IN RE: 1ST APPEARANCE HEARINGS ( HOWARD FINKELSTEIN)
DALE ROSS
CHIEF JUDGE
SEVENTEENTH JUDICIAL CIRCUIT OF FLORIDA
BROWARD COUNTY COURTHOUSE
GEORGE W. TEDDER, SA. DRIVE
January 24, 2007
The Honorable Dale Ross
Chief JudGE, 17Th Judicial Circuit
201 SE 6t Street, Room 881
Fort Lauderdale, FL 33301
RE: First Appearance Hearings
Dear Judge Ross:
I am writing to address an on-going violation of the constitutional rights of newly
arrested defendants in Broward County. I believe the violation is clear and needs to be
remedied without delay.
Rule 3.130, Florida Rules of Criminal Procedure, states that". ..every arrested person
shall be taken before a judicial offcer... within 24 hours of arrest." A person is
deemed arrested when they are taken into custody by a law enforcement officer. It
generally takes several hours from the time of arrest and the time a person is booked
into the Broward County JaiL. Currently, the Broward County Jail sets a cut-off
time
of 4:00 a.m. for first appearance hearings (more commonly referred to as magistrate
hearings.) If a person is booked after 4:00 a.m., that person wil not appear before a
judge until the following day, a clear violation of Rule 3.130.
The practice of setting a cut-off time and making those who are booked after that time
wait until the following day has been a routine practice for many years.
The Third District Court of Appeal recently issued an opinion in the case of D.M. v.
Dobuler, _ So.2d _, 31 Fla.L.Weekly D3052 (Fla. 3d DCA 2006). D.M. deals
with a juvenile's statutory right to be brought before a judge for a detention hearing
within 24 hours.
Florida Statute 985.255(3)(a)(2006) requires a detention hearing within 24 hours after
being taken into custody. In considering the arguments against granting mandamus
and habeas corpus relief, the Court rejected the State's argument that the current
system has been in place for a number of years without objection. The Court said that
"the failure of children in the past to assert their right to a detention hearing within 24
hours of being taken into custody cannot constitute '1 waiver of that right by either the
instant petitioners or those children who wil be taken into custody in the future."
Based on the clear language in D.M.. supra, and the fact that Rule 3.130 gives adult
arestees the same basic right to a hearing within 24 hours of arrest, it is necessary for
this Circuit to provide a first appearance hearing for all new adult arestees within 24
hours of arrest. In calculating the 24 hour period, ffi arrest takes place when a person
is taken into custody, not when booked into the Broward County JaiL. This means that
if a person is arrested at 1 :00 a.m. and booked into the jail at 5 :00 a.m., that person
must appear before a judge within 24 hours from the 1 :00 a.m. arest time. Under our
current method of using a 4:00 a.m. cut-off time, there are a large number of new
arestees whose rights are being violated.
I recognize that fixing this problem wil not be easy, but it must be remedied as soon
as practicable. The 24 hour rule is important for a variety of reasons: i) The Cour
must determine the conditions of pretrial release; 2) Defendants are advised by the
Court about their right to remain silent, their right to counsel and their right to
communicate with counsel, family, or fiiends. The right to appear before a judge
within 24 hours is especially important for an indigent defendant who is unable to
meet a standard convenience bond. It is also important for those charged with
Domestic Violence, since they are required to be held without bond until such time as
they appear at their first appearance hearing.
Immediately after the D.M. decision was issued, our office met with Judge Zeidwig.
The paries involved agreed to an order providing for 24 hour detention hearings for
all arested juveniles. (See attached order.)
Providing timely first appearance hearings wil ailect many agencies, including the
judiciar, the Clerk of the Court, the State Attorney's Offce, the Public Defender's
Offce and several departments within the Sheriffs Offce, including the Pre-Trial
Release program. This offce wil work with the various agencies to solve this
problem to avoid litigating this issue.
In the past, the Sheriffs Offce has proposed having magistrate court twice a day,
albeit for a different reason. This proposal was not acted upon by the judiciary.
Perhaps now is the time to re-address such a proposaL. Whether magistrates are
scheduled twice a day or some other proposal is adopted, it is ultimately up to you to
insure compliance with the law.
If you have any questions or need any additional information on the subject, please
feel free to call on me. I believe a meeting of all affected agencies should be
scheduled as soon as possible to discuss this problem. I look forward to hearing from
you.
Howard Finkelste n
Public Defender
CC: Michael J. Satz, State Attorney
Howard Forman, Clerk of the Court
Ken Jenne, Sheriff of Broward County
The writer is absolutely correct. In the early 70s, a motion to dismiss was filed on behalf of a criminal defendant named Kenneth Hipke. The motion related that the defendant was being held in violation of law, because he had been in jail for 17 days and had not seen a judge; he had not had counsel appointed to represent him, and he had not been officially notified of the charge(s) against him. The motion went before the chief judge who granted the motion. In the local newspapers on that evening, it was written, "Jailhouse Lawyer may empty Broward's jails." In Miami, the headlines read, "Mad writwriter turning judge's hair gray." The charges against Hipke were dismissed. However, the State refiled immediately and the case proceeded to trial. Later, a Motion to vacate was filed on Hipke's behalf alleging that the evidence taken from Hipke was taken during an unlawful confinement. The Court agreed and the case was dismissed. So, for those who are held illegally and not taken before a judge within the prescribed time, the issue of evidence collected from the defendant while in such unlawful confinement is subject to suppression or exclusion. Hipke returned to Canada after he was released.
John McNamara