Florida Rules of Criminal Procedure., In re, 44958-A
| Decision Date | 26 March 1975 |
| Docket Number | No. 44958-A,44958-A |
| Parties | In re FLORIDA RULES OF CRIMINAL PROCEDURE. |
| Court | Florida Supreme Court |
A Case of Original Jurisdiction.
Appended to this order are amended and new rules of The Rules of Criminal Procedure.
These amendments and new rules are necessitated by the United States Supreme Court's decision construing the Florida Rules of Criminal Procedure in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, and its specific holding that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest."
These rules shall govern all proceedings within their scope after 12:01 a.m., March 31, 1975. All conflicting rules and statutes are hereby superseded.
This Court has been required to act immediately in view of the aforementioned United States Supreme Court decision, without the usual petition and notice procedure. In adopting these rules, we consider them temporary in nature, and respectfully request the Criminal Procedure Rules Committee of The Florida Bar and other interested parties to file any appropriate suggestions or objections on or before May 5, 1975.
It is so ordered.
In computing any period of time prescribed or allowed by these rules, except Rules 3.130 and 3.131, by order of court or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is Saturday, Sunday or legal holiday, in which event the period shall run until the end of a next day which is neither a Saturday, Sunday nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.
Comment:
Italicized portion is the only change. The effect is to remove the 72-hour provision of proposed Rule 3.131 from the Saturday, Sunday, and legal holiday exception.
(1) Defendants in Custody. In all cases where the defendant is in custody a nonadversary probable cause determination shall be held before a magistrate within 72 hours from the time of the defendant's arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a magistrate and an arrest warrent issued for the specific offense for which the defendant is charged. The magistrate for good cause may continue the proceeding for not more than 24 hours beyond the above 72 -hour period. This determination shall be made if the necessary proof is available at the time of the first appearance as required under Rule 3.130, but the holding of this determination at said time shall not affect the fact that it is a nonadversary proceeding.
(2) Defendants on Pretrial Release defendant who has been released from custody before a probable cause determination is made and who is able to establish that his pretrial release conditions are a significant restraint on his liberty may file a written motion for a nonadversary probable cause determination setting forth with specificity the items of significant restraint that a finding of no probable cause would eliminate. The motion shall be filed within 21 days from the date of arrest, and notice shall be given to the State. The magistrate shall, if he finds significant restraints on the defendant's liberty, make a probable cause determination within 7 days from the filing of the motion.
(3) Standard of Proof. Upon presentation of proof, the magistrate shall determine whether there is probable cause for detaining the arrested person pending further proceedings. The defendant need not be present. In determining probable cause to detain the defendant, the magistrate shall apply the standard for issuance of an arrest warrant, and his finding may be based upon sworn complaint, affidavit, deposition under oath, or, if necessary, upon testimony under oath properly recorded.
(4) Action on Determination. If probable cause is found, the defendant shall be held to answer the charges. If probable cause is not found or the specified time periods are not complied with, the defendant shall be released from custody unless an information or indictment has been filed in which event the defendant shall be released on his or her own recognizance subject to the condition that he or she appear at all court proceedings, or shall be released under a summons to appear before the appropriate court at a time certain. Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing...
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Pugh v. Rainwater, 71-448-Civ.-JLK.
...Gerstein decision, the Supreme Court of Florida amended Rule 3.131 of the Florida Rules of Criminal Procedure. In re: Florida Rules of Criminal Procedure, 309 So.2d 544 (Fla.1975). In Dade County, Florida, a document called "Procedure for Preliminary Hearings" was adopted by local officials......
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State v. Griffith
...days of the arrest, and respondent contends that incarcerated probationers should have an identical right. See In re Florida Rules of Criminal Procedure, 309 So.2d 544 (Fla.1975). But even if this proposition were accepted as true, there is no showing that Griffith asked for such a hearing.......
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Aldama v. State, 80-972
...Constitution (1968, as amended, effective 1973). 2 State v. Miller, 313 So.2d 656 (Fla.1975). See also In re Florida Rules of Criminal Procedure, 309 So.2d 544, 546 (Fla.1975); see, e. g., In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1973). Florida courts have consistently h......
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Cameron v. State, 45376
...v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). We implemented the decision by amending this Court's Rule of Criminal Procedure 3.131, 309 So.2d 544 (1975). The record in this cause concerning the petitioner's application for bail on appeal reflects that she was not in custody. T......