First Appearance Manual - Seminole County

FIRST APPEARANCE MANU

SEMINOLE

COUNT

Updated April, 2024

2  
TABLE OF CONTENTS 
INTRODUCTION .......................................................................................................................... 3 
I.  FIRST APPEARANCE  HEARINGS  (RULE 3.130 - 3.133) ............................................ 4 
A.  GENERAL INFORMATION ............................................................................................................. 4 
B.  TIME OF FIRST APPEARANCE  HEARINGS................................................................................ 4 
C.  PERSONS ENTITLED TO FIRST APPEARANCE ......................................................................... 4 
D.  PERSONS NOT ENTITLED  TO FIRST APPEARANCE ............................................................... 5 
II.  PROCEDURE AT FIRST APPEARANCE ........................................................................ 5 
A.  CASES INVOLVING TRANSLATORS ........................................................................................... 5 
B.  GENERAL FIRST APPEARANCE  ADVICE .................................................................................. 5 
C.  JUDICIAL TASKS FOR INDIVIDUAL FIRST APPEARANCES .................................................. 6 
D.  DISCUSSION OF JUDICIAL TASKS AT FIRST APPEARANCE ................................................. 6 
1.  UNDERSTANDING CONSTITUTIONAL RIGHTS ................................................................... 6 
2.  ADVISE OF PENDING CHARGES .............................................................................................. 6 
3.  DETERMINE ISSUE OF COUNSEL FOR THE DEFENDANT.................................................. 7 
4.  PROBABLE CAUSE DETERMINATION .................................................................................... 8 
5.  DETERMINE CONDITIONS OF PRETRIAL RELEASE ......................................................... 11 
6.  SET A COURT DATE ................................................................................................................. 19 
7.  EXTRADITION ........................................................................................................................... 19 
III.  DUTY OF ARRESTING   OFFICERS, BOOKING  OFFICERS AND FIRST 
APPEARANCE  CORRECTIONAL OFFICERS ........................................................................ 22 
IV.  DUTY OF THE CLERK  OF THE COURT ..................................................................... 24 
V.  DUTY OF THE STATE ATTORNEY.............................................................................. 25 
VI.  DUTY OF THE PUBLIC DEFENDER ............................................................................ 27 
CONCLUSION ............................................................................................................................. 29 
BAIL SCHEDULE ........................................................................ Error! Bookmark not defined. 
ELECTRONIC MONITORING ................................................................................................... 30 
SCHEDULE  OF 
“QUALIFYING 
OFFENSES”  - ANTI-MURDER  
AC
T
 ............................ 46 
FARETTA INQUIRY -TRIAL STAGE ....................................................................................... 47 
Competency to Waive Counsel Section .................................................................................................... 49 
FARETTA INQUIRY - PLEA STAGE ....................................................................................... 50 
Competency to Waive Counsel Section .................................................................................................... 51 

INTRODUCTION

This manual for first appearances is to be used by judges, prosecutors, public defenders, private

counsel, clerks and law enforcement personnel, including probation and community control

officers, for the purpose of guiding procedures for first appearance hearings in Seminole County.

The manual is the result of serious study of the rules and statutes governing conduct of first

appearance proceedings and the input of the state attorney, public defender and members of the bar

who practice in the criminal courts of Seminole County. The manual is published online at the

court’s website under Local Practice Manuals at http://www.flcourts18.org. Comments,

suggestions and criticisms are welcome and should be directed to the Administrative Judge of the

Circuit Court Criminal Division or the Administrative Judge of the Seminole County Court.

This manual has been approved as the policy manual for use at first appearances in Seminole

County. The manual is not legal authority, however, and should not be cited for purposes other than

as an expression of policy.

The authors are much indebted to the Honorable Michael F. Andrews, Circuit Judge of the Sixth

Judicial Circuit, whose paper entitled First Appearance Hearings, Probable Cause Determination,

Pretrial Release Guidelines, Pretrial Detention and Arthur Hearings provided the basis for the

judges in Seminole County to undertake this project. We are also grateful to our legal intern, Jessica

Savidge, from Barry University, School of Law, who edited the numerous footnotes contained in

this manual.

Judge Jerri L. Collins, Judge O. H. Eaton Jr., Judge Ralph E. Eriksson, Judge Mark E. Herr,

Judge Donna L. McIntosh, Judge Debra S. Nelson

February 10, 2010

I. FIRST APPEARANCE HEARINGS (RULE 3.130 - 3.133)

A. GENERAL INFORMATION

A first appearance is a hearing for defendants who have been taken into and remain in

custody. First appearance hearings are scheduled every 24 hours. The purpose of first appearance

hearings is to advise defendants who are in custody of their constitutional rights, inform them of

the charges for which they have been arrested, appoint counsel for indigent defendants, determine

if there is probable cause for the arrest, set conditions of release, and schedule an arraignment date.

First appearance hearings also provide due process to defendants who have been taken into custody

on out-of-county or out-of-state warrants and for defendants accused of violation of probation or

community control.

Generally, every person who is in custody and subject to the Florida Rules of Criminal

Procedure must be given a first appearance hearing within 24 hours after being taken into custody.

There are two exceptions to the rule: defendants who have been transported from another facility

who have previously had a first appearance on pending charges and defendants who have been

turned in by their surety are not entitled to a first appearance and shall not be brought to a first

appearance hearing.

It is the responsibility of the first appearance judge to complete the first appearance hearing

whenever possible. Persons in custody who have had a correct and completed first appearance

should not need any further court proceedings until arraignment. Failure to conduct a correct and

complete first appearance usually results in unnecessary judicial labor for another judge.

B. TIME OF FIRST APPEARANCE HEARINGS

First Appearance Hearings in Seminole County shall be held at the John E. Polk

Correctional Facility at 2:00 p.m. on weekdays and at 9:00 a.m. on weekends and holidays.

Weekday first appearances may be by video if the defendant is an adult. These times may be

changed only in emergencies, such as hurricanes or tornados, and with the approval of the Chief

Judge or the Administrative Judge of the Circuit Court Criminal Division. First appearance

schedules shall not be changed for the convenience of court personnel or law enforcement.

C. PERSONS ENTITLED TO FIRST APPEARANCE

1. Probable Cause Arrests.

Persons arrested on probable cause for misdemeanor or felony crimes are entitled to

a first appearance. These persons make up the vast majority of the first appearance docket.

2. Persons taken into custody on a capias or an arrest warrant.

3. Violations of Probation/Community Control.

Persons arrested with or without a warrant for violation of probation or community

control are entitled to a first appearance hearing.

Fla. R. Crim. P. 3.130(a).

Id.

Hill v. State, 739 So. 2d 634 (Fla. 4th DCA 1999); § 948.06(1)(a)-(b), Fla. Stat. (2018).

4. Juveniles Charged as an Adult.

Children in the custody of juvenile authorities who have been indicted or informed

against as an adult shall have a first appearance hearing within 24 hours after the filing of the

indictment or information.

D. PERSONS NOT ENTITLED TO FIRST APPEARANCE

The following categories of jail inmates are not subject to the Florida Rules of Criminal

Procedure and are not entitled to a first appearance hearing. They shall not be scheduled on the first

appearance docket.

1. Military deserters.

2. Witnesses in protective custody.

3. State prisoners who are on early release from the Department of Corrections.

4. Prisoners who have been transported to Seminole County from another facility

and who have no Seminole County charges.

5. Prisoners who have been turned in by their surety.

6. Parole violators. (except for those who have new charges)

7. Persons in custody on a Seminole County writ of attachment.

8. Federal prisoners.

9. Defendants whose bond or pretrial release status has been revoked.

10. Mental Health cases

II. PROCEDURE AT FIRST APPEARANCE

A. CASES INVOLVING TRANSLATORS

Persons in custody who do not speak the English language are entitled to the same rights

and procedures as those who do. In general, it is better to take cases involving translators first

because the translator can collectively advise non-English-speaking persons of their constitutional

rights and then provide translator services during the first appearance hearings. The cost of the

translator’s services can be minimized by calling these cases first. Correctional officers are not

qualified to provide interpreter services.

B. GENERAL FIRST APPEARANCE ADVICE

The first appearance judge must advise the defendants of their legal rights at the first

appearance hearing. The advice may be given collectively to all of the defendants present for first

appearance. The advice that must be given is as follows:

1. THE RIGHT TO REMAIN SILENT

The defendants must be advised of the right to remain silent and that anything they

say can be used against them in court.

2. THE RIGHT TO COUNSEL

Fla. R. Crim. P. 3.130(a).

Fla. R. Crim. P. 3.130(b)(1).

Fla. R. Crim. P. 3.130(b)(2); The Sixth Amendment right to counsel attaches at the earliest of: (1) formal charges;

(2) first appearance; (3) preliminary hearing; (4) the filing of indictment or information; and (5) arraignment. Art. I, §

The first appearance judge must advise the defendant of the right to counsel of their

choosing and, if the defendant is indigent, of the right to court-appointed counsel.

Note - There is no right to counsel if the defendant is charged with a misdemeanor

and the judge files a certification of no jail at least 15 days prior to trial. In such cases, the defendant

is entitled to reasonable conditions of release from custody. If such a certification is filed at or

before first appearance, the first appearance judge must first determine if non-monetary conditions

of release are appropriate. If not, bail must be set. If the defendant is unable to post bond, the

public defender must be appointed even though a no jail certificate has been filed.

3. THE RIGHT TO COMMUNICATE

The defendants must be advised that they have the right to communicate with their

lawyer, their family, and their friends and that reasonable means will be made available for them to

do so.

C. JUDICIAL TASKS FOR INDIVIDUAL FIRST APPEARANCES

The first appearance judge must accomplish the following six tasks, in order, for each

individual defendant:

1. ASK THE DEFENDANT IF HE OR SHE UNDERSTANDS THE

RIGHTS THAT HAVE JUST BEEN GIVEN.

2. ADVISE THE DEFENDANT OF THE CHARGES FOR WHICH HE OR

SHE HAS BEEN ARRESTED AND ASK THE DEFENDANT IF A COPY

OF THE COMPLAINT AND RELATED DOCUMENTS HAVE BEEN

RECEIVED.

3. DETERMINE WHETHER THE DEFENDANT WILL HIRE

COUNSEL OR IS QUALIFIED FOR COURT-APPOINTED COUNSEL.

APPOINT COUNSEL FOR INDIGENT OR PARTIALLY INDIGENT

DEFENDANTS.

4. ADDRESS THE ISSUE OF WHETHER THERE IS PROBABLE

CAUSE FOR THE ARREST.

5. SET CONDITIONS OF RELEASE.

6. SET AN ARRAIGNMENT DATE.

D. DISCUSSION OF JUDICIAL TASKS AT FIRST APPEARANCE

1. UNDERSTANDING CONSTITUTIONAL RIGHTS

First appearance hearings are sometimes bewildering to defendants, especially those

who are under the influence of drugs or alcohol or have mental problems. It is important to ask

each defendant if he or she understood the constitutional rights that were explained to the entire

group of defendants.

2. ADVISE OF PENDING CHARGES

16(a), Fla. Const.; Smith v. State, 699 So. 2d 629, 638 (Fla. 1997).

Fla. R. Crim. P. 3.111; Hardy v. State, 776 So. 2d 962 (Fla. 3d DCA 2000).

Fla. R. Crim. P. 3.130(b)(3).

The first appearance judge must advise the defendant of any pending charges and

provide the defendant with a copy of the complaint/arrest affidavit, together with a copy of any

other document the first appearance judge reviewed to determine probable cause or set conditions

of release, including victim-impact statements and criminal history data.

Rule 3.130(b) does not

contain an exception for furnishing a copy of the complaint in cases in which the defendant has

been arrested on a warrant or a capias. If the complaint (or affidavit) is not attached to the warrant

or capias, the first appearance hearing should be continued for 24 hours to allow the state attorney

to obtain a copy. The rule does not contain an exception for an out of county warrant or capias.

3. DETERMINE ISSUE OF COUNSEL FOR THE DEFENDANT

Question the defendant to determine if the defendant intends to hire private counsel,

apply for the appointment of counsel, or wishes to waive counsel. If the defendant desires to hire

counsel, a reasonable time must be allowed for the defendant to send for counsel. The first

appearance hearing may be postponed for that purpose.

The first appearance judge may require

an officer to communicate a message to the counsel that the defendant names.

While it is generally

inappropriate to appoint the public defender to represent defendants who are not indigent, if the

delay in obtaining counsel will last more than 24 hours, the court may, at the request of the

defendant, appoint the public defender for the first appearance hearing.

Defendants who claim

they will retain private counsel shall be scheduled for counsel review at first appearance in 7

days or the first business day after 7 days, if they remain in custody. Additionally, the public

defender should be appointed if the defendant appears to be incapable of filling out an indigency

affidavit, is mentally retarded, is mentally ill, or speaks only a foreign language.

Defendants who

are in custody in Seminole County on charges from another county or state are entitled to counsel,

and the public defender should be appointed to represent these defendants if they otherwise qualify.

If the defendant desires to apply for court-appointed counsel, an indigency affidavit

must be filled out by the defendant. Defendants are entitled to court-appointed counsel if the

affidavit establishes the defendant is indigent, or partially indigent. “Indigent” means a person who

is unable to pay for the services of an attorney, including costs of investigation, without a substantial

hardship to the person or the person’s family.

“Partially indigent” means a person who is unable

to pay more than a portion of the fee charged by an attorney, including costs of investigation,

without substantial hardship to the person or the person’s family.

Poverty guidelines and other

guidelines are not binding for the finding of indigency or partial indigency by the first appearance

judge. Any prior determination of indigency or non-indigency made by the clerk is a preliminary

assessment only and is not binding upon the first appearance judge. The clerk does not consider

partial indigency status when making the preliminary assessment.

If the first appearance judge determines that the public defender has a conflict and

Fla. R. Crim. P. 3.130(b).

Fla. R. Crim. P. 3.130(c)(2).

Id.

Office of the Public Defender v. State, 714 So. 2d 1083 (Fla. 3d DCA 1998).

Fla. R. Crim. P. 3.111(4).

Id.

cannot represent the defendant, conflict counsel must be appointed.

Public defender defendants must be advised that an application fee must be paid to

the clerk within seven days from the date of the application. If the fee is not paid, it will be assessed

at the end of the case and may be made a condition of probation or community control.

Additionally, a separate fee may be assessed at the end of the case and may be made payable as a

condition of probation or community control. The fee shall also become a lien against any property

the defendant owns or later acquires.

If an indigent defendant desires to waive counsel, a full Faretta inquiry may be

conducted and a waiver of counsel must be placed on the record by the defendant.

Appointment of counsel should not be delayed simply because first appearances are

conducted by video. Defendants should fill out affidavits requesting the public defender to be

appointed and the assistant public defender should be asked to examine the affidavit and accept the

appointment based upon the information contained in it, or the affidavit should be faxed to the video

studio for signature by the first appearance judge. Provisional appointments are discouraged.

4. PROBABLE CAUSE DETERMINATION

a. NON-ADVERSARIAL PROBABLE CAUSE DETERMINATION FOR

DEFENDANTS IN CUSTODY

A non-adversarial probable cause determination must be made within 48 hours

in all cases in which the defendant has been arrested without a warrant, or upon a capias issued

upon an indictment or information. It is not necessary to make a probable cause determination

when a probable cause determination has been made by a judge and an arrest warrant has been

issued for the specific offense for which the defendant is charged. However, a probable cause

determination is required if any additional offenses have been charged other than the offense(s)

named in the warrant.

The first appearance judge must allow the State attorney 48 hours to establish

probable cause. The first appearance must be continued to the next first appearance hearing if

probable cause cannot be established at the initial first appearance. The first appearance judge has

only three choices at the second first appearance hearing: (1) find probable cause, (2) find no

probable cause, or (3) if extraordinary circumstances exist, continue the probable cause hearing for

one or two 24-hour periods to allow the state to supplement the facts to support a probable cause

determination.

b. CONTINUANCES

A continuance of up to 24 hours beyond the initial 48 hours may be granted

by the first appearance judge upon a showing that extraordinary circumstances exist. A

second continuance of up to 24 hours may be granted if the extraordinary circumstances still exist

§ 27.52(1)(b), Fla. Stat. (2018).

A full Faretta inquiry dialog is included in this manual.

Fla. R. Crim. P. 3.133(a)(1).

Burnham v. State, 854 So. 2d 838 (Fla. 5th DCA 2003).

after the first continuance.

Extraordinary circumstances do not include the following delays: (1) delay

for the state to gather additional evidence, (2) delay motivated by ill will, (3) delay for delay’s sake,

(4) delay to consolidate pretrial proceedings, and (5) delay because of intervening weekends.

c. DETERMINING PROBABLE CAUSE--RIGHT TO COUNSEL

While the defendant is entitled to counsel at the first appearance hearing, there

is no right to counsel when the non-adversarial probable cause determination is made because the

probable cause determination is not a critical stage of the proceedings.

Accordingly, the first

appearance judge may determine probable cause in chambers prior to commencing first

appearances.

d. WHAT IS PROBABLE CAUSE?

1) Probable cause does not arise when conduct is equally consistent with

activity that is not criminal.

2) Probable cause is most commonly defined as “circumstances to cause

a person of reasonable caution to believe that an offense has been or is being committed by the

person arrested.”

3) Probable cause has been more simply defined as “the existence of

reasonable grounds to believe the person arrested has committed the offense.”

4) To establish probable cause, a police officer may rely upon

information provided from a responsible, reasonable person.

5) “Probable cause exists where the facts and circumstances, as

analyzed from the officer’s knowledge, specialized training and practical experience . . . are

sufficient in themselves for a reasonable man to reach the conclusion that an offense has been

committed.”

6) The “probable cause” standard is no more onerous for a defendant

than the “in the conscience of the court” standard that has traditionally been used in revocation of

probation proceedings.

7) The facts from which probable cause arises do not need to meet the

standard for conclusiveness and probability required of facts on which a conviction is based.

Conflicting explanations combined with the totality of the circumstances can provide a sufficient

Id.

County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991).

A “critical stage” is a pretrial proceeding that impairs defense on the merits if the accused is required to proceed

without counsel. Chavez v. State, 832 So. 2d 730, 752 (Fla. 2002), cert. denied., 593 U.S. 947 (2003); Gerstein v.

Pugh, 420 U.S. 103, 120-22 (1975); Coleman v. Alabama, 399 U.S. 1, 9 (1970); United States v. Wade, 388 U.S. 218,

226-27 (1967).

Nickell v. State, 722 So. 2d 924 (Fla. 2d DCA 1998).

Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979); Hutton v. Strickland, 919 F. 2d 1531, 1539 (11th Cir. 1990).

Shriner v. State, 386 So. 2d 525, 528 (Fla. 1980).

Weissman v. K-mart, 396 So. 2d 1164, 1167 (Fla. 3d DCA 1981).

Pickett v. State, 922 So. 2d 987, 990 (Fla. 3d DCA 2005).

Parker v. State, 843 So. 2d 871, 879 (Fla. 2003).

Nickell, 722 So. 2d 924.

basis for a finding of probable cause for an arrest.

e. PURPOSE OF PROBABLE CAUSE DETERMINATION

The purpose is to ensure the defendant is not detained without probable cause.

The United States Supreme Court has held that the Fourth Amendment requires such a

determination as a prerequisite to a detainee’s further restraint of liberty.

The finding of probable cause can have unintended consequences. A finding of

probable cause, when there is no probable cause, can result in a prisoner remaining in custody when

he or she is entitled to release and additional unnecessary judicial labor.

f. STANDARD OF PROOF

The standard of proof is the same as that for arrest. In determining probable

cause, the finding may be based upon the following criteria:

1) sworn complaint;

2) affidavit;

3) deposition under oath; or

4) testimony under oath properly recorded.

g. THE EXISTENCE OR NONEXISTENCE OF PROBABLE CAUSE

SHALL BE FOUND AT THE FIRST APPEARANCE HEARING

Probable cause shall be determined if the necessary proof is available at the

time of the first appearance.

The first appearance judge is not limited to finding probable cause

for the particular offense listed by the arresting officer. The documents relied upon may establish

probable cause for a lesser offense or for a different offense.

h. PROBABLE CAUSE ARRESTS FOR VIOLATIONS OF PROBATION

OR COMMUNITY CONTROL

Probable cause arrest affidavits charging violation of probation or community

control must contain sufficient information to establish (1) the defendant is actually on probation

or community control; (2) identify the county in which the defendant was sentenced; (3) identify

the crime for which the defendant is being supervised; and (4) whenever possible, the criminal

case number. Bare assertions in an arrest affidavit that the CAFÉ system or other law

enforcement database shows the defendant to be on probation or community control is insufficient

to establish probable cause. The clerk is not responsible to determine the defendant’s supervisory

status and should not be asked to do so.

i. FINDING MUST BE IN WRITING

A finding that probable cause does or does not exist must be in writing, signed

by the first appearance judge, and filed, together with the evidence upon which the finding was

Pickett, 922 So. 2d @990.

Gerstein, 420 U.S. 103, 114.

Fla. R. Crim. P. 3.133(a)(3).

Fla. R. Crim. P. 3.133 (a)(1); Chavez, 832 So. 2d at 752.

based, with the clerk of the court.

j. FINDING OF NO PROBABLE CAUSE

The defendant is entitled to release on his or her recognizance if the arrest

affidavit does not state probable cause and the state does not establish probable cause for up to two

24-hour continuances.

The first appearance judge may not dismiss the charge(s) for failure of the

state to establish probable cause within 48 hours.

The filing of an information before probable

cause is established does not alter the defendant’s entitlement to release. In either event, the only

condition of release that may be imposed is to appear at all court proceedings.

A court date must

be given to persons released from custody as a result of a finding of no probable cause.

Alternatively, the defendant may be released in misdemeanor cases under a

summons to appear. The finding of probable cause must be announced in open court.

k. RELEASE OF DEFENDANT FOR FAILURE OF STATE TO

COMPLY WITH TIME REQUIREMENTS

Any release occasioned by a failure to comply with the specified time periods

shall be by order of the judge either (1) on written application filed by the defendant with notice to

the state, or (2) by a judge without written application but with notice to the state.

The notice

requirements under the rule shall be satisfied when the state attorney receives a copy of the first

appearance docket, provided the release is ordered at the daily first appearance hearings.

5. DETERMINE CONDITIONS OF PRETRIAL RELEASE

a. STATUTORY CONDITIONS OF PRETRIAL RELEASE

The first appearance judge must consider conditions of pretrial release after

finding probable cause unless one of the following circumstances has occurred:

1) The state has filed a motion for pretrial detention;

2) The defendant is subject to the Jessica Lunsford Act

or the Anti-

Murder Act;

3) The defendant is charged with a capital or life felony and the proof is

evident and the presumption is great.

If no conditions of pretrial release can reasonably protect the community from

risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity

Fla. R. Crim. P. 3.133 (a)(4).

See § II.(D)(4).

State v. Hollie, 736 So. 2d 96 (Fla. 4th DCA 1999); State v. Umbrecht, 371 So. 2d 1109 (Fla. 4th DCA 1979); State

v. Antel, 333 So. 2d 76 (Fla. 4th DCA 1976).

Burnham, 854 So. 2d at 838.

Fla. R. Crim. P. 3.133(a)(4).

Fla R. Crim. P. 3.130(d), 3.131.

§948.06, Fla. Stat. (2018).

§ 903.0351, Fla. Stat. (2018).

Fla. R. Crim. P. 3.131(a), (b).

of the judicial process, the accused may be detained.

There are three standard, statutory conditions of pretrial release:

1) The defendant must refrain from criminal activity of any kind.

2) The defendant must refrain from any contact of any type with the

victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure.

3) All information provided by the defendant must be truthful.

These statutory conditions are not automatic. They must be imposed in order to

become a valid condition of release. For instance, service of a summons is not the equivalent of

pretrial release and a defendant who receives a summons is not on notice of these conditions.

Rule

3.131 does not mention this statute. Certain cases, such as cases involving domestic violence, often

involve unavoidable contact between the victim and the defendant. The parties may need to have

contact with each other if they have children, or if the victim and the defendant are still residing

under the same roof. The “no contact” provision may be modified by motion, properly noticed for

hearing, upon a showing of good cause. The victim must be given an opportunity to be heard at the

hearing on the motion.

b. OTHER CONDITIONS OF PRETRIAL RELEASE

If the defendant is entitled to pretrial release, there is a presumption the

defendant is entitled to release on non-monetary conditions. The first appearance judge shall

impose the first of the following conditions of pretrial release that will reasonably protect the

community from risk of physical harm to persons and assure the presence of the defendant at trial

or ensure the integrity of the judicial process. If no single condition of release gives that assurance,

any combination of conditions may be imposed.

1) Personal recognizance of the defendant.

2) Execution of an unsecured appearance bond in an amount specified

by the first appearance judge.

3) Placement of restrictions on the travel, association, or place of abode

of the defendant during the period of release.

4) Placement of the defendant in the custody of a designated person or

organization agreeing to supervise the defendant.

5) Execution of a bail bond with sufficient solvent sureties, or the

deposit of cash in lieu thereof, provided that the defendant may satisfy any monetary component by

providing an appearance bond. If a monetary bond is required, a separate and specific amount must

be set for each offense charged for which probable cause is found.

6) G.P.S. tracking or electronic monitoring.

Art. I, § 14, Fla. Const.

§ 903.47, Fla. Stat. (2018).

Fla. R. Crim. P. 3.131(b)(4); § 903.035, Fla. Stat. (2018).

Sheppard v. State, 974 So. 2d 529 (Fla. 5th DCA 2008); Pilorge v. State, 876 So. 2d 591 (Fla. 5th DCA 2004).

Fla. R. Crim. P. 3.131(a).

Fla. R. Crim. P. 3.131(b)(2).

7) Any other condition deemed reasonably necessary to assure

appearance as required, including a condition requiring that the person return to custody after

specified hours.

c. PURPOSE OF BAIL

The purpose of a bail determination in a criminal proceeding is twofold: (1) to

ensure the appearance of the defendant at subsequent proceedings, and (2) to protect the community

against unreasonable danger from the criminal defendant.

The primary function of bail is to compel the defendant to appear at pretrial and

trial proceedings by imposing a monetary penalty for failure to do so.

Another, equally important, consideration in setting an amount of bail is the

defendant’s prior criminal record. This is especially true where the trial court finds, based upon a

significant record of prior convictions and juvenile history, that a particular defendant presents an

unreasonable risk of danger if released into the community.

d. FACTORS TO BE CONSIDERED IN DETERMINING CONDITIONS

OF RELEASE

1) The nature and circumstances of the offense charged.

2) The penalty provided by law.

3) The weight of the evidence against the defendant.

4) The defendant’s family ties and length of residence in the

community.

5) Employment history.

6) Financial resources.

7) Past and present conduct, including prior convictions.

8) Previous flight to avoid prosecution or failure to appear.

9) Nature and probability of danger the defendant’s release poses to the

community.

10) The source of funds used to post bail.

11) Whether the defendant is already on release for another pending

charge.

12) Whether the defendant is on probation or community control.

13) Whether the identity of the defendant is in question.

14) Any other relevant factors in the record.

e. BOND SCHEDULES AND BAIL SET ON WARRANTS

The purpose of the bond schedule is to allow defendants to post bond prior to

first appearance if they choose to do so. Strict adherence to a bond schedule at first appearance

§903.046(1), Fla. Stat. (2018); Hernandez v. Roth, 890 So. 2d 1173 (Fla. 3d DCA 2004).

Henley v. Jenne, 796 So. 2d 1273, 1275 (Fla. 4th DCA 2001); Nicholas v. Cochran, 673 So. 2d

882 (Fla. 4th DCA 1996).

Henley, 796 So. 2d at 1275.

Fla. R. Crim. P. 3.131(b)(3); §§ 903.046(2), 907.041, Fla. Stat. (2018).

is an abuse of discretion.

Each defendant at first appearance is entitled to an individualized review

of his bail based upon the facts and circumstances of his or her situation and the alleged offense.

Bail set on warrants must be reviewed at first appearance for individualized

conditions of release.

The first appearance judge has the authority to adjust conditions of release on

violation of probation or community control warrants, except for Jessica Lunsford Act and Anti-

Murder Act cases. However, the first appearance judge should keep in mind that the judge who

issued the warrant had the benefit of reviewing the Violation of Probation/Community Control

Report and the conditions of release, if any, were set based upon information not available to the

first appearance judge. The judge who placed the defendant on probation or community control has

the authority to remand the defendant to custody after first appearance.

First appearance judges

should consider contacting the judge who issued the warrant before changing conditions of release

unless an issue of identity or jurisdiction is presented.

Bail set on a capias by a judge cannot be modified at first appearance without

the consent of the judge.

However, in current practice, the clerk issues a capias and endorses bond

on it according to the bond schedule. First appearance judges are authorized to modify bail in these

cases.

f. PRETRIAL RELEASE SERVICE - MONETARY BOND

Rule 3.131(b)(4) prohibits release of a person into a pretrial release service on

non-monetary conditions if the person is charged with a dangerous crime, as defined by F. S.

907.041(4)(a), unless the service certifies to the court that it has investigated or otherwise verified:

1) The circumstances of the accused’s family, employment, financial

resources, character, mental condition, and length of residence in the community;

2) The accused’s record of convictions, of appearances at court

proceedings, of flight to avoid prosecution, or of failure to appear at court proceedings; and

3) Other facts necessary to assist the court in its determination of the

indigency of the accused and whether she or he should be released under the supervision of the

service.

A “dangerous crime” is defined under F. S. 907.041(4)(a) to include:

1) arson;

2) aggravated assault;

3) aggravated battery;

4) illegal use of explosives;

5) child abuse or aggravated child abuse;

6) abuse or aggravated abuse of an elderly person or disabled adult;

Rawls v. State, 540 So. 2d 946 (Fla. 5th DCA 1989).

Id.; Kelsey v. McMillan, 560 So. 2d 1343 (Fla. 1st DCA 1990).

Fla. R. Crim. P. 3.121(a)(7); State v. Norris, 768 So. 2d 1070 (Fla. 2000).

Peraza v. Bradshaw, 966 So. 2d 504 (Fla. 4th DCA 2007).

Fla. R. Crim. P. 3.131(j); Norris, 768 So. 2d at 1072.

7) aircraft piracy;

8) kidnapping;

9) homicide;

10) manslaughter;

11) sexual battery;

12) robbery;

13) carjacking;

14) lewd, lascivious, or indecent assault upon or in the presence of a

child under the age of sixteen years;

15) sexual activity with a child, who is 12 years of age or older but less

than 18 years of age, by or at solicitation of a person in familial or

custodial authority;

16) burglary of a dwelling;

17) stalking and aggravated stalking;

18) act of domestic violence as defined in F. S. 741.28;

19) home invasion robbery;

20) act of terrorism as defined in F. S. 775.30;

21) manufacturing any substances in violation of chapter 893; and

22) attempting or conspiring to commit any such crime.

g. SEMINOLE COUNTY ELECTRONIC MONITORING PROGRAM

1) Seminole County Administrative Order 17-44-S (attached) creates

the electronic monitoring program for domestic violence cases. The first appearance pretrial release

officers will identify defendants who should be released into this program. Defendants who are

released into this program must post a monetary bond in an amount determined to be

reasonable in addition to the conditions of release required by the program.

2) Persons Eligible for the DV Electronic Monitoring Pretrial Release

Program.

a) The defendant must have a residence or make arrangements

to have a residence, in Seminole County with an operational telephone line if the electronic monitor

requires a telephone line.

b) Defendants with a serious medical condition that requires

frequent care, or who are identified as psychotic, severely mentally retarded, currently suicidal, or

unable to cope with the structure of electronic monitoring shall not be placed on an electronic

monitor.

c) Defendants who are released to participate in the electronic

monitoring program shall be responsible for any damage or loss to equipment issued and shall pay

a per diem cost to Seminole County.

d) The following categories of defendants shall be placed in the

electronic monitoring program as a condition of pretrial release in the discretion of the sheriff

considering the availability of the electronic monitoring equipment and the risk the defendant

presents to the victim or the community:

i. Defendants with a pending violation of probation or

community control on a case involving domestic violence when the violation involves violence,

unauthorized contact with the victim, or coming on the property forbidden by the order of probation

or community control through the Department of Corrections.

ii. Defendants who have been taken into custody for violation of

an injunction for protection against domestic violence or repeat violence.

iii. Defendants who have been taken into custody for any

domestic violence related offense, including dating violence.

iv. Defendants who have been charged with

aggravated stalking.

3) Violations of Conditions of Release - Electronic Monitoring

Any defendant who fails to comply with a condition of release while on

electronic monitoring in domestic violence cases shall be taken into custody by any law

enforcement officer on probable cause and held until first appearance. F. S. 901.15. Violations

include, but are not limited to:

a) Equipment tampers or removals.

b) Willful exclusion zone violations.

c) Failure to comply with any condition of release set by the court.

d) Failure to comply with any of the program requirements set forth

by the Seminole County Probation Department.

e) Engaging in criminal conduct of any kind.

f) Having unauthorized contact with the victim.

g) Providing untruthful information to the court, the sheriff, or any

supervising agency.

h. JESSICA LUNSFORD ACT--VIOLATIONS OF PROBATION OR

COMMUNITY CONTROL

If a person is arrested for violation of probation or community control and meets

one or more of the following criteria, the person is to be held without bond pending a "danger to

public" hearing regardless of the bond amount set forth in the violation of probation or community

control warrant:

1) A registered sexual predator, or

2) A registered sexual offender, or

3) Under supervision for any criminal offense prescribed in Chapter 794

(Sexual Battery); Section 800.04(4) (Lewd or Lascivious Battery); Section 800.04(5) (Lewd or

Lascivious Molestation); Section 800.04(6) (Lewd or Lascivious Conduct); Section 827.071

(Sexual Performance by a Child), or Section 847.0145 (Selling or Buying of Minors), or

4) Under supervision for a criminal offense for which he/she would

meet the registration criteria in Section 775.21, Section 943.0435, or Section 944.607 but for the

effective date of those sections.

i. ANTI-MURDER ACT

Any offender who is on probation or community control for a qualifying offense

and has been taken into custody for violation of probation or community control is a “Violent

Felony Offender of Special Concern” (VFOSC) and cannot be released from custody until the

violation has been resolved.

A VFOSC is defined as an offender:

1) On felony probation or community control for a qualifying offense

committed on or after March 12, 2007; or

2) On felony probation or community control for any offense committed

on or after March 12, 2007, and who has a prior qualifying offense; or

3) On felony probation or community control for any offense committed

on or after March 12, 2007, and who violates by committing a qualifying offense; or

4) On felony probation or community control for any offense that was

committed at any time with a previous designation of habitual violent felony offender and commits

a qualifying offense on or after March 12, 2007; or

5) On felony probation or community control for an offense that was

committed at any time with previous designation of three-time violent felony offender and commits

a qualifying offense on or after March 12, 2007; or

6) On felony probation or community control for an offense that was

committed at any time with previous designation of sexual predator and commits a qualifying

offense on or after March 12, 2007.

A schedule of “qualifying offenses” is included in this manual.

j. REVOCATION OF CONDITIONS OF RELEASE

Florida Statutes allow the first appearance judge to revoke conditions of release

and remand the defendant to custody on the first charge if the defendant is arrested on a subsequent

charge and probable cause is found.

The revocation may be on motion by the state or on the court’s

own motion. First appearance judges should use care in revoking conditions of release unless the

state attorney makes a showing there is an active criminal case pending for which the defendant has

previously been arrested, and the offense before the court at first appearance is a new offense that

is serious enough to justify revocation of conditions of pretrial release. Normally, the state attorney

should file a motion to revoke conditions of release before the presiding judge. New misdemeanor

charges do not necessarily justify revoking conditions of pretrial release.

k. PRETRIAL DETENTION

The state attorney may file a written motion requesting pretrial detention. The

motion must set forth the grounds upon which it is based (commission of a “dangerous crime”) and

§§ 903.0351, 948.06, Fla. Stat. (2018).

§ 903.0471, Fla. Stat. (2018); Parker, 843 So. 2d 871.

Pretrial detention is authorized by § 907.041, Fla. Stat. (2018), and is implemented by Fla. R. Crim. P. 3.132.

state the essential facts that justify pretrial detention with particularity. The motion must certify the

state attorney has received testimony under oath supporting the matters contained in the motion. If

the motion is facially sufficient, a probable cause determination must be made as to whether the

defendant has committed the offense for which the first appearance is scheduled. If probable cause

is found, the defendant may be detained pending a final hearing. The final hearing must be

scheduled before the assigned trial judge within five days from the filing of the motion. If no motion

is filed or, if the motion is insufficient, the court shall proceed to determine the conditions of release

as in any other case.

Additionally, pretrial detention may be ordered if any of the following

circumstances exist:

1) The defendant has previously violated conditions of release and no

further conditions of release are reasonably likely to assure the defendant’s appearance at

subsequent proceedings.

2) The defendant, with intent to obstruct the judicial process, has

threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or has

attempted or conspired to do so, and that no condition of release will reasonably prevent the

obstruction of the judicial process.

3) The defendant is charged with trafficking in controlled substances as

defined by §893.135, there is a substantial probability the defendant has committed the offense, and

no conditions of release will reasonably assure the defendant’s appearance at subsequent criminal

proceedings.

4) The defendant is charged with DUI manslaughter, there is a

substantial probability the defendant committed the crime, and the defendant poses a threat to the

community. Conditions that will support detention under this section are as follows:

a) The defendant has previously been convicted of any crime

under §316.193, or a substantially similar crime in another state.

b) The defendant was driving with a suspended license when the

charged crime was committed.

c) The defendant has previously been found guilty of, or has had

adjudication withheld for driving while license suspended or revoked in violation of §322.34.

l. CAPITAL AND LIFE FELONIES

The defendant is not entitled to pretrial release if accused of a capital or life

felony and the proof is evident and the presumption is great. Motions for bail in these cases should

be scheduled before the assigned judge.

m. CONSIDER TAKING PLEAS TO MISDEMEANORS

The first appearance judge has the authority to take a plea to any

misdemeanor charge from the docket entry.

§ 907.041(4)(c), Fla. Stat. (2018).

State v. Blair, 39 So. 3d 1190 (Fla. 2010).

Fla. R. Crim. P. 3.170(a), 3.140.

A plea to a misdemeanor should not be taken at first appearance without the

agreement of the state attorney if one or more of the following conditions exist:

1) The defendant is on probation or community control.

2) The defendant is charged with a violent crime.

3) There are possible double jeopardy problems.

4) The charge can be enhanced to a felony due to prior record.

5) The defendant is not a citizen and is potentially subject to

deportation.

6) Restitution may become an issue.

7) The defendant is charged with an offense in which the “victim”

has not been notified.

8) The defendant is not represented by an attorney.

6. SET A COURT DATE

A court date must be set by the first appearance judge for each defendant at first

appearance. Persons arrested without a warrant for violations of probation or community control

must be set on the presiding judge’s next available violation of probation docket.

7. EXTRADITION: FUGITIVES FROM OTHER STATES--FUGITIVE

WARRANTS--GOVERNOR’S WARRANTS

Persons arrested in this state and charged with a crime in another state are entitled

to a modified first appearance pending extradition to the “demanding state.” Extradition procedures

are governed by statute under the Uniform Interstate Extradition Act.

The Rules of Criminal

Procedure do not apply in extradition cases because persons awaiting extradition are not subject to

the rules.

There are three types of arrests involving extradition.

a. GOVERNOR’S WARRANT:

A Governor’s warrant is issued by the governor of Florida after the demanding

state files a demand in writing alleging that the accused was present in the demanding state at the

time of the commission of the alleged crime, and thereafter the accused fled from the demanding

state. The written demand must be accompanied by an authenticated copy of an indictment or

information supported by an affidavit or by a copy of a warrant supported by an affidavit made

before a committing magistrate of the demanding state.

1) FIRST APPEARANCE

a) Advise of Rights and Appointment of Counsel

The first appearance judge must inform persons arrested on a

The term “fugitive warrant” includes a Governor’s warrant as well as a warrant for the arrest of an accused issued

by a Florida judge pending the receipt of a Governor’s Warrant. France v. Judd, 932 So. 2d 1263, 1265 (Fla. 2d DCA

2006); Silvers v. Coleman, 504 So. 2d 20 (Fla. 2d DCA 1987); Carter v. Coleman, 443 So. 2d 491 (Fla. 2d DCA

1984).

Chapter 941, Fla. Stat. (2018).

Fla. R. Crim. P. 3.010; Payne v. Askew, 350 So. 2d 831 (Fla. 1977).

Governor’s warrant as follows:

i. The name of the demanding state and the crime for which the

prisoner is charged in that state.

ii. The right to counsel as in other first appearances.

iii. The right to test the legality of the arrest through habeas

corpus. If the prisoner or counsel desire to test the legality of

arrest, a reasonable time must be fixed in which to file the

petition in the circuit court.

b) Persons in custody on a Governor’s warrant must be given a

copy of the warrant and the demand from the demanding state.

c) Persons in custody on a Governor’s warrant are not

entitled to release except through habeas corpus.

d) Indigent persons in custody on a Governor’s warrant are

entitled to appointment of counsel as in other cases.

b. ARREST PRIOR TO REQUISITION--ARREST WITHOUT A

WARRANT

A person may be arrested without a warrant by any peace officer, or a private

person, without a warrant, upon reasonable information that the accused is charged in another state

with a crime punishable by imprisonment for a term exceeding one year.

The person must be taken to first appearance and a complaint under oath must

be provided setting forth the ground for the arrest; thereafter, the case shall proceed as if the accused

had been arrested on a warrant.

c. ARREST PRIOR TO REQUISITION—WARRANT

Persons may be arrested in Florida on a warrant issued by a Florida judge based

upon the affidavit of any credible person charging any of the following:

1) The commission of a crime in any other state.

2) The person named in the warrant has fled from justice.

3) The person named in the warrant has been convicted in another state

and has escaped from confinement, or broken the terms of bail,

probation, or parole.

4) The person named in the warrant has been charged in another state

with the commission of a crime and has fled from justice, or the

person has been convicted of a crime in that state and has escaped

from confinement, or has broken the terms of bail, probation, or

§ 941.10, Fla. Stat. (2018).

§ 941.10(2), Fla. Stat. (2018).

Bentzel v. State, 585 So. 2d 1118, 1120 (Fla. 1st DCA 1991).

§ 941.14, Fla. Stat. (2018).

Id.

§ 941.13, Fla. Stat. (2018).

parole and is believed to be in Florida.

d. FIRST APPEARANCE--ARREST PRIOR TO REQUISITION

Advise of rights and appointment of counsel.

Persons arrested on a warrant prior to requisition by the demanding state must

be brought before the first appearance judge and given a copy of the complaint or affidavit on which

the warrant was issued and a copy of the warrant.

In addition, the person arrested on the warrant

must be provided with the following information:

1) The name of the demanding state and the crime for which the prisoner

is charged in that state.

2) The right to counsel as in other first appearances.

3) The right to test the legality of the arrest through habeas corpus. If

the prisoner or counsel desire to test the legality of arrest, a

reasonable time must be fixed in which to file the petition in the

circuit court.

e. COMMITMENT TO AWAIT REQUISITION OR BAIL

The first appearance judge may commit the person arrested on the warrant to the

custody of the county jail for up to 30 days to await the arrest on a Governor’s warrant if the first

appearance judge finds the person held is the person charged with having committed the crime

alleged, or the person has fled from justice. Alternatively, the first appearance judge may set bail

pending arrest on the Governor’s warrant. Bail may not be set on charges punishable by death or

life imprisonment.

The first appearance judge may extend the time for holding the accused in

custody for a further period not to exceed 60 days or set bail.

There is no provision in the statute for release on conditions other than bail.

The first appearance judge shall advise the accused of the right to counsel and

appoint counsel if the accused is indigent and wants counsel.

f. WAIVER OF EXTRADITION

A person charged with having committed a crime in another state or who is

alleged to have escaped from confinement, or broken the terms of bail, probation or parole, may

waive the procedures set forth above. The waiver must be in writing, executed before the first

appearance judge or any other judge. The waiver must state the person consents to return to the

demanding state. The judge must advise the accused of the right to the issue of a Governor’s warrant

and the right to test the proceedings by habeas corpus before executing the waiver.

The accused

should be encouraged to speak to counsel before executing an extradition waiver.

Id.

§§ 941.15 and 941.16, Fla. Stat. (2018).

§ 941.17, Fla. Stat. (2018).

§ 941.26(1), Fla. Stat. (2018).

A hearing is unnecessary if the accused is currently on probation, parole, or other

release in the demanding state and has signed a prior waiver as a condition of the current probation,

parole, or other release.

III. DUTY OF ARRESTING OFFICERS, BOOKING OFFICERS AND FIRST

APPEARANCE CORRECTIONAL OFFICERS

A. APPLICABILITY

An “arresting officer” is any sworn law enforcement officer possessing power of arrest in

Seminole County, including any parole, probation, or community control supervisor.

B. ARREST AFFIDAVITS

The arresting officer shall complete a complaint or arrest affidavit at the time the person

arrested is booked into the John E. Polk Correctional Facility. The affidavit shall be made part of

the arrest file delivered to the first appearance clerk prior to the next scheduled first appearance.

The arrest affidavit must set forth facts, under oath, that are sufficient to establish probable cause

for the arrest. The arrest affidavit must state the name of the court and county in which the

defendant is being supervised, if the arrest is for violation of probation or community control.

Parole, probation, or community control supervisors who make probable cause arrests shall

complete an arrest affidavit at the time the person is booked into the jail or, if a law enforcement

agency is requested to transport the person to jail, before the person is turned over to the law

enforcement officer. The arrest affidavit must state the name of the court and county in which the

defendant is being supervised.

Failure to prepare an adequate arrest affidavit is not an “extraordinary circumstance” that

will authorize the first appearance judge to continue the first appearance hearing longer than 48

hours from the time of arrest.

C. BAIL PRIOR TO FIRST APPEARANCE

Arresting officers shall consult the Seminole County Bond schedule at the time of booking

the arrested person and shall set bail in accordance with the schedule on each offense charged in

the arrest affidavit.

D. BOOKING OFFICERS

Booking officers shall process arrested persons into custody and shall collect the arrest

report and related documents from the arresting officer. The booking officer shall deliver the arrest

report and related documents to the first appearance clerk who prepares the first appearance docket.

Arrested persons who have completed the booking process shall be given the opportunity to

promptly communicate with an attorney, family members, and a bonding company.

Booking officers shall immediately advise arrested persons of their right to counsel. Any

arrested person who is, or claims to be, indigent, shall immediately and effectively be placed in

§ 941.26(3)(a), Fla. Stat. (2018).

§ 903.02(4), Fla. Stat. (2018).

communication with the public defender.

Booking officers shall make two copies of the arrest report and related documents. One copy

shall be delivered to the arrested person at first appearance. The other copy shall be delivered to

the first appearance clerk with the original.

E. RELEASE AND TRANSPORT OF PRISONERS WITH CHARGES FROM

OTHER COUNTIES

Any defendant who is brought into custody in Seminole County having charges from other

counties shall be scheduled for a first appearance regardless of whether they have local charges as

a basis for arrest. These matters from other counties include, but may not be limited to:

1. Direct file capias or arrests (warrants with a pre-set bond amount by another

county);

2. Failure to appear warrants (with a pre-set bond amount or no bond from another

county);

3. Over the line arrest (with or without a pre-set bond);

4. Violation of probation warrants (with a pre-set bond amount or no bond from

another county);

5. Warrantless violation of probation charges (always with no pre-set bond); and

6. Writs of bodily attachment (with a cash purge amount)

In all such cases, a first appearance is held initially to inform the defendant of the charges(s)

and provide paperwork, to conduct a review of pre-set bond amounts/conditions, and to order the

defendant (if not readily able to post bond) to be prepared for transport and return to the other

county as soon as practicable. The initial first appearance judge will review the pre-set bond or no

bond status taking into account all relevant factors; however, a subsequent review by another first

appearance judge of all such out of county matters will not be necessary.

In any individual case in

which of an out-of-county prisoner with no local charges (or no longer having local charges

pending) is denied transportation or otherwise is not picked up by the other county within a

reasonable time, then the state attorney or the jail officers can request, by memo to the clerk, that

the matter be reviewed by the court during any weekly rotation by a first appearance judge. The

clerk is authorized to schedule on the next business day docket. The court will be advised in the

premises on the issue of the inability or failure to transport and can readdress bond and/or conditions

of release accordingly.

F. PRETRIAL RELEASE OFFICERS

Pretrial release officers shall make every effort to interview defendants scheduled for first

appearance and complete pretrial release forms, appointment of counsel affidavits, and related

documents for review by the first appearance judge. Appointment of counsel affidavits shall be

provided to all defendants who request them, including defendants in custody on charges from

another county or state. Pretrial release forms, appointment of counsel affidavits, and related

Fla. R. Crim. P. 3.111(c).

Norris v. State, 737 So. 2d 1240 (Fla. 5th DCA 1999).

documents shall be delivered to the first appearance clerk who prepares the first appearance docket.

G. FIRST APPEARANCE CORRECTIONAL OFFICERS

First appearance correctional officers shall identify non-English-speaking arrestees and

place them on the first row of the courtroom so the first appearance judge can call these cases first

and minimize the cost of translators.

It is the responsibility of the first appearance correctional officers to distribute a copy of the

complaint and related documents as well as a copy of the clerk’s minutes setting the next court date

to each defendant who is scheduled at first appearance.

IV. DUTY OF THE CLERK OF THE COURT

A. PREPARATION OF THE FIRST APPEARANCE FILE

The first appearance clerk shall obtain the arrest reports and related documents for persons

arrested in the last 24 hours from the booking officer prior to first appearance and shall organize

them in the court file in such a manner that the first appearance judge can easily locate the arrest

affidavit. During the normal work week, the cut-off time for a person to be added to the first

appearance docket shall be 7:00 a.m. On weekends and holidays, the cutoff time for adding any

person to the first appearance docket shall be 2:00 a.m. Any person booked into the jail after that

time shall be placed on the first appearance docket for the next day.

The court file shall contain the following documents:

1. The complaint or arrest report, including attachments.

2. The pretrial release interview sheet.

3. The application/affidavit for court appointed counsel.

4. Criminal history print-outs.

All other papers, such as victim statements suggesting conditions of pretrial release, shall

not be filed in the court file but shall be delivered to the prosecuting attorney at first appearance.

B. DELIVERY OF COPIES OF THE COMPLAINT AND RELATED

DOCUMENTS

The first appearance clerk shall supply copies of the complaint or arrest report, along with

any documents used by the first appearance judge to set bail, to the state attorney and the public

defender (or private counsel who are present) prior to first appearance.

C. PREPARATION OF THE FIRST APPEARANCE DOCKET

The first appearance clerk shall prepare a first appearance docket prior to each daily first

appearance session. The first appearance docket shall contain the name of each person who is

arrested on a criminal charge, the charges contained on the arrest report, or other reason for the

arrest, the bail set by the arresting officer, and the future court date.

The following categories of persons shall not appear on the first appearance dockets:

1. Military deserters.

2. Witnesses in protective custody.

3. State prisoners who are on early release from the Department of Corrections.

4. Prisoners who have been transported to Seminole County from another facility

and who have no Seminole County charges.

5. Prisoners who have been turned in by their surety.

6. Parole violators. (except for those who have new charges)

7. Persons in custody on a Seminole County writ of attachment.

8. Federal prisoners.

9. Defendants whose bond or pretrial release status has been revoked.

10. Mental Health cases

Persons who have been transported from another facility who have previously had a first

appearance on pending charges shall be included on the first appearance docket for the sole purpose

of confirming a future court date has been set. These persons shall not be brought to first appearance

hearings.

D. ATTENDANCE AT FIRST APPEARANCE

One or more first appearance clerks shall attend first appearance hearings and perform all

statutory duties, including preparation of minutes of the proceedings and administering oaths to

witnesses.

E. FIRST APPEARANCE MINUTES

The first appearance clerk shall immediately provide a copy of the first appearance

minutes to the booking officer.

V. DUTY OF THE STATE ATTORNEY

A. DUTIES PRIOR TO FIRST APPEARANCE HEARINGS

1. The state attorney shall review the arrest affidavits before first appearances

to determine if the affidavits meet the requirement of stating probable cause. The state attorney

has the responsibility to contact the arresting officer and have the officer supplement the affidavit

prior to first appearance if the affidavit is insufficient.

2. The state attorney shall identify cases in which the defendant has been

arrested without a warrant for violation of probation or community control in Seminole County

and shall verify the fact the defendant is on probation or community control.

3. The state attorney shall determine the prior records of persons appearing on

the first appearance docket and be prepared to disclose such record at the first appearance hearing.

The state attorney shall be prepared to identify cases that are subject to the Jessica Lunsford Act

or the Anti-Murder Act .

4. In cases of violation of probation or community control in which the

offender is not under supervision in Seminole County, the state attorney shall contact the county

Fla. R. Crim. P. 3.130(a).

§ 948.06(4), Fla. Stat. (2018).

§ 903.0351, Fla. Stat. (2018).

in which the offender is being supervised and obtain a copy of the affidavit of violation of

probation or community control, or competent evidence showing the defendant is on probation or

community control, such as a facsimile copy of the judgment.

5. The state attorney is responsible for preparing two copies of any document

used by the state to determine pretrial release for each defendant on the first appearance docket,

including multi-defendant cases. A criminal history report is an example of this type of document.

These documents shall be delivered to the first appearance clerk for delivery to the first

appearance judge and the defendant or defense counsel.

6. If the defendant has been arrested on an out of county warrant or capias,

and the underlying complaint or affidavit is not attached to the warrant or capias, the state

attorney is responsible to obtain a copy on 24 hours notice.

7. If the defendant has been arrested on an out-of-state warrant, the state

attorney shall contact the appropriate officer in the demanding state and obtain a copy of the

warrant, if the warrant is not part of the booking papers. The local supervising officer in

Seminole County shall be contacted if the Department of Corrections is supervising the defendant

from another state.

8. In domestic violence cases, perform a thorough [F.S. 741.2901(3)]

investigation of the defendant’s history, including, but not limited to: prior arrests for domestic

violence, prior arrests for non-domestic violence charges, prior injunctions for protection against

domestic and repeat violence filed listing the defendant as respondent and noting history of other

victims, and prior walk-in complaints filed against the defendant. Additionally, the state attorney

shall obtain information about the relationship of the parties and, if the parties reside together,

determine who has the right to possession of the residence. The state attorney shall also advise the

court of the seriousness of any injuries suffered and obtain suggested conditions of release from

the victim.

B. DUTIES AT FIRST APPEARANCE

The state attorney, or one or more assistant state attorneys, shall be present to represent the

state at all first appearance hearings and shall be prepared to accomplish the following tasks:

1. The state attorney shall review the docket and present plea offers to the first

appearance public defender for any prisoners in custody on misdemeanor charges, except for the

following exclusions:

a. The defendant is on probation or community control.

b. The defendant is charged with a violent crime.

c. There are possible double jeopardy problems.

d. The charge can be enhanced to a felony due to prior record.

e. The defendant is not a citizen and is potentially subject to deportation.

f. Restitution may become an issue.

g. The defendant is charged with an offense in which the alleged victim has

not been notified.

2. The state attorney shall make a showing at the first appearance hearing to

establish the basis for holding any defendant without bond who is subject to the Jessica Lunsford

Act [F. S. 948.06(4)] or the Anti-Murder Act [F. S. 903.0351]. The showing does not have to

meet the requirements of an evidentiary hearing but must be sufficient to convince the first

appearance judge the defendant is subject to one of these acts.

The first appearance judge will not accept the suggestion that a defendant “may” or

“might” be subject to detention without evidence to support the suggestion.

VI. DUTY OF THE PUBLIC DEFENDER

A. IN GENERAL

The constitutionally protected right to counsel applies to all “critical” stages of the

proceedings against anyone accused of a crime.

A “critical” stage is defined as “any stage of the

prosecution formal or informal, in court or out of court, where counsel’s absence might derogate

from the accused’s right to a fair trial.”

The right attaches immediately at or after the time that

judicial proceedings have been initiated against an accused. Under Florida’s Rules of Criminal

Procedure, the right to counsel attaches when a “person is formally charged with an offense, or as

soon as feasible after custodial restraint, or at first appearance before a committing magistrate,

whichever occurs earliest.”

Counsel must be “provided to indigent persons in all prosecutions

for offenses punishable by incarceration.”

Indigent persons are entitled to counsel, in adversary

proceedings, regardless of the designation of the court in which they occur.

The rule is broad

enough to cover all incarcerated persons who are, or claim to be, indigent.

Defendants who remain in custody unable to hire private counsel prior to their

Arraignment/next local court date or otherwise later apply to qualify for the services of the public

defender while in custody may be scheduled for “Counsel Review” before a First Appearance

judge. The counsel review hearing must be scheduled by the Public Defender with a memo to the

Clerk who is authorized to set on the next business day at the jail.

The Public Defender is also obligated and is allowed to schedule any “33-day Motions” if

appropriate for review by the First Appearance judge in weekly rotation at the jail.

The review

must be scheduled with a memo to the Clerk who is authorized to set on the next business day at

the jail.

Rule 3.111(c) requires the booking officer to immediately put an arrestee in contact with a

lawyer from the Office of the Public Defender upon the request of the arrestee. The rule also

requires the public defender to affirmatively and effectively provide legal advice to all arrestees

who are, or claim to be, indigent and who are in custody and awaiting first appearance.

Michigan v. Jackson, 475 U.S. 625 (1981), overruled on other grounds, Montejo v. Louisiana, 556 U.S. 778 (2009);

Arsenault v. Com. of Mass., 393 U.S. 5 (1968); Owen v. State, 596 So. 2d 985, 989 (Fla. 1992); Traylor v. State, 596

So. 2d 957, 968 (Fla. 1992).

Estelle v. Smith, 451 U.S. 454, 470 (1981); United States v. Wade, 388 U.S. 218, 226 (1967); Anderson v. State,

420 So. 2d 574, 576 (Fla. 1982).

Fla. R. Crim. P. 3.111(a).

Fla. R. Crim. P. 3.111(b)(1).

Fla. R. Crim. P. 3.111(b)(2).

Fla. R. Crim. P. 3.134

The public defender must review the intake data daily to make sure there are no arrestees

in custody who are indigent and without counsel. For instance, arrestees who have been turned in

by their bonding company already have a court date and are not placed on the first appearance

docket. These persons may have been released from custody prior to first appearance and may

not have been appointed counsel. The public defender is responsible to provide each of them an

application for appointment of counsel, assist them to complete it, and deliver the affidavit to the

Clerk of the Court without delay.

B. PRIOR TO FIRST APPEARANCE

Prior to first appearance the public defender shall:

1. Comply with the provisions of Rule 3.111(c), and interview any defendant

who is on the first appearance docket who is, or claims to be, indigent.

2. Review the arrest reports and related documents prior to first appearances

and interview persons in custody. All persons in custody shall be advised of the danger of

discussing the facts of their cases with anyone except their lawyer.

3. Identify any defendant who may wish to hire private counsel, advise that

defendant of the dangers of waiving counsel at the first appearance hearing, and either represent

the defendant at the first appearance hearing or advise the first appearance judge of the

availability of private counsel.

4. Identify any defendants who appear to be indigent and be prepared to

represent these defendants at the first appearance hearing.

5. Be prepared to present any objections to the finding of probable cause at

the first appearance hearing.

6. Advise persons in custody on out-of-county or out-of-state warrants of their

right to counsel and to habeas corpus.

7. Advise persons in custody on out-of-county or out-of-state warrants of their

right to counsel.

8. Follow up out-of-county arrests by monitoring the transfer of out-of-county

or out-of-state defendants and bringing the cases to the attention of the first appearance judge if

no action has been taken to transfer these defendants.

9. Notify the first appearance judge if there is a conflict that would require the

appointment of conflict counsel.

10. Prepare motions for the release of prisoners who have been in custody for

33 days.

C. DUTIES AT FIRST APPEARANCE

The public defender, or one or more assistant public defenders, shall be present at all first

appearance hearings and shall be prepared to accomplish the following tasks:

1. Present any objections to the finding of probable cause to the attention of

the first appearance judge.

Fla. Stat. § 27.52(1)(e)(2) (2018).

2. Present argument or evidence on conditions of release.

3. Be prepared to address the legality of pretrial detention if the state attorney

attempts to show the defendant qualifies for pretrial detention under the Jessica Lunsford Act or

the Anti-Murder Act.

4. Otherwise represent defendants who have been appointed the public

defender.

D. DUTIES AFTER FIRST APPEARANCE AND BEFORE ARRAIGNMENT

The public defender has a continuing obligation to assist incarcerated persons to complete

indigency affidavits and deliver them to the clerk of the court without delay. Additionally, the

public defender shall represent indigent defendants if the state attorney files a motion for pretrial

detention and shall monitor each case for the purpose of filing a motion for release from custody

on the 30th day if the state has not filed an indictment or information, and schedule a hearing

before the first appearance judge or the presiding judge.

CONCLUSION

First appearances are a critical stage of criminal proceedings and must be the

subject of careful preparation on the part of the state attorney, the public defender, and private

counsel. The first appearance judge has six specific tasks to perform at each first appearance and,

with rare exceptions, these tasks must be accomplished at the time of the first appearance hearing.

Suggestions on how to improve this manual are welcome.

APPENDIX A

BAIL SCHEDULE

IN THE CIRCUIT COURT OF THE

EIGHTEENTH JUDICIAL

CIRCUIT OF FLORIDA

ADMINISTRATIVE ORDER

NO.:24-16

SUPERSEDES 18-21-B & 18-22-S

AMENDED

IN RE: CRIMINAL - BOND SCHEDULE FOR BREVARD AND SEMINOLE COUNTIES

_____________________________________________________________________________________

_ Bond is an essential part of the criminal justice system, and a bond schedule is hereby promulgated so

that law enforcement officers and booking officers can set bonds on arrests prior to first appearance. This

bond schedule comports with section 903.011, Florida Statutes, and the Uniform Statewide Bond

Schedule for criminal offenses that is annually adopted by the Florida Supreme Court. This schedule is

not binding upon first appearance judges, who have the responsibility to review arrests at first appearance

and set conditions of release pursuant to Florida Rules of Criminal Procedure 3.131 and Chapter 903,

Florida Statutes. Within this bond schedule, special provisions setting bond for specific offenses control

over general provisions that may also be applicable to the specific offense.

Under the provisions of section 903.02(4), Florida Statutes, and Rule 3.131(b)(2), a separate and specific

bail amount must be set for each offense charged.

It shall be a condition of bond in every case that the defendant shall refrain from criminal activity of any

kind. In cases that involve an alleged victim, it shall be a condition of bond that the defendant will have

no direct or indirect contact with the alleged victim, except through pretrial discovery pursuant to the

Florida Rules of Criminal Procedure.

IT IS ADJUDGED:

I. OFFENSES FOR WHICH NO BOND SHALL BE SET UNTIL THE FIRST

APPEARANCE PROCEEDING BEFORE A JUDGE

1. Capital Felony

2. Life Felony

3. Felony of the First Degree

4. Felony of the Second Degree

5. Homicide under Chapter 782

6. Attempt/Solicitation/Conspiracy to Commit Homicide

7. Persons who are arrested for a felony while released on bail for a separate felony

8. Robbery

9. Burglary

10. Carjacking

11. Armed Home Invasion (Firearm or Dangerous Weapon)

12. Kidnapping

13. Trafficking in a controlled substance, including Conspiracy to engage in

trafficking a controlled substance

14. Sale or Delivery of a Controlled Substance (3rd Offense or more)

15. Manufacture of Methamphetamine

16. RICO Act Violations (section 895.03, Florida Statutes) or Racketeering

17. Escape

18. Felony Battery

19. Stalking

20. Domestic Violence (Any felony or misdemeanor offense defined in section

741.28(1), Florida Statutes)

21. Violations of any protective injunction (i.e., Domestic Violence Injunctions,

Repeat Violence Injunctions, Dating Violence Injunctions or Sexual Violence

Injunctions), regardless of the nature of the alleged violation

22. Violation of any Condition of Release where the underlying offense is one of

Domestic Violence or Dating Violence

23. Assault in furtherance of a riot or an aggravated riot

24. Violations of Felony Probation or Community Control, unless

a. There is a violation of probation warrant, which, on its face, provides that

the probationer does not meet the qualifications for a “danger to public”

hearing as defined in section 948.06(4), Florida Statutes, (as amended by

the “Jessica Lunsford Act”); and

b. Such violation of probation warrant sets a bond amount.

25. Any criminal offense if the defendant is currently on felony probation or

community control

26. Possession of a Firearm or ammunition by a felon, violent career criminal, or

person subject to an injunction against committing acts of domestic violence,

stalking, or cyberstalking

27. Any felony involving the use or threatened use of a firearm

28. DUI Manslaughter

29. DUI 4th Offense or More

Within this provision, the term “offense” refers to an arrest for violation of law for which the

defendant has been previously “convicted” two or more times. The term “convicted” is defined in

accordance with section 775.13, Florida Statutes, as “a determination of guilt which is the result

of a trial or the entry of a plea of guilty or nolo contendre, regardless of whether adjudication is

withheld.”

30. Any felony offense when the defendant was, at the time of his/ her arrest for said

felony, on pretrial release, probation, or community control in this state or any

other

31. Any offense when the defendant was, at the time of arrest, designated as a sexual

offender or sexual predator in this state or any other state

32. Any offense when the defendant was, at the time of arrest, on release from

supervision under section 947.1405, Florida Statutes, (Conditional Release

Program); section 947.146, Florida Statutes, (Control Release Authority); section

947.149, Florida Statutes, (Conditional Medical Release); or section 944.4731,

Florida Statutes, (Addiction-Recovery Supervision Program)

33. Any offense when the defendant has, at any time before the current arrest, been

sentenced pursuant to sections 775.082(9) or 775.084, Florida Statutes, as a

“Habitual Violent Felony Offender”, “Three-time Violent Felony Offender”,

“Violent Career Criminal”, or “Prison Releasee Reoffender”

34. Any offense if the defendant has been arrested three (3) or more times in the six

(6) months immediately preceding his or her arrest for the current offense

35. Mob intimidation

36. Assault or battery on a person 65 years of age or older

37. Assault or battery on a law enforcement officer, juvenile probation officer, or

other staff of a detention center or commitment facility, staff member of a

commitment facility, or health services personnel

38. Resisting an officer with violence

39. False Imprisonment

40. Human trafficking

41. Human smuggling

42. Sexual battery

43. Indecent, lewd, or lascivious touching

44. Exposure of sexual organs

45. Incest

46. Luring or enticing a child

47. Child pornography

48. Abuse, neglect, or exploitation of an elderly person or disabled adult

49. Child abuse or aggravated child abuse

50. Arson

51. Riot, aggravated riot, inciting a riot, or aggravated inciting a riot; or a burglary or

theft during a riot

52. Tampering or retaliating against a witness, victim, or informant

53. Destruction of evidence

54. Tampering with a jury

55. Any offense committed for the purpose of benefiting, promoting, or furthering

the interests of a criminal gang

56. Failure to appear at required court proceedings while on bail

57. Violation of a Risk Protection Order or Temporary Risk Protection Order.

Pursuant to Florida Rule of Criminal Procedure 3.131(a): “Unless charged with a

capital offense or an offense punishable by life imprisonment and the proof of

guilt is evident or the presumption is great, every person charged with a crime

shall be entitled to pretrial release on reasonable conditions If no conditions of

release can reasonably protect the community from risk of physical harm to

persons, assure the presence of the accused at trial, or assure the integrity of the

judicial process, the accused may be detained.”

II. ARRESTEES SUBJECT TO THE JESSICA LUNSFORD ACT

1. The Jessica Lunsford Act requires a judge to make a finding that a probationer or

an offender on community control who is arrested for violating his/her probation

or community control is not a “danger to public” prior to his/her release with or

without bail where the probationer or offender on community control is:

a. A registered sexual predator, or

b. A registered sexual offender, or

c. Under supervision for any criminal offense prescribed in Chapter 794,

Florida Statutes, (Sexual Battery); section 800.04(4), Florida Statutes,

(Lewd or Lascivious Battery); section 800.04(5), Florida Statutes, (Lewd

or Lascivious Molestation); section 800.04(6), Florida Statutes, (Lewd

or Lascivious Conduct); section 827.01, Florida Statutes, (Sexual

Performance by a Child), or section 847.0145, Florida Statutes, (Selling

or Buying of Minors), or

d. Under supervision for a criminal offense for which he/she would meet

the registration criteria in sections 775.21, 943.0435, or 944.607, Florida

Statutes, but for the effective date of those sections.

2. A probationer who is subject to the provisions of the “Jessica Lunsford Act” shall

not be released on bail unless there is a judicial finding that he or she is not a

danger to the public. If there is no such finding on the face of the warrant, the

offender shall be held without bail, even if the warrant provides a specific bail

amount.

3. If the judge who issued the warrant expressly states that the offender is not a

danger to the public, bail shall be set in the amount provided for in the warrant.

4. If the judge issuing the warrant does not include a finding that the offender is not

a danger to the public and the offender is thereby held without bail, the first

appearance judge may, in their discretion, hold the hearing and make findings as

provided in section 948.06(4), Florida Statutes. If the first appearance judge does

not hold this hearing, the court shall set the case for a status hearing in the

assigned criminal division within 72 hours of the first appearance hearing.

III. RECOMMENDED BOND AMOUNTS:

1. Pursuant to section 903.011, Florida Statutes, defendants arrested for offenses

enumerated in Section I, must be held at no bond until seen at first appearance by

a judge.

2. The bond amounts enumerated in Sections IV-VII, shall be used by law

enforcement officers and booking officers to set bonds on offenses for which a

defendant is not required to be held at no bond until first appearance.

3. The bond amounts enumerated in Sections IV-VII, shall also serve as

recommendations to judges conducting first appearance or judges conducting

bond hearings. Notwithstanding these recommendations, judges may set bond at

a first appearance or bond hearing in any reasonable amount utilizing the factors

set forth in Florida Rule of Criminal Procedure 3.131 and Chapter 903, Florida

Statutes.

IV. SPECIFIC OFFENSES:

OFFENSE

RESIDENCY

LOCAL

FLORIDA

OUT-OF-

STATE

OUT-OF-

COUNTRY

1. Third Degree Murder

$15,000

$20,000

$25,000

$35,000

2. Manslaughter

$15,000

$20,000

$25,000

$35,000

3. Vehicular Homicide

$15,000

$20,000

$25,000

$35,000

4. Leaving Scene of Accident Involving

Death/Personal Injury

$15,000

$20,000

$25,000

$35,000

5. Burglary of an Occupied Dwelling

$15,000

$20,000

$25,000

$35,000

6. All other non-armed Burglaries

$5,000

$8,000

$10,000

$15,000

7. Sexual Offenses –

First Degree Felony

$35,000

$40,000

$50,000

$60,000

8. Sexual Offenses –

Second Degree Felony

$15,000

$20,000

$25,000

$35,000

9. Sexual Offenses –

Third Degree Felony

$5,000

$8,000

$10,000

$15,000

10. DUI Involving Personal Injury

$15,000

$20,000

$25,000

$35,000

11. DUI – Third Offense

$5,000

$8,000

$10,000

$15,000

12. Aggravated Fleeing or Attempting

to Elude

$15,000

$20,000

$25,000

$35,000

13. Fleeing or Attempting to Elude

$5,000

$8,000

$10,000

$15,000

14. Sale or Delivery of a Controlled

Substance (Second Offense)

$35,000

$40,000

$50,000

$60,000

15. Sale or Delivery of a Controlled

Substance (First Offense)

$15,000

$20,000

$25,000

$35,000

16. Possession of a Listed Chemical

$25,000

$30,000

$35,000

$40,000

17. Computer Crimes Involving Child

Pornography or Soliciting Sexual

Conduct by a Child

$35,000

$40,000

$50,000

$60,000

18. Failure to Register as a Sex Offender

$15,000

$20,000

$25,000

$35,000

V. NON-ENUMERATED FELONIES

OFFENSE

RESIDENCY

LOCAL

FLORIDA

OUT-OF-

STATE

OUT-OF-

COUNTRY

1. First Degree Felony (Non-Violent)

$15,000

$20,000

$25,000

$35,000

2. Second Degree Felony (Violent)

$15,000

$20,000

$25,000

$35,000

3. Second Degree Felony (Non-Violent)

$5,000

$8,000

$10,000

$15,000

4. Third Degree Felony (Violent—with at

least one prior violent felony

conviction)

$15,000

$20,000

$25,000

$35,000

5. Third Degree Felony (Violent)

$5,000

$8,000

$10,000

$15,000

6. Third Degree Felony (Non-Violent)

$2,500

$3,000

$5,000

$8,000

VI. WARRANTS

1. Bond for persons arrested on a violation of felony probation shall be set as

provided for in the warrant itself.

2. Bond for persons arrested on an arrest warrant shall be set as provided for in the

warrant itself. If the warrant is silent as to a bond amount, the bond shall be set

as otherwise provided in this Administrative Order. If a bond amount provided

for in an arrest warrant is less than that recited in this Administrative Order, the

bond shall be set in accordance with the provisions of this Administrative Order,

thus ensuring compliance with section 903.011, Florida Statutes, and the Florida

Supreme Court’s Uniform Statewide Bond Schedule.

VII. MISDEMEANORS, NOTICES TO APPEAR, AND PRETRIAL RELEASE

1. Pursuant to Florida Rule of Criminal Procedure 3.125(c), if an arresting officer

does not issue a notice to appear because of one of the exceptions listed in

3.125(b) and takes the accused to police headquarters or to the jail complex, a

booking officer or deputy may issue a notice to appear if the booking officer or

deputy determines there is a likelihood that the accused will appear as directed,

based on a reasonable investigation of the accused’s:

a. Residence and length of residence in the community;

b. Family ties in the community;

c. Employment record;

d. Character and mental condition;

e. Past record of convictions; or

f. Past history of appearance at court proceedings.

2. Unless the Brevard County or Seminole County Sheriff’s Office Pretrial Release

Divisions determine that non-monetary release is not appropriate for the reasons

set forth in sections 907.041(3) or (4), Florida Statutes, the first appearance judge

may order that a person be released under the supervision of Pretrial Release

(“PTR”).

3. The Seminole County Sheriff’s Office Pretrial Release Division shall recommend

the appropriate level of PTR supervision, as defined below:

a. PTR: Weekly telephonic reporting or reporting through a Web-based

software application.

b. Supervised PTR: Report as directed to the probation division based on

the conditions set forth in the Pretrial Release Conditions.

c. EMPACT: Report as directed to the probation division based on the

conditions set forth in the Pretrial Release Conditions.

The first appearance court retains the discretion to adopt the recommendation

and release the defendant on PTR, release the defendant on a more or less

restrictive level of PTR, or reject the PTR recommendation and set an

appropriate monetary bond. The first appearance judge may impose any

reasonable conditions of PTR.

4. The Brevard County PTR Program or the Seminole County Sheriff’s Office shall

notify the Office of the State Attorney of any violation(s) of PTR release

condition(s) which did not result in the defendant’s arrest. The Office of the State

Attorney may seek to revoke PTR as provided by law.

5. If PTR is deemed to be insufficient or unavailable pursuant to section 907.041,

Florida Statutes, bond shall be set as follows unless the particular circumstances

in the case necessitate a higher bond be set to ensure the defendant’s presence at

all court hearings or for the protection of the public:

Misdemeanor Offense

Bail

DUI or BUI (First Offense; second degree misdemeanor)

$500

DUI or BUI (Second Offense; second degree

misdemeanor)

$1,000

DUI or BUI (first degree misdemeanor)

$1,000

Criminal Traffic Offenses

$500

First Degree Misdemeanors or ordinances punishable

like a first degree misdemeanor that involve any amount

of force or threat of force against a person

$1,000

All other First Degree Misdemeanors, or ordinances

punishable like a first degree misdemeanor, that do not

involve any force or threat of force against a person and

that is not driving under the influence or boating under

the influence

$500

Second Degree Misdemeanors

$250

Violations of conditions of release where the underlying

offense is not one of Domestic Violence or

Dating Violence

$1,000

6. As to all individuals arrested for the offense of DUI, any release must also comply

with the criteria set forth in 316.193(9), Florida Statutes.

7. The Sheriff’s Office may recommend a defendant for release on PTR at any time,

including when a monetary bond has previously been set. If the Seminole County

Sheriff’s Office Pretrial Release Division finds that a detainee should properly be

released on PTR, it shall follow the above procedures in making a

recommendation as to the appropriate level of supervision and shall have the case

set on the next first appearance docket.

VIII. DEFINITIONS

The following definitions apply to this bail schedule:

1. Local Resident – A person qualifies as a local resident if his/her principal place of

domicile is located in Seminole County or Brevard County, respectively, and has

been so for a period of three (3) months.

2. Florida Resident – A person qualifies as a Florida resident if his/her principal

place of domicile is located in the State of Florida and has been so for a period of

three

(3) months.

3. Out-of-State Resident – A person qualifies as an out-of-state resident if his/her

principal place of domicile is located outside the State of Florida but in another

state within the United States and he/she is a United States citizen or he/she is a

foreign national and his/her principal place of domicile is in another state within

the United States and has been so for a period of six (6) months and he/she is in

possession of such documents as permit a current domicile within the United

States or such permit is otherwise corroborated.

4. Out-of-Country Resident – A person qualifies as an out-of-country resident if

he/she is not domiciled in the United States or is not a United States citizen and

his/her principal place of domicile is in the United States but has been so for less

than six (6) months whether permitted or not.

5. Violent Offense – An offense qualifies as a violent offense if it involves physical

harm or bodily injury or threat of same.

6. Non-Violent Offense – An offense qualifies as a non–violent offense if it involves

no physical harm or bodily injury or threat of same.

IX. BREVARD COUNTY MISDEMEANOR WARRANT NOTIFICATION MAILER

Defendants, who have an active misdemeanor warrant or capias, may be released on

their own recognizance by compliance with the “Misdemeanor Warrant Notification

Mailer” process. Specifically, a Brevard County Sheriff’s Deputy anywhere within the

geographical boundaries of Brevard County is authorized to release the defendant when

the defendant timely presents the Misdemeanor Warrant Mailer, and the defendant

otherwise qualifies for release under this provision. The process consists of mailing the

defendant a “Brevard County Sheriff’s Office Misdemeanor Warrant Notification

Mailer.” These Misdemeanor Warrant Notification Mailers will be sent by first-class

mail to the defendant’s last known address. The defendant, who receives the

Misdemeanor Warrant Notification Mailer, would be instructed to bring proper

identification along with the Misdemeanor Warrant Notification Mailer to any deputy

sheriff within Brevard County. The deputy upon receiving the Misdemeanor Warrant

Notification Mailer would complete an arrest affidavit (923.01) to include the court

date. The defendant would be released without having to post the bond amount that is

listed on the warrant/capias. All defendant releases of the Misdemeanor Warrant

Notification Mailers shall be for nonviolent misdemeanor crimes only. No defendant

shall be released under this process for warrants/capias that include any felony, crime of

violence, failure to appear, pay or appears, violation of probation in which a cash or

surety bond has been set, violation of probation where the defendant is a registered

sexual offender or registered sexual predator, or violations of probation where the

defendant is also on felony probation or community control. In addition, under this

program, no defendant will be released for any crime that involves domestic violence

violations. The defendant will be required to respond to the Misdemeanor Warrant

Notification Mailer within 20 days of United States Postal Service postmarking. Once

the time period has expired, the bond amount originally listed on the warrant/capias will

remain in effect. The Misdemeanor Warrant Notification Mailer is person-specific and

not warrant/capias specific.

X. SPECIAL CONDITIONS OF RELEASE – DUTY OF RELEASE OFFICER

1. General Conditions for Pretrial Release Applicable to All Cases

a. The defendant shall refrain from criminal activity of any kind.

b. The defendant shall refrain from any contact of any type with the

victim(s), except through pretrial discovery pursuant to section 903.047,

Florida Statutes.

c. The defendant shall comply with all other conditions of pretrial release.

2. Persons Arrested for Domestic Violence, Repeat, Sexual, and Dating Violence;

Order of No Contact (Seminole County)

Any person who is arrested in Seminole County for an offense of domestic

violence, repeat violence, sexual violence, or dating violence shall be furnished

an Order of No Contact (Attachment 1) stating the conditions of pretrial release.

Persons arrested for any of the above-noted offenses shall not be released until

they have been instructed on the special conditions set forth in the Order of No

Contact and have signed a court-approved written notice acknowledging

instruction on the special conditions of pretrial release.

3. Persons Arrested for Sexual Offenses or Child Abuse

Any person who is arrested for a sexual offense or for child abuse shall, as an

additional condition of release, be prohibited from having direct or indirect

contact with victim(s), and the victim(s)’ family, and shall be prohibited from

returning to the residence(s) of the victim(s). Persons arrested who have

committed a sexual offense or child abuse shall not be released until they have

been instructed of these special conditions by the pretrial release officer and

have signed a written notice approved by the court.

4. Persons on Probation - Department of Corrections:

Any person who is arrested and who is on probation with supervision by the

Department of Corrections, Probation and Parole Services, shall, as an additional

condition of release, report to their Probation Officer with the Department of

Corrections, Probation and Parole services before 4:00 p.m. on the first business

day following release. An offender is considered to be on probation if he is on

parole or under any other type of supervision status by the Department of

Corrections.

5. Persons on Probation – County Probation Department

Any person who is arrested and who is on probation with supervision by the

designated County Probation Department, shall, as an additional condition of

release, report to the County Probation Department, before 4:00 p.m. on the

first business day following release.

XI. EFFECT OF FILING NOTICE OF NO INFORMATION OR NOLLE PROSEQUI

If a person arrested for any offense(s) is admitted to bail and the State Attorney files a

notice of No Information or Nolle Prosequi with respect to all charges arising out of a

single arrest, the Sheriff shall without further order of the court, release the person from

custody as to the charges named. As to the named charges and person, all bail

undertaking, not defaulted, shall be canceled, all sureties shall be exonerated, and all

release on recognizance obligations shall be discharged without further order of the

court. A bench warrant or capias which may be outstanding and is yet unserved upon a

named individual for a specified charge shall also be canceled upon the filing of a No

Information or Nolle Prosequi without further order of the court.

XII. COMPLIANCE WITH THIS ADMINISTRATIVE ORDER

Upon receipt of the person arrested the booking officer shall review the arrest form to

ensure that the arresting officer has properly set the initial bond according to this

Administrative Order. The booking officer is authorized to make changes to the bond

amount reflected on the arrest form to properly comply with this order but in

considering changes the booking officer shall consider any information in the arrest

form that the arresting officer believed called for a higher bond and shall defer to that

judgment. However, any bond set shall not exceed the amount of bail set forth in the

bond schedule.

DONE AND ORDERED this 26th day of March, 2024.

CHARLIE CRAWFORD

CHIEF JUDGE

Distribution to:

Circuit and County Court Judges (Brevard & Seminole Counties)

Clerk of the Court (Brevard & Seminole Counties)

Court Administration (Brevard & Seminole Counties)

State Attorney (Brevard & Seminole Counties)

Public Defender (Brevard & Seminole Counties)

Sheriff (Brevard & Seminole Counties)

Bar Association (Brevard & Seminole Counties)

Law Library (Brevard & Seminole Counties)

Jail Administrator (Brevard & Seminole Counties)

Pretrial Release Officer (Brevard & Seminole Counties)

Police Departments (Brevard & Seminole Counties)

ATTACHMENT 1

ORDER OF NO CONTACT IN CASES OF DOMESTIC VIOLENCE, REPEAT VIOLENCE,

SEXUAL VIOLENCE, AND DATING VIOLENCE

Pursuant to 903.047, Florida Statutes, all persons arrested for domestic violence, repeat violence,

sexual violence, or dating violence shall as conditions of pretrial release abide by the following

conditions:

(a) Refrain from criminal activity of any kind.

(b) Refrain from any contact of any type with the victim except through pretrial discovery

pursuant to the Florida Rules of Criminal Procedure.

The term “no contact” prohibits all oral or written communication either in person,

telephonically, electronically, or by any other means either directly or indirectly through

a third party with the victim or any other person named in the order.

or his or her property.

(d) Refrain from being within 500 feet of the victim’s or other named person’s residence even

if the victim or other named person shared the residence with the arrestee at the time of

arrest.

(e) Refrain from being within 500 feet of the victim’s or other named person’s vehicle, place

of employment, or other specified location frequented regularly by such person.

THIS ORDER OF NO CONTACT IS EFFECTIVE IMMEDIATELY AND IS ENFORCEABLE

FOR THE DURATION OF PRETRIAL RELEASE OR UNTIL MODIFIED BY THE COURT.

The undersigned release officer acknowledges instructing the arrestee on the above conditions

and furnishing the arrestee with a copy of the Order of No Contact.

The undersigned arrestee acknowledges being instructed on the conditions of pretrial release

contained in the Order of No Contact and being furnished with a copy of the Order of No

Contact.

This Order of No Contact applies to the following named persons and addresses:

Release Officer Defendant/Arrestee

Date Date

ELECTRONIC MONITORING

IN THE CIRCUIT COURT OF THE

EIGHTEENTH JUDICIAL CIRCUIT IN

AND FOR SEMINOLE COUNTY,

FLORIDA

ADMINISTRATIVE ORDER NO.:

17-44-S

SUPERSEDES 15-13-S

IN RE: CRIMINAL – EMPACT ELECTRONIC MONITORING OF DEFENDANTS AS A CONDITION

OF PRE-TRIAL RELEASE - GENERAL GUIDELINES AND SPECIFICALLY IN DOMESTIC

VIOLENCE MATTERS

_____________________________________________________________________________________

Whereas, most criminal defendants are entitled to be released from custody pending disposition of

the charges for which they were arrested; and

Whereas, the Seminole County Sheriff, under the Florida Rule of Criminal Procedure

3.131(b)(1)(d), have the capability to electronically monitor defendants who are released from custody by

non-intrusive means through a program known as Electronic Monitoring Protection and Crime Tracking

(EMPACT); and Whereas, electronic monitoring can provide timely information to law enforcement

regarding the activities of a defendant as they relate to compliance with conditions of release, including

abstinence from criminal activity; and

Whereas, the Seminole County Sheriff and the State Attorney have requested authority to require

defendants who meet specified criteria to be electronically monitored as a condition of pretrial release, in

addition to reasonable or reduced bond, but not in lieu of bond, without compliance with the investigation

and recommendation required by F.S. 907.041(3)(b); and

Whereas, F.S. 903.046 and Florida Rule of Criminal Procedure 3.131(b) permit the imposition of

reasonable conditions of pretrial release that will protect the community from risk of physical harm to

persons, assure the presence of the accused at trial or assure the integrity of the judicial process; and

Whereas, it is estimated that more than 10 million Americans are victims of domestic violence by

an intimate partner each year; and in 2013, in the State of Florida, there were 108,030reported cases of

domestic violence, 170 of which were domestic-related homicides; and from January, 2015, to December

2015, there were 2,749 domestic violence incidents in Seminole County, of which 2,398 resulted in an arrest

or criminal charges filed against the defendant; and January 1, 2005-December 31, 2015, 23 Seminole County

residents have fallen victim to domestic-related homicides; and

Whereas, the use of electronic monitoring devices has proven to modify the behavior of certain

defendants via a non-intrusive method of such monitoring individuals, while simultaneously affording

additional protection to the community and ensuring a monitored individual’s appearance in court; and

Whereas, the Seminole County Sheriff’s Office implemented such a program in 2003 known as

EMPACT (Electronic Monitoring Protection and Crime Tracking), as a pretrial release condition for certain

qualified defendants; and since that time the program has expanded to include a domestic violence and dating

violence program, or DV EMPACT, which introduces an additional level of security by offering the ability

to immediately notify the victim, law enforcement, and others of certain specified violations perpetrated by

a defendant; and although this initiative should not be considered a failsafe assurance on behalf of the victim,

it does provide a near to real time accounting of the defendant’s whereabouts and activities, thereby

enhancing both the security of the victim and the responsibility of the defendant to answer for violations of

conditions of pretrial release;

Now, therefore, after due consideration,

IT IS ADJUDGED;

The following procedures and criteria shall be followed when defendants are released from custody

by the Court upon the condition that they submit to electronic monitoring under the EMPACT program or

other monitoring program and more specifically, shall be followed when defendants are released from

custody by the Court upon the condition that they submit to electronic monitoring under the EMPACT or

DV EMPACT program approved by the Seminole County Sheriff:

1. The defendant must have a residence. The residence must have an operational telephone line if

the electronic monitor requires a telephone line.

2. The defendant must be a resident of Seminole County, Florida, or have made arrangements to

live in the contiguous counties of Lake, Orange, Brevard, Osceola, Polk or Volusia upon Court

approval with verification that the electronic monitor program covers the defendant’s new

residence.

3. Defendants who have a serious medical condition that requires frequent care, or who are

identified as psychotic, severely mentally retarded, currently suicidal, mentally incapable or

unable to cope with the structure of electronic monitoring shall not be placed on an electronic

monitor. Any Defendant that the Sheriff or any Police Agency in Seminole County determines

is not mentally capable to cope with the structure of electronic monitoring shall notify the court

immediately. The Defendant shall not be released until a further determination is made by the

Court as to the Defendant’s release conditions.

4. Defendants who have a condition of release to participate in the EMPACT or another electronic

monitoring program shall be responsible for any damage or loss to equipment issued and shall

pay a per diem cost to Seminole County.

5. The Seminole County Sheriff’s Office shall be responsible for collection of any fees related to

the EMPACT program. In the event of non-payment for electronic monitoring services the

Seminole County Sheriff’s Office may notify the Court of the Defendant’s non-indigent status

and recommend review by the Court.

6. The following categories of defendants may be placed upon electronic monitoring as a condition

of pretrial release only after considering the availability of electronic monitoring equipment and

the risk the defendant presents to the victim or the community:

A. Defendants with a pending violation of probation on a case involving domestic violence

when the violation involves violence, unauthorized contact with the victim, or coming

onto property forbidden by the probation order.

B. Defendants who have been taken into custody for violation of an injunction for

protection against domestic violence, repeat violence, or dating violence.

C. Defendants who have been taken into custody for any domestic violence related offense.

D. Defendants who have been charged with stalking/aggravated stalking, with notice to the

victim.

E. Defendants who have been taken into custody for any offense for which no bail shall be

set until the initial appearance proceeding enumerated in Seminole County

Administrative Order Bail Schedule.

F. Defendants taken into custody for the offense of burglary, grand theft motor vehicle

(where the Defendant has a prior arrest for grand theft motor vehicle), or felony retail

theft (where the Defendant has a previous felony arrest for a felony retail theft.)

G. Any Defendant where the Court finds that the facts and circumstances warrant such

monitoring.

7. Any defendant who breaches a condition of release while on electronic monitoring in a domestic

violence case shall be taken into custody by any law enforcement officer upon probable cause

and held until first appearance as provided by F. S. 901.15(13), F.S. 903.0471, and Seminole

County Administrative Order Bail Schedule. Any defendant who commits a violation of F.S.

843.23 by intentionally removing, destroying, altering, tampering with damaging, or

circumventing the operation of an electronic monitoring device that must be worn or used by

that person pursuant to a court order shall be taken into custody by any law enforcement officer

and brought before the Court for first appearance. In the event of a violation that occurs out of

county, that results in an out of county arrest of the Defendant for a new-law violation, that the

defendant’s bond shall be revoked automatically, and the defendant shall be held at no bond on

the underlying case, until such time as he/she can be transported to Seminole County, and appear

before a first appearance judge to determine if said violation is willful. In the event of a suspected

breach of any other condition of electronic monitoring, the Seminole County Sheriff’s Office

shall notify the Court in writing so that the violation may be brought before the Court for review.

Defendants shall have been informed in their Court minutes/order placing them on EMPACT

that violations include, but not be limited to:

A. Equipment tampers or removals.

B. Willful exclusion zone violations.

C. Failure to comply with any conditions of release set by the Court.

D. Failure to comply with any of the program requirements set forth by the GPS

Electronic Monitoring Program.

E. The defendant must refrain from criminal conduct of any kind.

F. The defendant must not have unauthorized contact with the victim.

G. All information provided to the Court, the Sheriff and any supervising agency, must be

truthful.

H. Payment of per diem costs to Seminole County Sheriff’s Office.

8. This Order supersedes and repeals all prior Administrative Orders on this subject of pre-trial

release monitoring.

Done and Ordered this 31st day of October, 2017.

JOHN M. HARRIS

CHIEF JUDGE

Distribution:

All Circuit and County Judges (Seminole County)

Court Administration (Brevard and Seminole Counties)

Clerk of Court (Seminole County)

State Attorney (Seminole County)

Public Defender (Seminole County)

Sheriff (Seminole County)

Bar Association (Seminole County)

Law Library (Seminole County)

Work Release Manager (Seminole County)

SCHEDULE OF

“QUALIFYING

OFFENSES” - ANTI-MURDER

Kidnapping 787.01(1)(A)1, 2, 3, or 4; 787.01(B);

787.01(3)(A)1, 2, 3, 4. or 5;

787.025(B) False Imprisonment 787.02(1)(A)1, 2, 3, 4, or 5

Lure Child into Bldg etc. 787.025(2)(B)

First Degree Murder 782.04(A)1, 2, or 3

Second Degree Murder 782. 04(2) or (3)

Third degree murder (other than arson) 782.04(4)

Attempted Felony Murder 782. 051(1) or

(2)

Manslaughter 782.07(1), (2), (3), or (4)

Aggravated Battery 784.045(1)(A)(1) or (2); 784.045(B)

Sexual Battery 794.011(2), (3), (4)(A), (B), (C), (D), (E), (F),

(G); 794.011(8)(A), (B); 794.011(8)(B) or

800.04(6)(B);

800.04(7)(C) Robbery 812.13(A), (B), and (C)

Carjacking 812.133(2)(A) and (B)

Home Invasion Robbery 812.135(2)(A), (B), and

Abuse of Child - Sexual Performance 827.071(2), (3), (4), and

(5) Computer to Solicit Sex from Minor 847.0135(2)(A) - (D)

Use of Internet to Lure Child 847.0135(3)

Send Child Pornography 847.0137(2) and

(3) Visual Depiction of Minor Sex 847.0145(1)

Purchase Custody of Minor - Sex 847.0145(2)

Poison Food or Water 859.01

Abuse of Human Corpse 872.06

Burglary 810.02(A), (B), and (C); 810.02(3)(A), (B)

and (D);

810.02(3)(C) Arson 806.01(1)

Aggravated Assault 784.02(1)(A) and (B)

Aggravated Stalking 784.048(3), (4), (5) and

(7) Aircraft Piracy 860.16

Disruption of Govt. Operation 790.161(2)

Discharge of Destructive Device 790.161(2), (3), and

(4) Treason 876.32

Amendment to Florida Rule of Criminal Procedure 3.111(d)(2)-(3), 719 So.2d

873

(Fla.

1998).

FARETTA INQUIRY -TRIAL STAGE

Right to Counsel Section:

1. Do you understand that you have a right to a lawyer? If you cannot afford to hire your own

lawyer, and if you qualify for a court-appointed lawyer, one will be appointed for you.

2. The State of Florida will pay for a lawyer to advise you in these Court proceedings.

3. Shall I appoint a lawyer to represent you in this case?

(Continue to the next section only if defendant says he or she does NOT want a lawyer.)

Advantages Section:

4. I would like to explain to you some of the ways that having a lawyer to represent you can be to

your advantage:

A. Pretrial: (Read only if applicable to current posture of case.).

-A lawyer's legal knowledge and experience may favorably affect bail or pre-trial release

possibilities; may result in obtaining information about the case through skillful use of discovery

devices; may uncover potential violations of constitutional rights and take effective measures to

address them; may ensure compliance with speedy trial and statute of limitations provisions; and

may identify and secure favorable evidence to be introduced later at trial on your behalf.

B. At trial:

-A lawyer has the experience and knowledge of the entire process. He [or she] will argue for your

side during the whole trial and present the best legal argument for your defense.

-Since jury qualification and selection are governed by numerous legal procedures, a lawyer's

knowledge and experience may enhance the selection process on your behalf.

-A lawyer can call witnesses for you, question witnesses against you, and present evidence on

your behalf.

-A lawyer can advise you on whether you should testify, the consequences of that decision, and

what you have a right not to say.

-A lawyer has studied the rules of evidence and knows what evidence can or cannot come into

your trial.

-A lawyer may provide assistance in ensuring that the jury is given complete and accurate jury

instructions by the court, may make effective closing arguments on your behalf, and may prevent

improper argument by the prosecutor.

-A lawyer may ensure that any errors committed during trial are properly preserved for appellate

review later by a higher court.

C. Post-trial:

-If you are convicted, a lawyer's assistance may be useful in preparing for sentencing, ensuring

that favorable facts are brought to the attention of the court; ensuring that the court is advised of

all legally available favorable dispositions; and in ensuring that the sentence is lawfully imposed.

-An attorney's legal knowledge and experience may be useful in filing an appeal and in seeking

release on bail pending the appeal.

Dangers and Disadvantages Section:

5. As it is almost always unwise to represent yourself in Court, let me tell you a few of the

disadvantages of representing yourself in Court:

-Do you understand that you will not get any special treatment from the Court just because you are

representing yourself?

-Do you understand that you will not be entitled to a continuance simply because you wish to

represent yourself?

-(Read if defendant is in custody): You will also be limited to the legal resources that are available

to you while you are in custody. You will not be entitled to any additional library privileges just

because you are representing yourself. A lawyer has fewer restrictions in researching your

defense. Do you understand that?

-You are not required to possess the legal knowledge or skills of an attorney in order to represent

yourself. However, you will be required to abide by the rules of criminal law and the rules of

courtroom procedure. These laws took lawyers years to learn and abide by. If you demonstrate an

unwillingness to abide by these rules, I may terminate your self-representation. Do you

understand that?

-Do you understand that if you are disruptive in the courtroom that the Court can terminate your

self-representation and remove you from the courtroom, in which case the trial would continue

without your presence?

-Do you understand that your access to the State Attorney who is prosecuting you will be severely

reduced as compared to a lawyer who could easily contact the State Attorney?

-In addition, the State will not go easier on you or give you any special treatment because you are

representing yourself. The State will present its case against you as an experienced lawyer.

-(Read only if a stay-away order is in effect): Because a “stay-away” order is in effect against you,

you will be prohibited from contacting the victim or any other witnesses who are a part of the

“stay-away order.” But if you are represented by an attorney, your attorney is allowed to speak to

these people and question them regarding their testimony.

-And finally, if you are convicted, you cannot claim on appeal that your own lack of legal

knowledge or skill constitutes a basis for a new trial. In other words, you cannot claim that you

received ineffective assistance of counsel.

Do you understand these dangers and disadvantages of representing yourself? Do you have any

questions about these dangers and disadvantages?

Charges and Consequences Section:

6. Have you received and read a copy of the charges against you?

7. Do you understand all the charges against you?

8. During the time that you were represented by counsel in this case, did you discuss this case with

him [or her]?

9. Let me advise you of the possible penalties if you are found guilty of all the charges.

10. (Read only if applicable): Do you understand that if you are convicted you may receive an

enhanced sentence because (the state is seeking to sentence you as an habitual offender)(it is

alleged that you used a firearm in the commission of the offense)(it is alleged you wore a mask

during the commission of the offense)?

11. If you are found guilty by (the jury)(the court), the maximum jail or prison sentence you could

receive is _, and the minimum jail or prison sentence is _________.

12. You may be required to report to a probation or community control officer for (length of time).

13. You may be required to pay a fine or restitution.

14. You may have a permanent criminal record.

15. Do you understand that if you are not a citizen of the United States, and if you are found guilty

you could be deported from this country, excluded from entering this country in the future, and

denied the opportunity to become a naturalized citizen?

16. Do you have any questions about the charges or the possible consequences and penalties if you

are found guilty as I have explained them to you?

Competency to Waive Counsel Section:

17. I need to ask you a few questions about yourself to determine if you are competent to make a

knowing and intelligent waiver of counsel:

-How old are you?

-Can you read? Can you write? Do you have any difficulty understanding English?

-How many years of school have you completed?

-Are you currently under the influence of any drugs or alcohol?

-Have you ever been diagnosed and treated for a mental illness?

-Do you have any physical problem which would hinder your self-representation in this case, such

as a hearing problem, speech impediment, or poor eyesight?

-Has anyone told you not to use a lawyer?

-Has anyone threatened you if you hire a lawyer or accept a lawyer appointed by the court?

-Do you understand that a lawyer appointed by the court will represent you for free?

-Have you ever represented yourself in a trial? What was the outcome of that case?

-Do you have any questions about having a lawyer appointed to defend you?

-[Omitted question about understanding dangers/disadvantages, because that is covered in the

disadvantages section supra.]

18. Having been advised of your right to counsel, the advantages of having counsel, the

disadvantages and dangers of proceeding without counsel, the nature of the charges and the

possible consequences in the event of a conviction, are you certain that you do not want me to

appoint a lawyer to defend you?

(Proceed on only if defendant still does NOT want counsel):

19. If I allow you to represent yourself and if you request it, I could have the Assistant Public

defender act as standby counsel. He or she would be available to you if you have any questions in

the course of these proceedings. Would you like standby counsel?

(Proceed on only if defendant WANTS standby counsel):

20. I will appoint standby counsel to assist you. However, you will still be responsible for the

organization and content of presenting your case. You still have the entire responsibility for your

own defense. Do you understand that?

(Make findings on the record as to whether defendant is competent to waive counsel, and whether

his or her waiver of counsel is knowing and intelligent.)

(Renew offer of counsel at each subsequent stage of the proceedings.)

FARETTA INQUIRY - PLEA STAGE

Right to Counsel Section:

1. Do you understand that you have the right to a lawyer?

-The State of Florida and the United States Constitution guarantee you the right to a lawyer.

-If you cannot afford to hire your own lawyer, and if you qualify for a court-appointed lawyer, I

will appoint a lawyer for you right now.

-The State of Florida will even pay for this lawyer to help you with this decision as to whether or

not to enter a plea.

2. Shall I appoint a lawyer to represent you?

(Continue on only if the defendant says he does not want a lawyer)

Advantages and Disadvantages Section:

3. Let me tell you a few ways a lawyer might help you:

-A lawyer can advise you as to whether entering a plea is in your best interests.

-A lawyer has the experience to help you work with the State and even bargain for different terms.

-A lawyer can tell you the advantages and disadvantages of what you might say to the

Court during your plea hearing and the sentencing hearing that will follow.

-Do you understand that you will not get any special consideration from the Court just because

you are representing yourself?

4. Do you understand how necessary a lawyer is and how he or she could help you?

Consequences of the Plea Section:

5. You are currently charged with (go over offenses and their degrees).

-Have you received a copy of these charges and had a chance to review them?

-Do you understand the serious nature of the charges against you?

6. If you decide to enter a plea, you will (go over terms of plea).

-The maximum sentence that can be imposed against you is ______.

-You may be forced to report to a probation or community control officer for (length of time).

-You may be required to pay a fine or restitution.

-You may have a permanent criminal record.

-If you are not a citizen of the United States, you could be deported from this country, excluded

from entering this country in the future, and denied the opportunity to become a naturalized

citizen.

-Do you understand these consequences of entering a plea?

-Do you have any questions about these consequences?

7. If you do not fulfill the conditions of your plea, the State can ask to revoke your probation or

community control and you could be arrested and brought back to Court for a revocation hearing.

8. Do you understand the consequences of any violation or probation or community control?

Competency to Waive Counsel Section:

9. I need to ask you a few questions about yourself to determine if you are competent to make a

knowing and intelligent waiver of counsel:

-How old are you?

-Can you read? Can you write? Do you have any difficulty understanding English?

-How many years of school have you completed?

-Are you currently under the influence of any drugs or alcohol?

-Have you ever been diagnosed and treated for a mental illness?

-Has anyone told you not to use a lawyer?

-Has anyone threatened you if you either hire a lawyer or accept one appointed by the court?

-Do you understand that a lawyer appointed by the court will represent you for free?

-Do you have any questions about having a lawyer appointed to defend you?

-(Omitted question about understanding dangers, disadvantages, because that is covered in the

disadvantages section supra.)

10. Having been advised of your right to an attorney, the advantages of having an attorney, the

disadvantages of proceeding without an attorney, the nature of the charges against you, and the

consequences of entering a plea, are you sure you do not want me to appoint a lawyer to represent

you at this plea hearing?

(Continue only if defendant insists he or she does NOT want an attorney.)

11. If I allow you to represent yourself and if you request it, I could have the Assistant Public

defender act as standby counsel. He or she would be available to you if you have any questions in

the course of these proceedings.

-Would you like me to appoint standby counsel to assist you? (Continue only if defendant

ACCEPTS standby counsel).

12. I will appoint standby counsel to assist you. However, you will still bear the entire

responsibility for your case at the plea hearing. Do you understand that?

(Make findings on the record as to whether defendant is competent to waive counsel, and whether

his or her waiver of counsel is knowing and intelligent.)

(After taking the plea, renew offer of counsel prior to imposing sentence.)