Criminal Appeal Bonds in Florida
Criminal Appeal Bonds in Florida
After the imposition of sentence, some defendants in Florida may ask the court for post-trial release by way of seeking what is commonly referred to as an appeal bond (also called a supersedeas bond). While “appeal bond" or “supersedeas bond" are the most commonly used terms, “post-trial release" is the official term used in the rule. No matter what title is used, the ultimate decision by the court is discretionary. The right to bail under Florida’s constitution is limited to individuals held in pre-trial detention. Florida Statute section 903.132(3) prohibits the trial court from continuing the original bond into and through the appeal process. The Florida Legislature has mandated a separate bond proceeding for detainees seeking an appeal in order “to reflect the increased risk and probability of longer time considerations."
Several sources of authority control the appeal bond process and set forth the framework for granting appeal bonds to certain Florida detainees.
The sources of authority are Rule 3.691, Florida Rules of Criminal Procedure; sections 903.131, 903.132, 903.133 and 924.20, Florida Statutes, Rule 9.140(h), Florida Rules of Appellate Procedure and the several appellate decisions, primarily the opinion in Younghans v. State, 90 So. 2d 308 (Fla. 1956).
Appeal bonds are available to detainees regardless of whether the State or the Defendant pursue the appeal. This guide will initially address the scenario in which the defendant pursues the appeal (the far more common scenario). Secondly, this guide will address a scenario where the State pursues an appeal.
Limitations on Appeal Bonds
Limitations on appeal bonds are numerous. As discussed below, obtaining an appeal bond will first depend on whether a specific detainee will be able to “run the gauntlet" through the numerous limitations and initially be able to even ask the court to use its discretion in considering an appeal bond.
The first limitation comes from Rule 3.691. The rule allows for appeal bonds only in cases which are not capital. In capital cases, even where the defendant has been sentenced to life, appeal bonds are unavailable. Rowe v. State, 417 So. 2d 981 (Fla. 1982).
Secondly, Section 903.133 prohibits appeal bonds following any conviction for: second degree murder, kidnapping, first degree felony arson, first degree felony drug dealing / trafficking as well as sexual battery.
Thirdly, Rule 3.691 places a limitation on the courts discretion and prohibits appeal bonds for any individual who has been convicted of a felony which was committed prior to the commission of the felony in which the detainee is seeking an appeal bond. There is an exception to this limitation if the detainee’s civil rights have been restored in the previous felony.
The dates of the commission of the two felonies are the important dates for the analysis of this language. In Florida we frequently describe such a scheme as creating a “commission-to-commission" rule. Therefore, assume we have an individual named Detainee A. Let’s assume Detainee A commits a felony in 2008 and subsequently commits another felony in 2011. Let’s assume that Detainee A is tried on the 2011 case first and is convicted. Assume that subsequently the State goes forward on the 2008 charges and Detainee A is again convicted. Detainee A would still be eligible for an appeal bond even though he was already a convicted felon when the 2008 case began because his “prior" felony conviction on the 2011 case related to an offense which occurred after the commission of 2008 offense. Of course, if the detainee’s civil rights have been restored in the 2011 offense, the dates of commission do not matter because the prohibition will not apply.
In analyzing eligibility for an appeal bond, the detainee is not considered previously “convicted" of a prior felony if the court withheld adjudication of guilt in the prior case. Montgomery v. State, 788 So. 2d 274 (Fla. 4th DCA 2000). Additionally, a detainee is not previously “convicted" for purposes of an appeal bond if he was uncounseled in the prior felony case. Jones v. State, 662 So. 2d 383 (Fla. 3d DCA 1995).
Rule 3.691 also prohibits an appeal bond in a case where a detainee has other, pending felony charges. Therefore a detainee who is facing two felony prosecutions, whether stemming from a different series of events or sitting in different jurisdictions, is ineligible for an appeal bond pursuant to the language of the rule. In order for the other felony charge to act as a limitation to an appeal bond under the rule, a determination of probable cause has to have been made.
Asking for an Appeal Bond
If, after considering the various limitations, a detainee is still eligible for an appeal bond, a written motion asking for an appeal bond may be filed with the trial court. The motion may be filed either before or after the Notice of Appeal is filed. However, the detainee can not be released until after the Notice of Appeal is filed. Fla. R. App. P. 9.140(h)(1). There used to be some confusion about whether a motion for an appeal bond could be filed after the record on appeal had been transferred to the appellate court. The appellate rules were updated in 1997 and it is now clear that the transfer of the record has no impact on the trial court’s jurisdiction to rule on a motion for an appeal bond.
A) Analyzing the Appeal Itself
A detainee who has been convicted of a felony must demonstrate to the court that the appeal is taken in good faith on grounds fairly debatable and is not frivolous. These requirements come from Rule 3.691(a). The detainee is not required to establish that he is probably going to win the appeal but only that a reasonable issue of law exists which is open to debate. Baker v. State, 213 So. 2d 285, 287 (Fla. 4th DCA 1968). It is inappropriate for a trial court to require the detainee to establish anything more than what is required by the rule. Childers v. State, 847 So. 2d 1120 (Fla. 1st DCA 2003).
B) Analyzing the Detainee
If the detainee establishes that his appeal is taken in good faith on fairly debatable grounds, the rule directs the trial court to consider the detainee as an individual according to the factors set forth in Younghans v. State, 90 So. 2d 308 (Fla. 1956). Those factors are:
1) the detainee’s habit of showing respect for the law,
2) the detainee’s attachments to the community,
3) the severity of the sentence imposed by the court, and
4) any other relevant factors.
A detainee’s “attachments to the community" have been described to include his family ties, business and investment attachments. Wells v. Wainwright, 260 So. 2d 196 (Fla. 1972).
Suggesting a bond amount is a delicate issue because very little authority exists which would support any specific amount. A bond amount of $3,000 was agreeable to the State in a second degree misdemeanor conviction in Chandler v. State, 722 So. 2d 983 (Fla. 4th DCA 1999). The opinion in Dumas v. State, 889 So. 2d 139 (Fla. 4th DCA 2004) described a $20,000 bond in a felony case which involved a minimum mandatory sentence. However the Dumas opinion did not rule on the appropriateness of that amount or discuss the amount in any manner.
C) Ruling on the Motion
If the detainee qualified for an appeal bond but the trial court denied the motion based on its discretion, such an order must be reduced to writing. Rule 9.140(h)(3) requires that such an order set out the factual basis for the denial instead of merely reciting a boilerplate statement. A trial judge who fails to provide a sufficient factual basis for a denial of an appeal bond may eventually be ordered to set an appeal bond by the appellate court. Coolley v. State, 720 So. 2d 598 (Fla. 2d DCA 1998).
If the motion for an appeal bond is denied in the trial court, the detainee may have that denial reviewed by the appellate court pursuant to Rule 9.140(h)(4). There is no need to file a separate appeal. This is so even though Rule 3.691(b) and Fla. Stat. § 903.132(b) make it appear as if a separate appeal is warranted. The detainee should simply file a motion in the appeal proceeding which is already pending. There is no time limit to file such a motion in the appellate court.
If the trial court grants the detainee an appeal bond the detainee must agree to prosecute the appeal and to surrender to the authorities if the appeal is affirmed is remanded for further proceedings. Fla. R. Crim. P. 3.691(c). Any conviction for a felony committed while a detainee is on an appeal bond will result in a revocation of the appeal bond. Fla. Stat. § 903.131. A violation of the appeal bond requirements, including failure to prosecute the appeal, may result in the dismissal of the appeal. Fla. Stat. § 924.20. The trial court will retain jurisdiction to consider maters related to the appeal bond while the appeal is pending. Hirsch v. State, 864 So. 2d 41 (Fla. 5th DCA 2003).
Appeals by the State
The vast majority of criminal appeals are taken by criminal defendants. The appellate rights of defendants and the State diverge significantly and vary based on the underlying issue which is sought to be appealed as well as whether the appeal comes from a misdemeanor or felony prosecution.
In most cases, where a detainee is otherwise eligible for bail and the State takes an appeal; the detainee shall be released on his own recognizance unless the judge finds good cause why the release should not occur. Fla. R. App. P. 9.140(h)(2); Fla. Stat. § 924.071.
Orders granting a new trial and orders suppressing evidence or a confession are different animals in the State appeal analysis. If the defendant has been adjudicated guilty of an offense in which he was ineligible for bail, and the court enters an order granting the defendant a new trial, the State appeal will act to stay that order and the detainee will remain ineligible for a bail while the State appeal is pending.