Section 5(d) of the Florida Pretrial Detention Statute is Unconstitutional

On March 19, 2024, Judge Milton Hirsch of the 11th Judicial Circuit Court in Miami issued an order granting the defendant, Dovonte Chase Fry’s motion to declare Fla. Stat. § 907.041(5)(d) unconstitutional.  That section provides: 

“If a defendant is arrested for a dangerous crime [as defined in subsection (5)(a)] that is a capital felony, a life felony, or a felony of the first degree, and the court determines [at first appearance, see Fla. R. Crim. P. 3.130, that] there is probable cause to believe the defendant committed the crime, the state attorney, or the court on its own motion, shall motion for pretrial detention.”

In Mr. Fry’s case, the defense did not seek his release, but the prosecution filed a motion to detain him anyway, as required by the subsection above. Mr. Fry then moved to declare the subsection unconstitutional.

Judge Hirsch agreed — in a 16 page order, the Court explained the history of bail and pretrial detention and noted the various roles of each branch of government. Judge Hirsch found that the subsection was unconstitutional because it violated the doctrine of separation of powers as to both the executive branch and the judicial branch.

As to the executive branch, Judge Hirsch explained that prosecutors have a number of reasons, unknown to the court, for why it makes certain decisions. This is called “prosecutorial discretion.” In the bail context, there could be a number of reasons why the prosecutor seeks bail or detention. For example, the prosecutor may seek to keep a person out of jail in order to cooperate on other investigative targets, even if that person is charged with something “dangerous.” The subsection removes that discretion by forcing the state to move for detention: “It matters not whether the prosecutor, in the exercise of that discretion consigned to him by the Florida constitution, has concluded that reasonable conditions of pretrial release can and should be set. It matters not at all.” Order at 12.

Similarly, as to the judicial branch, Judge Hirsch pointed out that while the legislature makes substantive law, the judiciary makes procedural law. The court also explained the logical holes in how the subsection would play out in court:

“does the statute contemplate that, if the prosecution omits to move for pretrial detention, the court shall so move? If so, is the court obliged to grant its own motion? Or is the court at liberty to deny its own motion? If the former, could statutes be drafted commanding courts to move sua sponte for judgment of acquittal, see Fla. R. Crim. P. 3.380, when in the court’s estimation the entry of such a judgment would be entirely unwarranted? Could a greater offense against the doctrine of separation of powers be imagined? And if the latter – if the court must move sua sponte for pretrial detention but may deny its own motion – was it seriously the intent of the drafters of the new statutory subsection that Florida’s first-appearance judges make a burlesque of the criminal justice system by stating, for the record and in open court, “I move for pretrial detention – and my motion is denied”?

Order at 15. Judge Hirsch made clear that the order does not mean Mr. Fry is being released—the only issue was whether the subsection is unconstitutional, and the court found that it is. 

You can read Judge Hirsch’s important and informative opinion in full below.