Evans v. Seagraves

• Decision Date: 22 February 2006
• Docket Number: No. 1D05-6039.,1D05-6039.
• Citation: Evans v. Seagraves, 922 So.2d 318 (Fla. App. 2006)
• Parties: Tony EVANS, Jr., Petitioner, v. Tommy SEAGRAVES, Sheriff of Nassau County, Florida, and the State of Florida, Respondents.
• Court: Florida District Court of Appeals

922 So.2d 318

Tony EVANS, Jr., Petitioner, v.Tommy SEAGRAVES, Sheriff of Nassau County, Florida, and the State of Florida, Respondents.

No. 1D05-6039.

District Court of Appeal of Florida, First District.

February 22, 2006.

Bill White, Public Defender, and Brian D. Morrissey, Assistant Public Defender, Yulee, for petitioner.

Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for respondents.

BENTON, J.

By order directing his release "on recognizance subject to the condition that he. . . appear at all court proceedings,"we have already granted Tony Evans Jr.'s petition for writ of habeas corpus.SeeFla. R.Crim. P. 3.133(b)(5).We issued the writ because the only evidence adduced at his adversary preliminary hearing was a hearsay account which would not have been admissible if offered at trial.

Our decision is the latest in an unbroken line of precedent holding that hearsay testimony (not falling within some exception to the rule excluding hearsay) does not, by itself, meet the state's burden at an adversary preliminary hearing under Florida Rule of Criminal Procedure 3.133(b).See, e.g., Stephenson v. Rice,574 So.2d 286, 287(Fla. 2d DCA1991)("Since there was no other corroborative testimony presented, the hearsay testimony was insufficient. . . .The writ of habeas corpus is issued with directions that the petitioner be released from custody pursuant to Florida Rule of Criminal Procedure 3.133[b].").Rule 3.133(b)(3) requires that, in the event of an adversary probable cause hearing, "[a]ll witnesses shall be examined in the presence of the defendant and may be cross-examined."

When the state failed to secure an indictment or file an information against petitioner within twenty-one days of his arrest, he filed a motion for adversary preliminary hearing pursuant to Rule 3.133(b).¹At the hearing, the sole witness called by the state was the arresting officer, who testified that he had interviewed two minors who told him that petitioner had given them illegal drugs.When petitioner objected to the officer's testimony as hearsay, the state asserted that the minors' statements were "admissions against penal interest."The trial court accepted this contention even though there was no showing that the statements fell within this or any other exception to the rule excluding hearsay.²After the trial court determined that the state had met its burden, petitioner sought habeas corpus relief here asserting that the hearsay testimony was insufficient.

Relying heavily on Chavez v. State,832 So.2d 730(Fla.2002), the respondent argues that hearsay alone is sufficient to establish probable cause in a Rule 3.133(b) adversary preliminary hearing.But the Chavez case is inapposite, not least because Chavez involved Rule 3.133(a), not Rule 3.133(b).Chavez argued that delay in bringing him before a judicial officer violated Rule 3.133(a), because he was not afforded a nonadversary probable cause determination within forty-eight hours of his arrest, and that his confession should therefore have been suppressed.The Florida Supreme Court ruled only that suppression of a confession was not an appropriate remedy for the failure to make a nonadversary probable cause determination within forty-eight hours of the defendant's arrest.SeeChavez,832 So.2d at 751-756.

In the present case, the defense sought to suppress no evidence, nor was the legality of an arrest at issue at the Rule 3.133(b) hearing.The broad array of Fourth Amendmentcases cited by the dissenting opinion have almost all to do with whether arrests, searches or seizures were lawful.The trial court had to decide a different question in the present case: whether a presumptively innocent defendant should continue to be held in jail before trial even though no charges had been filed against him in a timely fashion.Because charges were not filed within the time prescribed by rule and because the state relied on nothing other than inadmissible hearsay at the adversary preliminary hearing, the trial judge erred in finding probable cause justifying continued pretrial incarceration.SeeFla. R.Crim. P. 3.133(b).

The court so ruled in Pierce v. Mims,418 So.2d 273(Fla. 2d DCA1982), in granting a petition for writ of habeas corpus because the state adduced at the adversary preliminary hearing only hearsay testimony that would be inadmissible at trial.There, as here, the state had not filed an information or secured an indictment within twenty-one days of an arrest, giving rise to the right to an adversary probable cause hearing.An investigating police officer testified at the adversary preliminary hearing in Pierce recounting, over objection, what a co-defendant had told him.The Second District held that, because such hearsay testimony would be inadmissible at trial and because no other evidence was presented, the trial judge erred in finding probable cause under Rule 3.133(b) that would justify pretrial detention.Id. at 274.No Florida court has gone the other way on this question in the nearly quarter of a century since Pierce was decided.³

Hearsay may well be an important part of the "totality of the circumstances" giving law enforcement officers probable cause for an arrest in a given case.SeeIllinois v. Gates,462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983).Hearsay may, indeed, suffice in proceedings under Rule 3.133(a), which provides for a nonadversary probable cause determination within forty-eight hours of the defendant's arrest, where the arrest was not made pursuant to an arrest warrant.Rule 3.133(a)(3) specifically sets forth the standard of proof for these nonadversary probable cause determinations, and explicitly provides that — in determining probable cause justifying an arrest after the fact — the judge shall apply the standard for issuance of an arrest warrant.Findings under Rule 3.133(a) may be based on ex parte sworn complaints, other affidavits, or depositions under oath, and need not (but may also be) based on competent evidence.

In contrast, Rule 3.133(b) provides for an adversary preliminary hearing when the state fails to charge a defendant by information or indictment within twenty-one days of the arrest.Unlike Rule 3.133(a),Rule 3.133(b) does not permit the state to rely wholly on a complaint (even if sworn), on another affidavit or on any other evidence inadmissible at trial.Rule 3.133(b)(3) provides instead that all witnesses shall be examined in the presence of the defendant and may be cross-examined.Rule 3.133(b)(5) provides that the judge shall cause the defendant to be held to answer to the circuit court, only if it appears to the judge "from the evidence" that there is probable cause to believe that the defendant has committed the offense.

It is within the state attorney's office's power to avoid a Rule 3.133(b) hearing in every case merely by timely securing an indictment or filing an information within twenty-one days.One important purpose the rule serves is providing an incentive to keep cases moving forward on track to an orderly and expeditious disposition.This incentive fades almost to the point of disappearing if the state can meet its burden at a Rule 3.133(b) hearing simply by having an investigator in the state attorney's office read hearsay from the file.Leapfrogging over the rule to grapple with constitutional questions the present case does not require us to decide, the dissenting opinion does not address this purpose of the rule.

Florida Rule of Criminal Procedure 3.133(b) should be construed in context in order to give its purposes effect.In a given case, the same arrestee may be entitled first to a nonadversary Rule 3.133(a) probable cause hearing to test the legality of his arrest, then — if the state prevails at the Rule 3.133(a) hearing, but fails to secure an indictment or file a criminal information within twenty-one days — to an adversary Rule 3.133(b) probable cause hearing.If an information or indictment is filed after a Rule 3.133(b) hearing is duly requested, the defendant is not to be discharged outright, but must be released on recognizance subject to the condition that he or she appear at all court proceedings (or be released under summons to appear before the appropriate court at a time certain).The only remedy available to a habeas corpus petitioner under Rule 3.133(b), once an information or indictment has been (belatedly) filed, is the accused's release on recognizance.SeeDumlar v. State,808 So.2d 272, 273(Fla. 1st DCA2002).

For these reasons, we have granted the petition for writ of habeas corpus with instructions that petitioner be released on his own recognizance.

KAHN, C.J., concurs.

THOMAS, J., dissents with opinion.

1.By the time the adversary preliminary hearing was held, an information had been filed, but the filing of the information did not eliminate petitioner's entitlement to the adversary preliminary hearing or preclude relief altogether.SeeFla. R.Crim. P. 3.133(b)(1).

2.The trial court ruled not that the state could carry its burden at an adversary hearing under Rule 3.131(b) with objectionable hearsay, but that the hearsay was exempt from exclusion.Rejecting the more expansive approach originally adopted by our supreme court in Baker v. State,336 So.2d 364(Fla.1976), the Evidence Code, section 90.804(2)(c),Florida Statutes(2005), as subsequently itself adopted by court rule, excepts declarations against penal interest from the rule excluding hearsay only when the declarant is unavailable to testify and when corroborating circumstances show the trustworthiness of the statement.A declaration against interest is:

A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position...