Florida’s Rules for Pretrial Detention and Release

Article I, section 14 of the Florida Constitution explains the right of the accused to be released on bail as follows:

Unless 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. If 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.

Art. I, § 14, Fla. Const.

The Florida Constitution provides “two broad categories in which a person charged with a crime could be denied the right to be released on bond:

• (1) where the person is accused of a capital crime or an offense punishable by life imprisonment where the proof of guilt is evident and the presumption great; or
• (2) where no condition of release can reasonably protect the community, assure the presence of the accused, or assure the integrity of the judicial process.”

State v. Paul, 783 So. 2d 1042, 1045 (Fla. 2001).

In addition to the provision in the state constitution, the Florida legislature has repeatedly amended Florida’s pretrial detention and release statute. Before October 1, 2023, subsection (5) of Section 907.041 was numbered as subsection (4). As of January 1, 2024, Section 907.041(5), Florida Statutes, allowed the State Attorney’s Office to decide whether to seek pretrial detention, but nothing in the statute required the State Attorney to seek pretrial detention.

Before 1, 2024, the trial court would conduct a hearing on the prosecutor’s motion for pretrial detention before deciding whether to order pretrial detention, even when a basis for pretrial detention was established. Section 907.041(5)(c) provided that a trial court “may” order pretrial detention if it found a substantial probability that any one of certain criteria set forth in the statute was met. § 907.041(5)(c), Fla. Stat. (2023). Likewise, the Florida Rules of Criminal Procedure 3.132(a) states that “[t]he state may file with the judicial officer at first appearance a motion seeking pretrial detention . . .” Rule 3.132(b) states that “[a] motion for pretrial detention may be filed at any time prior to trial.”

On May 1, 2023, Florida Governor Desantis signed a bill into law that made several changes to the statutes governing pretrial detention and release in Ch. 2023-27, Laws of Fla. The law took effect on January 1, 2024. Among the changes was the addition of a new subsection to Section 907.041, now located at Section 907.041(5)(d), Florida Statutes, which provides:

If a defendant is arrested for a dangerous crime that is a capital felony, a life felony, or a felony of the first degree, and the court determines there is probable cause to believe the defendant committed the offense, the state attorney, or the court on its own motion, shall motion for pretrial detention. If the court finds a substantial probability that the defendant committed the offense and, based on the defendant’s past and present patterns of behavior, consideration of the criteria in s. 903.046, and any other relevant facts, that no conditions of release or bail will reasonably protect the community from risk of physical harm, ensure the presence of the defendant at trial, or assure the integrity of the judicial process, the court must order pretrial detention.

The recent legislative changes made the following changes:

• when a defendant is arrested for a dangerous crime as listed in Section 907.041(5)(a), that is a capital felony, a life felony, or a felony of the first degree, and the trial court determines that there is probable cause to believe that the defendant committed the offense, the State Attorney, or the trial court on its own motion, is now required to motion for pretrial detention of the defendant; and
• when either the State Attorney or the court motions for pretrial detention under Section 907.041(5)(d), and the court finds a substantial probability that the defendant committed the offense and that no conditions of release or bail will reasonably protect the community from risk of physical harm, ensure the presence of the defendant at trial, or assure the integrity of the judicial process, the court must grant the motion for pretrial detention.

As of January 1, 2024, when the prosecutor with the State Attorney’s Office files a “motion for pretrial detention,” citing the newly enacted section 907.041(5)(d), the motion triggers an evidentiary hearing. According to Section 907.041(5)(h), “[t]he state attorney has the burden of showing the need for pretrial detention.”

When the trial court grants the motion, it must issue a written order on the motion for pretrial detention that contains both “findings of fact and conclusions of law to support it.” § 907.041(5), Fla. Stat. If the motion is granted, the criminal defense attorney might file a “petition for writ of habeas corpus” to a higher court to contest the trial court’s ruling. 

Attorney for Pretrial Detention Hearings in Florida

If you are accused of a serious criminal offense or violation of probation, then contact an attorney at the Sammis Law Firm to represent you at the first appearance court or during any pretrial detention hearing.

Our criminal defense attorneys represent clients at all stages of the criminal case, including the pre-arrest investigation, first appearance court, any Nebbia hearing to show the source of funds, pre-trial conference, motions to suppress or exclude hearings, pre-trial negotiations, trial. We also represent clients during a direct criminal appeal or post-conviction proceeding.

Visit our offices in downtown Tampa, FL, near the Hillsborough County Courthouse. We also have offices in Clearwater in Pinellas County, near the Criminal Justice Center (CJC) courthouse, and in New Port Richey in Pasco County, FL, across from the West Pasco Judicial Center.

Let us put our experience to work for you.

Cal (813) 250-0500 today.

When the Defendant Can Be Detained without Bond

The defendant may be detained on a pretrial basis if the court finds with substantial probability, based on a defendant’s history, that any of the following circumstances exist including:

• The defendant was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed;
• 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 no condition of release will reasonably prevent the obstruction of the judicial process;
• The defendant is charged with DUI manslaughter, as defined by s. 316.193, F.S., and there is a substantial probability that the defendant committed the crime and that the defendant poses a threat of harm to the community, which can be supported by a finding that the defendant poses a threat of harm to the community based upon the presence of any of the following:
  • The defendant has previously been convicted of any crime under s. 316.193, F.S., or of any crime in any other state or territory of the United States that is substantially similar to any crime under s. 316.193, F.S.;
  • The defendant was driving with a suspended driver’s license when the charged crime was committed; or
  • The defendant has previously been found guilty of, or has had adjudication of guilt withheld for, driving while the defendant’s driver’s license was suspended or revoked in violation of s. 322.34, F.S.

An arresting agency must notify the state attorney when a person is arrested for a crime for which pretrial detention could be ordered. Another provision of Section 907.041 requires that the arresting agency to notify the state attorney of the specified information related to the offense, evidence, and the defendant’s criminal history and ties to the community.

The Prosecutor’s Motion Seeking Pretrial Detention

The arresting agency is authorized to detain such a defendant for up to 24 hours before the state attorney files a motion seeking pretrial detention. The pretrial detention hearing must be held within five days of the filing by the state attorney of a complaint to seek pretrial detention, and the defendant may be detained pending the hearing.

As provided in Section 907.041(4)(e), F.S., the defendant may request a continuance, but the continuance may not be more than five days unless there are extenuating circumstances. The state attorney is entitled to one continuance for good cause.

For the hearing to determine whether the defendant will be detained pretrial, 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 Constitution is not admissible at the hearing.

Any testimony the defendant provides cannot be admitted to prove guilt at any other judicial proceeding. Still, such testimony may be accepted in an action for perjury, based upon the defendant’s statements made at the pretrial detention hearing, or for impeachment as provided in Section 907.041(4)(h), F.S.

The court’s pretrial detention order must be based solely upon evidence produced at the hearing and be justified by findings of fact and conclusions of law. The order must be made in writing or orally on the record within 24 hours of the pretrial detention hearing as provided in Section 907.041(4)(i), F.S.

This article was last updated on Tuesday, August 27, 2024.