Pugh v. Rainwater, Civ. No. 71-448.

Decision Date25 January 1972
Docket NumberCiv. No. 71-448.
Citation336 F. Supp. 490
PartiesRobert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated, Plaintiffs, Thomas Turner and Gary Faulk, on their own behalf and on behalf of all others similarly situated, Plaintiff-Intervenors, v. James RAINWATER et al., Defendants.
CourtU.S. District Court — Southern District of Florida

Bruce S. Rogow, Rene V. Murai, Legal Services of Greater Miami, Phillip A. Hubbart, Public Defender of the Eleventh Judicial Circuit of Dade County, Miami, Fla., for plaintiffs.

Jack R. Blumenfeld, Asst. State's Atty., Miami, Fla., for defendant Gerstein.

Alan R. Rothstein, City Atty., Larry J. Hirsch, Asst. City Atty., Miami, Fla., for defendant Bernard E. Garmire.

Stuart Simon, County Atty., Alan T. Dimond, Asst. County Atty., Miami Fla., for defendant E. Wilson Purdy.

Robert L. Shevin, Atty. Gen., Barry Scott Richard, Asst. Atty. Gen., Miami Fla., for defendants Sutton, Rainwater, Snowden, Adair, Berkman and Ferguson.

Joseph Pardo, Miami, Fla., for defendant Sidney L. Segall.

Joseph A. Wanick, City Atty., Henry A. Edgar, Jr., Asst. City Atty., Miami Beach, Fla., for defendant Rockey Pomerance.

Aaron A. Foosaner, Miami, Fla., for defendant Morton L. Perry.

Ralph F. Miles, Hialeah, Fla., for defendant David Maynard.

August, Nimkoff & Gladstone, Pearson & Josefsberg, Jepeway, Gassen & Jepeway, Miami, Fla., for amicus curiae Dade County Bar Association.

ORDER ADOPTING PLAN TO PROVIDE PRELIMINARY HEARINGS

KING, District Judge.

In its Opinion and Final Judgment in this cause entered October 12, 1971, 332 F.Supp. 1107, the Court directed defendants to submit a plan providing for preliminary hearings before a judicial officer in all criminal cases in Dade County wherein prosecution is to be upon direct information of the State Attorney. A single plan having been submitted, that being on behalf of Defendant E. Wilson Purdy, and the Court having provided all parties with the opportunity for oral argument regarding said plan, it is

Ordered and adjudged:

I. That the aforesaid plan, as modified by the Court, shall be the official plan for implementation of the Court's final judgment, said modified plan being as follows:

1. The purpose of this plan is to provide every arrested person (hereinafter defendant) who is to be proceeded against by direct information of the State Attorney immediate access to a committing Magistrate who shall conduct a first appearance hearing for the following purposes: (A) To advise the defendant of the charges against him; (B) To advise the defendant of his rights under the Constitution of the United States and the Constitution of the State of Florida; (C) To appoint counsel if the defendant is indigent; (D) To set a date and time for a preliminary hearing to determine whether there is probable cause that the defendant committed the offense with which he is charged.

2. All proceedings will be conducted pursuant to Florida Statutes, the Florida Rules of Criminal Procedure and the applicable case law.

3. All arrested persons who are subject to "booking" will be booked at the Metropolitan Dade County Jail.

4. All officers who make an arrest, with or without a warrant, shall immediately take the arrested person, or where that is not feasible cause him to be taken, before a Magistrate for a first appearance hearing. Absent extreme circumstances said hearing shall take place within three (3) hours of the time the defendant is taken into custody.

5. The Chief Judge for the Eleventh Judicial Circuit in and for Dade County shall designate sufficient Judges, who will sit as a committing magistrate division.

6. A committing magistrate will be available for first appearance hearings on a twenty-four (24) hour basis seven (7) days per week.

7. All first appearance hearings will be held in the courtroom or chambers of the designated committing magistrate.

8. At the first appearance hearing the magistrate will set the time and place for a preliminary hearing to determine whether there is probable cause to hold the defendant for trial. If both the State of Florida, represented by the office of the State Attorney, and the defendant, properly represented by counsel, are prepared to proceed with the preliminary hearing, the magistrate shall immediately conduct such a hearing. If either party is not prepared for the preliminary hearing said hearing shall not be set to take place within a period of twenty-four (24) hours after the first appearance hearing unless the parties agree to a time within that period. Except in extreme circumstances the preliminary hearing will be set to take place not more than four (4) days after the first appearance hearing for all defendants who are unable to post bond and do not qualify for the Pre-Trial Release Program and not more than ten (10) days after the first appearance hearing for all other defendants.

9. A defendant may waive his right to a preliminary hearing or agree to a hearing date that is later than the time hereinabove set forth, provided that such a waiver is signed by the accused and his legal counsel, if any.

10. There will be provided sufficient assistant state attorneys available at the first appearance hearing and at the preliminary hearing to assist officers in drafting the charges against the arrested person and to otherwise represent the position of the State of Florida at said proceedings.

11. There will be provided sufficient assistant public defenders to represent, both at the first hearing and at the preliminary hearing, those persons who are entitled to public representation.

12. The magistrate shall allow the defendant a reasonable time to obtain counsel and for such purposes shall, if necessary, postpone setting the preliminary hearing for a period not to exceed forty-eight (48) hours. He shall also, upon request of the defendant, require an officer to communicate a message to such counsel in Dade County as the defendant may name. The officer shall with diligence and without cost to the defendant perform that duty. If the defendant desires private counsel and private counsel cannot be obtained within a reasonable time the magistrate shall continue the cause and release the defendant on his own recognizance, in the custody of another or on bond, or the magistrate may order incarceration of the defendant. If incarceration is ordered, the magistrate must immediately schedule a preliminary hearing to be held within four (4) days. If the magistrate finds the defendant to be indigent, he shall appoint a public defender to represent him.

13. Upon information or complaint under oath the magistrate may arraign the defendant and may accept a plea of guilty or nolo contendere to any offense within the jurisdiction of the Court. If the charged offense is not within the jurisdiction of the Court the magistrate shall set a hearing for the purpose of accepting the plea before a...

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7 cases
  • Nollins v. Superior Court (People), B052186
    • United States
    • California Court of Appeals
    • 29 Octubre 1990
    ...Pugh v. Rainwater (5th Cir.1973) 483 F.2d 778, 788-790; Pugh v. Rainwater (S.D.Fla.1973) 355 F.Supp. 1286, 1287-1293; Pugh v. Rainwater (S.D.Fla.1972) 336 F.Supp. 490, 492; Pugh v. Rainwater (S.D.Fla.1971) 332 F.Supp. 1107, 1113-1115.) The Supreme Court concluded that these "adversary safe-......
  • Gerstein v. Pugh 8212 477
    • United States
    • United States Supreme Court
    • 25 Marzo 1974
    ......Pugh v. Rainwater, 332 F.Supp. 1107, 1110 (S.D.Fla.1971). 4 As a result, a person charged by information could be ...Pugh v. Rainwater, supra. The court certified the case as a class action under Fed.Rule Civ.Proc. 23(b)(2), and held that the Fourth and Fourteenth Amendments give all arrested persons ......
  • Montez v. Superior Court (People), B052892
    • United States
    • California Court of Appeals
    • 27 Agosto 1991
    ...Pugh v. Rainwater (5th Cir.1973) 483 F.2d 778, 788-790; Pugh v. Rainwater (S.D.Fla.1973) 355 F.Supp. 1286, 1287-1293; Pugh v. Rainwater (S.D.Fla.1972) 336 F.Supp. 490, 492; Pugh v. Rainwater (S.D.Fla.1971) 332 F.Supp. 1107, 1113-1115.) The Supreme Court concluded that these "adversary safe-......
  • Pugh v. Rainwater, 72-1585.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 3 Diciembre 1973
    ...is ordered, the magistrate must immediately schedule a preliminary hearing to be held within four (4) days of initial appearance." 336 F.Supp. 490, at 492. The initial appearance under the Purdy Plan had to be within 3 hours of arrest. The new rules provide for a preliminary hearing within ......
  • Request a trial to view additional results

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