STATE OF FLORIDA, APPELLANT,
v.
FRANK ALFRED UMBRECHT, APPELLEE
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Florida appellate court reversed dismissal of an information where trial court found no probable cause at an adversary preliminary hearing, holding that a finding of no probable cause does not authorize dismissal of the information under Florida Criminal Procedure Rule 3.131(b)(5).
A finding of no probable cause at an adversary preliminary hearing does not authorize dismissal of an information; the defendant must be released under specified conditions, but further prosecution by information or indictment remains authorized.
[1] A finding of no probable cause at an adversary preliminary hearing does not authorize dismissal of an information; the defendant must be released under specified conditio…
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Join FLexlaw to unlock all legal intelligence“Such release does not, however, void further prosecution by information or indictment . . .”
Fla.R.Crim.P. 3.131(b)(5) describing the effect of a finding of no probable cause at a preliminary hearing
Defendant Umbrecht was not in custody when an information was filed against him. He was arrested more than twenty-one days after the information was f…
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BERANEK, Judge.
This is an appeal by the State of an order dismissing an information. The defendant was not in custody at the time an information against him was filed. Defendant was arrested more than twenty-one days after the filing of the information. Defendant requested an adversary preliminary hearing pursuant to Fla.R.Crim.P. 3.131(b)(1). At this hearing, the State declined to present evidence and the trial court dismissed the information. We reverse. Fla.R.Crim.P. 3.131(b)(5) states what action may be taken as a result of a finding of no probable cause. In such circumstances the defendant is to be released under specified conditions. The Rule specifically states that, “Such release does not, however, void further prosecution by information or indictment . . .” In considering a non-adversary preliminary hearing, this Court has, previously ruled that the finding of no probable cause does not authorize dismissal of the information. State v. Antel, 333 So. 2d 76 (Fla. 4th DCA 1976). The case at hand involved an adversary preliminary hearing but this distinc tion did not warrant dismissal of the information. The order below is reversed and the cause remanded with instructions to reinstate the information.
REVERSED AND REMANDED WITH INSTRUCTIONS.
DAUKSCH and LETTS, JJ., concur.
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State v. E.T., 560 So. 2d 1282 (Fla. 3d DCA 1990)…t, without more, has never been viewed as a bar to subsequent prosecution nor as defense to a valid charge,” State v. Tillman, 402 So. 2d 19, 20 (Fla. 3d DCA 1981); accord State v. Brooks, 388 So. 2d 1291, 1292 (Fla. 3d DCA 1980); State v. Umbrecht, 371 So. 2d 1109 (Fla. 4th DCA 1979); and that “the power of a court to try a person for crime is not impaired by the fact that he ha[s] been brought within the court’s jurisdiction by reason of ‘forcible abduction’ [or other illegal arrest].” Frisbie v. Collins, 34…
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State v. Brooks, 388 So. 2d 1291 (Fla. 3d DCA 1980)…ch was not filed in this case, a trial court may not dismiss a duly returned indictment or information on the basis of a finding that the evidence is insufficient to support it. State v. Schroeder, 112 So. 2d 257, 261 (Fla. 1959); State v. Umbrecht, 371 So. 2d 1109 (Fla. 4th DCA 1979); State v. Antel, 333 So. 2d 76 (Fla. 4th DCA 1976), cert. denied, 344 So. 2d 323 (Fla. 1977). Accordingly, the order under review is reversed and the cause remanded with directions to reinstate the indictment. Reversed and rema…
Authorities Cited
- State v. Antel, 333 So. 2d 76 (Fla. 4th DCA 1976)