The question comes up often enough, “do I have to go to prison while my direct criminal appeal is pending?” Shockingly, the answer is “not necessarily, it depends.” This type of release is often overlooked as many attorneys have no idea that their clients qualify for an “appellate bond” or how to ask for an “appellate bond” pending the appeal. Florida Rule of Criminal Rule 3.691 applies only to direct criminal appeals.
Pursuant to Fla. R. Crim. P. 3.691(a) and Younghans v. State, 90. So.2d 308 (Fla. 1956), the decision to release a person pending an appeal is entirely within the sound discretion of the court to set a supersedes bond (i.e., an appellate bond). There is no statutory calculus or formula for setting this specific bond and the court may, in its decision, look at several factors: (1) whether the defendant has ever been convicted of a previous felony; (2) the habits of the individual as to respect for the law; (3) his local attachments to the community, by way of family ties, businesses, or investments; (4) the severity of the punishment imposed for the offense; and (5) any other circumstances relevant to the question of whether the person would be tempted to remove himself from the jurisdiction of the court. If the defendant has a prior felony conviction, he or she is ineligible for an appellate bond.
To obtain an appellate bond, the attorney must file a motion with the court. In turn, the court must conduct an evidentiary hearing. At the hearing, the attorney must put evidence on to satisfy the above criteria in the form of testimony, affidavits, …etc. If the court grants the motion, then the defendant is released on bond like any person who is at liberty on pretrial release. If the court denies the motion, then the defendant can seek review with the appellate court to determine if the trial court abused its discretion.
The bond remains in effect throughout the pendency of the appeal subject to the terms and conditions of the bond. At the end of the appeal, the bond terminates. If the appeal was unsuccessful, then and only then (provided the person has not violated the terms and conditions of bond) the defendant must turn themselves to serve their sentence.
If you or a loved one has been convicted and is appealing or about to appeal a felony conviction, seek legal counsel to determine if you qualify for an appellate bond. Keep in mind – -“You miss 100 percent of the shots you never take.” Wayne Gretzky. In other words, if you otherwise qualify and you do not ask the trial court, then you cannot be released on an appellate bond. If you qualify, there is no harm in asking for an appellate bond if you otherwise qualify.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm
For this bond/bail issue or anything criminal, please call the Candela Law Firm (813) 417-3645 24 hours a day/7 days a week/365 days a year for a short, free consultation or visit on the web www.candelalawfirm.com for further information.
The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.
If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article.
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