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First Appearance: So Much To Do, So Little Time

Criminal Law

It’s a scene often viewed on the evening news: A person who has been recently arrested is

shown standing in his jail uniform while a judge informs him of the crimes for which he has been arrested and advises him of the amount of his bond, if any. It’s all over in a few seconds.

For the vast majority of the cases, that’s all first appearance is about. The general rule as set forth in Fla. R. Crim. P. 3.130(a) provides that “[e]xcept when previously released in a lawful manner, every arrested person shall be taken before a judicial officer. . . within 24 hours of arrest. . . . At the defendant’s first appearance the magistrate shall immediately inform the defendant of the charge and provide the defendant with a copy of the complaint.” A defendant is entitled to a prompt first appearance when he or she is arrested for violation of probation as well as on new substantive charges. Hill v. State, 739 So. 2d 634 (Fla. 4th DCA 1999). And even if this rule is not followed, there are no real consequences. A confession that would otherwise be admissible is not subject to suppression merely because the defendant was deprived of a prompt first appearance: “When a defendant has been advised of his rights and makes an otherwise voluntary statement, the delay in following the strictures of the rule must be shown to have induced the confession.” Keen v. State, 504 So. 2d 396, 400 (Fla. 1987). See also Williams v. State, 466 So. 2d 1246 (Fla. 1st DCA 1985); Johnson v. State, 660 So. 2d 648 (Fla. 1995).

If it’s all so simple, then why the need for this article? The answer is that first appearances can be far more significant than they seem at first, and what happens at these hearings can have some serious consequences for later stages of the criminal proceeding. This article will briefly explore the law regarding first appearances, and hopefully will better prepare all counsel who are called upon to be present at these hearings.

Appointment of Counsel

Fla. R. Crim. P. 3.111(a) states that a person is entitled to appointment of counsel when he is formally charged, as soon as feasible after custodial restraint, or at the first appearance before a committing magistrate, whichever occurs earliest.”(Emphasis supplied.) Assuming that first appearance is the first such opportunity, Fla. R. Crim. P. 3.130 states that if the magistrate “determines that the defendant is entitled to court-appointed counsel and desires counsel, the magistrate shall immediately appoint counsel.” In many jurisdictions, the presiding judge appoints the public defender’s office to represent anyone who is without counsel without going through the formal inquiry process required by Florida law.1 Although this practice undoubtedly persists, the Third District Court of Appeal has stated that such a procedure is not proper. Office of the Public Defender v. State, 714 So. 2d 1083 (Fla. 3d DCA 1998).

Not only shouldn’t the public defender’s office be appointed “across the board,” the defendant must affirmatively request such representation. In Smith v. State, 699 So. 2d 629 (Fla. 1997), an assistant public defender volunteered and was appointed to represent Smith after he had been indicted on multiple charges, including first degree murder. This appointment occurred before Smith was arrested and without his request. At a later date the defendant tried to suppress his confession on the grounds that it had been obtained in violation of his right to counsel. In rejecting this argument, the Florida Supreme Court held, “The mere appointment of an attorney at the attorney’s request is not enough to invoke the right: the accused must invoke the right.” Id. at 639.

Perhaps this point can be best understood when another facet of the appointment of counsel procedure is examined—the fact that such appointments are offense-specific. In other words, when counsel is appointed at first appearance, that appointment applies only to the offense for which the defendant is in court at that particular time. Law enforcement officers have the right to question the defendant on an unrelated offense even though he has been previously appointed counsel on another charge. Owen v. State, 596 So. 2d 985 (Fla. 1992); cert. den., 113 S. Ct. 339 (1992); McNeil v. Wisconsin, 111 S. Ct. 2204 (1991). The new offense, however, must be truly unrelated. It is not proper to question a defendant after he has been appointed counsel if the subsequent questions relate to an offense that is “inextricably intertwined” with the previous offense. In Taylor v. State, 726 So. 2d 841 (Fla. 1st DCA 1999), the First District Court of Appeal held that the trial court should have suppressed statements obtained by detectives who questioned Taylor about a residential burglary after he had been to court and been appointed counsel on a charge of dealing in stolen property, the property in question having been taken in the burglary.

The “offense-specific” nature of the appointed counsel-client relationship also prohibits the defendant from making a blanket assertion of his Miranda rights. In Sapp v. State, 690 So. 2d 581 (Fla. 1997), the defendant, in jail on a robbery charge, had signed a claim of rights form at the time of his first appearance, indicating that he had counsel (the public defender) and did not want to be interviewed by law enforcement. A week later, the police interrogated him about an unrelated murder charge to which he confessed. The Florida Supreme Court ruled that this confession was admissible. It agreed with the First District Court’s opinion that “Sapp’s attempt to invoke his Fifth Amendment right to counsel through the claim of rights form was not effective because custodial interrogation had not begun when he signed the form, nor was it imminent at the time.” Id. at 583.

In addition to barring further questioning, the appointment of counsel at first appearance also prohibits the state from taking further one-sided actions that could bolster its case against a particular defendant. The state cannot compel the defendant to appear in a lineup unless it obtains a court order after proper notice has been given to his counsel. Sobczak v. State, 462 So. 2d 1172 (Fla. 4th DCA 1984); pet. rev. den., 469 So. 2d 750 (Fla. 1985). In addition, the prosecution cannot use statements made by the defendant to a person whom the state set up as a jailhouse informant after the defendant’s right to counsel has attached. Peoples v. State, 612 So. 2d 555 (Fla. 1993); Brown v. State, 725 So. 2d 1164 (Fla. 2d DCA 1998).

Pretrial Release

After informing the defendant of the charges and appointing counsel, the next task on the crowded agenda of first appearance court is the setting of conditions of pretrial release. Fla. R. Crim. P. 3.130(d). This process applies to those persons who have been arrested for charges other than capital or life offenses in which the proof of guilt is evident or the presumption is great,2 or when the state has sought an order of pretrial detention (to be discussed below). Defendants usually come into first appearance court with a bond set either from a standard bond schedule or by a judge who has signed a warrant for that person’s arrest.

In this latter situation, when bond has been set by a fellow judge, there is currently a split of authority on the issue of whether the first appearance magistrate can make an independent inquiry and set bond accordingly. According to the Third District Court of Appeal, the magistrate can consider appropriate conditions for release of a defendant who has been arrested on a warrant signed by another judge, and in fact has the duty to do so, “so long as that judge does not specifically preclude him from doing so.” McCoy v. State, 702 So. 2d 252 (Fla. 3d DCA 1997). Two other district courts, however, have taken a different approach. In Norris v. State, 737 So. 2d 1240 (Fla 5th DCA 1999); rev. granted, 1999 Fla. LX 2344, the Fifth District Court stated putting such strictures on the magistrate “deprives the defendant of a meaningful bail determination at first appearance.” Similarly in Faoutas v. State, 745 So. 2d 398 (Fla. 1st DCA 1999), the court ordered that the policy of Leon County magistrates of refusing to modify bail amounts set by other judges must be discontinued.

A similar split of authority, although not among the same district courts, exists regarding the question of whether the magistrate is allowed to set a bond for a defendant who has been arrested after violating a condition of his pretrial release. The Fourth District Court has clearly held that such a person is entitled to a new bond in these situations. In Paul v. Jenne, 728 So. 2d 1167 (Fla. 4th DCA 1999), the defendant’s initial bond was revoked when he was arrested on new felony charges. The Fourth District Court ruled that although the defendant did forfeit his right to remain at liberty on the original bond, denying him a new bond was equivalent to unlawful pretrial detention. The same court ruled that a trial court can order pretrial detention of a defendant who has breached a condition of his bond only “if it finds a substantial probability that the defendant poses a threat of harm to the community.” Rix v. Jenne, 728 So. 2d 827 (Fla. 4th DCA 1999).3 However, the Fourth District Court has made an exception in the case in which a defendant wilfully failed to appear at a court hearing, and the trial court had ruled that “no conditions of pretrial release would reasonably assure the defendant’s presence.” Bradshaw v. Jenne, 754 So. 2d 109 (Fla. 4th DCA 2000). See also Thomas v. Jenne, 25 Fla. L. Weekly D790 (Fla. 4th DCA March 29, 2000). In contrast to these rulings is the Third District’s holding in the case of Houser v. Manning, 719 So. 2d 307 (Fla. 3d DCA 1998), in which the court ruled that the granting of any future bond after there has been a violation of a previous bond’s conditions rests in the sound discretion of the trial court.

This conflict has been partially resolved by the recently enacted F.S. §903.0471 (2000) which states that “a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant has committed a new crime while on pretrial release.” 2000 Fla. Laws Ch. 178. A defendant who violates some other condition of pretrial release can now be subject to pretrial detention upon motion by the state and a hearing. 2000 Fla. Laws Ch. 229.

Domestic violence cases provide a somewhat unique framework for the granting of bond at first appearance. F.S. §741.2901(3) (1999) provides that “When a defendant is arrested for an act of domestic violence, the defendant shall be held in custody until brought before the court for admittance to bail in accordance with chapter 903.” It seems clear from the wording of this statute that, once again barring a petition for pretrial release, the magistrate must then set a bond and impose whatever conditions will help ensure “the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released.” Id. See Gallardo v. Crow, 4 Fla. L. Weekly Supp. 351 (10th Cir., Oct. 29, 1996).

If the defendant is entitled to bond, the first appearance magistrate is empowered to set bond in a monetary amount and with whatever other conditions are justified. The factors to be considered are set forth in Fla. R. Crim. P. 3.131(b)(3).4 Case law in the area is anecdotal, and is beyond the scope of this article. One factor, however, does need to be mentioned. In addition to whatever evidence there is about the defendant’s past, the nature of the crime, and ties with the community, “evidence of financial resources of the defendant must be heard and taken into consideration before bond is set.” Martin v. Jenne, 745 So. 2d 412 (Fla. 4th DCA 1999). In this opinion, the court reminds committing magistrates that the setting of excessive bond is tantamount to granting no bond at all.

From the state’s perspective, the magistrate at first appearance must be very careful when setting the amount of bond. Once it has been set, it can only be increased if there is a “change of circumstances or information [that was] not made known to the first appearance judge.” Keane v. Cochran, 614 So. 2d 1186 (Fla. 4th DCA 1993). In Keane, a court’s increasing of the defendant’s bond in a DUI-related offense solely because of his prior DUI record was reversed. Similarly, a court can’t increase a bond based on the judge’s viewing of pictures of the victim’s injury, Montgomery v. Jenne, 744 So. 2d 1148 (Fla. 4th DCA 1999), because the committing magistrate erred in his reading of the bond schedule, Bowers v. Jenne, 710 So. 2d 681 (Fla. 4th DCA 1998), or because a successor judge was concerned about threats made to the victims, a fact that was known to the committing magistrate. Nevadomski v. Jenne, 25 Fla. L. Weekly D216 (Fla. 4th DCA January 14, 2000). This rule also prohibits a successor judge from revoking bond of a defendant who had been granted bond on a life felony without a showing of changed circumstances. Cousino v. Jenne, 717 So. 2d 599 (Fla. 4th DCA 1998); Blount v. Spears, 25 Fla. L. Weekly D1421 (Fla. 3d DCA June 14, 2000).

The possibility of a court ordering pretrial detention and denying bond for a defendant charged with an otherwise bondable offense has been mentioned above, and can only be briefly discussed here. The requirements for pretrial detention are found in F.S. §907.041 (1999) which has been substantially amended by 2000 Fla.Laws Ch. 229. In order to give the state the initial opportunity of detaining a defendant that they feel qualifies for pretrial detention, Fla. R. Crim. P. 3.132 allows the prosecution to file a motion at first appearance. This motion must set forth with particularity the grounds and facts in support of this request, and the petitioner must certify that he has received testimony under oath that supports the motion. If the motion is facially sufficient and the judicial officer finds probable cause exists that the defendant committed the offense, the defendant may be detained pending a final hearing, which must be scheduled within five days of the date that the motion was filed or on which the defendant was taken into custody as a result of the motion, whichever is later. Fla. R. Crim. P. 3.132(c).5

Probable Cause

Another often unseen function of the first appearance magistrate is to make a determination that probable cause exists to hold the defendant in custody. This job should not be confused with the procedure for an adversary preliminary hearing, which is applicable when the state has failed to file an information within 21 days of the defendant’s arrest.6 Instead, Fla. R. Crim. P. 3.133(a)(1) provides that, when a defendant is in custody, “a nonadversary probable cause determination shall be held before a magistrate within 48 hours from the time of the defendant’s arrest.” The standard to be used is that for the issuance of an arrest warrant, and this finding may be based on “sworn complaints, affidavit, deposition under oath, or, if necessary, on testimony under oath properly recorded.” Fla. R. Crim. P. 3.133(3). In general practice, this function is accomplished by the magistrate reading the contents of the affidavit on which the defendant has been arrested. In most cases, that document alone will be sufficient to satisfy the probable cause burden.7

In those rare cases when probable cause does not readily appear on the face of the affidavit, the state has 24 hours to present additional evidence to the court, which can also be in affidavit form. Fla. R. Crim. P. 3.133(4). If the state is still unable to establish sufficient probable cause, the defendant is released on his own recognizance. Vigoreaux v. State, 714 So. 2d 610 (Fla. 3d DCA 1998). The court is not authorized to dismiss a charge based on its finding of lack of probable cause. State v. Ballone, 422 So. 2d 900 (Fla. 2d DCA 1982); State v. Diaz, 7 Fla. L. Weekly Supp. 48 (11th Cir., January, 1999).

Pleas at First Appearance

The last job of the first appearance magistrate is to accept pleas of guilty to misdemeanor charges and sentence the defendants accordingly.8 This often helps to clear the jail of persons who are being held on offenses such as disorderly intoxication or trespass. The peril, from the prosecution point of view, lies in the fact that there are offenses that the state may wish to enhance, such as second or third time petty theft or DUIs when there have been prior convictions.9 Another danger lies in offenses such as driving while license suspended, when, if the suspension was due to the defendant’s status as a habitual traffic offender, the offense is a felony, even though the officer may have erroneously indicated that it was a misdemeanor.10 Often the prosecutor does not have sufficient information to know whether an enhancement is either possible or desired. From the sstate’s point of view, it is often the best practice to object to the court taking pleas in all but minor victimless crimes.11


While first appearance hearings appear to be mainly routine, the potential exists for many decisions to be made which could have serious effects on future proceedings. Like any other facet of the criminal justice system, first appearances need to be taken seriously and properly prepared for in order to ensure that justice prevails, even when time is often of the essence. q

1 See Fla. Stat. §27.52(1)(a) for the procedure to be used for appointing the public defender.
2 See Fla. R. Crim. P. 3.131(a). The state’s burden in these situations is “a higher one than that of guilt to the exclusion of all reasonable doubt required for a criminal conviction.” Kirkland v. Fortune, 661 So. 2d 395 (Fla. 1st D.C.A. 1995). Even if this burden is met, the court can still, in its discretion, set a bond. State v. Arthur, 390 So. 2d 717 (Fla. 1980).
3 The Florida Supreme Court has granted review in both the Paul and Rix cases.
4 These factors include the nature and circumstances of the crime charged, the possible penalty, the weight of the evidence, the defendant’s ties to the community, prior criminal record, previous failure to appear, the danger posed to the community, and “any other facts the court considers relevant.”
5 2000 Fla. Laws Ch. 178 added §4(b) to Fla. Stat. §907.041. This section states, “No person charged with a dangerous crime shall be granted nonmonetary pretrial release at a first appearance hearing; however, the court shall retain the discretion to release an accused on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant such a release.”
6 See Fla. R. Crim. P. 3.133(b)
7 “Probable cause to arrest exists when the totality of the facts and circumstances within the officer’s knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it.. . . The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based.” State v. Cortez, 705 So. 2d 676 (Fla. 3d D.C.A. 1998).
8 It is interesting to note that the rule makes no provision for nolo contendre pleas.
9 See Fla. Stat. §812.014(3)(b) and(c) (1999); Fla. Stat. §316.193(2)(b) (1999).
10 Fla.Stat. §322.34(5) (1999).
11 In his study of first appearance court, Judge Grube came to the conclusion that these courts tended to shortcut advice given to defendants about the ramifications of pleas, that the colloquies were less thorough, and that defendants who suffered from physical and mental disabilities were often likely to plea at first appearance. Grube, Electronic Plea Taking at Florida’s Weekend First Appearance Hearings: Weekend Justice or Weakened Justice?, 21 Stetson L. Rev. 329 (1991). Since this article was written, the courts have made clear that, while first appearance court can be held via audiovisual hookup, a defendant’s attorney still had to be physically present alongside the defendant in order for a plea to be valid. Scott v. State, 618 So. 2d 1386 (Fla. 2d D.C.A. 1993). It is unclear whether this will have an effect on Judge Grube’s findings.

Mark F. Lewis has been an assistant state attorney for the 13th Judicial Circuit for 17 years. He received his B.A., cum laude, from the State University of New York at Stony Brook (1968), and his J.D., with honors, from the University of Florida (1976). Mr. Lewis served as chair of The Florida Bar Journal and News Editorial Board in 1991.

This column is submitted on behalf of the Criminal Law Section, Harvey J. Sepler, chair, and Randy E. Merrill, editor.

Criminal Law