Recalibrating Pretrial Detention in Florida: Supreme Court Aligns Rule 3.132 with “Substantial Probability,” Bars Pre–First Appearance Release for Dangerous Crimes, and Authorizes Hearsay-Only Detention Orders

Introduction

In this rulemaking opinion, the Supreme Court of Florida substantially revises Florida Rules of Criminal Procedure 3.132 (Pretrial Detention) and, consequentially, amends Rule 3.116(b) (Use of Communication Technology) to cross-reference the specialized communication-technology provision now contained in the pretrial detention rule. Acting on a referral to the Criminal Court Steering Committee (CCSC) prompted by major statutory changes to section 907.041, Florida Statutes (Laws of Florida chs. 2023-27 and 2024-157), the Court adopts a comprehensive rewrite of Rule 3.132 to align court procedure with the Legislature’s recalibration of pretrial release and detention.

The parties and stakeholders who participated include the CCSC, the Florida Public Defender Association, the Florida Association of Criminal Defense Lawyers, the Attorney General, and the Florida Prosecuting Attorneys Association. Oral argument occurred on February 6, 2025. The amendments take effect May 1, 2025, at 12:01 a.m., and a motion for rehearing will not alter that effective date.

The centerpiece developments are:

A categorical bar on releasing persons arrested for “dangerous crimes” before first appearance.
A new hearing timeline keyed to offense level and posture (including a special 5-day clock for certain serious felonies).
A broadened ability to hold defendants briefly when the State announces its intent to seek detention (up to 4 days), without the prior “exigent circumstances” showing.
A shift in the State’s burden from “beyond a reasonable doubt” to the statutory “substantial probability” standard.
Authorization for detention orders to rest solely on hearsay, reversing the prior prohibition on hearsay-only orders.
Clarified and limited continuances, with a specific cap on State continuances and an extenuating-circumstances or party-stipulation safety valve.
Explicit constraints on nonmonetary release for dangerous crimes and new certification duties for pretrial services.
Defined use of communication technology in detention hearings and a conforming amendment to Rule 3.116(b).

Summary of the Opinion

Exercising its rulemaking authority under Article V, section 2(a) of the Florida Constitution and Rule 2.140 of the Rules of General Practice and Judicial Administration, the Court adopts a major rewrite of Criminal Rule 3.132. The revamped rule:

Requires that any person arrested for a “dangerous crime” as defined by section 907.041 must not be released from jail before first appearance (new Rule 3.132(a)).
Specifies the content and timing of motions for pretrial detention, and sets hearing deadlines. For capital, life, or first-degree felonies listed as “dangerous crimes,” the hearing must be held within 5 days of first appearance (or within 5 days of arraignment if there is no first appearance). Otherwise, hearings occur within 5 days of the motion (Rule 3.132(d)).
Allows either party to seek a continuance; the State must show good cause and may receive no more than one continuance. No continuance may exceed 5 days absent extenuating circumstances or a party agreement approved by the court (Rule 3.132(e)).
Structures custody and release options while a detention motion is pending, including a 4-day hold when the State announces at first appearance its intent to move for detention; prohibits nonmonetary release at first appearance for dangerous crimes upon a finding of probable cause; and requires pretrial services certification before later nonmonetary supervision for dangerous crimes (Rule 3.132(f)).
Assigns hearing jurisdiction to the trial judge, affirms the defendant’s hearing rights, relaxes evidentiary rules (with constitutional exclusions), and authorizes communication technology for testimony on a showing of good cause (Rules 3.132(g)-(j)).
Replaces the prior “beyond a reasonable doubt” burden with the statute’s “substantial probability” standard (Rule 3.132(k)).
Directs that orders be issued within 24 hours of the hearing, and—critically—permits detention orders to be based solely on hearsay, provided the evidence was introduced at the hearing and the order includes findings of fact and conclusions of law (Rule 3.132(l)(2)).
Requires detention if the court finds a substantial probability that the defendant committed a qualifying capital, life, or first-degree “dangerous crime” and that no conditions will reasonably protect the community, ensure appearance, or preserve the integrity of the process, after considering section 903.046 factors and other relevant information (Rule 3.132(l)(3)).
Permits reconsideration on newly discovered, material information and provides for dissolution if a subsequent event eliminates the basis for detention (Rule 3.132(m)).

The Court also amends Rule 3.116(b) to add Rule 3.132(j) to the list of proceedings that have their own, specific audio-video communication technology standards. A shortened Committee Note explains that Rule 3.132 was revised to reflect chapters 2023-27 and 2024-157, Laws of Florida, and offers an example of “extenuating circumstances” for continuances.

Analysis

Authorities and Precedents Cited

This is an original rulemaking proceeding. The Opinion does not cite case law; rather, it proceeds under:

Article V, section 2(a), Florida Constitution (judicial rulemaking authority).
Florida Rule of General Practice and Judicial Administration 2.140 (rule amendment procedures).
Section 907.041, Florida Statutes (pretrial detention; definition of “dangerous crime” and substantive detention criteria).
Section 903.046, Florida Statutes (criteria for bail/pretrial release conditions—factors courts must consider).
Rule references: 3.131 (pretrial release), 3.133 (probable cause determinations), 3.116 (communication technology), and Rule 2.530 (oaths and communication technology practice requirements).
Chapters 2023-27 and 2024-157, Laws of Florida (the recent legislative reforms prompting these procedural changes).

While not cited in the Opinion, Florida’s constitutional framework for pretrial release (Art. I, § 14) and the long-standing “Arthur” jurisprudence (State v. Arthur) remain part of the broader backdrop. Those doctrines address detention in capital and life cases under the “proof evident, presumption great” standard. By contrast, Rule 3.132 implements the statutory pretrial detention scheme in section 907.041, which relies on a “substantial probability” standard and risk-based findings. Practitioners must be attentive to which framework is being invoked in a given case.

Key Changes and How They Affect Practice

1) No Release Before First Appearance for “Dangerous Crimes” (Rule 3.132(a))

The rule now categorically prohibits pre–first appearance release for any arrestee charged with a “dangerous crime” as defined by section 907.041. This tightens front-end release practices: even if the defendant might otherwise have been eligible to post a scheduled bond immediately after booking, the rule requires a judicial first appearance before any release can occur for these offenses.

2) Hearing Timelines and Continuances (Rules 3.132(d) & (e))

For capital, life, or first-degree felonies that are listed as “dangerous crimes,” the detention hearing must occur within 5 days of first appearance (or within 5 days of arraignment if there was no first appearance, e.g., in a summons/not-in-custody posture).
For all other detention motions, the hearing deadline is 5 days from filing.
Either party may seek a continuance; the State must show good cause and is limited to one continuance. No continuance may exceed 5 days unless extenuating circumstances justify more time, or the parties agree and the court approves.

Notably, the previous bright-line cap that “in no case shall the defendant be detained in excess of 10 days unless the delay is sought by the defendant” has been removed. The new framework expects hearings within 5 days, but it allows for longer postponements upon explicit findings of extenuating circumstances or by party agreement with court approval.

3) Interstitial Custody Rules Pending Motion and Hearing (Rule 3.132(f))

At first appearance, if probable cause exists for a “dangerous crime,” the court must not grant nonmonetary release. After first appearance, nonmonetary release under pretrial services for such offenses requires a certification that statutory verification conditions have been met.
If the State files a detention motion at first appearance, the defendant may be held pending the hearing upon a probable-cause finding for the arrest.
If the State announces at first appearance that it intends to move for detention, the defendant may be held for up to 4 days (upon a probable cause finding) to allow the State to file. This replaces the former “exigent circumstances” requirement and 3-day cap with a simple announcement standard and a 4-day limit.
If the State does not indicate an intent to move for detention at first appearance, the court proceeds to determine release or continued detention under Rule 3.131.
If a motion is filed after first appearance and probable cause exists to support the detention-eligible offense, the court may hold the defendant pending the hearing or issue an order to appear or warrant. Importantly, when the State pursues detention under section 907.041 against a defendant out of custody, it need not show the “good cause” otherwise required by Rule 3.131(d) to alter release conditions.
Consumer warning: If a defendant uses a surety bond to post monetary conditions while a detention motion is pending, and the motion is later granted, the court must advise that the premium is not refundable.

4) Evidence, Burden, and Orders (Rules 3.132(i), (k), and (l))

Evidence obtained in violation of the U.S. or Florida Constitutions is inadmissible, but the rules of evidence otherwise do not apply. This makes detention hearings more flexible and summary in nature.
The State’s burden is now to prove the need for detention under the statutory “substantial probability” framework in section 907.041—lower than the prior “beyond a reasonable doubt” burden previously repeated in the rule.
Detention orders must be issued within 24 hours after the hearing, supported by findings of fact and conclusions of law, and based solely on evidence introduced at the hearing. The rule newly allows detention orders to be based solely on hearsay.
Mandatory ordering: Where the court finds a substantial probability that the defendant committed a qualifying capital, life, or first-degree “dangerous crime,” and—considering section 903.046 factors and other relevant facts—no conditions will reasonably protect the community, assure appearance, or preserve process integrity, the court must order detention.

5) Communication Technology and Rule Cross-References (Rules 3.132(j) & 3.116(b))

Testimony by communication technology is permitted on a showing of good cause, with oaths administered per Rule 2.530. Rule 3.116(b) is amended to acknowledge that Rule 3.132(j) independently governs the use of audio-video technology in detention proceedings.

6) Reconsideration; Appellate Review (Rule 3.132(m))

Either party may seek reconsideration before trial if newly discovered, material information emerges. The defendant is entitled to dissolution if a subsequent event removes the basis for detention. The prior rule’s express “Further Proceedings on Order” paragraph describing a path to appellate review has been omitted in the rewrite. That omission does not foreclose review; rather, review routes will be governed by generally applicable appellate or extraordinary-writ procedures. Practitioners should consult the Florida Rules of Appellate Procedure to determine the appropriate mechanism (e.g., habeas corpus, certiorari, or other authorized review).

Legal Reasoning and Structural Fit

The Court’s reasoning is straightforward rule-implementation: it aligns procedural mechanisms with the Legislature’s revised substantive framework in section 907.041 and associated statutes. The choice to replace the former “beyond a reasonable doubt” burden with “substantial probability” directly tracks the statute and ensures uniformity between court rule and legislative policy. Similarly, the rule’s prohibition on pre–first appearance release for dangerous crimes and the tightened nonmonetary-release pathway reflect legislative judgments about initial risk assessment and verification by pretrial services.

Allowing hearsay to be the sole basis for detention orders, while preserving the exclusionary rule for constitutionally tainted evidence, situates detention hearings as summary, preventive proceedings distinct from trials. This approach comports with the broader understanding—recognized in both Florida and federal practice—that pretrial detention is regulatory, not punitive, and that evidentiary flexibility is permissible so long as due process protections are maintained (notice, counsel, the opportunity to present and challenge evidence, judicial findings, and prompt timelines).

The Court also fine-tunes the CCSC proposal by:

Allowing either party to seek continuances, with limits, a specific “one continuance” cap for the State, and a narrow path to exceed 5 days based on extenuating circumstances or by agreement with court approval.
Shortening the explanatory note.
Conforming Rule 3.116(b) so Rule 3.132(j) now controls its own use of communication technology.

Impact and Likely Future Effects

On Defendants

Expect more frequent short-term holds after first appearance where the State announces its intent to seek detention (up to 4 days), and constrained nonmonetary release options for “dangerous crimes.”
Detention is now easier for the State to obtain, given the reduced burden (“substantial probability”) and the allowance of hearsay-only orders.
Defense counsel must be prepared to litigate reliability and sufficiency even when the State relies on hearsay; cross-examination and counter-proffers become central.

On Prosecutors

The “announce-and-hold” mechanism at first appearance is streamlined—no showing of “exigent circumstances” is required to hold up to 4 days for filing the motion.
The burden of proof alignment to “substantial probability” reduces the evidentiary threshold and should increase the State’s success in detention motions.
Hearsay suffices, but prosecutors should ensure the record contains competent, credible information supporting the statutory risk findings and the section 903.046 factors to withstand reconsideration or review.

On Courts and Pretrial Services

First appearance judges must enforce the pre–first appearance release bar and the prohibition on nonmonetary release at first appearance for dangerous crimes upon a probable cause finding.
Trial judges must schedule hearings within 5 days under the tiered scheme, manage continuances within the new constraints, and issue written or on-record findings within 24 hours.
Pretrial services must certify verification under section 907.041(3)(b) before courts can order nonmonetary supervision for dangerous crimes post–first appearance.

On Appellate and Post-Order Practice

Although the explicit appellate-review paragraph was not carried over, orders remain subject to reconsideration upon new material information and to appropriate appellate or extraordinary-writ remedies. Counsel should plan proactively: preserve objections, request detailed findings, and be prepared to seek expedited review when detention orders turn on contested hearsay or sparse records.

Systemic Considerations

These amendments will likely increase the number of detention hearings and short-term custodial holds in dangerous-crime cases, affecting jail populations and first appearance calendars.
The hearsay-only authorization may generate litigation over what constitutes “reliable” hearsay and how much factual detail is necessary to meet the “substantial probability” threshold.
The integration with section 903.046 factors will require courts to develop robust findings reflecting individualized assessments, not categorical assumptions.

Complex Concepts Simplified

Dangerous crime: A list of offenses defined by section 907.041, Florida Statutes. The list controls; practitioners should consult the current statute for the exact offenses.
First appearance: The initial judicial appearance—generally within 24 hours of arrest—where a judge advises the defendant of rights, appoints counsel if appropriate, and addresses release conditions.
Pretrial detention vs. pretrial release: “Detention” means the defendant remains in custody pending trial because the court finds no set of conditions can reasonably ensure appearance, protect the community, or preserve the process. “Release” means the defendant is out of custody on conditions (monetary or nonmonetary).
Substantial probability: A standard of proof used in section 907.041. It is less than “beyond a reasonable doubt,” and generally understood to require a strong showing that the defendant committed the offense—more than mere probable cause but not as exacting as the trial standard.
Pretrial services certification: For dangerous crimes, after first appearance, a defendant cannot be released under nonmonetary supervision unless the pretrial services program certifies it has investigated or verified statutory conditions specified in section 907.041(3)(b).
Continuance limits: Either party can ask to delay the hearing. The State gets at most one continuance, and any continuance cannot exceed 5 days unless (a) the court finds extenuating circumstances justify more time or (b) the parties agree and the court approves.
Hearsay at detention hearings: “Hearsay” is an out-of-court statement offered for its truth. At these hearings, hearsay is admissible and, under the new rule, may be the sole basis for detention, provided it is introduced at the hearing and the order contains supporting findings.
Communication technology: With a showing of good cause, witnesses may testify by audio-video technology. Oaths must be administered as Rule 2.530 requires (including identity verification and proper administration procedures).

Practice Pointers

For prosecutors:
- At first appearance, promptly announce intent to seek detention when appropriate to trigger the up-to-4-day hold and file the motion within that window.
- Prepare sworn affidavits or proffers that satisfy “substantial probability” and detail risk assessments tied to section 903.046 factors.
- Anticipate hearsay objections and be ready to argue reliability and relevance, even though the rules of evidence do not strictly apply.
For defense counsel:
- Be prepared to challenge the sufficiency of hearsay-based proffers (e.g., lack of detail, double-hearsay, minimal indicia of reliability).
- Develop affirmative evidence showing that release conditions can reasonably manage risk, addressing section 903.046 factors.
- If a surety bond is contemplated while a detention motion is pending, advise clients regarding the non-refundable premium advisement in Rule 3.132(f)(6).
For judges:
- Make express findings on “substantial probability,” risk factors, and the insufficiency of less restrictive alternatives before ordering detention.
- Use the continuance framework carefully: identify extenuating circumstances on the record or obtain party agreements with approval before exceeding 5 days.
- Issue orders within 24 hours and ensure the record shows all evidence considered, even when relying on hearsay.
For pretrial services:
- Build and document verification processes that satisfy section 907.041(3)(b) to enable courts to rely on certifications for nonmonetary supervision in dangerous-crime cases.

Conclusion

The Supreme Court of Florida’s amendments to Rules 3.132 and 3.116 signal a decisive shift in Florida’s pretrial detention landscape. The new rule operationalizes the Legislature’s reforms by:

Prohibiting pre–first appearance release for dangerous crimes and constraining nonmonetary release thereafter absent pretrial services certification.
Recalibrating hearing timelines and continuances to emphasize speed, while allowing limited flexibility for extenuating circumstances or party agreement.
Lowering the State’s burden to the statutory “substantial probability” standard and authorizing hearsay-only detention orders.
Mandating detention for certain serious dangerous crimes when no conditions can manage risk, with explicit consideration of section 903.046 factors.
Clarifying the role of communication technology and aligning cross-references in Rule 3.116.

These changes will have immediate and significant effects on first appearance practice, detention-motion strategy, and jail populations. They also place a premium on clear judicial findings and robust records, given the flexibility of the evidentiary rules and the heightened reliance on hearsay. As with any major procedural shift, litigation will likely refine the contours—particularly around what suffices to establish “substantial probability” and the reliability thresholds for hearsay at detention hearings—but the direction of travel is unmistakable: faster, more structured, and more State-favorable pretrial detention proceedings in dangerous-crime cases, with express due-process guardrails preserved.

Effective date: May 1, 2025, at 12:01 a.m. Filing a motion for rehearing does not alter the effective date.