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Pretrial probable cause determinations and adversary preliminary hearings


Non-adversarial probable cause hearings

There are two types of probable cause hearings in Florida. A non-adversarial in which there is no testimony taken and the judge determines whether there is enough evidence to allow the case to move forward based on a probable cause affidavit filed by the law-enforcement officer at the time the defendant is booked into the county jail.

Further a defendant who post bond or is otherwise released before seeing the first appearance judge for the probable cause hearing and who is able to show that the pretrial release conditions are a significant restraint on his or her liberty may file, within 21 days of release, a written motion for a non-adversarial probable cause determination setting what conditions of release are a significant restraint that a finding of no probable cause would eliminate.

Adversarial probable cause hearing

A defendant who is not charged in an information or indictment within 21 days from the date of arrest has the right to an adversary preliminary hearing on any felony charge pending against the defendant. Subpoenas may be issued to secure attendance of witnesses within the state for the state or the defendant.

The defendant has the right to cross examine the state's witnesses. This is an opportunity for the defendant to challenge the state's evidence and the determine if the evidence was obtained illegally. If the evidence was obtained in violation of the law or there is no probable cause the case may be dismissed.

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John P. Rutkowski, Attorney at Law, is focused on all aspects of Criminal Defense, State and Federal Courts, Post Conviction Relief, Criminal Appeals and Traffic Offenses. Contact me today for a free telephone consultation.