MONICA FAYE MIZE, PETITIONER,
v.
STATE OF FLORIDA, AND/OR HONORABLE GRISSIM WALKER, RESPONDENT
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Mize sought certiorari review of a denial of her motion for an adversary preliminary hearing on a first-degree murder charge. The court held that the 21-day clock in Florida Rule of Criminal Procedure 3.131(b)(1) begins from a defendant's initial arrest, even if out of state, entitling Mize to a preliminary hearing despite indictment 30 days after her Texas arrest.
A defendant's right to an adversary preliminary hearing under Rule 3.131(b)(1) accrues from the date of arrest regardless of whether the arrest occurred outside Florida. The rule refers to 'the date of his arrest,' not presence within the state, and the 21-day period began running when Mize was arrested in Texas, not when she returned to Florida.
[1] A petition for writ of certiorari is a proper vehicle for reviewing an order denying a motion for an adversary preliminary hearing.
[2] A defendant arrested on a felony charge is entitled to an adversary preliminary hearing if not charged by information or indictment within 21 days of arrest.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A defendant who is not charged in an information or indictment within 21 days from the date of his arrest or service of the capias upon him shall have a right to an adversary preliminary hearing on any felony charge then pending against him.”
The controlling rule establishing when a defendant's right to a preliminary hearing accrues and what can eliminate it.
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Join FLexlaw to unlock all legal intelligenceA Florida warrant for Mize's arrest was issued on May 20, 1980. Police arrested her in Houston, Texas on May 21, 1980, as a fugitive from justice. She…
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GRIMES, Judge.
This cause is before the court on a petition for certiorari to review an order denying defendant Mize’s motion for an adversary preliminary hearing. A petition for writ of certiorari is a proper vehicle for review of an order denying such a motion. Bell v. State, 361 So. 2d 818 (Fla. 4th DCA 1978).
The resolution of this matter depends upon an interpretation of Florida Rule of Criminal Procedure 3.131(b)(1), which reads as follows:
(1) When Applicable. A defendant who is not charged in an information or indictment within 21 days from the date of his arrest or service of the capias upon him shall have a right to an adversary preliminary hearing on any felony charge then pending against him. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.
A Florida warrant was issued for the arrest of petitioner on May 20, 1980. The following day, police in Houston, Texas, arrested her as a fugitive from justice. She waived extradition and was transported from Texas to Sarasota, Florida, on May 30, 1980. On June 20, 1980, thirty days after her arrest in Houston, but only twenty-one days after her return to Florida, petitioner was indicted on the charge of first degree murder. The state argues that although the indictment was not filed within twenty-one days of petitioner’s original arrest, the time referred to in Rule 3.131(b)(1) did not begin to run until the petitioner returned to Florida. However, the rule only refers to the defendant’s arrest not the defendant’s presence within the state. Since the rule does not mandate that the preliminary hearing be held within twenty-one days, the hearing can await the defendant’s return. The state always retains the means to foreclose the right to a preliminary hearing by filing the information or obtaining an indictment within twenty-one days of the arrest.
The state’s contention that petitioner was arrested for the separate crime of being a fugitive from justice rather than for murder is unpersuasive. Clearly, the Florida warrant was the only basis for her arrest by the Texas authorities.
We hold that petitioner is entitled to an adversary preliminary hearing. We quash the order denying petitioner’s motion and remand the case for further proceedings consistent with this opinion.
HOBSON, Acting C. J., and RYDER, J., concur.
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Cited By
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Kennedy v. Crawford, 479 So. 2d 758 (Fla. 3d DCA 1985)…nds to an arrested defendant greater rights than the Constitution demands, Bell v. State, 361 So. 2d 818, it does not require, as the petitioner suggests, that an adversary preliminary hearing be held within twenty-one days of arrest. Mize v. State, 389 So. 2d 1105 (Fla. 2d DCA 1980). Because the State may foreclose the right to an adversary preliminary hearing by filing an information or obtaining an indictment within twenty-one days of arrest, Mize v. State, 389 So. 2d at 1106, it would be in derogation of t…1 / 2
Authorities Cited
- Bell v. State, 361 So. 2d 818 (Fla. 4th DCA 1978)