Florida Appeals Court Holds Pretrial Release Restriction Unconstitutional

If you are arrested for a crime in Florida, state law entitles you to a first appearance hearing before a judicial officer within 24 hours. At a first appearance, the court must advise the defendant of their constitutional rights. The court will also set the defendant’s initial bail.

In most non-capital cases, everyone charged with a crime in Florida is entitled to pretrial release “on reasonable conditions.” There is generally a presumption in favor of release on nonmonetary conditions, i.e., without requiring the defendant post cash bail or bond. A 2023 change to Florida law, however, barred a judge at an initial appearance hearing from granting nonmonetary release for people charged with certain specified crimes. The defendant could still apply for, and receive, nonmonetary release at a subsequent pre-trial hearing.

Procedural vs. Substantive Rights

The Florida Third District Court of Appeal recently held this change to the state’s bail laws to be unconstitutional. The appellate court issued this decision, Romero v. Green, in response to two petitions for a writ of habeas corpus filed by people who were arrested and charged with misdemeanor domestic violence. Under the 2023 law, such offenses are subject to the prohibition against nonmonetary release at a first appearance. Both defendants were therefore required to post bail of $1,000 as a condition of their release before trial.

As the Third District explained in its decision, the Florida Supreme Court has “exclusive rulemaking authority” with respect to state judicial proceedings. Basically, while the Florida Legislature may define “substantive” rights through legislation, it cannot enact “procedural” rules for the judiciary. The latter is within the exclusive purview of the state Supreme Court.

In 2005, the Florida Supreme Court struck down a statute that provided, “No person charged with a dangerous crime shall be granted nonmonetary release at a first appearance hearing,” unless the court issues specific findings of facts justifying such a release. The Court said this was a “procedural statute,” and therefore an unconstitutional infringement by the Legislature on the Court’s authority. The Supreme Court subsequently considered–and rejected–a procedural rule that would have effectively adopted the pre-2005 law.

The 2023 legislative amendment, which took effect on January 1, 2024, provided,

A person arrested for a dangerous crime may not be granted nonmonetary pretrial release at a first appearance hearing if the court has determined there is probable cause to believe the person has committed the offense.

The Third District held this was still a “procedural” rule rather than a substantive one. Indeed, this language created no new “substantive” rights for criminal defendants. A defendant already had the right to request a probable cause hearing following an arrest. The 2023 amendment therefore only “referenced” an existing right, the appellate court concluded. As such, this was just another improper attempt to tell the courts how to conduct a bail hearing.

Contact AsiliA Law Firm Today

If you are charged with a serious crime, the last thing you want is to be stuck in jail for months–maybe even years–awaiting your day in court. A qualified Miami bail and bond attorney can help you fight for your right to pretrial release. Call AsiliA Law Firm today at 786-420-3014 or contact us online to schedule an initial consultation.

Source:

3dca.flcourts.gov/content/download/2438089/opinion/Opinion_2024-0507.pdf