State v. Umbrecht

371 So. 2d 1109, 1979 Fla. App. LEXIS 14920

Opinion

BERANEK, Judge.

This is an appeal by the State of an order dismissing an information. The defendant was not in custody at the time an information against him was filed. Defendant was arrested more than twenty-one days after the filing of the information. Defendant requested an adversary preliminary hearing pursuant to Fla.R.Crim.P. 3.131(b)(1). At this hearing, the State declined to present evidence and the trial court dismissed the information. We reverse. Fla.R.Crim.P. 3.131(b)(5) states what action may be taken as a result of a finding of no probable cause. In such circumstances the defendant is to be released under specified conditions. The Rule specifically states that, “Such release does not, however, void further prosecution by information or indictment . . .” In considering a non-adversary preliminary hearing, this Court has, previously ruled that the finding of no probable cause does not authorize dismissal of the information. State v. Antel, 333 So.2d 76 (Fla. 4th DCA 1976). The case at hand involved an adversary preliminary hearing but this distinc tion did not warrant dismissal of the information. The order below is reversed and the cause remanded with instructions to reinstate the information.

REVERSED AND REMANDED WITH INSTRUCTIONS.

DAUKSCH and LETTS, JJ., concur.