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June 15, 2009
State attorneys, PDs must attend first appearances

With budgets thin, prosecutors fret about staffing the requirement
By Jan Pudlow
Senior Editor

The days of holding first appearance hearings in the wee hours of morning without an official court reporter present are over.

Judge Eaton Now, Rule of Criminal Procedure 3.130 makes explicit what has always been implicit: Both the state attorney and public defender are required to attend those critical hearings — even if the budget crisis makes it difficult — and there must be adequate notice provided to each side.

In response to budget concerns that have left public defenders and state attorneys shorthanded, the court said they may attend in person or by “electronic means” of video-conferencing.

The amended rule also requires that an official record of the proceedings be maintained, not just a clerk jotting quick notes in a file.

“The question the court must decide in considering the proposed change in the first appearance rule is whether a person arrested for a serious crime in [one] circuit is entitled to the same first appearance consideration, including assistance of counsel, as a person who is arrested in Miami, Orlando, or even Sanford,” wrote
O.H. Eaton, Jr., a circuit judge in Sanford who urged the court to adopt the proposed rule change.

“I realize that adopting the proposed rule will cause a cultural change in some of the smaller counties. The time has come for that change.”

The Supreme Court largely agreed, in its May 28 per curiam opinion in Case No. SC08-1934 In Re: Amendments to Florida Rule of Criminal Procedure 3.130.

The amendment was effective with the release of the opinion.

The high court, however, did not go as far as the Florida Public Defender Association or Judge Eaton wanted, when asking for additional language to ensure all first appearance hearings are held during normal 8-to-5 business hours.

“Although we agree with the FPDA that first appearances should be held during normal business hours absent exigent circumstances, and certainly not at the convenience of the judge hearing first appearances, we decline at this time to engraft this requirement into this rule,” the justices concurred.

“Rather, by separate letter we are alerting all chief judges to this expressed concern and ask that each chief judge explore whether a problem regarding scheduling of first appearances exists, and if so, to resolve the problem in a way that safeguards the critical role of first appearances to the criminal process. If necessary, we will consider in the future an amendment to the applicable rules, which might include an amendment to the rules of judicial administration.”

That was in keeping with Criminal Procedure Rules Committee Chair Tom Bateman’s response to FPDA that “as a matter of policy it is not appropriate for the Florida Supreme Court to delineate in a rule of court procedure when a trial court should conduct its business. Such matters are best left to the individual circuits and their judges or chief judge to decide. They are in the best position to know about the availability of necessary resources within their circuit and within the counties within the circuits.”

The first appearance problem first came up when West Palm Beach criminal defense attorney Donnie Murrell wrote to Scott Fingerhut, then chair of the rules committee, that “believe it or not, first appearances occur with some frequency throughout the state without a prosecutor or public defender being present.”

Murrell said “a large number of people are being hurt in the 19th Circuit on a regular basis,” referring to the long-simmering controversy in that circuit comprised of Martin, St. Lucie, Indian River, and Okeechobee counties.

After extensive debate at the committee’s January and June 2008 meetings — including hearing from Eighth Circuit State Attorney Bill Cervone who said the Florida Prosecuting Attorneys Association opposed the rule change because state attorneys did not have the manpower to comply — the committee unanimously voted in favor of the proposed amendment.

The committee’s consensus was first appearance hearings are critical to protecting the rights of the accused who are afforded their first chance to get out of jail. Held within 24 hours of arrest, judges consider defendants’ release on recognizance or set bail, review the sufficiency of probable cause affidavits, and appoint public defenders if defendants cannot afford to hire attorneys.

The proposed amendment was unanimously endorsed by The Florida Bar Board of Governors.

Three formal comments were filed with the Florida Supreme Court:

• Donnie Murrell, the original whistleblower and chair of the Criminal Law Section.

• The Florida Public Defender Association.

• And Judge Eaton, who also asked the court to consider a manual spelling out the responsibilities of a judge at first appearance hearings.

“I was under the impression that prosecutors and public defenders attended first appearances throughout the state until this proposal was brought to my attention,” wrote Eaton, one of several committee members shocked by the revelation of haphazard practices at first appearance hearings.

“The Seminole County Criminal Courts Operations Committee, which I chair, has been studying first appearance procedure for over a year now. We were amazed at the different approaches our local judges took when considering (or not considering) matters that the current rules require to be considered at first appearance.”

The justices wrote in response to Eaton’s suggested manual: “Although judicial education is not within the purview of the rule we are adopting, we request that the Florida Court Education Council consider whether additional judicial education and publications regarding first appearances should be offered.”

[Revised: 11-07-2018]