A “Motion for Mandatory Release” is based upon Florida Rule of Criminal Procedure 3.134. Under this rule, the state government cannot hold a person in-custody indefinitely without a formal charge. In many cases, people are arrested on Probable Cause, which is not the same as a formal charge. The purpose of Rule 3.134 is to ensure that people do not remain behind bars indefinitely while the state makes a filing decision.

Florida Rule of Criminal Procedure states:

The state shall file formal charges on defendants in custody by information, or indictment, or in the case of alleged misdemeanors by whatever documents constitute a formal charge, within 30 days from the date on which defendants are arrested or from the date of the service of capiases upon them. If the defendants remain uncharged, the court on the 30th day and with notice to the state shall:

(1) Order that the defendants automatically be released on their own recognizance on the 33rd day unless the state files formal charges by that date; or

(2) If good cause is shown by the state, order that the defendants automatically be released on their own recognizance on the 40th day unless the state files formal charges by that date.

In no event shall any defendants remain in custody beyond 40 days unless they have been formally charged with a crime.

A Motion for Mandatory Release is not the same as a Motion to Set or Reduce Bond. During a Motion to Set or Reduce Bond the judge must consider many more factors beyond whether the prosecution has filed formal charges. Unlike “mandatory release,” a judge has much more choice in the bond amount during a Motion to Set or Reduce Bond.

If you or a loved one is concerned this Rule might be an issue in the case and are seeking guidance, contact me today. In addition, if you or your loved one believes that you are entitled to Mandatory Release and already have an attorney, please notify that attorney of your concerns. Time is of the essence.

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