Florida Rule of Criminal Procedure 3.133
RULE 3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS
AND ADVERSARY PRELIMINARY HEARINGS
(a) Nonadversary Probable Cause Determination.
(1) Defendant in Custody. In all cases in which the
defendant is in custody, a nonadversary probable cause
determination shall be held before a judge within 48 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 judge and an arrest
warrant issued for the specific offense for which the defendant is
charged. The judge after a showing of extraordinary circumstance
may continue the proceeding for not more than 24 hours beyond
the 48-hour period. The judge, after a showing that an
extraordinary circumstance still exists, may continue the
proceeding for not more than 24 additional hours following the
expiration of the initial 24-hour continuance. 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 that time shall not affect the fact that it is a
nonadversary proceeding.
(2) Defendant on Pretrial Release. A defendant who has
been released from custody before a probable cause determination
is made and who is able to establish that the pretrial release
conditions are a significant restraint on his or her 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. A judge who finds significant restraints on the
defendant’s liberty shall make a probable cause determination
within 7 days from the filing of the motion.
(3) Standard of Proof. Upon presentation of proof, the
judge 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 judge shall apply the standard for issuance of an
arrest warrant, and the finding may be based on sworn complaint,
affidavit, deposition under oath, or, if necessary, on 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 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.
Any release occasioned by a failure to comply with the specified
time periods shall be by order of the judge on a written application
filed by the defendant with notice sent to the state or by a judge
without a written application but with notice to the state. The judge
shall order the release of the defendant after it is determined that
the defendant is entitled to release and after the state has a
reasonable period of time, not to exceed 24 hours, in which to
establish probable cause. A release required by this rule does not
void further prosecution by information or indictment but does
prohibit any restraint on liberty other than appearing for trial. A
finding that probable cause does or does not exist shall be made in
writing, signed by the judge, and filed, together with the evidence of
such probable cause, with the clerk of the court having jurisdiction
of the offense for which the defendant is charged.
(b) Adversary Preliminary Hearing.
(1) When Applicable. A defendant who is not charged in
an information or indictment within 21 days from the date of arrest
or service of the capias on him or her shall have a right to an
adversary preliminary hearing on any felony charge then pending
against the defendant. The subsequent filing of an information or
indictment shall not eliminate a defendant’s entitlement to this
proceeding.
(2) Process. The judge shall issue such process as may
be necessary to secure attendance of witnesses within the state for
the state or the defendant.
(3) Witnesses. All witnesses shall be examined in the
presence of the defendant and may be cross-examined. Either party
may request that the witnesses be sequestered. At the conclusion of
the testimony for the prosecution, the defendant who so elects shall
be sworn and testify in his or her own behalf, and in such cases the
defendant shall be warned in advance of testifying that anything he
or she may say can be used against him or her at a subsequent
trial. The defendant may be cross-examined in the same manner as
other witnesses, and any witnesses offered by the defendant shall
be sworn and examined.
(4) Record. At the request of either party, the entire
preliminary hearing, including all testimony, shall be recorded
verbatim stenographically or by mechanical means and at the
request of either party shall be transcribed. If the record of the
proceedings, or any part thereof, is transcribed at the request of the
prosecuting attorney, a copy of this transcript shall be furnished
free of cost to the defendant or the defendant’s counsel.
(5) Action on Hearing. If from the evidence it appears to
the judge that there is probable cause to believe that an offense has
been committed and that the defendant has committed it, the judge
shall cause the defendant to be held to answer to the circuit court;
otherwise, the judge shall release the defendant from custody
unless an information or indictment has been filed, in which event
the defendant shall be released on 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 for trial. A finding that
probable cause does or does not exist shall be made in writing,
signed by the judge, and, together with the evidence received in the
cause, shall be filed with the clerk of the circuit court.
(c) Additional Nonadversary Probable Cause
Determinations and Preliminary Hearings. If there has been a
finding of no probable cause at a nonadversary determination or
adversary preliminary hearing, or if the specified time periods for
holding a nonadversary probable cause determination have not
been complied with, a judge may thereafter make a determination of
probable cause at a nonadversary probable cause determination, in
which event the defendant shall be retained in custody or returned
to custody upon appropriate process issued by the judge. A
defendant who has been retained in custody or returned to custody
by such a determination shall be allowed an adversary preliminary
hearing in all instances in which a felony offense is charged.
Committee Notes
1968 Adoption. (Notes are to former rule 1.122.)
(a) Substantially the same as section 902.01, Florida
Statutes; the word “examination” is changed to “hearing” to conform
to modern terminology.
(b) through (j)Substantially the same as sections 902.02
through 902.10, 902.13, and 902.14, Florida Statutes, except for
exchange of “hearing” for “examination.”
(k) Parts of section 902.11, Florida Statutes, and all of
section 902.12, Florida Statutes, were omitted because of conflict
with case law: Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed.2d 977 (1964); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050,
10 L.Ed.2d 193 (1963).
(l) Taken from Federal Rule of Criminal Procedure 5(c).
Previously Florida had no statute or rule defining what the
magistrate should do at the conclusion of the preliminary hearing.
(m) Substantially the same as section 902.18, Florida
Statutes, except “without delay” changed to “within 7 days.” Some
specific time limit was felt necessary because of frequent delay by
magistrates while defendants remain in jail.
1972 Amendment. The ABA Standards on Pre-Trial Release
provide for a person arrested to be taken before a committing
magistrate without unreasonable delay for immediate judicial
consideration of the release decision. The committee determined
that, since a determination of probable cause at this immediate
hearing presents difficult logistical problems for the state and
defense counsel, the question of probable cause should be decided
at a later preliminary hearing. For this reason, subdivisions (c), (d),
and (e) of the former rule have been deleted in favor of the hearing
provision now contained in rule 3.130.
(a) A revised version of former rule 3.122(a).
(b) New. Establishes the time period in which the
preliminary hearing must take place.
(c)(1) Substantially the same as former rule 3.122(b). Amended
to provide for advice of counsel relative to waiver and for written
waiver.
(c)(2) Amended to delete provisions relating to recording of
proceedings as same are now contained in subdivision (h).
(d) Same as prior rule 3.122(g).
(e) Same as prior rule 3.122(h).
(f) Substantially the same as prior rule 3.122(i); language
modernized by slight changes.
(g) Same as prior rule 3.122(j).
(h) New rule to provide for record of proceedings.
(i) Same as prior rule 3.122(l).
(j) Substantially the same as prior rule 3.122(m). Time
period for transmission of papers is reduced. (2) provides for
transmission of any transcript of proceedings.
1977 Amendment. The rule corrects several deficiencies in
the prior rule:
(1) In the prior rule no specific mechanism was provided to
effect the release which is allowed. This revision provides such a
mechanism and coordinates the mechanism with the additional
procedures created by subdivision (c).
(2) Once a determination of no probable cause was made
and the defendant was released, no method was provided for
reversing the process in those instances in which the determination
is palpably in error or in instances in which it is later possible to
establish probable cause.
(3) The prior rule allowed the unconditioned release of a
defendant without the possibility of recapture simply because of a
technical failure to abide by the rather arbitrary time limits
established for the conduct of a nonadversary probable cause
determination and regardless of the ability to establish probable
cause. The new rule allows a determination or redetermination of
probable cause to be made in instances in which to do so is
sensible. The defendant is protected by the provision allowing an
adversary preliminary hearing as a check against any possible
abuse.
Court Comment
1975 Amendment. This is a complete rewrite of the
preliminary hearing rule.
AND ADVERSARY PRELIMINARY HEARINGS
(a) Nonadversary Probable Cause Determination.
(1) Defendant in Custody. In all cases in which the
defendant is in custody, a nonadversary probable cause
determination shall be held before a judge within 48 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 judge and an arrest
warrant issued for the specific offense for which the defendant is
charged. The judge after a showing of extraordinary circumstance
may continue the proceeding for not more than 24 hours beyond
the 48-hour period. The judge, after a showing that an
extraordinary circumstance still exists, may continue the
proceeding for not more than 24 additional hours following the
expiration of the initial 24-hour continuance. 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 that time shall not affect the fact that it is a
nonadversary proceeding.
(2) Defendant on Pretrial Release. A defendant who has
been released from custody before a probable cause determination
is made and who is able to establish that the pretrial release
conditions are a significant restraint on his or her 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. A judge who finds significant restraints on the
defendant’s liberty shall make a probable cause determination
within 7 days from the filing of the motion.
(3) Standard of Proof. Upon presentation of proof, the
judge 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 judge shall apply the standard for issuance of an
arrest warrant, and the finding may be based on sworn complaint,
affidavit, deposition under oath, or, if necessary, on 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 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.
Any release occasioned by a failure to comply with the specified
time periods shall be by order of the judge on a written application
filed by the defendant with notice sent to the state or by a judge
without a written application but with notice to the state. The judge
shall order the release of the defendant after it is determined that
the defendant is entitled to release and after the state has a
reasonable period of time, not to exceed 24 hours, in which to
establish probable cause. A release required by this rule does not
void further prosecution by information or indictment but does
prohibit any restraint on liberty other than appearing for trial. A
finding that probable cause does or does not exist shall be made in
writing, signed by the judge, and filed, together with the evidence of
such probable cause, with the clerk of the court having jurisdiction
of the offense for which the defendant is charged.
(b) Adversary Preliminary Hearing.
(1) When Applicable. A defendant who is not charged in
an information or indictment within 21 days from the date of arrest
or service of the capias on him or her shall have a right to an
adversary preliminary hearing on any felony charge then pending
against the defendant. The subsequent filing of an information or
indictment shall not eliminate a defendant’s entitlement to this
proceeding.
(2) Process. The judge shall issue such process as may
be necessary to secure attendance of witnesses within the state for
the state or the defendant.
(3) Witnesses. All witnesses shall be examined in the
presence of the defendant and may be cross-examined. Either party
may request that the witnesses be sequestered. At the conclusion of
the testimony for the prosecution, the defendant who so elects shall
be sworn and testify in his or her own behalf, and in such cases the
defendant shall be warned in advance of testifying that anything he
or she may say can be used against him or her at a subsequent
trial. The defendant may be cross-examined in the same manner as
other witnesses, and any witnesses offered by the defendant shall
be sworn and examined.
(4) Record. At the request of either party, the entire
preliminary hearing, including all testimony, shall be recorded
verbatim stenographically or by mechanical means and at the
request of either party shall be transcribed. If the record of the
proceedings, or any part thereof, is transcribed at the request of the
prosecuting attorney, a copy of this transcript shall be furnished
free of cost to the defendant or the defendant’s counsel.
(5) Action on Hearing. If from the evidence it appears to
the judge that there is probable cause to believe that an offense has
been committed and that the defendant has committed it, the judge
shall cause the defendant to be held to answer to the circuit court;
otherwise, the judge shall release the defendant from custody
unless an information or indictment has been filed, in which event
the defendant shall be released on 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 for trial. A finding that
probable cause does or does not exist shall be made in writing,
signed by the judge, and, together with the evidence received in the
cause, shall be filed with the clerk of the circuit court.
(c) Additional Nonadversary Probable Cause
Determinations and Preliminary Hearings. If there has been a
finding of no probable cause at a nonadversary determination or
adversary preliminary hearing, or if the specified time periods for
holding a nonadversary probable cause determination have not
been complied with, a judge may thereafter make a determination of
probable cause at a nonadversary probable cause determination, in
which event the defendant shall be retained in custody or returned
to custody upon appropriate process issued by the judge. A
defendant who has been retained in custody or returned to custody
by such a determination shall be allowed an adversary preliminary
hearing in all instances in which a felony offense is charged.
Committee Notes
1968 Adoption. (Notes are to former rule 1.122.)
(a) Substantially the same as section 902.01, Florida
Statutes; the word “examination” is changed to “hearing” to conform
to modern terminology.
(b) through (j)Substantially the same as sections 902.02
through 902.10, 902.13, and 902.14, Florida Statutes, except for
exchange of “hearing” for “examination.”
(k) Parts of section 902.11, Florida Statutes, and all of
section 902.12, Florida Statutes, were omitted because of conflict
with case law: Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed.2d 977 (1964); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050,
10 L.Ed.2d 193 (1963).
(l) Taken from Federal Rule of Criminal Procedure 5(c).
Previously Florida had no statute or rule defining what the
magistrate should do at the conclusion of the preliminary hearing.
(m) Substantially the same as section 902.18, Florida
Statutes, except “without delay” changed to “within 7 days.” Some
specific time limit was felt necessary because of frequent delay by
magistrates while defendants remain in jail.
1972 Amendment. The ABA Standards on Pre-Trial Release
provide for a person arrested to be taken before a committing
magistrate without unreasonable delay for immediate judicial
consideration of the release decision. The committee determined
that, since a determination of probable cause at this immediate
hearing presents difficult logistical problems for the state and
defense counsel, the question of probable cause should be decided
at a later preliminary hearing. For this reason, subdivisions (c), (d),
and (e) of the former rule have been deleted in favor of the hearing
provision now contained in rule 3.130.
(a) A revised version of former rule 3.122(a).
(b) New. Establishes the time period in which the
preliminary hearing must take place.
(c)(1) Substantially the same as former rule 3.122(b). Amended
to provide for advice of counsel relative to waiver and for written
waiver.
(c)(2) Amended to delete provisions relating to recording of
proceedings as same are now contained in subdivision (h).
(d) Same as prior rule 3.122(g).
(e) Same as prior rule 3.122(h).
(f) Substantially the same as prior rule 3.122(i); language
modernized by slight changes.
(g) Same as prior rule 3.122(j).
(h) New rule to provide for record of proceedings.
(i) Same as prior rule 3.122(l).
(j) Substantially the same as prior rule 3.122(m). Time
period for transmission of papers is reduced. (2) provides for
transmission of any transcript of proceedings.
1977 Amendment. The rule corrects several deficiencies in
the prior rule:
(1) In the prior rule no specific mechanism was provided to
effect the release which is allowed. This revision provides such a
mechanism and coordinates the mechanism with the additional
procedures created by subdivision (c).
(2) Once a determination of no probable cause was made
and the defendant was released, no method was provided for
reversing the process in those instances in which the determination
is palpably in error or in instances in which it is later possible to
establish probable cause.
(3) The prior rule allowed the unconditioned release of a
defendant without the possibility of recapture simply because of a
technical failure to abide by the rather arbitrary time limits
established for the conduct of a nonadversary probable cause
determination and regardless of the ability to establish probable
cause. The new rule allows a determination or redetermination of
probable cause to be made in instances in which to do so is
sensible. The defendant is protected by the provision allowing an
adversary preliminary hearing as a check against any possible
abuse.
Court Comment
1975 Amendment. This is a complete rewrite of the
preliminary hearing rule.