What happens at a first appearance?

It’s a scene often viewed on the evening news: A person who has been recently arrested is
shown standing in his jail uniform while a judge informs him of the crimes for which he has been arrested and advises him of the amount of his bond, if any. It’s all over in a few seconds.

For the vast majority of the cases, that’s all first appearance is about. The general rule as set forth in Fla. R. Crim. P. 3.130(a) provides that “[e]xcept when previously released in a lawful manner, every arrested person shall be taken before a judicial officer within 24 hours of arrest At the defendant’s first appearance the magistrate shall immediately inform the defendant of the charge and provide the defendant with a copy of the complaint.”

A defendant is entitled to a prompt first appearance when he or she is arrested for violation of probation as well as on new substantive charges. Hill v. State, 739 So. 2d 634 (Fla. 4th DCA 1999). And even if this rule is not followed, there are no real consequences. A confession that would otherwise be admissible is not subject to suppression merely because the defendant was deprived of a prompt first appearance: “When a defendant has been advised of his rights and makes an otherwise voluntary statement, the delay in following the strictures of the rule must be shown to have induced the confession.” Keen v. State, 504 So. 2d 396, 400 (Fla. 1987). See also Williams v. State, 466 So. 2d 1246 (Fla. 1st DCA 1985); Johnson v. State, 660 So. 2d 648 (Fla. 1995).

Appointment of Counsel

Fla. R. Crim. P. 3.111(a) states that a person is entitled to appointment of counsel when he is formally charged, as soon as feasible after custodial restraint, or at the first appearance before a committing magistrate, whichever occurs earliest.” (Emphasis supplied.) Assuming that first appearance is the first such opportunity, Fla. R. Crim. P. 3.130 states that if the magistrate “determines that the defendant is entitled to court-appointed counsel and desires counsel, the magistrate shall immediately appoint counsel.” In many jurisdictions, the presiding judge appoints the public defender’s office to represent anyone who is without counsel without going through the formal inquiry process required by Florida law.1 Although this practice undoubtedly persists, the Third District Court of Appeal has stated that such a procedure is not proper. Office of the Public Defender v. State, 714 So. 2d 1083 (Fla. 3d DCA 1998).

Pretrial Release

After informing the defendant of the charges and appointing counsel, the next task on the crowded agenda of first appearance court is the setting of conditions of pretrial release. Fla. R. Crim. P. 3.130(d). This process applies to those persons who have been arrested for charges other than capital or life offenses in which the proof of guilt is evident or the presumption is great, or when the state has sought an order of pretrial detention (to be discussed below). Defendants usually come into first appearance court with a bond set either from a standard bond schedule or by a judge who has signed a warrant for that person’s arrest.

Probable Cause

Another often unseen function of the first appearance magistrate is to make a determination that probable cause exists to hold the defendant in custody. This job should not be confused with the procedure for an adversary preliminary hearing, which is applicable when the state has failed to file an information within 21 days of the defendant’s arrest. Instead, Fla. R. Crim. P. 3.133(a)(1) provides that, when a defendant is in custody, “a nonadversary probable cause determination shall be held before a magistrate within 48 hours from the time of the defendant’s arrest.” The standard to be used is that for the issuance of an arrest warrant, and this finding may be based on “sworn complaints, affidavit, deposition under oath, or, if necessary, on testimony under oath properly recorded.” Fla. R. Crim. P. 3.133(3). In general practice, this function is accomplished by the magistrate reading the contents of the affidavit on which the defendant has been arrested. In most cases, that document alone will be sufficient to satisfy the probable cause burden.

Pleas at First Appearance

The last job of the first appearance magistrate is to accept pleas of guilty to misdemeanor charges and sentence the defendants accordingly. This often helps to clear the jail of persons who are being held on offenses such as disorderly intoxication or trespass. The peril, from the prosecution point of view, lies in the fact that there are offenses that the state may wish to enhance, such as second or third time petty theft or DUIs when there have been prior convictions. Another danger lies in offenses such as driving while license suspended, when, if the suspension was due to the defendant’s status as a habitual traffic offender, the offense is a felony, even though the officer may have erroneously indicated that it was a misdemeanor. Often the prosecutor does not have sufficient information to know whether an enhancement is either possible or desired. From the sstate’s point of view, it is often the best practice to object to the court taking pleas in all but minor victimless crimes.