In Florida, if the authorities arrest and hold a suspect in custody, they must bring him or her to court within 24 hours of the arrest. The appearance takes place in front of a judicial officer (magistrate or judge). The defendant may appear either in person or by live video feed. The prosecutor and defense attorney will also be present.
(For more information on arraignment and initial court appearances, see Arraignment: Getting to Court.)
The purpose of a first appearance in Florida is to:
- inform the defendant of the charges
- give the defendant a copy of the complaint
- advise the defendant of the right to counsel and the right to communicate with counsel, family, and friends, and
- set conditions of release, if any.
The judge will appoint an attorney to represent a defendant by the time of the first appearance if the defendant can’t afford but wants one. When the defendant has hired a lawyer or is able to and wants to hire one for the first appearance, the judge must give the defendant a reasonable time to “send for” that lawyer. If necessary, the judge must postpone the first appearance for this purpose. On the defendant’s request, the judge must also have an officer send a message to a lawyer named by the defendant. If the postponement will likely mean that the defendant remains in custody beyond the 24-hour period and the defendant requests it, the judge can appoint a lawyer for purposes of the first appearance.
A defendant can waive the right to have an attorney present at the first appearance, if the waiver is in writing and limited to that appearance. (Fla. R. Crim. P. 3.130.).
Consequences of Delay
Failure to bring a defendant to court with 24 hours of arrest violates the law. Unfortunately, this violation doesn’t mean that the case will automatically be dismissed, or that any evidence obtained during the delay—such a confession—will be suppressed. Instead, the defendant must prove that “prejudice” resulted from the delay. For example, a confession that is otherwise admissible won’t be suppressed simply because the defendant didn’t receive a first appearance within 24 hours of arrest, unless the defense can show that the delay induced the confession. (Chavez v. State, 832 So.2d 730 (Fla. 2002).)
Probable Cause Hearing
If the suspect is in custody (jail), the court must hold a non-adversary probable cause hearing within 48 hours of warrantless arrest. If there are extraordinary circumstances, the judge may twice continue the proceeding, each time for an additional 24 hours. If the necessary proof is available, the probable cause determination is to occur at the first appearance.
A defendant who has already been released from custody can, after establishing that the conditions of his release are significant, file a motion for a probable cause determination. The defendant has 21 days from the date of arrest to file such a motion. If the release conditions are significant, the judge must determine whether there is probable cause within seven days of the motion’s filing.
At a probable cause hearing, the judge determines—usually by reading whatever sworn statement the arresting officer has submitted (or by potentially hearing testimony)—whether there are sufficient grounds to believe the defendant committed the alleged crime(s). The defendant isn’t necessarily entitled to be present for this determination.
The court almost always finds probable cause, but if it doesn’t, or if the court or authorities violated any of the prescribed time limits, the defendant is entitled to release. If the prosecution has filed an information or indictment, the court must release the defendant on what amounts to “OR.”
If the government has violated the above time limits, the court can grant release on its own initiative. If it doesn't, the defendant must apply for release with a written motion. If the judge indicates intent to release the defendant, the prosecution has up to 24 hours to establish probable cause.
It’s important to note that the judge may be able to subsequently revisit the probable-cause determination. (Fla. R. Crim. P. 3.133.)
An arraignment is distinct from the first appearance and the probable cause determination; it’s the point at which the judicial officer informs the defendant of the charges and asks him or her to enter a plea. Before arraigning someone who doesn’t have a lawyer, the court must advise the defendant of the right to an attorney, and the right to an appointed lawyer if the defendant can’t afford representation. (A defendant must fill out an affidavit in order to get appointed counsel.)
The defendant, whether represented by a lawyer or not, is entitled to a reasonable amount of time to consider how to plead. Defendants who want to plead guilty but haven’t yet been arraigned can so advise the court in order to get an earlier arraignment. (But see How should I plead at arraignment?) (Fla. R. Crim. P. 3.160, 3.170.)
Consult a Lawyer
If you've been arrested or charged with a crime, you should contact a criminal defense attorney as soon as possible. An experienced lawyer can advise you of the applicable law (and changes in it), guide you through the court process, and assist in trying to get you out of jail. Such an attorney can, for example, explain whether you have a right to a preliminary hearing and how to enforce that right.