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Adversarial Preliminary Hearing

What happens if the State Attorney’s Office doesn’t file any formal charge within the 21 day period after the arrest? In these cases, the defendant is entitled to an adversary preliminary hearing (prior to the filing of the information) or the defendant is to be entitled to release on his own recognizance (after the filing of the information).

The right to an adversary preliminary hearing is one of the most effective mechanisms to gain the defendant's release after an arrest. This means that if you are arrested for a felony and the state fails to file any formal charged within 21 days after the arrest, then your attorney can file a motion for an "adverse preliminary hearing" on the 22nd day after the arrest.

If the court doesn't follow the rules at the preliminary hearing, then your criminal defense attorney can file an "emergency petition for writ of habeas corpus" seeking an order for the District Court of Appeals for the immediate release of Defendant on his own recognizance as required by Rule 3.134(1), Fla. Rules of Crim. Proc. 

To the extent that petitioner seeks an adversary preliminary hearing under Florida Rule of Criminal Procedure 3.133, the petition can be treated as a petition for writ of certiorari. If granted, the appellate court can remand the case with instructions to grant petitioner's request for an adversary preliminary hearing.

Attorney for the Adversary Preliminary Hearing in Tampa, FL

If you were arrested for any felony offense, then contact an attorney at the Sammis Law Firm to discuss retaining an attorney to file a motion for an adversary preliminary hearing. We often represent clients before an arrest or the filing of any formal charge (called the "pre-filing investigation"). During this time our goal is convincing the prosecutor with the State Attorney's Office NOT to file any formal charge (often called the "no file", "no information").

In those cases, in which the State Attorney's Office has not decided whether to file any charged by the 21st day, we are experienced in filing a motion to an adversary preliminary hearing on the 22nd day. 

Our criminal defense attorney's in Tampa, FL, can help you during the 21 day period after an arrest but before any formal charge is filed. Let us put our experience to work for you.

Call (813) 250-0500.


Difference Between the Non-Adversary and Adversary Preliminary Hearing?

Florida Rules of Criminal Procedure mandate that a trial judge makes a pretrial nonadversarial probable cause determination either before or shortly after a defendant was taken into custody under Fla. R.Crim. P. 3.133 (2004). The nonadversarial probable cause determination is usually made just based on the four corners of the affidavit in support of an arrest warrant or the probable cause affidavit when the arrest is made without an arrest warrant signed by a judge.

The right to an adversary preliminary hearing is not triggered unless the prosecutor fails to file any charges within 21 days.


How long does the State have to file charges after an arrest?

One of the most frequent questions we get is "How long does the State have to file charges after an arrest?" The short answer is that the State will usually decide whether to file formal felony charges within 21 days because the failure to do so will trigger the defendant's right to an adversary preliminary hearing. 

Under Florida law, the main purpose of the adversary preliminary hearing is to determine whether there is probable cause to continue to hold a defendant to answer the pending charges. If not, then the defendant should be released. This procedure for an adversary preliminary hearing only applies in a felony case when formal charges are not filed within 21 days after the arrest.

At the hearing on the motion for an adversary preliminary hearing, the procedure is adversarial. In other words, the defendant has a right to have his attorney confront the witnesses against him and present other evidence to show that probable cause does not exist. In these hearings, the judge’s duties are to examination, discharge, binding over or setting bail.


Filing the Information or Indictment WITHIN the 21 Day Period

If the State Attorney files an information or indictment within the 21 day period after the arrest then the defendant is automatically foreclosed from haring a preliminary hearing.


Filing the Information or Indictment AFTER the 21 Day Period

A defendant is not entitle to release under Rule 3.133(b)(6) if between the time of file the motion for an adversary hearing and the actual hearing, the state files an information or an indictment. See Bowens v. Tyson, 578 So. 2d 696, 697. (Fla. 1991). However, in those cases in which the information is filed after the motion is filed but prior to the hearing, the Defendant must be "released on his own recognizance" pending further proceedings to resolve the case on the merits.


What Happens at the Adversary Preliminary Hearing

At the adversary preliminary hearing, the court will issue process for the attendance of witnesses fro either the State or the Defendant.  Either side can invoke the "rule of sequestration" which requires any witnesses other than the defendant to leave the room while another witness is testifying.

Hearsay is generally not admissible at the preliminary hearing. Instead, the probable cause determination is based on competent evidence. The court’s determination cannot be based solely on hearsay. If the probable are determination is based on incompetent evidence, then the court’s determination of probable cause can be reversed on appeal.

At the preliminary hearing, the defendant can present witnesses on his behalf. Any witnesses called by the defense, including the defendant, are subject to cross examination by the prosecutor.

The court's findings on the probable cause determination must be in writing, signed, and filed with the circuit court along with a copy of any evidence used during the hearing. The proceeding may be recorded or transcribed to the defendant free of charge if initially ordered by the State Attorney’s Office. Rule 3.133 places no limitations on the extent of cross examination.


What Happens if the Court Finds Probable Cause

If the court listens to witnesses and accepts other evidence at the preliminary hearing and finds probable cause, then the court can order that the Defendant be held pending the trial or the posting of bond. In other words, the status quo is maintained.


What Happens if the Court Doesn’t Find Probable Cause

If the court listens to witnesses and accepts other evidence at the preliminary hearing and does not find probable cause from competent evidence, then the court must order the defendant to be released. 

The “Of course, [Perry's] release does not preclude further prosecution by information. In fact, Fla. R.Crim. P. 3.133(b)(5) provides that: “Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial.”


Right to a Preliminary Hearing after an Out-of-State Arrest

Even an out of state arrest will initiate the twenty-one day period. In those cases, twenty-one one day period beings at the time of the out of state arrest instead of the moment when the defendant is returned to Florida.


What Happens if the Information or Indictment is Still Not Filed within 30 Days?

If the information or indictment is not filed within 30 days, then the defendant gets another chance at the preliminary hearing under Rule 3.135. A defendant being held in custody shall be released on his own recognizance if a charging document has not been filed within thirty days of the arrest or service of a capias upon the defendant. For this reason, if the defendant remains uncharged on the 30th day, the court can take one of the following actions after providing notice to the State:

  • Order the defendant to be automatically released on his own recognizance (ROR or OR bond) on the thirty-third day unless the State files formal charges by that time; or
  • If the State is able to show good cause as to why an indictment or information has not been filed, order the defendant to be automatically released on his own recognizance on the fortieth-day until the State files formal charges by that day.

The ten extension is the last extension allowed under the law. The release is required, however, only if the appropriate motion is filed to trigger the release. For this reason, the defendant is not entitled to any automatic release after 40 days if his criminal defense attorney has not filed the appropriate motion and given notice to the prosecutor for the State Attorney's Office.


This article was last updated on Monday, July 31, 2017.