Pretrial Detention — § 907.041

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Pretrial detention is the other route to holding someone without bond, and it is a different animal from an Arthur hearing. It rests on the second sentence of article I, section 14: “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.” The implementing statute is § 907.041, Fla. Stat., amended repeatedly since 2023 and again in 2026.

“Dangerous crime” — § 907.041(5)(a)

Much of the statute turns on this defined list:

• Arson
• Aggravated assault
• Aggravated battery
• Illegal use of explosives
• Child abuse or aggravated child abuse
• Abuse or aggravated abuse of an elderly person or disabled adult
• Aircraft piracy
• Kidnapping
• Homicide
• Manslaughter, including DUI and BUI manslaughter
• Sexual battery
• Robbery
• Carjacking
• Lewd, lascivious, or indecent assault or act upon or in the presence of a child under 16
• Sexual activity with a child 12–17 by or at the solicitation of a person in familial or custodial authority
• Burglary of a dwelling
• Stalking and aggravated stalking
• Act of domestic violence as defined in § 741.28
• Home invasion robbery
• Act of terrorism as defined in § 775.30
• Manufacturing any substance in violation of chapter 893
• Human trafficking
• Trafficking in a controlled substance described in § 893.135(1)(c)4.
• Extortion — § 836.05
• Written threats to kill — § 836.10
• Any violation relating to computer pornography or child exploitation under § 847.0135
• Attempting or conspiring to commit any of the above

Immediate consequence. A person arrested for a dangerous crime may not be granted nonmonetary pretrial release at first appearance if the court finds probable cause. § 907.041(5)(b). Outside that category, the statute creates a presumption in favor of release on nonmonetary conditions. § 907.041(3)(a).

Discretionary detention — on the State’s motion

Under § 907.041(5)(c), the court may order detention on the state attorney’s motion if it finds a substantial probability, based on the defendant’s past and present patterns of behavior, the § 903.046 criteria, and any other relevant facts, that any of the following applies:

1. The defendant previously violated conditions of release and no further conditions will reasonably assure appearance
2. The defendant threatened, intimidated, or injured a victim, witness, juror, or judicial officer to obstruct the judicial process — or attempted or conspired to
3. Drug trafficking under § 893.135, substantial probability of commission, and no conditions will assure appearance
4. DUI manslaughter, substantial probability of commission, and a threat of harm to the community — supported by a prior DUI conviction, driving on a suspended license at the time, or a prior driving-while-suspended disposition
5. The defendant poses a threat of harm to the community — a dangerous crime, substantial probability of commission, circumstances showing disregard for community safety, and no sufficient conditions
6. The defendant was on probation, parole, other release pending completion of sentence, or pretrial release for a dangerous crime when the current offense was committed
7. The defendant violated conditions of release or bond in the present case
8. The defendant has ever been sentenced — or the State has filed notice seeking sentencing — as a prison releasee reoffender, habitual violent felony offender, three-time violent felony offender, or violent career criminal, plus substantial probability of commission and no sufficient conditions

Item 8 links bond directly to the sentencing enhancements described on the Florida Minimum Mandatory Sentences page — and note that a mere notice of intent to seek the enhancement is enough to trigger it.

Mandatory detention — § 907.041(5)(d)

This is the provision that changed pretrial practice most. If a defendant is arrested for a dangerous crime that is a capital felony, a life felony, or a first-degree felony, and the court finds probable cause, then the state attorney — or the court on its own motion — shall move for pretrial detention.

If the court then finds a substantial probability that the defendant committed the offense and that no conditions of release or bail will reasonably protect the community from risk of physical harm, ensure the defendant’s presence at trial, or assure the integrity of the judicial process, the court must order pretrial detention.

Two features are worth flagging. The motion is not optional, and the court can make it itself. And the threshold — “substantial probability” — is considerably lower than the “proof evident, presumption great” standard that governs an Arthur hearing.

The court may not stack the deck — Williams v. Green

In Williams v. Green, No. 3D25-2545 (Fla. 3d DCA Mar. 16, 2026), the trial court granted detention while stating on the record that the defendant would likely succeed on a Stand Your Ground defense — reasoning that it was obliged to view the evidence in the light most favorable to the State.

The Third District granted habeas corpus. Neither § 907.041(5)(d) nor its procedural counterpart requires any such view. The trial court must weigh the evidence, resolve factual disputes, and make credibility determinations, exactly as it would sitting as factfinder at any other evidentiary hearing. Importing Arthur’s “light most favorable” language into a detention hearing was error.

Procedure and evidence

Timing	Where the motion is required under (5)(d), the hearing must occur within 5 days of first appearance (or of arraignment if there was no first appearance). Where the State moves under (5)(c), within 5 days of filing. The defendant may seek a continuance; the State gets one for good cause; no continuance beyond 5 days absent extenuating circumstances. § 907.041(5)(g)
Pre-hearing custody	The arresting agency may hold the defendant up to 24 hours before first appearance or the filing of a detention motion. § 907.041(5)(f)
Burden	On the state attorney. § 907.041(5)(h)
Evidence	Trial rules of evidence do not apply. A detention order under (5)(d) may rest solely on hearsay. Evidence obtained in violation of the state or federal constitution remains inadmissible. § 907.041(5)(i)
Defendant’s rights	Counsel, presentation of witnesses and evidence, and cross-examination. The defendant’s testimony is not admissible to prove guilt at any other proceeding, but may be used for perjury or impeachment. § 907.041(5)(j)
The order	Based solely on evidence produced at the hearing, with findings of fact and conclusions of law, written or oral on the record, rendered within 24 hours. § 907.041(5)(l)
Reconsideration	Any party may move to reconsider before trial on information not known at the time of the hearing that has a material bearing on release. § 907.041(5)(k)
Dissolution	The defendant is entitled to dissolution whenever the court finds a subsequent event has eliminated the basis for detention. § 907.041(5)(n)
Credit	Time held under a detention order is credited against sentence under § 921.161. § 907.041(5)(m)

A trap on surety bonds. If a defendant is released on bail pending a hearing on a mandatory (5)(d) motion, the court must warn him that if he uses a surety bond and detention is later granted, he is not entitled to return of the premium. § 907.041(5)(g)4.

Unauthorized aliens charged with a forcible felony — § 907.041(6)

A separate regime. A person who is an unauthorized alien as defined in § 908.111 and is arrested for a forcible felony as defined in § 776.08 is not eligible for release until first appearance.

At first appearance, if the court finds probable cause for the forcible felony and determines by a preponderance of the evidence that the defendant is an unauthorized alien, the court shall presume a substantial flight risk and that no conditions will ensure appearance, and shall order pretrial detention. The defendant may rebut the presumption by a preponderance. If rebutted, the court applies the ordinary § 903.046 criteria. A continuance may not exceed 48 hours absent extenuating circumstances, and the defendant is not released during it.

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