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Florida Statutes § 907.041 (4)(c), Florida’s Pre-Trial Detention Statute Facially Unconstitutional?

Have you ever considered the differences between a pre-trial detention hearing conducted under State v. Arthur, 390 So.2d 717 (Fla.1980) verses a pre-trial detention hearing conducted under Florida Statutes § 907.041 and the implications of both? Please consider the following.

Article 1 § 14 of the Florida Constitution (2015) provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. Id.

The first sentence of Section 14 is a codification of one of the major tenets of State v. Arthur, 390 So.2d 717 (Fla.1980), whereas, the second sentence is a codification of Legislative Intent under Florida Statutes § 907.041(1).

Fla. R. Crim. P. §§ 3.131, 3.132 come into play as procedural rules that this Court must follow when considering pre-trial release or pre-trial detention, under non-monetary terms, monetary terms, or otherwise, as these rules relate to Arthur and § 907.041.

What does “substantial probability” actually mean as contained within § 907.041 (4)(c)?

It does not appear that there has ever been a reported constitutional challenge to § 907.041 (4)(c)(5) as an unconstitutional, procedural rule of court, enacted by the Florida Legislature alleging violation of Article II, Section 3 (Separation Of Powers) and/or Article V, Section 2(a) (Administrative Practice And Procedure Of The Courts). In enacting § 907.041(4)(c) the Florida Legislature used the term “substantial probability” [burden of proof], which appears multiple times in the statute, but not in the Fla. R. Crim. P. §§ 3.131, 3.132 (2015). The term ‘substantial probability’ was not defined by the Legislature and remains undefined per se, by the Florida Supreme Court, to this day.

The undefined term ‘substantial probability’ has surely lead to varying Circuit Court decisions in Florida, because it appears that pre-trial release rights afforded to a putative defendant under Arthur are greater than a defendant’s rights under § 907.041, which remains a legal anomaly to this day in Florida.

For the reasons described in this Article, and in consideration of the interplay of Arthur, § 907.041, and Fla. R. Crim. P. §§ 3.131, 3.132, the term “substantial probability” must mean ‘State’s proof beyond a reasonable doubt’, notwithstanding that it has never been defined as such by the Florida Supreme Court, infra.

Florida Statutes § 907.041 (4)(b) (2000) was deemed unconstitutional by the Florida Supreme Court in State v. Raymond, 906 So. 2d 1045 (Fla. 2005), because procedural rules of court adopted by the Florida Legislature’s 2000 version of § 907.041 prohibited non-monetary pretrial release for a putative defendant who otherwise qualified for non-monetary release under the same statute. In Raymond, initially an Appellate Court in the 11th Judicial Circuit ruled that § 907.041 (4)(b) was a ‘court procedure’ legislative enactment and was unconstitutional under The Florida Constitution-Court Administrative Practice And Procedure, inter alia, because it was not a substantive provision, and as such, the Florida Legislature had no power to enact it.

As the Supreme Court state in Raymond:

It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm. Markert v. Johnston, 367 So.2d 1003 (Fla.1978); Military Park Fire Control Tax Dist. No. 4 v. DeMarois, 407 So.2d 1020 (Fla. 4th DCA 1981). This principle is grounded in article V, section 2(a) of the Florida Constitution, which states that the Florida Supreme Court shall adopt rules for the practice and procedure in all courts. Furthermore, the constitution provides that powers constitutionally bestowed upon the courts may not be exercised by the Legislature. See art. II, § 3, Fla. Const. The terms practice and procedure "encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. `Practice and procedure' may be described as the machinery of the judicial process as opposed to the product thereof." In re Fla. Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla.1972) (Adkins, J., concurring). In other words, practice and procedure is the method of conducting litigation involving rights and corresponding defenses. Skinner v. City of Eustis, 147 Fla. 22, 2 So.2d 116 (1941). On the other hand, matters of substantive law are within the Legislature's domain. Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. State v. Garcia, 229 So.2d 236 (Fla.1969). It includes those rules and principles which fix and declare the primary rights of individuals with respect to their persons and property. Adams v. Wright, 403 So.2d 391 (Fla.1981). State v. Raymond, 906 So. 2d 1045, 1048-1049 (Fla. 2005).

Article V § 2 (a) Florida Constitution, in pertinent part, provides:

(a) The supreme court shall adopt rules for the practice and procedure in all courts... Rules of court may be repealed by general law enacted by two thirds vote of the membership of each house of the legislature. Id.

Generally speaking, the Legislature’s power is to repeal a procedural rule of court that it does not like [Art. V § 2(a)] not to enact a new procedural rule of court, or to modify an existing procedural rule of court, or to add more to a rule of court that it desires to expand.

In that respect, the Legislature did not repeal Arthur in enacting § 907.041, which should be interpreted as having created conflicting procedural rules of court for defendants whose bonds could be analyzed under Arthur or § 907.041, or both, infra.

The Meaning Of ‘Substantial Probability’:

The term ‘substantial probability’ appears in § 907.041 (4)(c) in multiple sub-sections, but most importantly, it appears in § 907.041 (4)(c)(5) (2015), to wit:

(c) The court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exist:... ... 5. The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons; ... Id.

The Author cannot find a definition of ‘substantial probability’ in the context of § 907.041 in either the Florida Statutes, in Florida case law, or in the Florida Rules Of Criminal Procedure. The term ‘substantial probability’ on it’s face connotes a standard of less than ‘beyond a reasonable doubt’, however, Fla. R. Crim. P. § 3.132 (c)(1) (2015) states, inter alia, “...The state attorney has the burden of showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida Statutes...” Id. Since the Florida Legislature never defined ‘substantial probability’ for purposes of § 907.041, this interpretation of “substantial probability” was derived by the Florida Supreme Court following argument on that issue, among other issues attendant to § 907.041. See The Florida Bar, In Re Rules Of Criminal Procedure, 436 So. 2d 60 (Fla. 1983)(Note also Chief Justice Alderman, dissenting in part, to wit: “...I do not agree with the Public Defender Association's rationale for suggesting that the appropriate burden of proof that the state must meet to show the need for pretrial detention is beyond a reasonable doubt. The state should not have to meet the same degree of proof to establish the need for pretrial detention as it is required to meet to convict a defendant...”)

Since the State must prove the need for pre-trial detention ‘beyond a reasonable doubt’, and since procedural rules of Court must be read in pari materia with Florida Statutes, it follows that the term ‘substantial probability’ can be interpreted as meaning ‘beyond a reasonable doubt’.

However because the term ‘substantial probability’ § 907.041 remains undefined by statute or case law it cannot be cohesively followed by the Courts in Florida. This shortfall invariably leads to conflicting results by different Circuits on substantially similar fact patterns.

Using ‘Beyond A Reasonable Doubt’ As Synonymous With “Substantial Probability”:

Florida Statutes § 907.041 (4)(c)(5) (2015) should be amended to read as follows:

(c) The court may order pretrial detention if it finds proof beyond a reasonable doubt, based on a defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exist:... ... 5. The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is proof beyond a reasonable doubt that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons; ... Id. [As restated]

Re-wording § 907.041 to incorporate the procedural rules espoused in § 3.132 (c)(1) makes logical sense, notwithstanding that the term ‘substantial probability’ remains officially undefined.

And as such, a Court should be able to consider ‘reasonable doubt’ in the State’s presentation in it’s decision to grant bond to a putative defendant pursuant to § 907.041 (4)(c)(5) (2015), supra, n. 3.

As restated, the standard under § 907.041 (4)(c)(5) is that: if a Court concludes that the State can convict the Defendant of a listed dangerous crime beyond a reasonable doubt, the Court can also conclude that the Defendant poses a threat of harm to the community. As such, a pre requisite to a this Court’s determination that “defendant poses a threat of harm to the community” would be a finding by this Court that the State has proven that Defendant committed an enumerated “dangerous crime” with “proof beyond a reasonable doubt”. [Restated for purposes of illustration only-not the way the law currently reads].

Further, Fla. R. Crim. P. §§ 3.132 (c)(1) provides in pertinent part:

“The court may admit relevant evidence and testimony under oath without complying with the rules of evidence, but evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible. A final order of pretrial detention shall not be based exclusively on hearsay evidence.” Id.

A Court should be required to weigh the State’s evidence against a defendant, and a defendant’s rebuttal, with an eye toward whether the State can prove that a defendant committed the enumerated dangerous crime - beyond a reasonable doubt; keeping in mind that any evidence sought to be admitted by the State was secured in violation of the defendant’s constitutional rights should be striken from the Court’s determination.

‘Substantial Probability’ As Separate Identifiable Burden Of Proof:

In Parker v. State, 843 So. 2d 871 (Fla. 2003) the Florida Supreme Court made reference to ‘substantial probability’ as being a separate and distinct burden of proof, to wit:

“Various standards of proof are used in criminal proceedings wherein a defendant may be deprived of his or her liberty. For instance, "probable cause" is required for an arrest [8]; "substantial probability" is required for an initial order of pretrial detention [9]; "in the discretion of the court" is required for denial of probation [10]; "in the conscience of the court" is required for the revocation of probation [11]; and "beyond a reasonable doubt" is required for a criminal conviction. [12]"

Citations 8-12, Id., to wit:

8. ("A law enforcement officer may arrest a person without a warrant when ... [t]here is probable cause to believe that the person has committed a criminal act....").

9. See § 907.041(4)(c), Fla. Stat. (2000) ("The court may order pretrial detention if it finds a substantial probability ... that any of the following circumstances exists....").

10. See, e.g., Bernhardt v. State, 288 So.2d 490, 494 (Fla.1974) ("Initially, we must remark that the grant of probation rests within the broad discretion of the trial judge....").

11. See, e.g., Bernhardt, 288 So.2d at 495 ("[T]he evidence upon which to predicate a revocation [of probation] introduced at the hearing must be sufficient to satisfy the conscience of the court that a condition of probation has been violated.").

12. See, e.g., Nixon v. Singletary, 758 So.2d 618, 621 (Fla.2000) ("[T]he Due Process Clause ... protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). Id., n. 8-12.

It should be noted that the Florida Supreme Court references ‘substantial probability’ in Parker, as a lesser standard of proof than ‘beyond a reasonable doubt’, notwithstanding the ‘substantial probability’ reference as synonymous with ‘beyond a reasonable doubt’ in The Florida Bar, In Re Rules Of Criminal Procedure, 436 So. 2d 60 (Fla. 1983), as well as the reference in Fla. R. Crim. P. § 3.132 (c)(1) (2015) (“...The state attorney has the burden of showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida Statutes...”) Id.

It appears that varying and differing constructions of the term ‘substantial probability’ in Florida case law invariably leads to varying standards of proof used by Florida Judges relative to the actual meaning of ‘substantial probability’.

The State’s Choice Arthur or Florida Statutes § 907.041?

There are numerous Florida offenses that are either Capital or punishable by Life, that also cross-over to the list of “dangerous crimes” enumerated in § 907.041 (4)(2015). Under Arthur, which remains current law in Florida, a putative defendant is entitled to an evidentiary hearing where the State must prove ‘proof evident presumption great’ in prong #1 to relieve a defendant of a constitutional right to bond. Under § 907.041(4)(c)(5) (2015) however, the Court can deny bond if it finds, inter alia, ‘substantial probability’ that defendant committed a ‘serious crime’ enumerated therein. § 907.041 therefore represents an abrogation of a putative defendant’s rights to pre-trial release for cross-over crimes that could be analyzed pursuant to Arthur or § 907.041, simply by virtue of the State’s election how to proceed with a request for pre-trial detention.

As previously cited from Raymond: It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm. Markert v. Johnston, 367 So.2d 1003 (Fla.1978); Military Park Fire Control Tax Dist. No. 4 v. DeMarois, 407 So.2d 1020 (Fla. 4th DCA 1981). Raymond, 906 So. 2d 1045, 1048 (Fla. 2005).

In enacting § 907.041 (4) the Florida Legislature intended to create, modify, or expand a procedural rule of court, which is constitutionally unfirm, especially in consideration that the Legislature in so doing, did not repeal Arthur.

For the aforementioned reasons the Author suggests that Florida Statutes § 907.041 (4) may be facially unconstitutional. The Author suggests that this matter is of great public importance in Florida and should be reviewed by The Florida Supreme Court.

This article is for informational and educational purposes only and should not be construed as constituting legal advice. In fact it is not legal advice and was written by a non-attorney to provoke thought relative to the issues identified and presented with caselaw cited. You should consult with your attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida