Bond on Appeal
The law regarding obtaining bond pending a criminal appeal
Pursuant to the Federal bail statute, 18 U.S.C. § 3143(b)(1), a judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds:
A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released under section 3142(b) or (c) of this title; and
B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
Section 3143(b)(1). Thus, in order to be released on bond pending an appeal of a federal criminal conviction, the defendant-appellant must establish by clear and convincing evidence first, that he or she is not a flight risk or a danger to the community, second, that his or her appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or a new trial, or third, that a reduced sentence may result from the appeal that will be less than the time already served plus the expected duration of the appeal. 18 U.S.C. § 3143 (b)(1); United States v. Bayko, 774 F.2d 516 (1st Cir. 1985); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985), cert. denied, 479 U.S. 1018, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986). A “substantial question” has been defined as one that is a close question or one that could very well be decided in favor of the defendant and that the claimed error is not frivolous. Bayko, 774 F.2d at 523; Giancola, 754 F.2d at 901. This “likely to result in a favorable result” standard does not require the District Court to conclude that it is likely to be reversed by the Court of Appeals. Bayko. Rather, the Court need only find that there is a close question that very well could be decided the other way and that the claimed error is not harmless. Id.. Whether a question is substantial in this context must be determined on a case-by-case basis. Bayko, supra.
The law regarding bail bond and pretrial detention in Florida state courts
The Florida Constitution provides that every person charged with a non-capital case is entitled to pretrial release on reasonable conditions, unless no conditions of release can reasonably protect the community from risk of physical harm, assure the presence of the accused at trial, or insure the integrity of the judicial process. Fla. Const., Art 1, § 14. See also, Fla. R. Crim. P. 3.131(a) (“Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption great, every person charged with a crime or violation [of law] shall be entitled to release on reasonable conditions.”) (emphasis added). “The object of bail in a criminal case is to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and to do what the law may require of him.” Matera v. Buchanan, 192 So.2d 18, 20 (Fla. 3d DCA 1966). Moreover, bail may not be used to punish an accused. Rodriguez v. McRay, 871 So.2d 1001, 1003 (Fla. 3d DCA 2004).
“Under our system of constitutional government, the right of bail prior to trial of one accused of a non-capital offense is absolute … That right is one of the bulwarks in the structure of a free society. Every accused person is presumed to be innocent until such time as the State, if they can, establishes his guilt beyond and to the exclusion of every reasonable doubt. Judicial Officers charged with the responsibility of fixing bail are bound by the Constitution to fix bail in not excessive amount … Bail should not be fixed in so excessive an amount as to preclude the probability of the accused being able to furnish it.”
Matera v. Buchanan, 192 So.2d, at 20 (emphasis added).
In order to detain a defendant without bail in a non-capital case or a case charging an offense punishable by life imprisonment, the state has the burden of seeking pretrial detention by way of a written motion pursuant to Fla. R. Crim. P. 3.132. See, Ho v. State, 929 So.2d 1155 (Fla. 5th DCA 2006). In any motion for pretrial detention, the state must properly set out in detail the basis of any such request and why reasonable conditions of bail cannot be set. Fla. R. Crim. P. 3.132(a) and (b). To prevail, the state’s burden is the same as in a capital case or a case charging an offense punishable by life imprisonment. The state has the burden of proving that detention without bail is necessary with evidence that greater than proof beyond a reasonable doubt. Fla. R. Crim. P. 3.132(c); compare, State v. Perry, 605 So.2d 94, 96-97 (Fla. 3d DCA 1992) (In order to deny pretrial release to defendant charged with capital offense or offense punishable by life imprisonment the degree of proof sufficient to deny right to bail must be greater degree than that which required to establish guilt, more than proof beyond a reasonable doubt); State v. Arthur, 390 So.2d 717, 719-20 (Fla. 1980) (Where person accused of capital offense or offense punishable by life imprisonment seeks release on bail, it is within discretion of court to grant or deny bail when proof of guilt is evident or presumption great). Moreover, “[w]hile a finding of danger to the community can be used as a factor in determining bail or other conditions, Fla. R. Crim. P. 3.131(b)(3), it cannot be the entire basis for pretrial detention … ” Metzger v. Cochran, 694 So.2d 842, 842-43 (Fla. 4th DCA 1997), citing, Fla. Stat. §907.041(4)(b)(4) and (4)(a)-(c), superceded by statute on other grounds as stated in, Barns v. State, 768 So.2d 529, 530-31 (Fla. 4th DCA 2000) (addressing revocation of bond and detention based on commission of another crime while on bond).
The test of an excessive bail is whether an ordinary citizen in like circumstances and conditions of those of the accused would be precluded from posting the bail set. Often, strict adherence to a bond schedule can be an abuse of discretion, particularly in the case of defendants with limited financial resources. And excessive bail, depending on the financial resources of a defendant, is tantamount to no bail. Narducci v. State, 952 So.2d 622, 623 (Fla. 4th DCA 2007); Rodriguez v. McRay, 871 So.2d, at 1003; Good v. Willie, 382 So.2d 408, 410 (Fla. 4th DCA 1980); see and compare, Vetri v. State, 558 So.2d 1097 (Fla. 5th DCA 1990) (Pretrial bail of $50,000 was unreasonably high in prosecution for capital sexual battery upon a child under twelve years of age where defendant had lived and had been employed in community for several years, had no prior record, had been adjudicated indigent, and where State relied on single act of touching); Short v. State, 557 So. 2d 177 (5th DCA 1989)(Appeals Court ordering a reduction of bail from $20,000.00 to $5,000.00 or less in attempted second degree murder prosecution where evidence established defendant was indigent, had family ties, had long term residency in the community and lacked a criminal record). See also Mesidor v. Neumann, 721 So.2d 810, 811 (Fla. 4th DCA 1998) (Pretrial bond set at $200,000 was tantamount to no bond, and excessive, even though habeas petitioner was charged with offense punishable by life in prison, where State apparently conceded petitioner’s entitlement to bond, petitioner demonstrated his ties to the community, that he had no prior criminal record, and petitioner was indigent); Puffinberger v. Holt, 545 So. 2d 900, 902 (4th DCA 1989) (Bail of $200,000 was excessive for defendant charged with child abuse alleging that defendant willfully or by culpable negligence permitted physical or mental injury to a child where defendant was not charged with any count of aggravated child abuse in the death of one of her children, her other child had been placed in foster care under supervision during pendency of proceedings, and defendant testified she would have the same job if she were released from jail, would have a place to live with her boss, had never been convicted of any crime, and could post no more than $1,500 cash; by denying reduction of excessive bail, defendant was in effect being detained without bond in violation of State Constitution).
The factors the court considers in setting bail are:
A. The Nature and Circumstances of the Charge and Penalty Provided by Law and Weight of Evidence Against the Accused;
B. The Accused’s Community Ties;
C. The Accused’s Employment History;
D. The Accused’s Mental Condition;
E. The Accused’s Prior Criminal Record;
F. The Accused’s Economic Situation; and
G. Whether the Accused is a Risk of Flight and/or a Danger to the Community.
Once a reasonable bail is set, it is usually posted by a licensed professional bail bondsman, who generally charge a fee of 10% of the total amount of the bond, and may require collateral to guarantee the total bond. For example, if the court sets a bond of $5,000, the accused will have to pay a $500 non-refundable fee to the bail bondsman. If the bond is low enough, the accused may post the entire amount at the jail where he or she is being held, and as long as the accused appears for court, the amount posted at the jail is returned minus any fines or court costs imposed by the court.
Anyone accused of a crime in Florida State courts should retain competent and experienced counsel to protect their rights, including the right to be released on reasonable conditions of bail pending the conclusion of the court proceedings.