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What are "good excuses" for a Capias to be recalled?

Lynn Haven, FL |

My ex-husband was re-arrested on a failure to appear for a child abuse charge and he is of course hold without bond. He filed a motion to recall the capias and I need to know what is the likelyhood that he will be released again before he goes to trial.

Attorney Answers 3

  1. Many factors go into determining if a person will be released after being picked up after failing to appear. The factors include but are not limited to: the reason for the FTA, the timeline of re-arrest, ties to the community, the case status at the time of the FTA, etc. Generally speaking, a person who fails to appear will be eligible for re-release with an increased bond amount or additional conditions of release.

  2. A capias (warrant for arrest) can only be recalled before it is executed. If the motion to recall the capias was issued after the arrest, it is moot.

    Technically, there are no "good excuses" for failing to obey a court ordered appearance. However, there are good reasons why a person did not appear, i.e. Defendant was in the hospital, there was a family emergency. As was previously stated, the judge will take several factors into account in determining how to handle the situation including the reason the person did not appear, the amount of time that had elapsed between the time the person failed to appear and the subsequent arrest, what efforts the person made to inform the court as to why they did not appear in court, whether or not they turned themselves in on the warrant or waited for the police to find them, their community ties, the severity of the charge, family ties, prior criminal history, etc.

    The attorney's answers to questions are for general purposes only and do not establish an attorney-client relationship.

  3. Once a capias is executed against a defendant by arrest for failure to appear, the judge is not able to "recall the capias," but the judge can release the arrested defendant on bond or other conditions. If the judge is satisfied that the failure to appear was inadvertent or was caused by circumstances not under the control of the defendant, the judge is likely to reinstate the previous bond or release the defendant under similar conditions. Otherwise, the judge will consider the FTA as a factor in deciding whether to set any bond or other release conditions. Other principal considerations are the defendant's risk of flight (based on both the defendant's history and severity of the charges) and the defendant's danger to the community (again, based on the defendant's history and the nature of the charges). This means the defendant's ties to the community, prior record, charges, and conduct toward the court and others are all factors in the setting of the bond or conditions of release. You do not say whether you want your ex-husband released; if you want him released, you should communicate that to his attorney; if you are concerned about him being released, you should communicate that to the prosecutor.

    My response to your question does not create an attorney-client relationship, nor does it create any obligation for me to represent you or for you to hire me to represent you. For additional help with your problem, you should consider promptly consulting with an attorney with whom you will have a confidential attorney-client relationship.