Bush v. State

74 So. 3d 130, 2011 Fla. App. LEXIS 15242, 2011 WL 4445630

• Court: District Court of Appeal of Florida
• Decided: September 27, 2011
• Docket: 1D11-3203
• Status: Published

Opinions

PADOVANO, J.

Anthony Bush, the defendant in a pending criminal case, petitions this court for a writ of habeas corpus to review an order entered under the pretrial detention statute, section 907.041, Florida Statutes (2011). We conclude that the detention order was unlawful. The court had previously admitted the defendant to bail and the state did not have good cause to seek a modification of the earlier order. Because the defendant’s detention is illegal he is entitled to relief by habeas corpus. We grant the petition and quash the detention order.

The defendant was arrested on April 10, 2011, in connection with the robbery of a jewelry store in Tallahassee. He appeared in court the next day before a county court judge for a first appearance hearing on charges of armed robbery, grand theft of property valued in excess of $100,000, and use of a firearm in the commission of a felony. The county judge reviewed the probable cause affidavit and then offered the state and the defense an opportunity to address the matter of bail.

Defense counsel acknowledged the seriousness of the charges but argued that the court should set reasonable conditions of release, given the fact that the defendant was a full-time college student at a local university. He disclosed to the court that the defendant had a juvenile court record but pointed out that he had no prior adult criminal record.

The prosecutor representing the state at the first appearance hearing agreed to an order setting bail in the amounts established by the local bail schedule. According to the schedule, the presumptive amounts would be $25,000.00 for the armed robbery charge, $25,000.00 for the grand theft charge, and $10,000.00 for the firearm charge. During the hearing, the prosecutor represented to the judge that “the state would be satisfied with the bond schedule,” along with some form of monitoring community restraint, perhaps an ankle monitor.

The county judge decided to admit the defendant to bail and informed all present that this decision was based in part on the state’s recommendation. The following dialogue took place between the court and the defendant on this point:

THE COURT: I think you need to understand something right now, Mr. Bush. This is a life felony. I wasn’t going to set a bond. I’ll go ahead and follow the State’s recommendation. Let me promise you, if you slip up at all, you’re going to be held without bond; these charges are so serious.

THE DEFENDANT: Thank you, Your Honor.

With that admonition, the judge set bail for the three offenses in the total amount of $60,000.00, according to the bail schedule.

Later that same day, another prosecutor filed a motion before another judge, this time a circuit judge, for an order holding the defendant without bail under the provisions of the pretrial detention statute. Defense counsel objected to the motion on the ground that there was no lawful reason to modify the bail order entered at the first appearance hearing.

The hearing on the state’s motion began with a question by the circuit court judge regarding the effect of the prior bail order. In response to this inquiry, the prosecutor stated that the motion for pretrial detention was not the equivalent of a motion to reconsider or modify bond, as the defense had suggested, but rather that it was a remedy the state was entitled to pursue. As the prosecutor explained, “I’m not asking for a do-over first appearance; I’m moving under a whole different vehicle.”

Despite this statement, the prosecutor then offered the following candid explanation for the state’s earlier agreement to release the defendant on bail:

My understanding of the first appearance, Your Honor is, quite candidly, is the assigned Assistant State Attorney ... agreed to a bond. She had recently found out some traumatic news to her professionally, and was not focusing on the ball. I could tell you more specifics about that. But she came to my office later in the day, and realized that she had agreed to a bond that was — on a case that she didn’t realize was PBL [a first degree felony punishable by life], on a situation that the State would normally be asking for a no-bond.

To clarify this point, the prosecutor explained that he had filed the motion for pretrial detention because he “recognized the fact that [he] did not have grounds” to seek reconsideration of the order entered at the first appearance hearing.

The circuit judge overruled the defense objection and proceeded to the merits of the motion for pretrial detention. A law enforcement officer testified that a latent fingerprint taken from the counter in the jewelry store belonged to an alleged accomplice, Avery Davis, and that when the officers confronted Davis with the fingerprint, he confessed to the crime and implicated the defendant, Bush. A video surveillance tape in another jewelry store in the same shopping mall depicted the defendant and Avery Davis walking together, and the appearance of the two men in the video was consistent with the descriptions given by the victims of the robbery. Finally, the officer testified that a clerk at a jewelry exchange in Pembroke Pines, Florida, had identified the defendant, Bush, from a photo lineup as a person who had twenty diamond rings in his possession and who had, in fact, pawned some of the rings at the exchange.

Based on the evidence presented at the hearing, the circuit judge held that the state had established all of the legal requirements for pretrial detention. He concluded that the state had not waived its right to seek pretrial detention by agreeing to bail at the first appearance hearing. Alternatively, the judge found that the evidence regarding the photo lineup identification by the clerk in Pembroke Pines was significant new evidence that would justify reconsideration of the earlier bail decision. The judge granted the state’s motion and ordered that the defendant be held in custody without bail.

We begin our review of the order by noting that habeas corpus is the proper remedy to challenge the legality of a detention or restraint under which a person is being held. See Seccia v. Wainwright, 487 So.2d 1156 (Fla. 1st DCA 1986); Suarez Ortega v. Pujals de Suarez, 465 So.2d 607 (Fla. 3d DCA 1985). The remedy is often employed in criminal cases to seek review of trial court orders pertaining to bail and pretrial release. Among other kinds of orders within this general class, an order detaining a defendant under the pretrial detention statute is reviewable by habeas corpus. See Schwartz v. Neumann, 731 So.2d 746 (Fla. 4th DCA 1999).

To properly address the issues presented by the petition in this case we must consider the provisions of two rules. Rule 3.131(d)(2) of the Florida Rules of Criminal Procedure provides that the state may seek modification of bail or the conditions of release set by an order entered at the first appearance hearing only by showing that there is good cause for the modification. To satisfy the “good cause” requirement in this rule, the prosecution must present evidence of a change in circumstances or information not made known to the first appearance judge. See Sikes v. McMillian, 564 So.2d 1206 (Fla. 1st DCA 1990); Keane v. Cochran, 614 So.2d 1186 (Fla. 4th DCA 1993); Michael E. Allen, Florida Criminal Procedure § 9:7 (2011) (discussing the rule and case law on this point). Evidence that was available to the state at the time of the first appearance hearing does not qualify as new information and therefore does not justify a subsequent denial of bail or a subsequent increase in the amount of bail.

Rule 3.132(a) authorizes the state to file a motion for pretrial detention at or before the first appearance hearing.¹ However, the grounds for detaining an individual might not be known or fully developed at that time. Subdivision (b) of the rule accounts for this possibility by providing that the state may file a motion for pretrial detention “at any time prior to trial.”

The defendant contends that the pretrial detention order is invalid under rule 3.131(d)(2), because the circumstances had not changed since the time of the original bail order, and the state did not present any evidence at the pretrial detention hearing that it could not have presented earlier. In response, the state maintains that it may file a motion for pretrial detention at any time, even if the circumstances have not changed since the entry of a prior order admitting the defendant to bail.

The case law in Florida supports the position advocated by the defendant. For example, in Goelz v. Bradshaw, 906 So.2d 1234 (Fla. 4th DCA 2005), the appellate court quashed a pretrial detention order on the ground that there was no new evidence or change of circumstance to justify a modification of the bail order originally entered at the first appearance hearing. The court explained:

[A] revocation of bond requires a change in circumstances or information that was not disclosed to the court when the bond was originally set. Nevadomski v. Jenne, 756 So.2d 117 (Fla. 4th DCA 2000); Santos v. Garrison, 691 So.2d 1172 (Fla. 4th DCA 1997); Keane v. Cochran, 614 So.2d 1186 (Fla. 4th DCA 1993). The State has the burden of proving that there is a change in circumstances or new information that warrants the increase or revocation of bond. Lee v. Bieluch, 855 So.2d 713 (Fla. 4th DCA 2003).

Goelz, 906 So.2d at 1235.

Likewise, in Homerding v. Jenne, 804 So.2d 349 (Fla. 4th DCA 2001), the appellate court granted a petition for writ of habeas corpus and directed the trial court to reinstate an earlier bail order. The court reasoned that the pretrial detention order was invalid because there was no evidence that the circumstances had changed after the initial order setting bail.

The state contends that we should reject these authorities because they fail to give full effect to the statement in rule 3.132(b) that “a motion for pretrial detention may be filed at any time prior to trial.” Specifically, the state argues that this rule should not be read in pan materia with other rules, because the statement regarding the time for filing the motion is not ambiguous. We agree that rule 3.132(b) is not ambiguous and that we therefore have no occasion to construe it in light of rule 3.131(d), but the issue presented here is not an issue of interpretation, it is an issue of application.

The fallacy in the state’s argument is that it assumes that rules 3.131(d) and 3.132(b) are always mutually exclusive. That is not the case. In a procedural setting like this one in which a pretrial detention motion was filed after bail had been set by agreement of the parties, the court must apply the requirements of both rules. The state cannot rely on favorable language in one rule to work around the requirements of the other. Because the motion for pretrial detention in this case was filed after the court had entered an order setting bail, it must meet the “good cause” requirement of rule 3.131(d) as well as the substantive requirements for pretrial detention as set forth in rule 3.132. To put this another way, a motion for pretrial detention filed after the entry of an order setting bail is also a motion to modify bail.

The statement in rule 3.132(b) that a motion for pretrial detention may be filed at any time before trial merely signifies that the defendant’s release status is open for consideration at all times during the course of the pretrial proceedings. Nothing in the language of the rule suggests that a motion for pretrial detention may be used as a vehicle to nullify an earlier bail order or to retract an unwise agreement on the matter of bail. To the contrary, the statement at issue deals only with the time for filing the motion. If the state elects to file a motion for pretrial detention after bail has been set by order of the court, the motion must also meet the requirements for modifying the existing order.

The state argues that the petition for writ of habeas corpus should be denied in any event because the circuit judge had good cause to modify the conditions set earlier by the county judge. This position is at odds with the representations the state made in the trial court. The prosecutor conceded from the start of the hearing that there was no new information that would justify a modification of the earlier order setting bail. Instead, he relied entirely on his view that good cause was not necessary.

Moreover, a comparison of the probable cause affidavit reviewed by the county court judge and the testimony presented to the circuit court judge reveals that the evidence before the two courts was substantially the same. The evidence presented to the circuit court judge pertained exclusively to the strength of the state’s case.² Although this evidence was more detailed than the recitation in the probable cause affidavit, it was not new. The only part of the evidence that was even arguably new was the officer’s testimony that a witness at the jewelry exchange in Pembroke Pines was able to identify the defendant as a person who was attempting to pawn some diamond rings. But this adds very little to the evidence before the county judge. During the search of the defendant’s residence, law enforcement officers found a receipt showing that the defendant had pawned jewelry at the same jewelry exchange in Pembroke Pines. This information was contained in the probable cause affidavit.

In summary, we conclude that there was no legal justification to modify the original order setting bail and that the subsequent order detaining the defendant without bail under the pretrial detention statute is therefore invalid. For these reasons, we grant the petition for writ of habeas corpus and quash the pretrial detention order. The effect of our decision will be to reinstate the original order admitting the defendant to bail.

Petition granted.

DAVIS, J., concurs. RAY, J., dissents.

1 . Section 907.041, Florida Statutes sets the substantive requirements for pretrial detention in noncapital cases. However, the Legislature has expressly deferred to the courts as to the procedural requirements for pretrial detention. See § 907.041(2), Fla. Stat. (2011) (stating that the "[pjrocedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court”).

2 . Although it is proper to consider the strength or weakness of the evidence against the defendant in setting bail, that is only one of many factors that have a bearing on the decision. Section 903.046, Florida Statutes (2011) contains a comprehensive list of the factors a judge should consider when admitting a defendant to bail or setting the amount of bail. See also Fla. R. Crim. P. 3.131(b)(3).