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Miami Criminal Defense Attorney / Blog / Criminal Defense / Your Right to a “Probable Cause” Hearing Under Florida Law

Your Right to a “Probable Cause” Hearing Under Florida Law


If you have been arrested on suspicion of a felony in Florida, you typically have the right to a first appearance before a judge within 48 hours. At this first appearance, the judge will determine if there is probable cause to believe that a crime has been committed and that you committed said crime. If the court finds probable cause, the judge will then determine the conditions of your bond and bail–i.e., whether you can be released from jail pending trial. This process is known as a nonadversary preliminary hearing.

Sex Crimes Suspects Granted Pre-Trial Release After Prosecution Failed to Produce Admissible Evidence

In some cases, a judge must also hold a second proceeding known as an adversary preliminary hearing. An adversary proceeding is necessary if the State Attorney fails to file an information or indictment in a felony case within 21 days of arrest. Unlike the nonadversary preliminary hearing, the adversary preliminary hearing functions as a sort-of “min-trial.” While the objective is the same–to determine if there is probable cause to determine to believe the accused committed a crime–the adversary hearing affords the suspect a right to cross-examine the state’s witnesses and introduce their own witnesses.

If, after conducting an adversary preliminary hearing, the judge determines the state has not met its “probable cause” threshold, it must release the defendant from custody. This does not prevent the state from later filing criminal charges. It simply means the defendant is entitled to release on their own recognizance, subject to them making any required future court appearances.

It is, in fact, quite possible for a defendant to secure release from pre-trial custody under this rule. Just recently, the Florida Third District Court of Appeal ordered such a release. In this case, Larioszambrana v. State, police arrested the defendant on suspicion of child molestation. The State’s Attorney did not file formal charges within the 21-day period, which triggered the defendant’s right to an adversary preliminary hearing.

At the hearing, the prosecution sought to introduce the accuser’s out-of-court statements as evidence. Under certain conditions, such statements are admissible evidence. The trial judge concluded those conditions were met, accepted the statements as evidence, and on that basis found probable cause to hold the defendant pending trial.

On appeal, however, the Third District held the out-of-court statements did not meet the standard for admissibility. Such statements are only admissible when either (a) the child testifies in-person at the hearing or (b) the child is unavailable as a witness but there is other evidence to corroborate the out-of-court statements. Here, the Third District said the State’s Attorney never established the child’s lack or availability. Nor did the prosecution offer any corroborating evidence. As such, there was no probable cause to hold the defendant.

Contact a Miami Bail & Bond Attorney Today

If you are facing serious felony charges, you have every right to assert your legal right to bail or bond pending trial. Our experienced Miami criminal defense attorneys can represent you in a preliminary hearing and at trial. Contact Asilia Law Firm today to schedule an initial consultation with a member of our team.



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