KENNITH BLOUNT, PETITIONER,
v.
LOIS SPEARS, DIRECTOR DADE COUNTY CORRECTIONS AND REHABILITATION DEPARTMENT, RESPONDENT
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Florida appellate court granted habeas corpus relief, holding that a circuit judge cannot revoke pre-trial release and impose detention without bond based solely on the filing of an information, absent sworn testimony establishing probable cause.
A circuit judge cannot revoke pre-trial release and detain a defendant without bond based solely on the filing of an information; probable cause must be established through sworn testimony.
[1] Filing of an information by the State Attorney cannot itself establish probable cause to justify detention without bond; probable cause requires sworn testimony.
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Court explaining why the circuit judge's order was unjustified
At first appearance, a magistrate reduced Blount's felony burglary charge to simple battery and released him to pre-trial services with a $1500 bond. …
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SCHWARTZ, Chief Judge.
At first appearance, the magistrate determined that the arrest affidavit did not justify the felony charge of burglary with an assault asserted against the defendant Blount, reduced the offense to the misdemeanor of simple battery and ordered his release to pre-trial services with an alternative $1500.00 bond. On the basis only of the information filed by the State Attorney’s office for a non-bondable life felony of burglary with an assault, but see Rampersad v. State, 752 So. 2d 94 (Fla. 3d DCA 2000), and without any further sworn testimony, the circuit judge at arraignment revoked the pre-trial release and ordered the defendant held without bond. This order was completely unjustified in light of the law that the filing of an information cannot itself provide probable cause, see Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and that, in the absence of a finding of probable cause based on sworn testimony, there can be no “restraint on liberty other than appearing for trial.” Fla.R.Crim.P. 3.133(a)(l)(4). On this basis, we have previously ordered Blount restored to the status ordered by the magistrate and now award him a final judgment in habeas corpus to that effect.
Habeas Corpus granted.
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Citator
Cited By
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Hampton v. State, 805 So. 2d 1060 (Fla. 3d DCA 2002)…clarification of sentence; the defendant also appeals from the denial of his petition for writ of error coram nobis to vacate the judgment. We affirm the order on appeal, which was entered on remand after this court’s opinion in Hampton v. State, 758 So. 2d 1287 (Fla. 3d DCA 2000). The habitual felony offender sentence in case number 94-7638 is proper, as defendant’s convictions1 for possession of a firearm by a convicted felon and two counts of aggravated assault with a firearm are both felonies subject to…
Authorities Cited
- Gerstein v. Pugh, 420 U.S. 103 (U.S. 1975)
- Mukesh Rampersad v. State, 752 So. 2d 94 (Fla. 3d DCA 2000)