NON-ADVERSARIAL PROBABLE CAUSE DETERMINATION
Last week I appeared before Judge Levenson with a client charged with Trafficking in Hydrocodone. At the Defendant’s magistrate hearing the Court found no probable cause and gave the State 48 hours to perfect probable cause. Two days later when the State was unable to provide probable cause, the magistrate did what he was supposed to do and ordered the Defendant ROR’d. The State, which is their right, decided to file the charges and the Defendant received a notice for the arraignment. The Defendant showed up at arraignment and was promptly taken into custody with a $250,000 bond which is a standard bond for that offense. No one at the time informed the judge of the applicability of Rule 3.133(a) which prohibits any further restraint on his liberty except being ordered to appear at trial after being released pursuant to Rule 3.133(a).
I filed a motion asking for an ROR, claiming that Rule 3.133(a) requires an absolute ROR, period. ASA Dale Geisler, to his credit, agreed with my position and actually did a fine job arguing my motion after Judge Levenson kept cutting me off when I tried to present my argument.
In the end he told us that we were both wrong, that he’s a member of the Florida Criminal Procedure Rules Committee and he understand the rules and denied the ROR. He basically cited his “inherent” authority to do justice and cited standard bond criteria contained in another rule. He offered to consider standard pretrial release criteria and the matter was then put on recall.
During a recess, a privately retained attorney filed an appearance, argued standard pretrial release criteria and Judge Levenson agreed to Pretrial Release with an ankle bracelet.
I am in the process of preparing a more detailed Motion for ROR for a violation of Rule 3.133(a) for use in the future when this issue comes up again. There are a fair number of ROR’s at magistrates based on no p/c. However, most of them are no info’d by the State. It is extremely rare that anyone gets filed on after a no p/c determination. Accordingly, this issue will not occur often. However, I do believe that it happens with enough frequency that defense attorneys should be on guard for it. Because of its rarity, many defense attorneys, prosecutors and judges are simply not aware of the mandates of Rule 3.133(a).
I have since found three (3) cases on point which enforce the ROR rule pursuant to Rule 3.133(a) and these will be in my updated motion and available to anyone who asks.
Since there is a rule that mandates an ROR, we should take advantage of it whenever we are given the opportunity.