Bell v. State, 78-878
| Decision Date | 09 August 1978 |
| Docket Number | No. 78-878,78-878 |
| Citation | 361 So.2d 818 |
| Parties | Gary Jerome BELL, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for petitioner.
John R. Heffernan, Jr., Asst. State's Atty., Orlando, for respondent.
This is a petition for writ of certiorari and, in the alternative, a petition for writ of mandamus wherein petitioner contests the validity of an order denying his motion for an adversary preliminary hearing. We treat the petition as one for a writ of common law certiorari.
Petitioner was arrested and charged with several felony offenses, including attempted murder in the first degree, aggravated battery, resisting arrest with violence and delivery of cannabis. Pursuant to Fla.R.Crim.P. 3.131(a)(1) petitioner appeared before a magistrate who determined in a non-adversary proceeding that probable cause existed, and that the petitioner should be held to answer the charges. Thereafter, petitioner was released on bond. The state failed to file an information or indictment officially charging the petitioner with the crimes specified within 21 days from the date of arrest; but did file such an accusatory pleading on the 23rd day. Petitioner contends that he is entitled to an adversary preliminary hearing pursuant to Fla.R.Crim.P. 3.131(b) (1). As we can see no useful purpose to be served by such an adversary hearing in view of our present speedy trial rules and liberal discovery rules we, nevertheless, reluctantly agree with petitioner.
The respondent, State, contends that no undue restraint has been placed upon the petitioner's liberty because he was released on bond; that Fla.R.Crim.P. 3.131(b)(1) exceeds the dictates of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); that the relief sought has been realized through the non-adversary probable cause determination, bonding procedures and the taking of discovery depositions; and that the error, if any, is non-fundamental resulting in no irrevocable injury to petitioner.
We agree with respondent's position; however, it is clearly permissible for a state to expand upon the rights of individuals and the Supreme Court of Florida appears to have done so. The sole question before us is whether or not Fla.R.Crim.P. 3.131(b)(1) applies to one who has already obtained a non-adversary probable cause determination, and who is not in custody. We hold that it does so apply.
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Kennedy v. Crawford, 85-2169
...of Gerstein v. Pugh and, in certain instances, gives to an arrestee greater rights than Gerstein v. Pugh demands. Bell v. State, 361 So.2d 818 (Fla. 4th DCA 1978). The Rule provides that in all cases where a defendant is in custody, a nonadversary probable cause determination must be held b......
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Coffield v. State
...petitioner had posted bond as to that charge, he was nonetheless entitled to an adversary preliminary hearing. See Bell v. State , 361 So. 2d 818 (Fla. 4th DCA 1978) (holding that if the State fails to file charges within 21 days from an arrest, a defendant is entitled to an adversary preli......
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Dumlar v. State, 1D01-4000.
...prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. In Bell v. State, 361 So.2d 818 (Fla. 4th DCA 1978), the court held that a defendant was entitled to a hearing on facts similar to those in the case at bar. However, in Santop......
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Santopolo v. State, 83-2442
...a departure from the essential requirements of the law. He cites Florida Rule of Criminal Procedure 3.133(b)(1) and Bell v. State, 361 So.2d 818 (Fla. 4th DCA 1978), in support of his position. We disagree and therefore deny the petition but do so with Petitioner was arrested on August 30, ......