Failure to Appear in Court
If you missed a court date, you are not alone. A recent study in 2019 found that one (1) out of five (5) misdemeanor traffic cases in Hillsborough County resulted in a judge issuing a capias for a failure to appear in court (known as the FTA warrant or capias).
After you miss a court date in a felony or misdemeanor case, the court can issue a warrant or capias for your arrest.
If you missed the court date by accident or mistake, an attorney can file a “motion to withdraw” the FTA capias so that you do not have to return to custody. Your attorney can also request that your previous cash bond is reinstated.
Don’t wait too long. The prosecutor can bring an additional charge against you if you failed to appear in court and remain a fugitive from justice.
If the court issued a failure to appear (FTA) capias, the docket might show a case number for “23-CAP-00xxxx” with a notation for “Failure to Appear Capias forwarded to HCSO upon issuance.”
Under Administrative Order S-2021-025 entered on April 20, 2021, if you are arrested for Failure of Defendant on Bail to Appear (§843.15, Fla. Stat.), you will not be released on a bail bond before your first appearance hearing.
Instead, the judge presiding at the first appearance hearing will determine the appropriate amount of bail bond, if any.
Contact an experienced criminal defense attorney to discuss the best ways to resolve the warrant for your arrest.
Whether you failed to appear in court after receiving a notice to appear, posting bail through a bail bondsman, posting a cash bond, or being released on a signature bond (ROR), we can help.
Attorneys for the Failure to Appear Warrant in Tampa, Florida
The attorneys at Sammis Law Firm represent men and women throughout the greater Tampa Bay area on failure to appear warrants and the underlying felony or misdemeanor charges.
No matter why you missed the court date, we can help.
Our main office is in downtown Tampa. We also have offices conveniently located in New Port Richey near the West Pasco Judicial Center and in Clearwater near the Criminal Justice Center (CJC) courthouse.
Contact us to find out whether our attorneys can help you file and litigate a “Motion to Recall Capias, Set Aside Forfeiture, and Reinstate Bond on Procedural or Due Process Grounds” for any case pending at the Tampa or Plant City courthouse in Hillsborough County, FL, or the surrounding counties.
We represent clients with an outstanding failure to appear warrant or capias in Tampa or Plant City for Hillsborough County, Brooksville in Hernando County, New Port Richey or Dade City in Pasco County, Clearwater or St. Petersburg in Pinellas County, Bradenton in Manatee County, Bartow or Lakeland in Polk County, FL.
Call (813) 250-0500 today to discuss your case.
Florida Statute 843.15 – Failure to Appear
Many people are surprised to learn that if they fail to appear in court after posting bond on any misdemeanor charge, the prosecutor can bring another separate criminal charge for the failure to appear (sometimes called “jumping bail” or “bail jumping”).
Florida Statute 843.15(1)(b) makes it a separate first-degree misdemeanor to fail to appear in court after posting bail in any misdemeanor case.
If the person fails to appear for any felony charge, the offense can be charged as a third-degree felony under Florida Statute 843.15(1)(a). In other words, the failure to appear may constitute a crime in and of itself.
Florida Statute § 843.15 provides for a separate crime when the Defendant fails to appear on pre-trial release on bail. The statute provides:
“whoever, having been released pursuant to chapter 903, willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for her or his release and, in addition, shall:
(a) If she or he was released in connection with a charge of felony or while awaiting sentence or pending review by certiorari after conviction of any offense, be guilty of a felony of the third degree…: or
(b) If she or he was released in connection with a charge of misdemeanor, be guilty of a misdemeanor of the first degree.”
The Florida statute for the “Failure of Defendant on Bail to Appear” also provides in section 2 that nothing in the statute Section 843.15 shall interfere with or prevent the exercise by any court of its power to punish for contempt.
A person cannot be prosecuted for forfeiting a bail bond posted to secure his appearance in municipal court to answer a charge of violating a municipal ordinance. See Florida Op.Atty.Gen., 1946, p. 728.
When is the Failure to Appear Willful?
The failure to abide by a court order to appear in court on a specified date for felony or misdemeanor charges may subject the defendant to additional charges or for a contempt charge.
However, until the court determines guilt utilizing procedures that provide due process, it may not impose additional punishment.
Due process requires a determination that the failure was “willful.” That determination might be made in a contempt proceeding or a new case for failure to appear.
For instance, in Corrales v. State, 84.3d 406 (2012), the evidence was insufficient to show willfulness. The defendant’s conviction for failure to appear before the court required a showing of willfulness.
In that case, the defendant’s attorney had been notified that the case was to be continued until a specific date in the future. The prosecutor with the State Attorney’s Office presented no testimony or other evidence that the defendant’s attorney, or anyone else, relayed (or even sought to relay) the new hearing date to the defendant. Id.
The prosecutor for the State Attorney’s Office also did not present any evidence, aside from notice to counsel, that suggested any intention on the defendant’s part to fail to appear for the hearing. Id.
The appellate court found that without more proof of notice to the defendant’s attorney of a court proceeding was insufficient to make the defendant criminally liable for failing to attend. Id.
Ideally, the person accused would show that he or she did not contribute to the creation of the uncontrollable circumstances in reckless disregard of the requirement to appear in court and that the person appeared or surrendered as soon as such circumstances ceased to exist.
Examples of “uncontrollable circumstances” causing a person to miss court might include:
- a vehicle that breaks down while the person is on the way to the courthouse; or
- a medical condition or sickness that required the defendant to miss court.
In many cases, the person accused can show that the failure to appear was not willful because “uncontrollable circumstances” prevented the person from appearing or surrendering.
What are the Consequences of a Failure to Appear on a Misdemeanor in Florida?
After a failure to appear in court, the judge will typically issue a no-bond warrant for your arrest or capias. In some cases, the court may allow for a bond on the failure to appear warrant.
The person who missed court may have several options including:
- immediately reporting to the jail to surrender on the failure to appear warrant or capias;
- hiring an attorney to file a motion to withdraw the failure to appear warrant or capias and set a court date;
- hiring an attorney to file a “motion to surrender” in the courtroom (instead of the jail) on the failure to appear capias or warrant in order to attempt to avoid another set of arrest records, mugshots, and fingerprints.
The worst thing the person can do is remain in failure to appear status. The consequences of having an outstanding warrant may include the following:
- being ineligible to collect certain government, state, or local benefits such as social security income, unemployment compensation, or financial aid;
- having your driver’s license suspended indefinitely until you surrender or set a court date and obtain a D-6 clearance;
- having trouble finding a job because the outstanding warrant will show up in even the most basic background check; and
- having trouble renting a house or apartment because of the outstanding warrant.
- incurring a forfeiture of any security which was pledged or given for the release;
- an additional criminal charge for failure to appear (FTA) as discussed above; and
- a finding of contempt if that option is exercised by the court.
The standard jury instructions explain the elements of the offense for the failure of the defendant to appear in court while out of custody on a secured bond.
Upon the failure to appear, the court will order the bond forfeited, and the clerk’s office will apply the monies to the fine and forfeiture fund under 903.26(3), Fla. Stat. and 142.01(1), Fla. Stat.
Chapter 903 – Bail and Bond Provisions under Florida Law
After an arrest for misdemeanor charges, a person may be released from custody under Florida Statute, Title XLVII for the criminal procedure and corrections under Chapter 903.
These provisions discuss bail provisions, including:
- Under Florida Statute 903.011, the term bail or bond is defined as any form of pretrial release, including any cash component or monetary component of any form of pretrial release met by a surety bond;
- The definition of bail or bond under Florida law also provides that differing monetary amounts may not be set for surety, cash, or other forms of pretrial release;
- Appearance bond as provided by Florida Statute Section 903.105;
- Bail on appeal following a plea that reserves the right to appear an adverse dispositive ruling on a pre-trial motion or upon a finding of guilt after a bench or jury trial; or
- Cash or property bail.
What happens if I fail to appear for my court date?
The website for the clerk’s office in Hillsborough County has a “frequently asked questions” (FAQ) section that features this question:
What happens if I fail to appear for my court date?
Failure to appear may result in serious consequences. A judge may issue a warrant for your arrest. You may forfeit any bond that you have posted, thus losing money or collateral.
If you are arrested for failure to appear you may be held in the Hillsborough County Jail without bond.
Read more about the failure to appear in court after being issued a notice to appear in a misdemeanor case.
In Florida, a bond forfeiture for failure to appear in a traffic case is considered to be a “conviction” for the purpose of the individual’s driving record until the D6 clearance is obtained. Under federal regulations, Florida is required to report bond forfeitures in traffic cases as a conviction when the individual is a CDL holder.
Is My Signed Waiver of Appearance Filed in the Criminal Case Sufficient?
In many felony and misdemeanor cases, the criminal defense attorney will ask the client to sign a waiver of appearance that is filed with the court. The attorney will then tell the client that he or she is not required to appear at the next court date.
Some courts in Florida have a blanket policy that requires the defendant’s presence even when a written waiver has been filed. Most attorneys are aware of these policies that vary from courtroom to courtroom and know the best ways to work around them.
Nevertheless, a blanket policy is probably illegal under Florida law. If a person is taken into custody for failing to appear after being released by their attorney under a properly filed waiver of appearance, then the attorney can file a petition for a writ of habeas to address the issue with a higher court.
As explained in Walters v. State, 905 So.2d 974, 977 (Fla. 1st DCA 2005), a court may require a defendant’s attendance if there is good reason to do so. To exercise this discretion, however, there must be good cause and “defense counsel and the defendant must be clearly advised that the defendant’s personal presence is required, notwithstanding the waiver of presence.” Cruz, 822 So.2d at 596.
By instituting a policy that effectively eliminates the ability to waive appearance, the trial court is refusing to exercise the individualized discretion required by the rules. Jimenez v. State, 201 So.3d 214, 217 (Fla. 2d DCA 2016).
Failure to Appear as a Violation of Pretrial Release
A defendant that does not comply with the terms of the pretrial release can have his or her bond forfeited if certain factors are proven.
For example, Section 903.26, F.S. Rule 3.131(c)(1), Fla. R. Crim. Pro., provides that a defendant who willfully fails to appear and breaches a bond is not eligible for a recognizance bond.
Rule 3.131(c)(2), Fla. R. Crim. Pro., provides that if the defendant fails to appear and is arrested, he or she is not eligible for a recognizance bond or any form of bond that does not require a monetary undertaking or commitment equal to or greater than $2,000 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater.
Section 903.046(2)(d), F.S., provides that any defendant that has failed to appear on the day of any required court proceeding in the case at issue, but who had later voluntarily appeared or surrendered, is not eligible for a recognizance bond.
Any defendant who failed to appear on the day of any required court proceeding in the case at issue and who was later arrested is not eligible for a recognizance bond or for any form of bond which does not require a monetary undertaking or commitment equal to or greater than $2,000 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater.
The court, however, has discretion in determining conditions of release if the defendant proves circumstances beyond his or her control for the failure to appear.
In Hillsborough County, it is common for the court to issue a capias warrant for a person’s arrest after the person is rejected from the misdemeanor intervention program (MIP) or the felony pre-trial intervention program (PTI).
Finding a Lawyer for a Failure to Appear Warrant in Hillsborough County, FL
Contact us to speak directly with a criminal defense attorney at the Sammis Law Firm in Tampa, Hillsborough County, FL.
We can help you determine the best way to resolve the case after a failure to appear on an arrest warrant or capias on any felony or misdemeanor charge in Florida.
We also represent clients rejected from the Misdemeanor Intervention Program or the Pre-Trial Intervention Program in Hillsborough County.
The docket in these cases says that the case was closed, a misdemeanor or felony intervention program application was submitted, but the defendant was eventually “rejected” from the intervention program.
The court will then set a PTI or MIP reject arraignment hearing. The court can issue a capias for failing to appear in court and forfeit your surety bond.
If you are arrested for any charge of Failure of Defendant on Bail to Appear (§ 843.l5, Fla. Stat.), then you will not be released on a bail bond until after your first appearance hearing.
The judge presiding at the first appearance hearing will determine the appropriate amount of bail bond, if any.
No matter why the warrant was issued after a failure to appear in court for a missed court date, we can help. Don’t wait too long and risk any additional charges. Instead, take a proactive approach by hiring an attorney to help you.
Call (813) 250-0500 today to discuss your case. Let us put our experience to work for you today.
“MOTION TO RECALL CAPIAS, SET ASIDE FORFEITURE AND REINSTATE BOND”
IN THE CIRCUIT/COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA, Case No. and Division:
vs. Bond Power Numbers:
BOND COMPANY, AND BAIL BOND AGENT.
MOTION TO RECALL CAPIAS, SET ASIDE FORFEITURE AND REINSTATE BOND
[Procedural or Due Process Grounds]
Defendant, _________________________, through the undersigned attorney, moves this court to recall capias, set aside the bond forfeiture(s), and reinstate the bond(s), and as grounds therefore alleges:
- A cash bond was posted; or
- The bail bond agent did post the following bond(s) for the above-named defendant:
Charge Amount Power Number
_________ $______ ____________
_________ $______ ____________
_________ $______ ____________
- On ____________________ ____, 20____, the defendant failed to appear, and said bond(s) were forfeited on ____________________ ____, 20____, and a capias was issued for the Defendant. A copy of the Notice(s) of Forfeiture is/are attached as Exhibit “____.”
- The factual basis and legal authority in support of setting aside the bond forfeiture is as follows:
- This motion is filed within sixty (60) days after the notice of forfeiture was mailed.
- [Petitioner certifies that the bail bond agent on the original bond approves of the reinstatement of the forfeited bond(s).]
WHEREFORE, the Petitioner, _________________________, prays that this court grant said motion, recall the capias, set aside the bond forfeiture, reinstate the bond, and schedule a new court date for the defendant.
Printed Name: ________________________
Florida Bar Number: ___________________
City, State, Zip: _______________________
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing document has been furnished to the State Attorney’s Office at email@example.com and the Clerk’s Legal Counsel at firstname.lastname@example.org, through the e-fling portal by e-service on the _____ day of ____________________, 20_____.
This article was last updated on Wednesday, March 15, 2023.