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OVER 25 YRS EXP
IN BREVARD
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THIS SUMMaRY IS IN REFERENCE TO THE LAWS CONCERNING THE COMMUNITY SUPERVISION PROGRAM, AN EXPANSION OF PRETRIAL RELEASE (PTR)
This program operates under an administrative order 93-115-CR- using Florida statues 907.41(1)(3) and 948.09(1)(3)(6). It allows PTR to recommend Community Supervision to the initial appearance judge which consists of the accused being released, having to pay a sign-up fee, pay a weekly monitoring fee and report to a community supervision officer. The defendant is also required to take and pay for random urinalysis testing regardless of the charge. The community supervision officer can also violate the accused for not paying or complying in which a warrant is issued requiring the incarceration at taxpayer's expense. This expansion was not fully utilized (because of its questionable legality) until the year 2000 when Article 5 was passed down and the budget was compromised. Upon an in-depth review and research, this program is very flawed and is a direct violation of the Florida Constitution and Florida Statues regarding criminal procedure of the pretrial detention and release and here is why.
The Pretrial Release Program 907 in the state of Florida is designed to be NON-MONETARY as adopted from the Supreme Court. Statue 948.09 is for Department of Corrections dealing with post conviction laws. These two statues deal with two opposite parts of criminal procedure.
Florida statue 903.11 define the term bail and bond to include any form of pre-trial release and state 648.24 states the Bondsin which fees are charged must be done by a licensed bail bond agent. 648.25 define a bail bond agency as an entity that charges a fee or premium to release an accused or detainee from jail. By charging any type of fee, the company acts in the capacity of a bail bond agent and statue 648.30 classifies that as a third degree felony. This program also violates the Florida Constitution Article 1 Section 19, which says no person charged with crime has to pay any cost until a judgment of conviction. A private company runs Brevard's Pre-Trial Release Program & Community Supervision Program but Statue 948.01(1)(A) states that a private entity may not provide any type of court supervision. 939.06 also states that a person found not guilty or acquitted be refunded any fees paid to the court. 949.049(3) deals with non-payment being a violation of probation. Statue 907.043(B) says the term pretrial release program shall not apply to the department of Corrections. Yet these are the statues they base their program on. The process in which any type of release can be done is already in place. Two statues cannot be pieced together and called a new program without going through the legislative process. The Jail Oversight Committee also utilizes this program by releasing detainees after initial appearance in which a Judge requires monitory release and not complying with 903.035(2) & 903.02which requires all felony bond modifications to be done at a hearing and that only the judge whom set bonds the chief judge or the trial judge for that case misdemeanor or felony can review and modify bond. The laws of this state are very clear that this is not allowed. Florida statue 57.051 states only amounts approved by law can be charged by an officer, this program is not approved by law so the amounts are not approved and the officer must repay 4 times the amount if illegally collected.
The findings are that the Florida statues and Constitution does not allow this type of release. The statues are not being applied in which they were intended. This company is acting in the capacity of bail bond agent and imposing post conviction laws and statues and illegally
charging a fee that is not allowed. Surety are the only ones statutorily permitted to charge. The program also violates the accused rights by being put on probation without due process and only post conviction law allows charging for drug testing or monitoring. Some of the conditions of this program sometimes require more that the conviction would require. As a matter of fact, Brevard is the only county out of the 67 counties in Florida use this type of program and only 29 counties of the 67 have a Pretrial Release Program. The big question is why and how does this program exist and and contiunue to runThe laws and constitution of this state are very clear on which an accused can be released to protect the rights of all citizens in the criminal proceeding. Community Supervision does not have the qualifications or any authority approved by the state of Florida to charge or supervise any accused. It cannot operate under these statues or any other in the state of Florida.
Laws that Support the Above Claim
907.041 Pretrial Detention and Release.-
(1) LEGISLATIVE INTENT.- It is the policy of this state that persons committing serious criminal offenses, posing a threat to the safety of the community or the integrity of the judicial process, or failing to appear at trial be detained upon arrest. However, persons found to meet specified criteria shall be released under certain conditions until proceedings are concluded and adjudication has been determined. The legislature finds that this policy of pretrial detention and release will assure the detention of those persons posing a threat to society while reducing the costs for incarceration by releasing, until trial, those persons not considered a danger to the community who meet certain criteria. It is the intent of the Legislature that the primary consideration be the protection of the community from risk of physical harm to persons.
(2) RULES OF PROCEDURE. -Procedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court.
(3) RELEASE ON NONMONETARY CONDITIONS.-
(a) It is the intend of Legislature to create a presumption in favor of release nonmonetary conditions for any person who is granted pretrial release such person is charged with a dangerous crime as defined in subsection (4). Such person shall be released on monetary conditions if it is determined that such monetary conditions are necessary to assure the presence of the persons, to assure the presence of the accused at trial,or to assure the integrity of the judicial process.
(b) No person shall be released on non monetary conditions under the supervision of a pretrial release service, unless the service certifies to the court that it has investigated or otherwise verified:
1. The circumstances of the accused's family, employment, financial resources, character, mental condition, and length of residence in the community;
2. The accused's record of convictions, of appearances at court proceedings, of flight to avoid prosecution, or of failure to appear at court proceedings; and
3. Other facts necessary to assist the court in its determination of the indecency of the accused and whether she or he should be released under supervision of the service.
948.09 Payment for cost of supervision and rehabilitation.-
(1)(a) 1. Any person ordered by the court, the Department of Corrections, or the parole commission to be placed on probation, drug offender probation, community control, parole, control release, provisional release supervision, addiction-revocery supervision, or conditional release supervision under chapter 944, chapter 945, chapter 947, chapter 948, or chapter 958, or in a pretrial intervention program, must, as a condition of any placement, pay the department a total sum of money equal to the total month or portion of a month of supervision times the court-ordered amount, but not to exceed the actual per diem cost of the supervision. The department shall adopt rules by which an offender who pays in full and in advance of regular termination of supervision may receive a reduction in the amount due. The rules shall incorporate provisions by which the offender's ability to pay is linked to an established written payment plan. Funds collected from felony offenders may be used to offset costs of the Department of Corrections associated with community supervision programs, subject to appropriation by the Legislature, she or he should be released under the supervision of the service.
(3) Any failure to pay contribution as required under this section may constitute a ground for the revocation of probation by the court, the revocation of parole or conditional release by the Parole Commission, the revocation of control release by the Control Release Authority, or removal from the pretrial intervention program by the state attorney. The Department of Corrections may exempts person from the payment of all or any part of the contribution if it finds any of the following factors to exist:
(a) The offender has diligently attempted, but has been unable, to obtain employment which provides him or her sufficient income to make such payments.
(b) The offender is a student in school, college, university, or course of career training designed to fit the student for gainful employment. Certification of such student status shall be supplied to the Secretary of Corrections by the educational institution in which the offender is enrolled.
(c) The offender has an employment handicap, as determined by a physical, psychological, or psychiatric examination acceptable to, or ordered by, the secretary.
(d) The offender's age prevents him or her from obtaining employment.
(e) The offender is responsible for the support of dependents, and the payment of such contribution constitutes an undue hardship on the offender.
(f) The offender has been transferred outside the state under an interstate compact adopted pursuant to chapter 949.
(g) There are other extenuating circumstances, as determined by the secretary. (6) In addition to any other required contributions, the department, at its discretion, may require offenders under any form of supervision to submit to and pay for urinalysis testing to identify drug usage as part of the rehabilitation program. Any failure to make such payment, or participate, may be considered a ground for revocation by the court, the Parole Commission, or the Control Release Authority, or for removal from the pretrial intervention program by the state attorney. The department may exempt a person from such payment if it determines that any of the factors specified in subsection (3) exist.
903.011 'Bail' and 'Bond' defined; general terms-
(1) As used in this chapter, the terms 'bail' and 'bond' include any and all forms of pretrial release.
(2) Any monetary of cash component of any from of pretrial release may be met by a surety bond.
(3) Differing monetary amounts may not be set for cash, surety, or other forms of pretrial release.
648.24 Declaration of public policy.
It is public policy of this state and the intent of the Legislature that a bond for which fees or premiums are charges must be executed by a bail bond agent licensed pursuant to this chapter in connection with the pretrial or appellate release of a criminal defendant and shall be construed as a commitment by and obligation upon the bail bond agent to ensure that the defendant appears at all subsequent criminal proceedings.
648.25 Definitions As used in this chapter, the terms:
(1) "Bail bond agency' means:
(a) The building where a licensee maintains an office and where all records required by ss. 648.34 and 648.36 are maintained; or
(b) An entity that:
- Charges a fee or premium to release an accused defendant or detainee from jail; or
- Engages in or employs others to engage in any activity that may be performed only by a licensed and appointed bail bond agent.
648.30 Licensure and appointment required.-
(4) Any person who violates this section commits a felony of the third degree,
FLORIDA CONSTITUTION DECLARATION OF RIGHST Article 1 Section 19. (Costs)
No person charged with crime shall be compelled to pay costs before a judgement of conviction has become final.
948.01 When court may place defendant on probation or into community control.
(1) Any state court having original jurisdiction or criminal actions may at a time to be determined by the court, with or without an adjudication of the guilt of the defendant, hear and determined the question of the probation of a defendant in a criminal case, except for an offense punishable by death, who has been found guilty by the verdict of a jury, has entered a plea of guilty or a plea of nolo contendere, or has been found guilty by the court trying the case without a jury.
(a) If the court places the defendant on probation or into community control for a felony, the department shall provide immediate supervision by an officer employed in compliance with the minimum qualification for officers as provided in 943.13. A private entity may not provide probationary or supervision services to felony or misdemeanor offenders sentenced or placed on probation or other supervision by the circuit court.
939.06 Acquitted defendant not liable for costs.
(1) A defendant in a criminal prosecution who is acquitted or discharged is not liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If the defendant has paid any taxable costs, or fees required under s 27.52(1)(b), in the case, the clerk or judge shall give him or her a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to the defendant.
907.043Pretrial release; citizens' right to know.
(1) This section may be cited as the "Citizens' Right -to-Know Act."
(2) As used in this section, the term:
(a) "Nonsecured release" means the release of a defendant from pretrial custody when no secured surety or cash bond is required as a condition of the release.
(b) "Pretrial release program"mean an entity, public or private, that conducts investigations of pretrial detainees, makes pretrial release recommendation to a court, and electronically monitors and supervises pretrial defendants. However, the term 'pretrial replies program' shall not apply to the Department of Correction.
903.035 Applications for bail; information provided; hearing on application for modification; penalty for providing false or misleading information or omitting material information. (2) An application for modification of bail on any felony charge must be heard by a court in person, at a hearing with the defendant present, and with at least 3 hours' notice to the state attorney. 903.02 Actions following denial; changes in bail conditions or bond amount; separation by charge or offense.-
(1) If application for bail is made to an authorized court and denied, no court of inferior jurisdiction shall admit the applicant to bail unless such court of inferior jurisdiction is the court having jurisdiction to try the defendant.
(2) No judge of a court of equal or inferior jurisdiction may remove a condition of bail or reduce the amount of bond required, unless such judge;
(a) Imposed the conditions of bail or set the amount of bond required;
(b) Is the chief judge or the circuit in which the defendant is to be tried;
(c) Has been assigned to preside over the criminal trial of the defendant; or
(d) Is the designee of the chief judge and a judge has not yet been assigned to the criminal trial.
(3) The term 'court,' as used in this chapter, includes all state courts.
(4) Any judge setting or granting monetary bail shall set a separate and specific bail amount for each charge or offense. When bail is posted, each charge or offense requires a separate bond.
57.051 Costs; prohibition against unlawful exaction.-
(1) PROHIBITION- No officer shall make two charges for the same official act or service, nor charge for any constructive service.No fee shall be charged for any official service performed or claimed to be performed by any officer unless the fee is specifically authorized and its amount is specified by law.
(2) PENALTY- When any officer willfully charges or levies more than he or she is entitled to, the officer shall forfeit and pay to the party injured 4 times the amount unjustly claimed which may be recovered on motion in the court where the services wrier rendered.
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