  RELEASE ON NONMONETARY CONDITIONS.--It is the intent of the Legislature to create a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release. Such person shall be released on monetary conditions only if it is determined that such monetary conditions are necessary 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.

¹(4)  PRETRIAL DETENTION.--

(a)  As used in this subsection, "dangerous crime" means any of the following:

1.  Arson;

2.  Aggravated assault;

3.  Aggravated battery;

4.  Illegal use of explosives;

5.  Child abuse or aggravated child abuse;

6.  Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;

7.  Hijacking;

8.  Kidnapping;

9.  Homicide;

10.  Manslaughter;

11.  Sexual battery;

12.  Robbery;

13.  Carjacking;

14.  Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;

15.  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;

16.  Burglary of a dwelling;

17.  Stalking and aggravated stalking;

18.  Act of domestic violence as defined in s. 741.28; and

19.  Attempting or conspiring to commit any such crime; and home-invasion robbery.

(b)  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 s. 903.046, and any other relevant facts, that:

1.  The defendant has previously violated conditions of release and that no further conditions of release are reasonably likely to assure the defendant's appearance at subsequent proceedings;

2.  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;

3.  The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant's appearance at subsequent criminal proceedings; or

4.  The defendant poses the threat of harm to the community. The court may so conclude 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. In addition, the court must find that at least one of the following conditions is present:

a.  The defendant has previously been convicted of a crime punishable by death or life imprisonment.

b.  The defendant has been convicted of a dangerous crime within the 10 years immediately preceding the date of his or her arrest for the crime presently charged.

c.  The defendant is on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time of the current arrest.

(c)  When a person charged with a crime for which pretrial detention could be ordered is arrested, the arresting agency shall promptly notify the state attorney of the arrest and shall provide the state attorney with such information as the arresting agency has obtained relative to:

1.  The nature and circumstances of the offense charged;

2.  The nature of any physical evidence seized and the contents of any statements obtained from the defendant or any witness;

3.  The defendant's family ties, residence, employment, financial condition, and mental condition; and

4.  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.

(d)  When a person charged with a crime for which pretrial detention could be ordered is arrested, the arresting agency may detain such defendant, prior to the filing by the state attorney of a motion seeking pretrial detention, for a period not to exceed 24 hours.

(e)  The court shall order detention only after a pretrial detention hearing. The hearing shall be held within 5 days of the filing by the state attorney of a complaint to seek pretrial detention. The defendant may request a continuance. No continuance shall be for longer than 5 days unless there are extenuating circumstances. The defendant may be detained pending the hearing. The state attorney shall be entitled to one continuance for good cause.

(f)  The state attorney has the burden of showing the need for pretrial detention.

(g)  The defendant is entitled to be represented by counsel, to present witnesses and evidence, and to cross-examine witnesses. The court may 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 the defendant shall 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.

(h)  The pretrial detention order of the court shall be based solely upon evidence produced at the hearing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within 24 hours of the pretrial detention hearing.

(i)  If ordered detained pending trial pursuant to subparagraph (b)4., the defendant may not be held for more than 90 days. Failure of the state to bring the defendant to trial within that time shall result in the defendant's release from detention, subject to any conditions of release, unless the trial delay was requested or caused by the defendant or his or her counsel.

(j)  A defendant convicted at trial following the issuance of a pretrial detention order shall have credited to his or her sentence, if imprisonment is imposed, the time the defendant was held under the order, pursuant to s. 921.161.

(k)  The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the basis for detention.

History.--ss. 1, 2, 3, 4, ch. 82-398; s. 48, ch. 84-103; s. 1, ch. 89-127; s. 2, ch. 89-281; s. 7, ch. 93-212; s. 12, ch. 95-195; s. 25, ch. 96-322; s. 1834, ch. 97-102.

¹Note.--Section 7, ch. 93-212, purported to amend subsection (4), but did not set out in full the amended subsection to include paragraphs (c) through (k). In the absence of affirmative evidence that the Legislature intended to repeal paragraphs (c) through (k), subsection (4) is set out in full here, pending clarification by the Legislature. Paragraphs (4)(i) and (j) were included in the amendment by s. 1834, ch. 97-102, a reviser's bill.