Adversary Preliminary Hearing
What happens if the State Attorney’s Office does not file any formal charge within the 21-day period after the arrest? In these cases, the defendant is entitled to an adversary preliminary hearing (prior to the filing of the information), or the defendant is entitled to release on his own recognizance (after the filing of the information).
The right to an adversary preliminary hearing is one of the most effective mechanisms to gain the defendant’s release after an arrest. This means that if you are arrested for a felony, and the state fails to file any formal charges within 21 days after the arrest, your attorney can file a motion for an “adverse preliminary hearing” on the 22nd day after the arrest.
If the court doesn’t follow the rules at the preliminary hearing, your criminal defense attorney can file an “emergency petition for writ of habeas corpus” seeking an order for the District Court of Appeals for the immediate release of the Defendant on his own recognizance as required by Rule 3.134(1), Fla. Rules of Crim. Proc.
To the extent that the petitioner seeks an adversary preliminary hearing under Florida Rule of Criminal Procedure 3.133, the petition can be treated as a petition for writ of certiorari. If granted, the appellate court can remand the case with instructions to grant the petitioner’s request for an adversary preliminary hearing.
Attorney for the Adversary Preliminary Hearing in Tampa, FL
If you were arrested for any felony offense, contact an attorney at the Sammis Law Firm to discuss retaining an attorney to file a motion for an adversary preliminary hearing.
We often represent clients before an arrest or filing any formal charge (called the “pre-filing investigation”). During this time, our goal is convincing the prosecutor with the State Attorney’s Office NOT to file any formal charge (often called the “no file” or “no information”).
If the State Attorney’s Office decides not to file any charges by the 21st day, our attorneys are experienced in filing a motion to an adversary preliminary hearing under Rule 3.133(b)(1) of the Florida Rules of Criminal Procedure on the 22nd day after the arrest. If the State fails to produce any witnesses or evidence to establish probable cause, we can file a motion for your immediate release on own recognizance.
Our criminal defense attorneys in Tampa, FL, can help you during the 21 day period after an arrest but before any formal charge is filed. Let us put our experience to work for you.
Call (813) 250-0500.
Non-Adversary vs. Adversary Preliminary Hearing
Florida Rules of Criminal Procedure mandate that a trial judge makes a pretrial nonadversarial probable cause determination before or shortly after a defendant is taken into custody under Fla. R.Crim. P. 3.133.
The nonadversarial probable cause determination is usually made at the first appearance hearing based on the four corners of the affidavit in support of an arrest warrant or the probable cause affidavit when the arrest is made without an arrest warrant signed by a judge.
The right to an adversary preliminary hearing is not triggered unless the prosecutor fails to file any charges within 21 days.
How long does the State have to file charges after an arrest?
A frequently asked question is “How long does the State have to file charges after an arrest?” The short answer is that the State will usually decide whether to file formal felony charges within 21 days because failing to do so will trigger the defendant’s right to an adversary preliminary hearing.
Under Florida law, the main purpose of the adversary preliminary hearing is to determine whether there is probable cause to continue to hold a defendant to answer the pending charges. If not, then the defendant should be released. This procedure for an adversary preliminary hearing only applies in a felony case when formal charges are not filed within 21 days after the arrest.
This is an adversarial hearing. In other words, the defendant has a right to have his attorney confront the witnesses against him and present other evidence to show that probable cause does not exist. In these hearings, the judge’s duties are to examine, discharge, bind over, or set bail.
Filing the Information or Indictment AFTER the 21 Day Period
If the State Attorney files an information or indictment within the 21 day period after the arrest, the defendant is automatically foreclosed from having a preliminary hearing. But what happens if the information or indictment is not filed until after the 21st day?
A defendant is not entitled to release under Rule 3.133(b)(6) if, between the time to file the motion for an adversary hearing and the actual hearing, the state files an information or an indictment. See Bowens v. Tyson, 578 So. 2d 696, 697. (Fla. 1991).
However, in those cases in which the information is filed after the motion is filed but before the hearing, the Defendant must be “released on his own recognizance” pending further proceedings to resolve the case on the merits.
Therefore, if the State did not file formal charges within 21 days of arrest, the defendant is entitled to an adversary preliminary hearing under Rule 3.133(b)(1). The State’s subsequently charging the defendant does not vitiate this entitlement to an adversary preliminary hearing. See id.
In Beicke v. Boone, 527 So. 2d 273, 275 (Fla. 1st DCA 1988), the court held that “any felony charge then pending against him” in Rule 3.133(b)(1) includes “all charges pending as a result of the criminal episode at the time of the hearing, not just those made at the time of the arrest”).
When the State does not present evidence at a duly demanded adversary preliminary hearing, a defendant is entitled to release on the defendant’s own recognizance on charges resulting from the criminal episode for which the defendant was arrested. Id. at 275.
What Happens at the Adversary Preliminary Hearing?
At the adversary preliminary hearing, the court will issue process for the attendance of witnesses for either the State or the Defendant. Either side can invoke the “rule of sequestration,” which requires any witnesses other than the defendant to leave the room while another witness is testifying.
Hearsay is generally not admissible at the preliminary hearing. Instead, the probable cause determination is based on competent evidence. The court’s determination cannot be based solely on hearsay. If the probable cause determination is based on incompetent evidence, then the court’s determination of probable cause can be reversed on appeal.
At the preliminary hearing, the defendant can present witnesses on his behalf. Any witnesses called by the defense, including the defendant, are subject to cross-examination by the prosecutor. The court’s findings on the probable cause determination must be in writing, signed, and filed with the circuit court along with a copy of any evidence used during the hearing.
The proceeding may be recorded or transcribed to the defendant free of charge if initially ordered by the State Attorney’s Office. Rule 3.133 places no limitations on the extent of cross-examination.
Consequences of the Court Finding Probable Cause
If the court listens to witnesses and accepts other evidence at the preliminary hearing and finds probable cause, then the court can order that the Defendant be held pending the trial or the posting of bond. In other words, the status quo is maintained.
On the other hand, if the court listens to witnesses and accepts other evidence at the preliminary hearing and does not find probable cause from competent evidence, then the court must order the defendant to be released.
The defendant’s release does not preclude further prosecution by information. In fact, Fla. R.Crim. P. 3.133(b)(5) provides that: “Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial.”
Even an out-of-state arrest will initiate the twenty-one day period. In those cases, twenty-one one day period beings at the time of the out-of-state arrest instead of the moment when the defendant is returned to Florida.
What Happens if the Information or Indictment is Still Not Filed within 30 Days?
If the information or indictment is not filed within 30 days, then the defendant gets another chance at the preliminary hearing under Rule 3.135. A defendant being held in custody shall be released on his own recognizance if a charging document has not been filed within thirty days of the arrest or service of a capias upon the defendant.
For this reason, if the defendant remains uncharged on the 30th day, the court can take one of the following actions after providing notice to the State:
- Order the defendant to be automatically released on his own recognizance (ROR or OR bond) on the thirty-third day unless the State files formal charges by that time; or
- If the State is able to show good cause as to why an indictment or information has not been filed, order the defendant to be automatically released on his own recognizance on the fortieth-day until the State files formal charges by that day.
The extra ten day extension is the last extension allowed under the law. The release is required, however, only if the appropriate motion is filed to trigger the release.
For this reason, the defendant is not entitled to any automatic release after 40 days if his criminal defense attorney has not filed the appropriate motion and given notice to the prosecutor for the State Attorney’s Office.
Rule 3.133(b)(1) of the Florida Rules of Criminal Procedure
Rule 3.133(b)(1) and (5) of the Florida Rules of Criminal Procedure provides:
(1) When Applicable. A 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. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.
. . .
(5) Action on Hearing. If from the evidence it appears to the judge that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the judge shall cause the defendant to be held to answer to the circuit court; otherwise, the judge shall release the defendant from custody unless an information or indictment has been filed, in which event the defendant shall be released on recognizance subject to the condition that he or she appear at all court proceedings or shall be released under a summons to appear before the appropriate court at a time certain.
Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. A finding that probable cause does or does not exist shall be made in writing, signed by the judge, and, together with the evidence received in the cause, shall be filed with the clerk of the circuit court.
Sample Motion for Adversary Preliminary Hearing
If formal charges are not filed within 21 days of the arrest, your criminal defense attorney might file a motion for adversary preliminary hearing. A sample motion provides:
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CRIMINAL JUSTICE DIVISION
STATE OF FLORIDA
v.
___________
Defendant.
DEFENDANT’S MOTION FOR ADVERSARY PRELIMINARY HEARING
COMES NOW the Defendant, _____________, by and through the undersigned attorney, and moves this Honorable Court, pursuant to Rule 3.133(b) of the Florida Rules of Criminal Procedure, for an Order granting an Adversary Preliminary Hearing within three (3) days, and as grounds therefore would show:
- On [date], Defendant was arrested and preliminarily charged with [description of charge(s).
- As of [today’s date], 21 days from the date of Defendant’s arrest, the State had not filed formal charges.
- Rule 3.133(b)(1) of the Florida Rules of Criminal Procedure provides that a 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. Subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.
- Rule 3.133(b)(1) does not require that a defendant be in custody for this right to an adversary preliminary hearing to vest.
WHEREFORE, Defendant prays this Honorable Court grant this MOTION FOR ADVERSARY PRELIMINARY HEARING.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing motion has been furnished to _________ via e-mail to !mailprocessingstaff@SAO13th.com, Assistant State Attorney, Office of the State Attorney of the Thirteenth Judicial Circuit, on this ___ day of ____, 2023.
This article was last updated on Monday, October 23, 2023.
