House Bill 3373c1
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Florida House of Representatives - 1998 CS/HB 3373
By the Committee on Crime & Punishment and Representative
Tamargo
1 A bill to be entitled
2 An act relating to pretrial detention; amending
3 s. 907.041, F.S.; revising criteria for
4 pretrial detention; deleting requirement for
5 additional court findings for pretrial
6 detention; permitting pretrial detention for
7 any violation of conditions of pretrial release
8 or bond which, in the discretion of the court,
9 supports a finding that no condition of release
10 can reasonably protect the community from
11 physical harm, assure the presence of the
12 accused at trial, or assure the integrity of
13 the judicial process; deleting limitation upon
14 detention period when detention is based on
15 threat of harm to the community; authorizing a
16 court to detain a defendant at a bail hearing
17 without separate hearing or motion for pretrial
18 detention; authorizing the state to orally move
19 for pretrial detention anytime the defendant is
20 before the court for a bail hearing; providing
21 for construction; repealing Rules 3.131 and
22 3.132, Florida Rules of Criminal Procedure,
23 relating to pretrial release and pretrial
24 detention, to the extent of inconsistency with
25 the act; providing an effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
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29 Section 1. Subsection (4) of section 907.041, Florida
30 Statutes, is amended to read:
31 907.041 Pretrial detention and release.--
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Florida House of Representatives - 1998 CS/HB 3373
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1 (4) PRETRIAL DETENTION.--
2 (a) As used in this subsection, "dangerous crime"
3 means any of the following:
4 1. Arson;
5 2. Aggravated assault;
6 3. Aggravated battery;
7 4. Illegal use of explosives;
8 5. Child abuse or aggravated child abuse;
9 6. Abuse of an elderly person or disabled adult; or
10 aggravated abuse of an elderly person or disabled adult;
11 7. Hijacking;
12 8. Kidnapping;
13 9. Homicide;
14 10. Manslaughter;
15 11. Sexual battery;
16 12. Robbery;
17 13. Carjacking;
18 14. Lewd, lascivious, or indecent assault or act upon
19 or in presence of a child under the age of 16 years;
20 15. Sexual activity with a child, who is 12 years of
21 age or older but less than 18 years of age, by or at
22 solicitation of person in familial or custodial authority;
23 16. Burglary of a dwelling;
24 17. Stalking and aggravated stalking;
25 18. Act of domestic violence as defined in s. 741.28;
26 and
27 19. Attempting or conspiring to commit any such crime;
28 and home-invasion robbery.
29 (b) The court may order pretrial detention if it finds
30 a substantial probability, based on a defendant's past and
31 present patterns of behavior, the criteria in s. 903.046, and
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Florida House of Representatives - 1998 CS/HB 3373
189-840-98
1 any other relevant facts, that any of the following
2 circumstances exists:
3 1. The defendant has previously violated conditions of
4 release and that no further conditions of release are
5 reasonably likely to assure the defendant's appearance at
6 subsequent proceedings;
7 2. The defendant, with the intent to obstruct the
8 judicial process, has threatened, intimidated, or injured any
9 victim, potential witness, juror, or judicial officer, or has
10 attempted or conspired to do so, or that no condition of
11 release will reasonably assure the integrity of prevent the
12 obstruction of the judicial process;
13 3. The defendant is charged with trafficking in
14 controlled substances as defined by s. 893.135, that there is
15 a substantial probability that the defendant has committed the
16 offense, and that no conditions of release will reasonably
17 assure the defendant's appearance at subsequent criminal
18 proceedings; or
19 4. The defendant poses the threat of harm to the
20 community. The court may so conclude if it finds that the
21 defendant is presently charged with a dangerous crime, that
22 there is a substantial probability that the defendant
23 committed such crime, that the factual circumstances of the
24 crime indicate a disregard for the safety of the community,
25 and that there are no conditions of release reasonably
26 sufficient to protect the community from the risk of physical
27 harm to persons. In addition, the court must find that at
28 least one of the following conditions is present:
29 a. The defendant has previously been convicted of a
30 crime punishable by death or life imprisonment.
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Florida House of Representatives - 1998 CS/HB 3373
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1 b. The defendant has been convicted of a dangerous
2 crime within the 10 years immediately preceding the date of
3 his or her arrest for the crime presently charged.
4 5.c. The defendant was is on probation, parole, or
5 other release pending completion of sentence or on pretrial
6 release for a dangerous crime at the time of the current
7 offense was committed arrest.
8 6. The defendant has violated one or more conditions
9 of pretrial release or bond for the offense currently before
10 the court and the violation, in the discretion of the court,
11 supports a finding that no conditions of release can
12 reasonably protect the community from risk of physical harm to
13 persons, assure the presence of the accused at trial, or
14 assure the integrity of the judicial process.
15 (c) When a person charged with a crime for which
16 pretrial detention could be ordered is arrested, the arresting
17 agency shall promptly notify the state attorney of the arrest
18 and shall provide the state attorney with such information as
19 the arresting agency has obtained relative to:
20 1. The nature and circumstances of the offense
21 charged;
22 2. The nature of any physical evidence seized and the
23 contents of any statements obtained from the defendant or any
24 witness;
25 3. The defendant's family ties, residence, employment,
26 financial condition, and mental condition; and
27 4. The defendant's past conduct and present conduct,
28 including any record of convictions, previous flight to avoid
29 prosecution, or failure to appear at court proceedings.
30 (d) When a person charged with a crime for which
31 pretrial detention could be ordered is arrested, the arresting
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1 agency may detain such defendant, prior to the filing by the
2 state attorney of a motion seeking pretrial detention, for a
3 period not to exceed 24 hours.
4 (e) The court shall order detention only after a
5 pretrial detention hearing. The pretrial detention hearing
6 shall be held within 5 days of the filing by the state
7 attorney of a complaint to seek pretrial detention. The
8 defendant may request a continuance. No continuance shall be
9 for longer than 5 days unless there are extenuating
10 circumstances. The defendant may be detained pending the
11 hearing. The state attorney shall be entitled to one
12 continuance for good cause.
13 (f) The state attorney has the burden of showing the
14 need for pretrial detention.
15 (g) The defendant is entitled to be represented by
16 counsel, to present witnesses and evidence, and to
17 cross-examine witnesses. The court may admit relevant
18 evidence without complying with the rules of evidence, but
19 evidence secured in violation of the United States
20 Constitution or the Constitution of the State of Florida shall
21 not be admissible. No testimony by the defendant shall be
22 admissible to prove guilt at any other judicial proceeding,
23 but such testimony may be admitted in an action for perjury,
24 based upon the defendant's statements made at the pretrial
25 detention hearing, or for impeachment.
26 (h) The pretrial detention order of the court shall be
27 based solely upon evidence produced at the hearing and shall
28 contain findings of fact and conclusions of law to support it.
29 The order shall be made either in writing or orally on the
30 record. The court shall render its findings within 24 hours of
31 the pretrial detention hearing.
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1 (i) If ordered detained pending trial pursuant to
2 subparagraph (b)4., the defendant may not be held for more
3 than 90 days. Failure of the state to bring the defendant to
4 trial within that time shall result in the defendant's release
5 from detention, subject to any conditions of release, unless
6 the trial delay was requested or caused by the defendant or
7 his or her counsel.
8 (i)(j) A defendant convicted at trial following the
9 issuance of a pretrial detention order shall have credited to
10 his or her sentence, if imprisonment is imposed, the time the
11 defendant was held under the order, pursuant to s. 921.161.
12 (j)(k) The defendant shall be entitled to dissolution
13 of the pretrial detention order whenever the court finds that
14 a subsequent event has eliminated the basis for detention.
15 (k) Nothing in this section shall be construed to
16 require the filing of a motion for pretrial detention as a
17 condition precedent to detaining the defendant if the
18 defendant is brought before the court for a bail hearing.
19 Notwithstanding paragraph (e), the state may orally move for
20 pretrial detention any time a defendant is before the court
21 for a bail hearing.
22 Section 2. Rules 3.131 and 3.132, Florida Rules of
23 Criminal Procedure, are hereby repealed to the extent that
24 they are inconsistent with this act.
25 Section 3. This act shall take effect upon becoming a
26 law, except that section 2 shall take effect only if this act
27 is passed by the affirmative vote of two-thirds of the
28 membership of each house of the Legislature.
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