A few Reasons Why You Should Challenge an Unreasonable Pretrial Detention with a Writ of Habeas Corpus

The cash bail system is broken, especially in Florida.[i] In many of the rural counties in Florida, bail is set by an administrative order (bond schedule) which is presumed reasonable, and then rarely challenged by the detainees other than throwing themselves on the trial court’s mercy to lower the bond. As a result, people sit in jail pending the outcome of their cases. It is not fair by design, but it does not have to be this way.

In some of the more rural counties, it is not uncommon to see massive $50,000.00 bonds on simple third-degree felonies (the lowest classification of felony offense in Florida). When the bonds from these rural counties are compared with the larger, urban areas (like Miami, Orlando, Tampa, and Jacksonville) the disparity of the bonds is much clearer and obnoxious. The same bond in Tampa is usually $2,500.00. Why is pretrial release in some of the rural counties harsher than in the more urban counties? Who really knows? Regardless of the rationale, the result is absurd.

As it stands, the right to pretrial release is enshrined in our constitution. It is not really a debatable matter. Defendants, presumed innocence, should be released on non-monetary conditions of bail. Our constitution states at Article 1, Section 14:

SECTION 14. Pretrial release and detention.—Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. History.—Am. H.J.R. 43-H, 1982; adopted 1982.

Id. See also Fla. R. Crim. P. 3.131.[ii] Additionally, the colonists feared being jailed by the Crown without pretrial release and demanded a constitutional amendment to forbid the federal government from ever attempting it. “Excessive bail” is prohibited under the Eight Amendment (and is applicable to the states via the Fourteenth Amendment and the “incorporation doctrine.”) Further, the United States Supreme Court explained:

The traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction…. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).

Additionally, Florida already has a statutory and rule-based presumption in favor of non-monetary release. See Chapter 903, Fla. Stat., and Fla. R. Crim. P. 3.131. Yes, you read that correctly. Florida created a strong presumption in favor of releasing without monetary bail conditions. This presumption affords the accused the same right to pre-trial release as those who can afford to post bail and has its roots in the equal protection clause of the Fifth and Fourteenth Amendments and Article 1, Sections 2, 9, and 14 of the Florida Constitution (1968 Revision).

The purpose of the release on non-monetary conditions is to level the a tilted playing field and afford the accused defendant the same right to pre-trial release as those who can afford to post a monetary bail. Moreover, an accused’s financial circumstance must be considered in the setting of a bond. There must be sufficient evidence by the state to show that the accused could meet the bail amount as it was set by the trial court to be deemed reasonable; otherwise, the bail is automatically considered excessive and unreasonable. See Cameron v. McCampbell, 704 So.2d 721, 723 (Fla. 4th DCA 1998) (granting petitioner’s habeas corpus based on excessive bail because there was insufficient evidence showing that petitioner could meet the bail that was set by the trial court).

An embarrassing large number of attorneys around this state fail to properly handle bond motions. Many attorneys file a boilerplate motion they have used for years (by changing the caption and some names), come to court without any testimony or evidence to present to court, ignore the criteria established in Chapter 903, Fla. Stat., and Fla. R. Crim. P. 3.131, and then simply ask for the judge to reduce the bail amount. The attorney usually attempts to explain to the court that the defendant has a job, has children, and has lived at a certain residence for a few years. What the attorney does not do is put on any evidence. Contrary to local customs, handling a bond motion in this fashion is improper, and lazy (and completely ineffective). And, if the court denies the reduction, the defendant cannot challenge the results on a writ of habeas corpus because there was no evidence presented to the court.[iii]

The presumption in favor of pretrial release on non-monetary conditions does not apply to persons charged with a “dangerous crime” as defined in §907.041 (4)(a), Fla. Stat. Even a defendant charged with a dangerous crime, however, may be granted pretrial release on electronic monitoring or on a recognizance (surety) bond. The applicable provision, §907.041(4) (b), Fla. Stat., provides:

(b) No person charged with a dangerous crime shall be granted non-monetary pretrial release at a first appearance hearing; however, the court shall retain the discretion to release an accused on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant such a release.

Id. Thus, even a person charged with a “dangerous crime,” at the court’s discretion, may be granted pretrial release on electronic monitoring or a recognizance bond if the facts and circumstances of the case warrant such release.

Florida case law further provides that although bond schedules serve a valid purpose, they may not provide a justification for excessive bail. Reductions in bond must be made on a case-by-case basis with full consideration of the legally relevant factors. Such factors include an accused’s financial resources, family ties, employment history, length, and stability of his residence in the community, past criminal convictions, and record of appearing or failing to appear at court proceedings. See Rawls v. State, 540 So.2d 946, 947 (Fla. 5th DCA 1989) (holding that the trial court abused its discretion by strictly adhering to the bond schedule because defendant proved that he was indigent, had a strong family connection in the community, and did not have a previous criminal record.)[iv]

If, after a bail reduction hearing, the trial court has set an unreasonable, excessive bond, then your attorney should challenge the bail with a writ of habeas corpus. The great writ (as it is known) has historically been used to challenge an illegal or unlawful detention. Many attorneys in Florida do not know the appellate procedure for filing a writ of habeas corpus challenge an unlawful detention. In fact, there are a limited number of attorneys in Florida that have ever successfully filed a writ of habeas corpus, but they are out there to help in this regard.

Anthony Candela knows a thing or two about filing writs of habeas corpus. Candela has filed a dozen or so writs of habeas corpus with the various appellate courts of this state. While not every writ has been granted, he has had some success in having a few writs of habeas corpus granted and those clients subsequently released from custody. Not many attorneys in Florida have that invaluable experience, but he knows the procedure through and through and can assist in this regard.

The unconstitutional practice of setting ridiculously high and unreasonable bonds to hold presumed innocent persons accused of crimes will not cease until the various defense bars around the state curtails the practice with smart challenges to the initial bond set followed by writs of habeas corpus to the appellate court review each and every one of these constitutional violations. Progress is slow, but necessary. Under the rule of law, writs of habeas corpus are the time honored remedy to these unlawful detentions. It is the only way to correct this injustice (because this is not a problem created in this instance by the legislature or executive branches.)

Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial 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 #thetrialdog @candelalawfirm @thetrialdog


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No. 21-014 Bail Writ

[i] For more information on how broken the cash bail system is in America and across the states, please see the accompanying links. https://www.savannahnow.com/in-depth/special/2021/02/09/reforming-cash-bail-system-benefits-both-accused-and-taxpayers/3948807001/ https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works https://theappeal.org/bail-reform-explained-4abb73dd2e8a/ https://bailproject.org/after-cash-bail/ https://www.aclu-wa.org/sites/default/files/media-legacy/attachments/Bail%20Position%20Paper%2C%20Final%20II.pdf https://www.vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-inequality https://www.aclu.org/issues/smart-justice/bail-reform https://www.americanprogress.org/issues/criminal-justice/reports/2020/03/16/481543/ending-cash-bail/ https://theappeal.org/virtually-no-one-is-dangerous-enough-to-justify-jail/

[ii] There are some limitations already baked-in to the bond/bail system in Florida. For instance, Florida’s Anti-Murder Act limits the release of certain individuals that have been in trouble before, have a qualifying offense, or are on supervision (probation or community control) for certain qualifying offenses. If the defendant is designated a “violent felony offender of special concern” or “VFOSC,” the defendant’s bond will automatically be set at “no bond.” Upon notice, the trial court must conduct a special hearing called a “dangerousness hearing” to determine if pretrial release is warranted or whether the defendant should remain in custody pending the outcome of violation of probation (“VOP”) matter.

[iii] Unsworn statements of attorneys are not evidence and may not be considered as such. See generally Ehrhardt, Florida Evidence §605.1 (Oath or Affirmation). See also Smith v. Smith, 64 So.3d 169 (Fla. 4th DCA 2011); H.K. Development, LLC. V. Greer, 32 So. 3d 178 (Fla. 1st DCA 2010); Faircloth v. Bliss, 917 So.2d 1005 (Fla. 4th DCA 2006); Arnold v. Arnold, 889 So.2d 215 (Fla. 2d DCA 2004); Brown v. School Bd. of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003); Arroyo-Munoz v. State, 744 So.2d 536, 537 (Fla. 2d DCA 1999)(“A prosecutor may not give unsworn testimony regarding facts outside the record”); Lewis v. State, 653 So.2d 1107, 1108 (Fla. 3d DCA 1995) (Trial court erred in relying on unsworn testimony in direct criminal contempt conviction); Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995) (Permitting attorneys to testify without taking an oath was error); Sabina v. Dahlia Corp., 650 So.2d 96 (Fla. 2d DCA 1995); Blimpie Capital Venture, Inc. v. Palms Plaza Patners, Ltd., 636 So.2d 1994 (Fla. 2d DCA 1994); Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2d DCA 1992); State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991)(Counsel’s representations as to the facts at a hearing on a motion to dismiss could not establish the underlying facts “An attorney’s unsworn statement does not establish a fact in the absence of a stipulation”); Schneider v. Currey, 584 So.2d 86, 87 (Fla. 2d DCA 1991) (Unsworn factual allegations contained in a memorandum of law presented to the trial court “are not facts that a trial court or this court can acknowledge.”); Houck v. State, 421 So.2d 1113 (Fla. 1st DCA 1982) (Unsworn testimony by Assistant State Attorney during suppression hearing was not competent); and Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982) (Improper for attorney to make unsworn statements of fact at hearing to vacate default: “[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If an advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.”)

[iv] The Rawls court found that bail in the amount of $20,000 was excessive and directed on remand that the court would reduce bail not in excess of $5000. Id. Bail in the amount of $500,000 was held to be excessive in both Rodriguez v. State, 305 So.2d 305 (Fla. 2d DCA 1974) and Good v. Wille, 382 So.2d 408 (Fla. 4th DCA 1980) for cocaine trafficking charges. Bail in the amount of $250,000 was held to be excessive in Matera v. Buchanan, 192 So.2d 18 (Fla. 3d DCA 1966) for aggravated child abuse charges. Bail in the amount of $200,000 was held excessive in Puffinberger v. Holt, 545 So.2d 900 (Fla. 4th DCA 1989) on aggravated child abuse charges.

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