Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

Category: Legal Updates

I am currently defending a client on a very serious capital offense in Tampa. The allegations against my cilent are over 24 years old and pre-trial investigation has led us to information that contradicts the victim in a number of very significant ways. My client also left the city of Tampa over eight years ago, and currently resides out of state. Despite the fact that there is almost no chance that my client would pose a threat to our local community, the State Attorney filed a motion requesting the Court to take him into custody after he posted bond on the charge. The law permits the State to make this request pursuant to Florida Statute 907.041. The statute is titled pretrial detention and release. This statute obviously serves a very important public purpose, but it should not be used by the state as a form of punishing the defendant prior to trial. The legislative intent of this statute is to prevent an especially dangerous defendant from being released back into the community when there is a strong possibility that he or she could victimize another member of our community before his trial. Some over zealous prosecutors see this statute as an oppurtunity to incarcerate a criminal defendant before he/she has ever been convicted. The State in my case agreed to strike their motion for pretrial detention, and my client was also permitted to travel, but that does not change that fact that this particular statute could be abused by certain prosecutors. The following is a summary of what I feel is the most important aspects of the statute.

LEGISLATIVE INTENT:

In order to understand the true purpose of the statute it is important to examine the Legislative Intent which is conveniently located in subsection (1). It states the following:

It is the policy of this state that persons committing serious criminal offenses, posing a threat to the safety of the community or the integrity of the judicial process, or failing to appear at trial be detained upon arrest. However, persons found to meet specified criteria shall be released under certain conditions until proceedings are concluded and adjudication has been determined. The Legislature finds that this policy of pretrial detention and release will assure the detention of those persons posing a threat to society while reducing the costs for incarceration by releasing, until trial, those persons not considered a danger to the community who meet certain criteria. It is the intent of the Legislature that the primary consideration be the protection of the community from risk of physical harm to persons.

As the last sentence clearly states the primary consideration is the "protection of the community from risk of physical harm to persons". Other important concerns involve assuring the accused's presence at trial, and assuring the integrity of the judicial process.

DOES MY CLIENT QUALIFY FOR PRE-TRIAL DETENTION?

There is a number of factors that must be considered before you can determine whether your client is eligible for pre-trial detention.

1) You must first determine whether your client has been charged with a "dangerous crime". The "dangerous crimes" are listed in subsection four (4) of the statute. This issue is very going to be black and white for the most part. Either you have been charge with one of the enumerated offenses or you haven't.

2) Subsection (b) of the statute just states that if charged with a dangerous crime you must have atleast some monetary condition imposed at first appearance court. However, remember the mandatory monetary conditions seem to apply only at "first appearance" court. The Court has the discretion to release the accused on a monitor or on his own recognizance if the circumstances warrant it at a later point in time.

3) Subsection (c) sets out the criteria under which the Court can detain someone pretrial. Subsection (c) sets out the standard the court uses to determine if pretrial detention is appropriate. There must be a "substantial probability", based on the defendant's past and present patterns of behavior, the criteria in florida statute 903.046 (which is simply bail statute), and any other facts that show the following circumstances exist:

1) Defendant has previously violated his pretrial release

2) Defendant has attempted to obstruct the judicial process (threatening witnesses, jurors, victims...etc.)

3) Defendant is charged with trafficking, and there is a substantial probability that he committed offense;
and no way to assure his appearance at a later criminal proceedings

4) Defendant is charged with DUI Manslaughter, there is a substantial probability that defendant committed
the crime; and the defendant poses a threat to community. See statute for circumstances that create
a "threat to community".

5) Subsection (5) describes the typical scenario faced by criminal attorneys. Under this section the
defendant must "pose a threat of harm to the community". The Statute sets out what factors the Court
should consider in determining whether the defendant poses a threat. You must be (1) charged with
a "dangerous crime"; there must be (2) a substantial probability that the defendant committed the crime;
(3) the factual circumstances of the crime must indicate a disregard for the safety of the community;
and (4) there is no condition of release that would sufficiently protect the community from risk of
physical harm to persons.

6) The defendant was out on parole, probation, or another form of release when the "dangerous crime"
was committed.

7) The defendant has violated one or more conditions of his pretrial release for the offense currently
before the court, and no conitions of release could assure the protection of the community or the accused
accused's presence at trial.

The remaining aspects of the statute speak about the procedures that should be followed by law enforcement, and the state attorney's office when someone is arrested for a dangerous crime. It allows the arresting agency to hold anyone charged with a dangerous crime for 24 hours while the state files a motion for pretrial detention. The statute also points out that it is the State's burden to show a need for pre-trial detention. While the Court can admit relevant evidence without complying with Florida's rules of evidence, no evidence can be admitted that has been secured in violation of the Florida or United States Constutions. The statute also directs the Court on the procedures to be followed when it makes its findings to detain the defendant pretrial, and under what circumstances defense counsel can move the court to release the client after a determination of pretrial detention is made.