Opinion
Case No. 97-2156
Opinion filed November 26, 1997.
A Case of Original Jurisdiction — Mandamus.
Bennett H. Brummer, Public Defender and John E. Morrison, Assistant Public Defender, for petitioner.
Robert A. Butterworth, Attorney General and Paulette R. Taylor and Mark Rosenblatt, Assistant Attorneys General, for respondents.
Before SCHWARTZ, C.J., and GERSTEN and SHEVIN, JJ.
Even though this case has been mooted as to the particular petitioner, we resolve the issue raised by his application for mandamus under the familiar exception to the mootness rule which permits appellate determination when the question presented "is capable of repetition yet evading review." See 3 Fla.Jur.2d Appellate Review § 308 (1997). Upon that consideration, we hold, as both parties agree, that the failure of the judge who sets bail or other release conditions in an arrest warrant to check the appropriate box on the accompanying form that the bond maynot be modified by the first appearance judge constitutes an affirmative authorization within the meaning of Florida Rule of Criminal Procedure 3.131(d)(1)(D) for the first appearance judge to modify that bond. Stated otherwise, the Dade County first appearance judge has the authority and the duty independently to consider the appropriate conditions of release for a defendant arrested on a warrant issued by another judge so long as that judge does not specifically preclude him from doing so. To the extent that the petition seeks other relief, it is denied.
(d) Subsequent Application for Setting or Modification of Bail.
(1) When a judicial officer not possessing trial jurisdiction orders a defendant held to answer before a court having jurisdiction to try the defendant, and bail has been denied or sought to be modified, application by motion may be made to the court having jurisdiction to try the defendant or, in the absence of the judge of the trial court, to the circuit court. The motion shall be determined promptly. No judge or a court of equal or inferior jurisdiction may modify or set a condition of release, unless the judge:
(A) imposed the conditions of bail or set the amount of bond required;
(B) is the chief judge of 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 first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release. [e.s.]