MICHAEL BOWENS, PETITIONER,
v.
THE HONORABLE ROBERT W. TYSON, JR., CIRCUIT COURT JUDGE, 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA, AND THE HONORABLE NICK NAVARRO, SHERIFF OF BROWARD COUNTY, FLORIDA, RESPONDENTS
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A defendant arrested on serious felony charges filed a motion for pretrial release after being held in custody for 42 days without formal charging. The court interpreted Florida Rule of Criminal Procedure 3.133(b)(6), which provides for automatic release if a defendant remains uncharged for 30 days, to allow the state to avoid automatic release by filing charges after the 30-day period but before the motion hearing. The court denied the habeas petition but certified the question to the Florida Supreme Court as a matter of great public importance.
A defendant held in pretrial custody for thirty days without formal charges has the right to move for immediate release on the 30th day, but this right does not mandate automatic release if the state files an information or indictment after the thirty-day period has expired but before the court hears the motion. The court retains discretion to release the defendant or allow the state ten additional days if good cause is shown.
[1] A defendant held in pretrial custody for thirty days without an indictment or information has the right to move for immediate release.
[2] If good cause is shown for the delay in filing an indictment or information, a court may grant the state ten additional days to file.
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Join FLexlaw to unlock all legal intelligence“In the event that the defendant remains in custody and has not been charged in an information or indictment within 30 days from the date of his or her arrest or service of capias upon him or her, he or she shall be released from custody on their own recognizance on the 30th day unless the state can show good cause why the information or indictment has not been filed.”
The text of rule 3.133(b)(6) establishing the pretrial release mechanism at issue
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Join FLexlaw to unlock all legal intelligenceBowens was arrested on January 17, 1989, on charges of attempted first degree murder, armed robbery, and possession of a short-barreled shotgun. After…
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PER CURIAM.
This petition for writ of habeas corpus arises from rule 3.133(b)(6), Florida Rules of Criminal Procedure, a new provision of the rules regarding pretrial release, which was adopted in In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla.1988). Subsection (b)(6) to rule 3.133 became effective on January 1, 1989. It provides:
(b) Adversary Preliminary Hearings (6) Pretrial Detention. In the event that the defendant remains in custody and has not been charged in an information or indictment within 30 days from the date of his or her arrest or service of capias upon him or her, he or she shall be released from custody on their own recognizance on the 30th day unless the state can show good cause why the information or indictment has not been filed. If good cause is shown the state shall have 10 additional days to obtain an indictment or file an information. If the defendant has not been so charged within this time he or she shall be automatically released on his or her own recognizance. In no event shall any defendant remain in custody beyond 40 days unless he or she has been charged with a crime by information or indictment.
Petitioner was arrested on charges of attempted first degree murder, armed robbery and possession of a short-barreled shotgun on January 17, 1989. Forty-two days later, he filed a motion for pretrial release based on rule 3.133(b)(6), alleging that he had been held in custody for more than thirty days without the filing of an information or indictment. On the same day, the State of Florida filed an information formally charging petitioner with these offenses. Petitioner’s motion for release was denied three days later. Petitioner claims that, pursuant to rule 3.133(b)(6), he was entitled to be released “automatically” on his own recognizance regardless of the state’s subsequent filing of the information.
We interpret this new subsection to rule 3.133 to mean that if a defendant is held in pretrial custody for thirty days without the filing of an indictment or information, he or she has the right, on the 30th day, to move for immediate release by court order. The court then has the authority to either release the defendant, or, if the state can show good cause why the information has not been filed, the court may allow ten additional days for filing of an indictment or information. We do not interpret the rule to mandate automatic release if the state files an information or indictment after the thirty day period has expired, but before the court hears the defendant’s motion for release. Therefore, the petition for writ of habeas corpus is denied.
However, given the absence of other interpretations of this newly adopted subsection by case law, committee note or other authority, and because we believe that the interpretation of this subsection is a matter of great public importance, we hereby certify the following question to the supreme court of Florida:
Is a defendant who is held in custody for thirty days without the filing of an information or indictment entitled to automatic pretrial release under Florida Rule of Criminal Procedure 3.133(b)(6), even though the state files an information before the court hears the defendant’s motion for release?
Denied.
HERSEY, C.J., WALDEN and WARNER, JJ., concur.
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Bowens v. Tyson, 578 So. 2d 696 (Fla. 1991)…SHAW, Chief Justice. We review Bowens v. Tyson, 543 So. 2d 851 (Fla. 4th DCA 1989), to answer the following certified question: Is a defendant who is held in custody for thirty days without the filing of an information or indictment entitled to automatic pretrial release under Florida Rule of Criminal Procedur…
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Thomas v. Sermon Dyess, 557 So. 2d 196 (Fla. 2d DCA 1990)…ause is shown the state shall have an additional ten days to file, but in no event is the defendant to remain in custody beyond forty days unless formally charged. We are aware of only one published decision construing this rule. In Bowens v. Tyson, 543 So. 2d 851 (Fla. 4th DCA 1989), the petitioner moved for pretrial release after forty-two days in custody, and charges were filed prior to the show cause hearing. The district court interpreted the rule as authorizing the detainee “to move for immediate releas…
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Cleophus L. McCASKILL v. McMILLAN, 563 So. 2d 800 (Fla. 1st DCA 1990)…ourt’s intent in approving the language of rule 3.133(b)(6), I would resolve that doubt in favor of petitioners Valdez, Demers, and Ory, and order their immediate release on their own recognizance. I would also certify conflict with Bowens v. Tyson, 543 So. 2d 851 (Fla. 4th DCA 1989). . While I agree with the majority that the Thomas court ultimately decided that the state had failed to show good cause to further detain Thomas, the majority’s analysis of Thomas fails to acknowledge the Second District’s co…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla. 1988)