Florida’s 33 Day Rule
Rule 3.134 provides for such release for yet-to-be-charged defendants still in custody. As one court explained:
“Once upon a time, not long long ago but within living memory, it was possible for a Floridian to be arrested, tossed into the county jail, and left there indefinitely without a hearing or judicial review of the circumstances of his arrest. See generally Gerstein v. Pugh, 420 U.S. 103 (1975). Rule 3.134 is one of a number of rules — Rule 3.130 is another obvious example — intended to remedy that injustice.”
Florida v. Reed, 22 Fla. L. Weekly Supp. 1029a, 11th Judicial Circuit in and for Miami-Dade County. Case No. F15-4038, Section 14. March 30, 2015.
Florida’s 33 day rule can be found in Fla. R. Crim. P. 3.134(1) explains the “time for filing formal charges” which provides:
The state shall file formal charges on defendants in custody by information, or indictment, or in the case of alleged misdemeanors by whatever documents constitute a formal charge, within 30 days from the date on which defendants are arrested or from the date of the service of capiases upon them.
If the defendants remain uncharged, the court on the 30th day and with notice to the state shall:
(1) Order that the defendants automatically be released on their own recognizance on the 33rd day unless the state files formal charges by that date; or
(2) If good cause is shown by the state, order that the defendants automatically be released on their own recognizance on the 40th day unless the state files formal charges by that date. In no event shall any defendants remain in custody beyond 40 days unless they have been formally charged with a crime.
To enforce this rule if the court fails to act, the defendant can file a motion for mandatory release or a writ of habeas corpus following the trial court’s denial of his request to be released on his own recognizance pursuant to Florida Rule of Criminal Procedure 3.134.
Another rule related to the filing of formal criminal charges is Rule 3.133(b), which provides that “defendant who is not charged in an information or indictment within 21 days from the date of arrest or service of the capias on him or her shall have a right to an adversary preliminary hearing on any felony charge then pending against the defendant.”
If the State has not made a filing decision on your case within that 21 day period after your arrest, you are entitled to this additional bond hearing.
Your criminal defense attorney may decide to waive that hearing for tactical reasons based on the unique issue presented in any particular case. For example, if you are being held on other charges, it might make sense to waive this hearing so that you can continue to receive credit for the time you are serving in custody.
Criminal Defense Attorneys at Sammis Law Firm
The criminal defense attorneys at Sammis Law Firm are well-versed in procedural issues that arise in misdemeanor and felony cases. Understanding those procedural rules can make a big difference in how your attorneys decides on and implements the best strategy.
We have offices in Tampa, Clearwater, New Port Richey and Winter Park. Contact us for a free and confidential consultation to discuss your case.
If the State waits too long to file formal charges after your arrest, we can moved for release pursuant to Rule 3.134 of the Florida Rules of Criminal Procedure.
Call 813-250-0500.
Consequences of the State Filing Charges After the Motion for Release
What happens if you file the for release pursuant to Rule 3.134 of the Florida Rules of Criminal Procedure, but right before the hearing, the State files formal charges. The courts have found that if a defendant waits more than forty days to file a motion for release under Rule 3.134 and, before the hearing on the motion, the State files formal charges, the defendant is not entitled to release. Ford v. Campbell, 697 So. 2d 1301, 1302-03 (Fla. 1st DCA 1997).
In Bowens v. Tyson, 578 So. 2d 696, 697 (Fla. 1991), the court held that under the materially identical predecessor to Rule 3.134, that where, after the filing of a motion for release but before hearing on the motion the State files charges, the defendant is not entitled to release.
Does “House Arrest” Constitutes Custody for Purposes of the Rule 3.134?
In Florida v. Reed, 22 Fla. L. Weekly Supp. 1029a, 11th Judicial Circuit in and for Miami-Dade County. Case No. F15-4038, Section 14. March 30, 2015., the court considered whether “house arrest” constitutes custody for purposes of the Rule 3.134. The court noted the problem this way:
“Undoubtedly the results that Rule 3.134 produces can seem anomalous. The defendant who scrimps, scrapes, and just manages to pay the premium for a large corporate surety bond and thus procure his conditional liberty is entitled to no relief when the 33rd or 40th day rolls around and no formal charges are filed against him.
He is not in custody, and Rule 3.134 is concerned with custody — not with the burden associated with purchasing relief from custody. By contrast the defendant who fails, whether through penury or apathy, to pay the premium for a corporate surety bond is entitled by operation of Rule 3.134, not merely to a more affordable bond, but to release on his bare recognizance and nothing more.
Defendant in the case at bar was admitted to, and remains under, house arrest. An information was not filed against him on the 33rd day. Claiming that house arrest is a form of custody, he demands release on his own recognizance.”….
By these or any other reasonably applicable definitions, Defendant’s house arrest is a form of custody. Because no charging document has been filed within the period of time provided by Rule 3.134, he is necessarily entitled to release on his own recognizance…..
Defendant’s motion for admission to release on his own recognizance is hereby GRANTED.”
This article was last updated on Friday, March 27, 2026.
