# Amicus Brief — Gerstein v. Pugh

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0012%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 103

## Text

IN THE —
SUPREME COURT OF THE UNITED states’
October Term, 1973
No. 73-477

RICHARD E. GERSTEIN, State Attorney for
the Eleventh Judicial Circuit of Florida,
in and for Dade County,

Petitioner,

ROBERT PUGH and NATHANIEL HENDERSON, on
their own behalf and on behalf of all
others similarly situated, and

THOMAS TURNER and GARY FAULK, on their
own behalf and on behalf of all others
similarly situated,

Respondents.

BRIEF OF AMICUS CURIAE (STATE OF FLORIDA)
IN SUPPORT OF THE PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS IN AND FOR THE FIFTH CIRCUIT

ROBERT L. SHEVIN
Attorney General

RAYMOND L. MARKY
Assistant Attorney
General

GEORGE R. GEORGIEFF
Assistant Attorney
General
The Capitol Bldg.
Tallahassee, Florida

i

TOPICAL INDEX

Pages
PRELIMINARY STATEMENT........-e2+. lL

QUESTION PRESENTED.......-+eeee0+- 2
ARGUMENT... .cceccccccccccccecccess 2°20
CONCLUSION... ccccccccccccccccssese 20
CERTIFICATE OF SERVICE.....-.++++- 21

AUTHORITIES CITED

CASES Pages

Berea College v. Kentucky,
211 U.S. 45, S3.cccccccccccsccee 12

Callendar v. Florida,
380 U.S. 519, 14 L.ed.2d 265,
SS S.CO. L5BS (IPSS) ccccccccecece AZ

Callendar v. Florida,
383 U.S. 270, 15 L.ed.2d 749,
86 Be Gee 924 ll 13

Coleman v. Alabama,
399 U.S. l a) 7-8

Coolidge v. New Hampshire,
403 U.S. 443 oo 5

ii

Dresner v. Tallahassee,
375 U.S. 136, 11 L.ed.2d 208,
84 S.Ct. 2 SPT rTrTrrrrrerr 12-13

Fox Film Corp. v. Muller,
296 U.S. ee 12

Hurtado v. California,
110 U.S. 516 (1884)... ccccccee §

Morrissey v. Brewer,
408 U.S. 471 oo) 5-6

Murdock v. Memphis,
20 Wall. 590 (1875)........... 12

Seripto, Inc. v. Carson,
362 U.S. 207, 4 L.ed.2d 660,
80 §.Ct. Pte eeebdeebseeeeeooe 12

State v. Hernandez,
217 So.2d 109 (Fla. 1968)..... 8

Trupiano v. United States,
334 U.S. 699 (1948).........2. 5

RULES

Rule 3.13l(a), Florida Rules of
Criminal Procedure..........+. 2,5,6

Rule 5(c), Federal Rules of Crim-
BROS POGGIO c cccescccccccece Be

iii

Rule 3.130, Florida Rules of
Criminal Procedure........+++ 7,9

Rule 3.191, Florida Rules of
Criminal Procedure.........+-+ 7,10

Rule 3.220, Florida Rules of
Criminal Procedure.........++ 7,8,9

Rule 5.1, Federal Rules of Crim-
inal Procedure.....eeeeeeeeee 9

Rule 4.61, Florida Appellate Rules,
31 PeBobc Ce eeeeeeeseeeeseeeses 9

Article V, §2, Constitution of
Florida, Vol. 3, Fla.Stat.
CAS UEP coseesecseeecececoeeeese 14

Rules 3.120, 3.130, 3.131, Florida
Rules of Criminal Procedure.. 14

Article V, §5, Constitution of
Florida, Vol. 3, Florida
Statutes CAOTA) cccccceccsceces 14

Article V, §6, Constitution of
Florida, Vol. 3, Florida
Statutes CASTE) cocccceseeeses 14

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1973
No. 73-477

RICHARD E. GERSTEIN, State Attorney for
the Eleventh Judicial Circuit of Florida,
in and for Dade County,

Petitioner,

ROBERT PUGH and NATHANIEL HENDERSON, on
their own behalf and on behalf of all
others similarly situated, and

THOMAS TURNER and GARY FAULK, on their
own behalf and on behalf of all others
similarly situated,

Respondents.

BRIEF OF AMICUS CURIAE (STATE OF FLORIDA)
IN SUPPORT OF THE PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS IN AND FOR THE FIFTH CIRCUIT

PRELIMINARY STATEMENT

Comes now the State of Florida, by and
through its Attorney General, and files
its brief Amicus Curiae in the above-
styled cause on behalf of Petitioner.

Amicus adopts in toto the position
taken by Petitioner in the brief hereto-
fore filed in this Court, and in addi-
tion thereto submits the cause should be
reversed for the reasons stated herein-
after.

_=
QUESTION PRESENTED

THE UNITED STATES COURT OF AP-
PEALS ERRED IN HOLDING THAT
ARRESTEES HELD FOR TRIAL UPON
INFORMATIONS FILED BY THE STATE
ATTORNEY MUST BE AFFORDED PRE-
LIMINARY HEARINGS BEFORE A
JUDICIAL OFFICER WITHOUT UN-
NECESSARY DELAY NOTWITHSTANDING
RULE 3.131(a), FLORIDA RULES

OF CRIMINAL PROCEDURE.

ARGUMENT

The United States Court of Appeals,
as well as the District Court, held that
the Fourth and Fourteenth Amendments af-
firmatively require that arrestees held
for trial upon informations filed by the
state attorney must be afforded prelimi-
nary hearings before a judicial officer
without unnecessary delay, in effect
declaring Rule 3.13l(a), Florida Rules
of Criminal Procedure, unconstitutional,
for said Rule dispenses with preliminary
hearings to a defendant charged by an
information or indictment.

lgubsection (b) of said Rule was wholly
misconstrued by the Court of Appeals for
that section only pertains to persons who
have not been indicted or informed, but
who have been arrested on a warrant or

in some cases without one. It does not
mean persons charged by indictment or in-
formation are entitled to a preliminary
examination within 72 hours.

o}-

The lower courts both recognized the
nonnecessity of a preliminary examination
wherein an indictment is returned against
the accused, which is not surprising in
light of this Court's Rule 5, Federal
Rules of Criminal Procedure. Subsection
(c) provides:

"(c) Offenses Not Triable
by the United States Magis-
trate.

"A defendant is entitled to

a preliminary examination,
unless waived, when charged
with any offense, other than
a petty offense, which is

to be tried by a judge of

the district court. If the
defendant waives preliminary
examination, the magistrate
shall forthwith hold him to
answer in the district court.
If the defendant does not
waive the preliminary exam-
ination, the magistrate shall
schedule a preliminary exam-
ination. Such examination
shall be held within a reason-
able time but in any event
not later than 10 days follow-
ing the initial appearance if
the defendant is in custody
and no later than 20 days if
he is not in custody, pro-
vided, however, that the pre-

limina examination shall
not be Cra if the defendant
for

age

before the date set for the

preliminary examination.
; i ad [Exphasts Supplied]

The lower court's conclusion that a
preliminary examination could not be dis-
pensed with where the defendant is held
pursuant to a charge contained in an in-
formation, but such could be done where
the accused is charged by an indictment
was in no way explained by either tribunal.
If one procedural method offends due pro-
cess and the other does not, then it would
necessarily follow that there is a sub-
stantial difference in the two methods.
The State of Florida suggests the dif-
ferences that may exist are more illusion-
ary than real. It is the same state
attorney who draws a direct information,
based upon testimony presented to him
under oath, who brings the evidence to
the grand jury, advises them as to the
various laws that might be involved and
in most cases makes a recommendation as
to whether they should indict or not.
Indeed, there are many individuals who
suggest that the grand jury has out lived
its usefulness because of the power exerted
over them by the over-zealous prosecutor.
Of course, grand jurors are lay persons
selected from the community at large and
under no circumstance can they be consi-
dered a “judicial magistrate." If one
is intellectually honest about the matter,
he must admit that while there may be a
distinction between the two methods in
law, there is virtually no difference in
fact or in substance. Needless to say,

.f one is truly concerned with substance,
different principles cannot be applied in

-§-

cases where a person is charged by an in-
dictment on one hand and by an information
on the other.

It is specifically because of the fact
that there is no difference that the
Florida Supreme Court saw fit to adopt
3.13l1(a), Florida Rules of Criminal Pro-
cedure, dispensing with preliminary hear-
ings if the defendant is charged in an
information or indictment and is perhaps
why this Court did the same in Rule 5,
Federal Rules of Criminal Procedure.

The Court of Appeals’ reliance upon
Coolidge v. New Hampshire, 403 U.S. 443
(1970) and Morrissey v. Brewer, 408 U.S.
471 (1971) is clearly misplaced. Coolidge
v. New Hampshire dealt with the issuance
of a warrant to justify the seizure of
property, and this Court held a warrant
had to be issued by a neutral magistrate
under the Fourth Amendment of the United
States Constitution. Coolidge did not
hold that subsequent to the seizure there
had to be a judicial examination to de-
termine whether there was a basis to con-
tinue to hold the evidence. The Coolidge
case is simply not applicable for if it
were, the plaintiffs would have been
asserting that they could not be arrested
without a warrant issued by a judicial
officer, a proposition this Court rejected
in Truptano v. United States, 334 U.S. 699
(1948), or that they haa to have a pre-
liminary examination prior to the filing
of an information, a proposition this
Court repudiated in Hurtado v. California,
110 U.S. 516 (1884).

In Morrissey v. Brewer, supra, this
Court held a parolee was entitled to a
prompt hearing to determine probable cause
before someone not directly involved with
the alleged violator. This Court did not
require that it be before a judicial of-
ficer, just someone not directly involved
with the parolee. That is precisely what
the state attorney is! In this respect,
Rule 3.13l(a) is consistent with the
rationale of Morrissey, not antagonistic
to it. Moreover, and perhaps more im-
portantly is the uniqueness of the insti-
tution of parole itself. In Morrissey,
the Court observed that the revocation
hearings were often times held in places
far removed from the place where the vio-
lation occurred and without compulsory
process the parolee could not adequately
present a defense to the charge. It was
this very fact which caused this Court to
hold that due process required there be
a “minimal inousry near the place of the
alleged paroie violation." No such prob-
lem exists in a criminal case, for the
defendant must be tried in the county
wherein the crime is committed and a de-
fendant in a criminal trial Clearly has
the right to compulsory process of wit-
nesses. Accordingly, a Morrissey hearing
in the context of a criminal trial serves
no valid purpose and certainly the absence
of such a hearing does not violate the
Due Process contemplated in Morrissey.

The State of Florida urges that the
dispensation of preliminary examinations
wherein an information is filed should
be approved by this Court for the same
reasons that it is dispensed with when a
person is charged by an indictment, and
that due process is not offended thereby.

~~

Examination of the Florida Rules of
Criminal Procedure, specifically Rules
3.130, 3.191, and 3.220 will reveal that
in light of those procedural safeguards
due process is not violated by the failure
to provide for preliminary hearings where
the accused is charged by an information
or indictment.

In Coleman v. Alabama, 399 U.S. 1 (1970),
this Court held due process required the
appointment of counsel to represent an
indigent at a preliminary hearing because
in Alabama it was a critical stage of the
criminal proceeding. This Court, of course,
did not hgld the state had to hold such
hearings,“ but merely that where one was
held counsel had to be provided. The
Court in concluding such hearings were
"critical stages" of the proceedings noted
the advantages to be gained by the defen-
dant saying:

"'Pirst, the lawyer's skilled
examination and cross-examination
of witnesses may expose fatal
weaknesses in the State's case
that may lead the magistrate to
refuse to bind the accused over.

2interestingly, Mr. Justice White's special
concurring opinion assumed such hearings
could be dispensed with for he opined, "Our
ruling may also invite eliminating the pre-
liminary hearing system entirely" 399 U.S.
at 18. Obviously, if the constitution re-
quired them they could not be eliminated.

Second, in any event, the skilled
interrogation of witnesses by

an experienced lawyer can fashion
a vital impeachment tool for use
in cross-examination of the State's
witnesses at the trial, or pre-
serve testimony favorable to the
accused of a witness who does

not appear at the trial. Third,
trained counsel can more effec-
tively discover the case the
State has against his client

and make possible the prepara- .
tion of a proper defense to

meet that case at the trial.
Fourth, counsel can also be
influential at the preliminary
hearing in making effective
arguments for the accused on

such matters as the necessity

for an early psychiatric ex-
amination or bail.'"

399 U.S. at 9

Under Florida law the interests or
rights referred to above are readily
available to the defendant without a
preliminary hearing ever being held.

Florida law clearly authorizes the
prosecuting officer to file an information
against the accused even if no probable
cause has been found. State v. Hernandes,
217 So.2d 109 (Fla. 1968), Florida's
discovery rules, to-wit: Rule 3.220, are
the most comprehensive rules of discovery
in the United States, and under those
rules he has a right to take the deposition
of all of the witnesses the state intends
to use at trial. Rule 3.220(d) These

-9-
depositions may be taken "at any time after

the filing of the indictment or information."

This discovery together with evidence the
state attorney must disclose to the de-
fendant and his counsel for inspection and
copying under Rule 3.220(a) and (b) provides
the defendant with ample “impeachment tools
for use in cross-examination of the State's
witnesses at the trial", and insures that

he will be able to prepare a “proper defense.
Indeed, when one considers that a preliminary

hearing can be conducted without all of
the State's witnesses and may rest solely
on hearsay evidence "in whole or in part",
Rule 5.1, Federal Rules of Criminal Pro-
cedure, use of the discovery rules is better
designed to provide the defendant with the
information this Court indicated he might
obtain at a preliminary hearing.

Insofar as acting as a conduit to bail
Or psyciatric examinations, the preliminary
hearing is totally unnecessary in this
State. Rule 3.130, Florida Rules of
Criminal Procedure requires a first ap-
pearance within 24 hours of arrest,3.130
(b) (1), and it is at this hearing that
the trial judge is to determine whether
bail is even necessary to assure the de-
fendant's appearance for he may release
him on his own recognizance and, of course,
tre defendant is “entitled as of right to
be admitted to bail before conviction",
3.130(b) (4), unless the offense charged
is a capital offense or an offense punish-
able by life imprisonment, in which case
the proof of guilt must be evident or
the presumption great. Since bail is
determined prior to the time that any

-10-

meaningful preliminary hearing could be
held,” such a hearing could have no rele-
vancy or bearing upon bail. Rule 3.210
provides for an inquiry into the defendant's
sanity on motion at any time before or
during trial and the preliminary hearing

is not needed for this purpose.

Florida's mandatory speedy trial rule,
Rule 3.191, osapl thekts the rights referred
to above, and it is respectfully suggested
that in this State no substantial right

is denied to an individual accused with

the commission of a crime because he is

not afforded a preliminary examination
where he has been charged by an indict-
ment or information. The district court
erred in concluding due process required

3ohe Respondents object to the alleged
timeliness of the preliminary hearing and
the district court was concerned about the
fact that a "...deprivation of liberty for
four days, absent a judicial determination
of probable cause, is questionable..."
(App. 111) This is indeed strange, for
this Court's Rules provide the magistrate
shall schedule a preliminary examination
within a “reasonable time. . . not later
than 10 days following the initial appear-
ance if the defendant is in custody..."
Rule 5(c)! The Court's conclusion that
"...an eight day (24 hours for initial ap-
pearance plus seven days) deprivation of
liberty is not reasonable..." (App. 111)
is clearly erroneous under Rule 5(c).

-ll-

such hearings and the Court of Appeals,
Fifth Circuit, erred in affirming such
conclusion.

Florida's recently amended Rules of
Criminal Procedure which were designed
to "...secure the just, speedy and ef-
ficient disposition of criminal cases..."
Rule 3.025(a) represents an experiment
by one state to devise a criminal justice
System that will work better than the
System that everyone admits is fraught
with delay, surprise and injustice.
Isolated portions, without regard to the
whole were, in effect, declared uncon-
stitutional before they were even im-
plemented and put into use. What makes
this so incomprehensible was that the
rule faulted was modeled to a great ex-
tent after this Court's rules pertaining
to first appearances, the difference
being that preliminary hearings are dis-
pensed with where the defendant is charged
by an indictment or an information under
Florida's Rules. As has been urged above,
the two methods of charging are so similar,
in fact, that this modification of the
= no way alters its substantive
worth.

The United States Court of Appeals,
Fifth Circuit, erred in concluding under
Florida prosecutorial rules an individual
charged with a crime by an information
must be accorded a preliminary examination,
and the failure to do so violates due pro-
cess of law. This Court should reverse
said holding.

-12-

Whether the decision of the Fifth
Circuit Court of Appeals can invest a
lesser tribunal (magistrate-county judge)
with jurisdiction sufficient to disturb
the custody of a defendant held in jail
as a result of having been charged by
information with a crime in Florida is
what this Court must decide.

The Supreme Court of Florida is the
final and unreviewable interpreter of
Florida law and, with respect to matters
of state law, the decisions of that court
binds everyone. Scripto, Inc. v. Carson,
362 U.S. 207, 4 L.ed.2d 660, 80 S.Ct.
619; Murdock v. Memphis, 20 Wall. 590
(1875); Berea College v. Kentucky, 211
U.S. 45, 53; Fox Film Corp. v. Muller,
296 U.S. 207. As recently as 1964, this
very Court in pursuance of Rule 4.61,
Florida Appellate Rules, 31 F.S.A.,
requested of the Florida Supreme Court a
decision by that tribunal regarding the
jurisdiction of the several courts
involved in that case so “hat it could,
in turn, determine whether matters pend-
ing before it should be disposed of in
one as opposed to another fashion.
Dresner v. Tallahassee, 375 U.S. 136, 1l
L.ed.2d 208, 84 S.Ct. 235. After having
received the opinion of the Florida
Supreme Court, the matters involved as to

<< ete

-13-

Dresner were dismissed this Cc
the following Senos’? ee

"PER CURIAM,

The questions which this
Court certified to the
Supreme Court of Plorida, 375
U.S. 136, 11 L.Bd.24 208, 84
S.Ct. 235, having been
answered in the affirmative,
164 So.2d 208, the writ of
certiorari is dismissed as
improvidently granted. 28
USC § 1257." 378 U.S. 539,

12 L.ed.2d 1018, 84 S.Ct.
1895. : _

Again, this Court in Callendar v.
Florida, 380 U.S, 519, 85 S.Ct. 1325, 14
L.ed.2d 265 (1965), and Callendar v.
Florida, 383 U.S, 270, 15 L.ed.2da 749,
86 S.Ct. 924 (1966), recognized that it
was bound by the Florida Supreme Court's

determination r ardi the
of courts in vidian —

It follows that this Court has repeat-
edly recognized the exclusive authority
of the Florida Supreme Court to deter-
mine the jurisdiction of the several
courts of the State of Florida. See
Dreener v. Tallahassee, supra, and
Callendar v. State, supra.

-14-

By operation of law (Article V,
Section 2, Constitution of the State of
Florida, see addendum at page 1307
through 1312 of Volume 3, Florida Stat-
utes, 1971), the Florida Supreme Court
is vested with the exclusive authority
to promulgate rules and regulations
regarding both jurisdiction and practice
in the several courts of the state. It
has adopted what is known as Florida
Rules of Criminal Procedure, effective
February 1, 1973, wherein the procedure
to be followed with regard to arrestees
is set out therein and in particular in
Rules 3.120, 3.130 and 3.131.

That same Article V, Section 5, sets
forth the jurisdiction of the circuit
courts of the State of Florida, and
Section 6 thereof sets forth the juris-
diction of the county courts. It may be
easily noted that the circuit courts
have jurisdiction of all matters not
vested in the county courts.

When an individual is indicted or
informed against in the State of Florida,
those formal charges are routinely filed
with the clerk of the circuit court where
the charge is brought, thereby vesting
the circuit court with jurisdiction of
the accused and the subject matter until
such time as the issues have been dis-
posed of. Obviously the circuit court
has jurisdiction to dispose of all
matters relating to that formal charge
and in so doing is reviewable on appeal

-15-

as a matter of right to the appropriate
district court of appeal or to the
Plorida Supreme Court as the case may be.

The criminal jurisdiction of the
county court is limited to misdemeanors.
Accordingly, they are, in the judicial
structure of the State of Florida, a
lesser tribunal--in short they are
Florida's magistrates much as the former
United States Commissioners are now
federal magistrates. In that posture
their jurisdiction no more permits them
to invade the province of the circuit
court regarding the custody of an
accused against whom an information has
been filed than could a federal magis-
trate invade the province of a Federal
District Court once an accused has been
informed against. Only the circuit
court or a district court of appeal or
the Florida Supreme Court, or conceivably
this Court, has authority to alter the
custody of an individual so confined.

By ruling as it did in the decision
below, the Court of Appeals purported to
vest the several magistrates (county
judges) in Florida with jurisdiction to
review an accused's custody ostensibly
on the theory of a preliminary hearing.
The net effect of this is to permit (by
dint of an impossible judicial fiat)
Florida's lbwest court to override the
authority of a Florida circuit court,
even to the point of ordering the
release of an accused theretofore con-

-16-

trolled only by the circuit court or by
the other courts above it mentioned pre-
viously. The Florida Supreme Court has
never vested magistrates with that kind
of authority~-they do not now have it--
and they cannot be given it, however
desirable that conclusion may appear to
the Court of Appeal below.

The upshot of the action taken by the
Court of Appeals in this matter, is that
an allegedly impartial magistrate is the
key which insures that due process
attends the proceedings they reviewed.

Apparently no one involved in this
litigation quarrels with the proposition
that a given state attorney in Florida
is free to file informations by virtue
of the authority vested in him to so do
under Florida law. It also seems appar-
ent that nobody quarrels with the propo-
sition that at preliminary hearings for
those arrested on a warrant (no indict-
ment o> information having been filed) a
magistrate in Florida is free within the
bounds of propriety to either find
probable cause and bind one over for
trial, or find its absence and order his
release. Accordingly, some questions
must arise as to whether this magistrate's
preliminary hearing is, in fact, any key

-l17-
at all.

Ostensibly, the only difference between
the matter set out immediately above and
the following, is that an information has
been filed and the individual has been
arrested on a capias based thereon. In
either instance, no particular arguments
would arise in those cases in which the
magistrate found probable cause and
entered an order binding the accused over
for trial in the circuit court. We ask,
“Suppose he finds an absence of probable
cause and orders the individual released
from custody under the charge?" Not in
either instance would such an order pro-
hibit the state attorney from thereafter
filing his information, securing a
captas, and having the accused arrested
thereon and confined as a result thereof.
By like token in the initial illustration
of an individual arrested on a warrant
without an information or an indictment
having been filed against him, a finding
of probable cause by the magistrate
accompanied by an order binding him over
en does not require the state
a to bring any cha S against
the individual either by iabtotions or
information--that being the province of
the state attorney's good judgment alone.

So it is that four possibilities
exist in the relationship of the office
of the state attorney and that of Florida's
county judge-magistrate:

-18-

1. Finding of probable cause by
a magistrate against an indi-
vidual routinely arrested but
neither indicted nor informed
ayainst.

2. A finding of a lack of prob-
able cause by a magistrate
against an individual routinely
arrested but neither indicted
nor informed against.

3. A finding of probable cause
against an individual
arrested based upon an in-
formation.

4. A finding of an absence of
probable cause for an indi-
vidual arrested based upon
an information.

Of these, certainly the situations involv-
ed in numbers 1, 2, and 4 have absolutely
no effect upon the subsequent action taken
by the state attorney with regard to the
individual involved.

It is at best doubtful that even the
situation set out in number 3 has any
effect upon the state attorney in terms of
a requirement that he continue to prose-
cute the arrestee against whom the magis-
trate has found probable cause. This is
so for the reason that the state attorney
is free to file in court his order nolle
prosequi at any time before the verdict

ee ee

2 ee ee

~ eee ee ee

-19-

is returned by the j - In this h -
not be challenged. =i ory

Since it is obvious that in virtually
all four of the only possible instances
that could arise the magistrate has
absolutely no controi over the disposi-
tion of the accused in terms of the
criminal charge, one must wonder at just
what, if anything, the opinion of the
Court of Appeals below was meant to
accomplish. Certainly it cannot be said
that the illegal detention of an accused
was its grail. Amicus has demonstrated
beyond question that such disposition
simply cannot be made by anyone who sits
in the capacity of a magistrate--certainly
never a county judge in the state of
Plorida--quite likely no other judge or
justice at any time prior to trial unless
on a petition for writ of habeas corpus
urging a total absence of any evidence.

If the magistrate and the preliminary
hearing are to be the key which we sub-
mit can be the only intention of the
decision of the Court of Appeals, then
such a key must both lock and unlock
the door to an arrestee's custody
regardless of what prompted the arrest.
Since it could not be the key before the
decision of the Court of Appeals and
cannot be as a result of it, it should
be characterized as just what it is
(in light of this Court's own decisions
in matters ‘virtually identical to this
Situation in all particulars and this

-20- | -21-

Court's own rules of procedure dealing |

with identical matters)--a judicial CERTIFICATE OF SERVICE
futility.
I, GEORGE R. GEORGIEFF, Counsel for
CONCLUSION | Amicus Curiea, and a member of the Bar of
the United States, hereby certify that
For these reasons, Amicus respectfully | on the day of January, 1974, I

served copies of the Brief of Amicus

urges this Court to reverse the holding
Curtae on Bruce Rogow, Esquire, 733 City

of the Court of Appeals in and for the

Pith Cioeshe tm ante ‘Gaede. National Bank Building, Miami, Florida,
and Phillip A. Hubbart, Esquire, Counsel
Respectfully submitted: for Respondents; and Peter L. Nimkoff,
Esquire, Suite 607, Ainsley Building, 14
ROBERT L. SHEVIN N.E. First Avenue, Miami, Florida, and
ATTORNEY GENERAL Lewis Jepeway, Jr., Esquire, 101 E.

Flagler Street, Miami, Florida, by a
dvly addressed envelope with postage

prepaid.
By
Raymond L. Marky
. Assistant Attorney
General
George R. Georgieft
And: ) Assistant Attorney

General

By
George R. Georgiett
Assistant Attorney
General

The Capitol Building
Tallahassee, Florida
32304

Counsel for Amicus
Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0012%3A12. Public record. Not legal advice.