RULE 3.130. FIRST APPEARANCE

(a) Prompt First Appearance. Except when previously
released in a lawful manner, every arrested person must be taken
before a judge, either in person or by audio-video communication
technology in the discretion of the court, within 24 hours of arrest.
In the case of a child in the custody of juvenile authorities, against
whom an information or indictment has been filed, the child must
be taken for a first appearance hearing within 24 hours of the filing
of the information or indictment. The chief judge of the circuit for
each county within the circuit must designate 1 or more judges
from the circuit court, or county court, to be available for the first
appearance and proceedings. The state attorney or an assistant
state attorney and public defender or an assistant public defender
must attend the first appearance proceeding either in person or by
communication technology, as determined in the discretion of the
court. First appearance hearings must be held with adequate notice
to the public defender and state attorney. An official record of the
proceedings must be maintained. If the defendant has retained
counsel or ex-presses a desire to and is financially able, the
attendance of the public defender or assistant public defender is
not required at the first appearance, and the judge must follow the
procedure outlined in subdivision (c)(2).

(b) Advice to Defendant.

(1) Notice of Charges and Rights. At the defendant’s first
appearance the judge must immediately inform the defendant of the
charge, including an alleged violation of probation or community
control and provide the defendant with a copy of the complaint. The
judge must also adequately advise the defendant that:

(A) the defendant is not required to say anything,
and that anything the defendant says may be used against him or
her;

(B) if unrepresented, that the defendant has a
right to counsel, and, if financially unable to afford counsel, that
counsel will be appointed; and
(C) the defendant has a right to communicate with
counsel, family, or friends, and if necessary, will be provided
reasonable means to do so.

(2) Use of Video Recording to Provide Notice of Rights. If
the defendant was advised of the rights listed in subdivisions
(b)(1)(A)–(b)(1)(C) by pre-recorded video, the judge must confirm
separately with each individual defendant that such defendant had
an opportunity to view and understands the rights explained in the
video recording.

(c) Counsel for Defendant.

(1) Appointed Counsel. If practicable, the judge should
determine before the first appearance whether the defendant is
financially able to afford counsel and whether the defendant desires
representation. When the judge determines that the defendant is
entitled to court-appointed counsel and desires counsel, the judge
must immediately appoint counsel. This determination must be
made and, if required, counsel appointed no later than the time of
the first appearance and before any other proceedings at the first
appearance. If necessary, counsel may be appointed for the limited
purpose of representing the defendant only at first appearance or at
subsequent proceedings before the judge.

(2) Retained Counsel. When the defendant has
employed counsel or is financially able and desires to employ
counsel to represent him or her at first appearance, the judge must
allow the defendant a reasonable time to send for counsel and
must, if necessary, postpone the first appearance hearing for that
purpose. The judge must also, on request of the defendant, require
an officer to communicate a message to such counsel as the
defendant may name. The officer must, with diligence and without
cost to the defendant if the counsel is within the county, perform
the duty. If the postponement will likely result in the continued
incarceration of the defendant beyond a 24-hour period, at the
request of the defendant the judge may appoint counsel to
represent the defendant for the first appearance hearing.
(3) Opportunity to Confer. No further steps in the
proceedings should be taken until the defendant and counsel have
had an adequate opportunity to confer, unless the defendant has
intelligently waived the right to be represented by counsel.

(4) Waiver of Counsel. The defendant may waive the
right to counsel at first appearance. The waiver, containing an
explanation of the right to counsel, must be in writing and signed
and dated by the defendant. This written waiver of counsel must, in
addition, contain a statement that it is limited to first appearance
only and must in no way be construed to be a waiver of counsel for
subsequent proceedings.

(d) Pretrial Release. The judge must proceed to determine
conditions of release under rule 3.131 or rule 3.132. For a
defendant who has been arrested for violation of his or her
probation or community control by committing a new violation of
law, the judge:

(1) may order the offender to be taken before the court
that granted the probation or community control if the offender
admits the violation; or

(2) if the offender does not admit the violation at first
appearance hearing, the judge may commit and order the offender
to be brought before the court that granted probation or community
control, or may release the offender with or without bail to await
further hearing, notwithstanding section 907.041, Florida Statutes,
relating to pretrial detention and release. In determining whether to
require or set the amount of bail, the judge may consider whether
the offender is more likely than not to receive a prison sanction for
the violation.

Committee Notes

1972 Amendment. Same as prior rule except (b), which is
new.