What are the 21-Day Rule and Adversarial Preliminary Hearings in Florida Criminal Law?

When a person is arrested in Tampa, Florida, one of their primary concerns is usually whether they can get out of jail. This is where a Tampa Criminal Defense Attorney can be invaluable, particularly through filing and arguing motions to set or reduce bond. However, Florida has two types of preliminary hearings that can also be significantly helpful, when managed by an adept attorney. In Florida, preliminary hearings occur before the filing of a charging document, which is different from many other states. Having a Tampa Criminal Defense Attorney who understands how to navigate preliminary hearings is crucial to ensure an increased chance of release from jail.

Nonadversarial Preliminary Hearing (48-Hour Rule)

The first type of hearing is the nonadversarial preliminary hearing, under Florida Rule of Criminal Procedure 3.133(a)(1). This typically takes place at the defendant’s first appearance, within 24 hours of their arrest. The primary goal of this hearing is to determine probable cause within 48 hours of the arrest, although the court can extend this period by up to 24 hours under extraordinary circumstances. Even though this hearing is nonadversarial, an adept Tampa Attorney may still present arguments and evidence if probable cause is lacking. If probable cause is not found, the defendant should be released from custody or on recognizance if an information or indictment has been filed.

Adversarial Preliminary Hearing (21-Day Rule)

The second type is the adversarial preliminary hearing (APH), under Florida Rule of Criminal Procedure 3.133 (a)(4). If the state has not charged the defendant within 21 days of arrest, the defendant is entitled to an APH. An experienced Tampa attorney should file a demand for this hearing on the 22nd day if no charging document has been filed. The right to this hearing remains even if an information or indictment is filed later. During the APH, the prosecutor must present witnesses to establish probable cause. Defense counsel can also present witnesses. If probable cause is not found, the defendant must be released on recognizance. A little-known fact is a Demand for APH can be filed and heard even if the defendant is being held in another jurisdiction or even out of state. See Mize v. State, 389 So. 2d 1105 (Fla. 2d DCA 1980).

Practical Considerations

To file felony charges, the prosecutor must receive testimony under oath from a material witness. See Rule 3.140 (g) Fla. R. Crim. Pro. This is not always practical within 21 days, for a multitude of reasons. The prosecutor may have difficulty establishing probable cause if they cannot secure the attendance of a material witness before your APH.

Strategic Considerations

Strategically, if the case is high-profile and the evidence appears strong, it may be wise for a Tampa Criminal Defense Attorney to waive the right to an adversarial preliminary hearing in consultation with their client. This is particularly true if an alleged confession is key evidence. The media often makes public records requests for evidence in high-profile cases. Confessions are exempted from Chapter 119 (Florida Public Records Law, Section 119.071(2)(e) Fla. Stat.). If testimony regarding a confession comes out in open court, it will be fair game for the media to report on, potentially tainting potential members of the jury pool. Waiving an adversarial preliminary hearing is a strategic decision under the idea that the ultimate goal is to not be convicted as charged versus being released early on. Counsel can always file a motion to reduce bond later if it is strategically sound to do so.

For cases not so much in the media spotlight, an adversarial preliminary hearing can provide early insights into the case, even if probable cause is likely to be established. However, it is important to note that testimony from this hearing may be used at trial if the witness becomes unavailable. See Thompson v State, 995 So.2d 532, 533 (Fla. 2d DCA 2008)( because the defendant was present at the adversary preliminary hearing, the issues were the same, and there are no limits on cross- examination in that proceeding, there was a meaningful opportunity to cross-examine and testimony was admissible). For this reason, a skilled Tampa attorney is needed in order to manage the questioning process.

Post-Hearing Actions

After the hearing, if probable cause is found, defense counsel should request a status hearing on the 30th day. If the defendant remains uncharged by the 30th day, the court must order their release on the 33rd day unless formal charges are filed. See Fla. R. Crim. Pro. 3.134 (1). The court can extend detention to the 40th day if the state shows good cause, but no defendant should remain in custody beyond 40 days without formal charges. See Fla. R. Crim. Pro. 3.134 (2).

It is important to remember that the rule requiring release after 40 days is not self-executing. Defense counsel must file a motion to assert this right. Failure to do so may result in waiving the right if the prosecutor files charges after the 40th day. Bowens v. Tyson, 578 So.2d 696 (Fla. 1991).

Conclusion

By understanding and leveraging preliminary hearings, an experienced Tampa Attorney can help ensure the best possible outcome for their client. Rocky Brancato of the Brancato Law Firm, P.A. is an experienced Tampa attorney who can help you navigate the bond and preliminary hearing process, to give you or a loved one their best chance of release while the case is pending. Contact us at 813-727-7159 to schedule a free consultation today.