Florida Statutes 907.041 – Pretrial detention and release
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(1) LEGISLATIVE INTENT.–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.
(2) RULES OF PROCEDURE.–Procedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court.
(3) RELEASE ON NONMONETARY CONDITIONS.–
For details, see Fla. Stat. § 775.082(3)(b)
(a) It is the intent of the Legislature to create a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release unless such person is charged with a dangerous crime as defined in subsection (5). Such person shall be released on monetary conditions if it is determined that such monetary conditions are necessary to assure the presence of the person at trial or at other proceedings, to protect the community from risk of physical harm to persons, to assure the presence of the accused at trial, or to assure the integrity of the judicial process.
Attorney's Note
Under the Florida Statutes, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Felony of the first degree | up to 30 years | up to $10,000 |
Terms Used In Florida Statutes 907.041
- Arraignment: A proceeding in which an individual who is accused of committing a crime is brought into court, told of the charges, and asked to plead guilty or not guilty.
- Arrest: Taking physical custody of a person by lawful authority.
- Bail: Security given for the release of a criminal defendant or witness from legal custody (usually in the form of money) to secure his/her appearance on the day and time appointed.
- Continuance: Putting off of a hearing ot trial until a later time.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Hearsay: Statements by a witness who did not see or hear the incident in question but heard about it from someone else. Hearsay is usually not admissible as evidence in court.
- Impeachment: (1) The process of calling something into question, as in "impeaching the testimony of a witness." (2) The constitutional process whereby the House of Representatives may "impeach" (accuse of misconduct) high officers of the federal government for trial in the Senate.
- Juror: A person who is on the jury.
- person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 1.01
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- writing: includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. See Florida Statutes 1.01
(b) No person shall be released on nonmonetary conditions under the supervision of a pretrial release service, unless the service certifies to the court that it has investigated or otherwise verified:
1. The circumstances of the accused’s family, employment, financial resources, character, mental condition, and length of residence in the community;
2. The accused’s record of convictions, of appearances at court proceedings, of flight to avoid prosecution, or of failure to appear at court proceedings; and
3. Other facts necessary to assist the court in its determination of the indigency of the accused and whether she or he should be released under the supervision of the service.
(4) SPECIAL CONDITIONS FOR CERTAIN OFFENSES INVOLVING SCHOOLS OR STUDENTS.–
(a) As used in this subsection, the term “school” means the grounds or facility of any early learning, prekindergarten, kindergarten, elementary school, middle school, junior high school, secondary school, career center, or postsecondary school, whether public or private.
(b) When a person is charged with a crime under s. 790.115, s. 790.161, s. 790.1615, s. 790.162, s. 790.163, s. 790.164, s. 790.165, s. 790.166, s. 810.095, or s. 836.10, alleged to have been committed at or against a school or against a student while he or she is at school, the court must consider whether conditions of electronic monitoring and a prohibition from being within 1,000 feet of any school are appropriate to protect the community from risk of physical harm to persons.
(5) PRETRIAL DETENTION.–
(a) As used in this subsection, “dangerous crime” means any of the following:
1. Arson;
2. Aggravated assault;
3. Aggravated battery;
4. Illegal use of explosives;
5. Child abuse or aggravated child abuse;
6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;
7. Aircraft piracy;
8. Kidnapping;
9. Homicide;
10. Manslaughter, including DUI manslaughter and BUI manslaughter;
11. Sexual battery;
12. Robbery;
13. Carjacking;
14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority;
16. Burglary of a dwelling;
17. Stalking and aggravated stalking;
18. Act of domestic violence as defined in s. 741.28;
19. Home invasion robbery;
20. Act of terrorism as defined in s. 775.30;
21. Manufacturing any substances in violation of chapter 893;
22. Attempting or conspiring to commit any such crime;
23. Human trafficking;
24. Trafficking in any controlled substance described in s. 893.135(1)(c)4.;
25. Extortion in violation of s. 836.05; and
26. Written threats to kill in violation of s. 836.10.
(b) A person arrested for a dangerous crime may not be granted nonmonetary pretrial release at a first appearance hearing if the court has determined there is probable cause to believe the person has committed the offense.
(c) Upon motion by the state attorney, the court may order pretrial detention if it finds a substantial probability, based on a defendant‘s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exist:
1. The defendant has previously violated conditions of release and that no further conditions of release are reasonably likely to assure the defendant’s appearance at subsequent proceedings;
2. The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process;
3. The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant’s appearance at subsequent criminal proceedings;
4. The defendant is charged with DUI manslaughter, as defined by s. 316.193, and that there is a substantial probability that the defendant committed the crime and that the defendant poses a threat of harm to the community; conditions that would support a finding by the court pursuant to this subparagraph that the defendant poses a threat of harm to the community include, but are not limited to, any of the following:
a. The defendant has previously been convicted of any crime under s. 316.193, or of any crime in any other state or territory of the United States that is substantially similar to any crime under s. 316.193;
b. The defendant was driving with a suspended driver license when the charged crime was committed; or
c. The defendant has previously been found guilty of, or has had adjudication of guilt withheld for, driving while the defendant’s driver license was suspended or revoked in violation of s. 322.34;
5. The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons;
6. The defendant was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed;
7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial; or
8.a. The defendant has ever been sentenced pursuant to s. 775.082(9) or s. 775.084 as a prison releasee reoffender, habitual violent felony offender, three-time violent felony offender, or violent career criminal, or the state attorney files a notice seeking that the defendant be sentenced pursuant to s. 775.082(9) or s. 775.084, as a prison releasee reoffender, habitual violent felony offender, three-time violent felony offender, or violent career criminal;
b. There is a substantial probability that the defendant committed the offense; and
c. There are no conditions of release that can reasonably protect the community from risk of physical harm or ensure the presence of the accused at trial.
(d) If a defendant is arrested for a dangerous crime that is a capital felony, a life felony, or a felony of the first degree, and the court determines there is probable cause to believe the defendant committed the offense, the state attorney, or the court on its own motion, shall motion for pretrial detention. If the court finds a substantial probability that the defendant committed the offense and, based on the defendant’s past and present patterns of behavior, consideration of the criteria in s. 903.046, and any other relevant facts, that no conditions of release or bail will reasonably protect the community from risk of physical harm, ensure the presence of the defendant at trial, or assure the integrity of the judicial process, the court must order pretrial detention.
(e) When a person charged with a crime for which pretrial detention could be ordered is arrested, the arresting agency shall promptly notify the state attorney of the arrest and shall provide the state attorney with such information as the arresting agency has obtained relative to:
1. The nature and circumstances of the offense charged;
2. The nature of any physical evidence seized and the contents of any statements obtained from the defendant or any witness;
3. The defendant’s family ties, residence, employment, financial condition, and mental condition; and
4. The defendant’s past conduct and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings.
(f) When a person charged with a crime for which pretrial detention could be ordered is arrested, the arresting agency may detain such defendant, prior to his or her first appearance hearing or prior to the filing by the state attorney of a motion seeking pretrial detention, for a period not to exceed 24 hours.
(g)1. If a motion for pretrial detention is required under paragraph (d), the pretrial detention hearing must be held within 5 days after the defendant’s first appearance hearing or, if there is no first appearance hearing, within 5 days after the defendant’s arraignment.
2. If a state attorney files a motion for pretrial detention under paragraph (c), the pretrial detention hearing must be held within 5 days after the filing of such motion.
3. The defendant may request a continuance of a pretrial detention hearing. No continuance shall be for longer than 5 days unless there are extenuating circumstances. The state attorney shall be entitled to one continuance for good cause.
4. The defendant may be detained pending the completion of the pretrial detention hearing. If a defendant is released on bail pending a pretrial detention hearing under paragraph (d), the court must inform the defendant that if he or she uses a surety bond to meet the monetary component of pretrial release and the motion for pretrial detention is subsequently granted, the defendant will not be entitled to the return of the premium on such surety bond.
(h) The state attorney has the burden of showing the need for pretrial detention.
(i) The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of evidence at the detention hearing. The court may base an order of pretrial detention under paragraph (d) solely on hearsay. Evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible.
(j) The defendant is entitled to be represented by counsel, to present witnesses and evidence, and to cross-examine witnesses. No testimony by the defendant shall be admissible to prove guilt at any other judicial proceeding, but such testimony may be admitted in an action for perjury, based upon the defendant’s statements made at the pretrial detention hearing, or for impeachment.
(k) A party may motion for a pretrial detention order to be reconsidered at any time before a defendant’s trial if the judge finds that information exists that was not known to the party moving for reconsideration at the time of the pretrial detention hearing and that such information has a material bearing on determining whether there are conditions of release or bail that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community from harm.
(l) The pretrial detention order of the court shall be based solely upon evidence produced at the hearing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within 24 hours of the pretrial detention hearing.
(m) A defendant convicted at trial following the issuance of a pretrial detention order shall have credited to his or her sentence, if imprisonment is imposed, the time the defendant was held under the order, pursuant to s. 921.161.
(n) The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the basis for detention.