The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: SB 7068
INTRODUCER: Appropriations Committee on Criminal and Civil Justice
SUBJECT: Pretrial Detention Hearings
DATE: February 26, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
Kolich Harkness ACJ Submitted as Comm. Bill/Fav
1. Kolich Sadberry AP Favorable
I. Summary:
SB 7068 amends s. 907.041, F.S., to allow a court to base an order of pretrial detention under
s. 907.041(5)(d), F.S., solely on hearsay. This ensures that victims and other witnesses are not
required to appear in person at pretrial detention hearings.
Section 907.041(5), F.S., specifies circumstances in which the state has discretion to motion for
pretrial detention, and circumstances in which the state, or the court, must motion for pretrial
detention. Paragraph (5)(d), provides the circumstances in which a motion for pretrial detention
must be made.
The bill changes the evidentiary requirements for a pretrial detention hearing, but does not affect
the requirement to hold such a hearing, the standard of proof at such a hearing, or the time frame
in which the hearing must be conducted.
The bill may have an indeterminate fiscal impact on state and local government expenditures.
See Section V., Fiscal Impact Statement.
The bill takes effect upon becoming a law.
II. Present Situation:
Article I, s. 14 of the Florida Constitution states that “[u]nless 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.”
BILL: SB 7068 Page 2
Bail
A person must appear before a judge within 24 hour of arrest for a “first appearance”.1 During
first appearance, a judge advises a defendant of the charges for which he or she was arrested,
determines whether there is probable cause that a defendant committed such an offense, and
advises a defendant of specified rights.2 If a judge determines that probable cause exists, the
judge then determines whether a defendant is entitled to pretrial release. A judge may grant
pretrial release either by setting a specified bail amount or releasing the defendant on his or her
own recognizance.3
Pretrial Detention
Defendants may be held without bail under the Florida Constitution if they are charged with a
capital offense, or an offense that is punishable by life imprisonment.4 These pretrial detention
hearings are often referred to as Arthur hearings. The Florida Supreme Court has held that to
detain a defendant, the state must present some evidence in addition to the information or
indictment that establishes that the defendant’s proof of guilt is evident or the presumption is
great.5 This is a higher standard than the beyond a reasonable doubt standard used to convict a
defendant at trial, and the state may rely solely on hearsay to meet the standard.
Section 907.041, F.S., also permits or requires the state to motion for a pretrial detention hearing
based upon the circumstances of the case. In pretrial detention hearings under statutory
provisions, the state must meet the beyond a reasonable doubt standard.6 This is a lower standard
than the state must meet in an Arthur hearing, however court rule provides that the state may not
present only hearsay evidence.
Discretionary Motion for Pretrial Detention
Under s. 907.041, F.S., upon a motion by the state attorney, the court may order pretrial
detention if it finds a substantial probability, based on a defendant’s past and present patterns of
behavior, consideration of the criteria used for determining bail, and any other relevant facts, that
any of the following circumstances exist:
 The defendant has previously violated conditions of release and that no further conditions of
release are reasonably likely to assure the defendant's appearance at subsequent proceedings;
 The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or
injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired
to do so, and that no condition of release will reasonably prevent the obstruction of the
judicial process;
 The defendant is charged with trafficking in controlled substances under s. 893.135, F.S.,
there is a substantial probability that the defendant has committed the offense, and no
conditions of release will reasonably assure the defendant's appearance at subsequent
criminal proceedings;
1
Fla. R. Crim. P. 3.130.
2
Id.
3
Fla. R. Crim. P. 3.131.
4
Art. I, s. 14, Fla. Const.
5
See State v. Arthur, 390 So. 2d 717 (Fla. 1980).
6
Fla. R. Crim. P. 3.131.
BILL: SB 7068 Page 3
 The defendant is charged with DUI manslaughter, there is a substantial probability that the
defendant committed the crime, and the defendant poses a threat of harm to the community;
 The defendant poses the threat of harm to the community;7
 The defendant was on probation, parole, or other release pending completion of sentence or
on pretrial release for a dangerous crime8 at the time the current offense was committed;
 The defendant has violated one or more conditions of pretrial release or bond for the offense
currently before the court and the violation, in the discretion of the court, supports a finding
that no conditions of release can reasonably protect the community from risk of physical
harm to persons or assure the presence of the accused at trial; or
 The defendant:
o Has previously been sentenced as a prison releasee reoffender, habitual violent felony
offender, three-time violent felony offender, or violent career criminal, or the state
attorney files a notice seeking that the defendant be sentenced as a prison releasee
reoffender, habitual violent felony offender, three-time violent felony offender, or violent
career criminal;
o There is a substantial probability that the defendant committed the offense; and
o There are no conditions of release that can reasonably protect the community from risk of
physical harm or ensure the presence of the accused at trial.9
Mandatory Motion for Pretrial Detention
In 2023, the Legislature enacted several changes to bail and pretrial detention proceedings in s.
907.041, F.S., which went into effect on January 1, 2024.10 One of the more significant changes
required the state attorney or the court, on its own motion, to motion for pretrial detention if a
defendant is arrested for a dangerous crime that is a capital felony,11 a life felony,12 or a first
degree felony13 and the court determines there is probable cause to believe that the defendant
committed the offense.14 A judge must order pretrial detention if:
 He or she finds a substantial probability that the defendant committed such an offense; and,
7
A court may conclude a defendant poses the threat of harm to the community if the defendant is charged with a dangerous
crime, there is a substantial probability that the defendant committed such crime, the factual circumstances of the crime
indicate a disregard for the safety of the community, and there are no conditions of release reasonably sufficient to protect the
community from the risk of physical harm to persons. Section 907.041(5)(c)5., F.S.
8
A “dangerous crime” includes: arson; aggravated assault; aggravated battery; illegal use of explosives; child abuse or
aggravated child abuse; abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled
adult; aircraft piracy; kidnapping; homicide; manslaughter including DUI manslaughter and BUI manslaughter; sexual
battery; robbery; carjacking; lewd , lascivious, or indecent assault or act upon or in presence of a child under the age of 16
years; sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person
in familial or custodial authority; burglary of a dwelling stalking and aggravated stalking; an act of domestic violence as
defined in s. 741.28, F.S.; home invasion robbery; an act of terrorism as defined in s. 775.30, F.S.; manufacturing any
substances in violation of ch. 893, F.S.; attempting or conspiring to commit any such crime; human trafficking; trafficking in
dangerous fentanyl or fentanyl analogues; extortion; or written threats to kill. Section 907.041(5)(a), F.S.
9
Section 907.041(5)(c), F.S.
10
See ch. 2023–27, Laws of Fla.
11
A capital felony is punishable by death or mandatory life imprisonment. Section 775.082, F.S.
12
A life felony is punishable by a term of imprisonment for life or by a term of years not exceeding life imprisonment and a
$15,000 fine. Sections 775.082, 775.083, or 775.084, F.S.
13
A first degree felony is punishable by up to 30 years imprisonment and a $10,000 fine. Sections 775.082, 775.083, or
775.084, F.S.
14
Section 907.041(5)(d), F.S.
BILL: SB 7068 Page 4
 Based on the defendant’s past and present patterns of behavior, consideration of the criteria
used for determining bail, and any other relevant facts, the court finds that no conditions of
release or bail will reasonably protect the community from risk of physical harm, ensure the
presence of the defendant at trial, or assure the integrity of the judicial process.15
Pretrial Detention Procedures
In a pretrial detention hearing, the defendant is entitled to be represented by counsel, to present
witnesses and evidence, and to cross-examine witnesses.16 The rules concerning the admissibility
of evidence in criminal trials do not apply to the presentation and consideration of evidence in
pretrial detention proceedings; however, evidence that was secured in violation of the United
States Constitution or Florida Constitution is inadmissible.17 If a defendant chooses to testify at a
pretrial detention hearing, his or her statements are not admissible to prove guilt in any other
criminal proceeding other than in an action for perjury or for impeachment purposes.18 In both a
discretionary and mandatory motion for pretrial detention, the state attorney has the burden of
showing the need for pretrial detention.19
If a defendant is arrested for a “dangerous crime” that requires a court or a state attorney to file a
motion for pretrial detention, such pretrial detention hearing must be held within five days of a
defendant’s first appearance hearing or, if there is no first appearance hearing, within five days
of the defendant’s arraignment.20 If the state attorney files a discretionary motion for pretrial
detention, the pretrial detention hearing must be held within five days after the filing of the
motion for pretrial detention.21
Any party may file a motion for reconsideration of a pretrial detention order at any time before a
defendant’s trial if the judge finds that information exists that was not known to the party moving
for reconsideration at the time of the pretrial detention hearing if such information has a material
bearing on determining whether there are conditions of release or bail that will reasonably assure
the appearance of the defendant as required and the safety of any other person and the
community from harm.
Any party may file a motion for reconsideration of a pretrial detention order at any time before a
defendant’s trial if the judge finds that information exists that was not known to the party moving
for reconsideration at the time of the pretrial detention hearing if such information has a material
bearing on determining whether there are conditions of release or bail that will reasonably assure
the appearance of the defendant as required and the safety of any other person and the
community from harm.22
15
Id.
16
S. 907.041(5)(i), F.S.
17
Id.
18
Id.
19
Section 907.041(5)(h), F.S
20
Section 907.041(5)(g), F.S. Generally, arraignment is a defendant’s first court appearance after first appearance. At
arraignment, a defendant is formally advised of charges filed by the State and advised of specified rights.
21
Id.
22
Section 907.041(5)(j), F.S.
BILL: SB 7068 Page 5
Florida Rules of Criminal Procedure
Rule 3.131. Pretrial Release
The Florida Rules of Criminal Procedure govern the procedure in all criminal proceedings in
state courts. Rule 3.131 mirrors the right to bail under article I, section 14 of the Florida
Constitution, and provides every person the right to pretrial release on reasonable conditions
unless:
 He or she is charged with a capital offense or an offense punishable by life imprisonment and
the proof of guilt is evident or the presumption is great; or
 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.23
In State v. Arthur, the Florida Supreme Court (FSC) held that, to preclude a defendant who is
charged with a capital offense or offense punishable by life imprisonment from being released on
bail, the state attorney must present some evidence in addition to the information or indictment
that establishes that the defendant’s proof of guilt is evident or the presumption is great, which is
a higher standard24 than what is necessary to prove a defendant guilty at trial.25 The FSC
specified in Arthur that such evidence could be presented in the form of hearsay, including
transcripts or affidavits and other evidence relied upon by the grand jury or state attorney in
charging the crime.26 “Hearsay” is a statement, other than one made by the declarant27 while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.28
Rule 3.132. Pretrial Detention
For cases where a defendant is either not charged with a capital offense or an offense punishable
by life imprisonment, or where the state attorney elects to file a motion for pretrial detention
under s. 907.041, F.S., Rule 3.132, provides procedures that a court must follow.29 Rule 3.132
generally mirrors the statutory language of s. 907.041, F.S.; however, Rule 3.132, differs in two
ways: by requiring the state attorney to show the need for pretrial detention beyond a reasonable
doubt, and by prohibiting a final order of pretrial detention from being based exclusively on
hearsay evidence.30 The FSC has not amended Rule 3.132 since the Legislature significantly
modified the law relating to pretrial detention in the 2023 Session. The current hearsay
prohibition in Rule 3.132, coupled with the requirement for mandatory pretrial detention
hearings in s. 907.041(5)(d), F.S., that went into effect on January 1, 2024,31 may be interpreted
23
Fla. R. Crim. P. 3.131(a).
24
“…the degree of proof sufficient to deny an accused the right to bail in a capital case under our Constitution, to -wit, proof
that guilt is evident or the presumption of guilt is great is actually a greater degree of proof than that which is required to
establish guilt merely to the exclusion of a reasonable doubt.” State v. Williams, 87 So .2d 45 (Fla. 1956). See also Russell v.
State, 71 So. 27 (Fla. 1916).
25
2 State v. Arthur, 390 So. 2d 717, 720 (Fla. 1980); Preston v. Gee, 133 So. 3d 1218 (Fla. 2d DCA 2014).
26
Id.
27
A “declarant” is a person who makes a statement. S. 90.801(1)(a), F.S.
28
S. 90.801(1)(b), F.S.
29
Fla. R. Crim. P. 3.132.
30
Fla. R. Crim. P. 3.132(c)(1).
31
Supra, note 7.
BILL: SB 7068 Page 6
to require a state attorney to subpoena victims, witnesses, and law enforcement officers to appear
at a pretrial hearing and be subjected to cross-examination at such a hearing.32
I. Effect of Proposed Changes:
This bill amends s. 907.041, F.S., to authorize a court