Third District Court of Appeal State of Florida
Opinion filed December 2, 2024. Not final until disposition of timely filed motion for rehearing.
No. 3D24-1998 Lower Tribunal No. F23-4170
Tom Roy Jenkins, Petitioner,
vs.
State of Florida, et al., Respondents.
A Case of Original Jurisdiction – Habeas Corpus
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for petitioner.
Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for respondent State of Florida.
Before EMAS, FERNANDEZ, and BOKOR, JJ.
PER CURIAM. Tom Roy Jenkins petitions this Court for a Writ of Habeas Corpus,
seeking release from pre-trial detention. We have jurisdiction. Fla. R. App.
P. 9.030(b)(3); Fla. Const. Art. V, § 4 (b)(3). We grant the petition for writ of
habeas corpus and remand to the trial court with directions to release
Jenkins from pre-trial detention on the posted bond immediately.
1. FACTUAL AND PROCEDURAL BACKGROUND
Jenkins was charged with several felonies in connection with
attempting to defraud an unrelated elderly person. The trial court set Jenkins'
bond at $45,000 conditioned on a Nebbia1 hold, and later reduced the bond
amount to $24,000.
Jenkins' mother, Ms. Kelly, paid the 10% ($2,400) bond premium to
Sunshine State Bail Bonds ("SSBB") from her social security check and
some saved money. Because of the Nebbia hold, the bond was not
processed. In response, SSBB submitted a Nebbia package to the court,
which included the mother’s bank statements and other documentation,
including a promissory note and indemnity agreement with SSBB and its
surety.
1 U.S. v. Nebbia, 357 F. 2d 303 (2d Cir. 1966) (standing for the proposition that a court can require a criminal defendant to establish, prior to posting bond, that the money and/or property used to pay the bond were not derived from illicit activities.
2 Over the course of several evidentiary hearings, SSBB maintained,
through the testimony of its bond agent, that it had verified Ms. Kelly's income
sources and was satisfied that the bond premium payment was from
legitimate funds. The bond agent also confirmed that SSBB and its surety,
Continental Heritage, were willing to accept the risk of non-payment knowing
that Ms. Kelly had no substantial resources, and that SSBB was responsible
for Jenkins's attendance at all court appearances.
Ms. Kelly testified to the sources of her income, which included her
social security check, a debit card linked to her checking account, and some
funds that were sent to her from friends and relatives after she made the
bond premium payment. Jenkins' defense counsel contended that, as the
record confirmed, the funds Ms. Kelly used to pay the bond premium were
not derived from illegitimate sources, the Nebbia condition was satisfied.
The trial court denied the defense motion to lift the Nebbia hold. The
trial court stated it was denying the motion because Jenkins' mother had no
realistic ability to repay the $24,000 promissory note, and thus the
circumstances of the bond were inadequate to ensure Jenkins's presence at
trial. The trial court was also unconvinced that the funds Ms. Kelly received
from friends and relatives, without more proof, were not illegitimate. Further,
the trial court stated that the bond company’s willingness to post a bond on
3 a promissory note and indemnity agreement without any collateral suggested
“potential fraud," and denied releasing the Nebbia hold without prejudice to
the defense providing additional information regarding the sources of the
post-bond gift funds.
At the final Nebbia hearing, Jenkins' defense counsel submitted
additional documentation, including an amended promissory note with an
18% interest rate and indemnity agreement, as well as affidavits from those
who had gifted money to Ms. Kelly attesting to the legitimacy of the funds.
Defense counsel asserted that the Nebbia condition was satisfied because
the funds used to pay the bond were proven to be legitimate, and that
whatever was leftover in Ms. Kelly's monthly bank account was irrelevant to
the Nebbia analysis. The State, on the other hand, continued to maintain that
the Nebbia requirement was not satisfied as Ms. Kelly did not have the funds
to pay the promissory note at the 18% interest rate.
The trial court denied the defense motion to lift the Nebbia hold. In
doing so, the trial court again cited Ms. Kelly's inability to pay the promissory
note and expressed its lack of confidence in the legitimacy of the bond
company for agreeing to post a ten-percent bond premium without any
collateral for the promissory note.
2. STANDARD OF REVIEW
4 “A petition for writ of habeas corpus is the proper vehicle to challenge
an order of pretrial detention or release.” Hodges v. State, 327 So. 3d 923,
924 (Fla. 3d DCA 2021). Matters relating to the setting of bail and the
conditions attached to a defendant's pre-trial release on bail are reviewed
under an abuse of discretion standard. Martinez v. Jones, 348 So. 3d 1234,
1236 (Fla. 3d DCA 2022).
3. DISCUSSION
The record shows that the source of funds used to pay the appearance
bond premium were legitimate, thus the purpose of Nebbia was satisfied.
We begin with the express premise of pretrial release as provided by
Florida Rule of Criminal Procedure 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 is great, every person charged with a crime or
violation of municipal or county ordinance shall be entitled to pretrial release
on reasonable conditions." (emphasis added). That rule then provides, that
unless the State has filed a motion for pretrial detention (which it did not in
Jenkins' case), the trial court shall impose one or more of a list of release
conditions that are reasonably calculated to assure his presence at trial. Fla.
R. Crim. P. 3.131(b)(1); Casiano v. State, 241 So. 3d 219, 220 (Fla. 2d DCA
2018) ("[E]very accused has a constitutional right to pretrial release on
5 reasonable conditions, with two—and only two—exceptions. First, a person
charged with a capital offense or an offense punishable by life imprisonment
has no right to pretrial release if the proof of the accused's guilt is evident or
the presumption that he or she committed the crime is great. Second, any
accused may be detained if no conditions of release can reasonably protect
the community from physical harm to persons, ensure the accused's
presence at trial, or ensure the integrity of the judicial process.").
In this case, adding the Nebbia analysis to the presumption of the right
to pretrial release does not alter the outcome. Pursuant to Nebbia and its
progeny, where a defendant posts bail or an appearance bond in cash,
section 903.046(2), Florida Statutes (2024), authorizes the court to inquire
into “the source of funds used to post bail” to ensure defendant's
appearance. Specifically, section 903.046(2)(f) provides,
Free access — add to your briefcase to read the full text and ask questions with AI
Third District Court of Appeal State of Florida
Opinion filed December 2, 2024. Not final until disposition of timely filed motion for rehearing.
No. 3D24-1998 Lower Tribunal No. F23-4170
Tom Roy Jenkins, Petitioner,
vs.
State of Florida, et al., Respondents.
A Case of Original Jurisdiction – Habeas Corpus
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for petitioner.
Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for respondent State of Florida.
Before EMAS, FERNANDEZ, and BOKOR, JJ.
PER CURIAM. Tom Roy Jenkins petitions this Court for a Writ of Habeas Corpus,
seeking release from pre-trial detention. We have jurisdiction. Fla. R. App.
P. 9.030(b)(3); Fla. Const. Art. V, § 4 (b)(3). We grant the petition for writ of
habeas corpus and remand to the trial court with directions to release
Jenkins from pre-trial detention on the posted bond immediately.
1. FACTUAL AND PROCEDURAL BACKGROUND
Jenkins was charged with several felonies in connection with
attempting to defraud an unrelated elderly person. The trial court set Jenkins'
bond at $45,000 conditioned on a Nebbia1 hold, and later reduced the bond
amount to $24,000.
Jenkins' mother, Ms. Kelly, paid the 10% ($2,400) bond premium to
Sunshine State Bail Bonds ("SSBB") from her social security check and
some saved money. Because of the Nebbia hold, the bond was not
processed. In response, SSBB submitted a Nebbia package to the court,
which included the mother’s bank statements and other documentation,
including a promissory note and indemnity agreement with SSBB and its
surety.
1 U.S. v. Nebbia, 357 F. 2d 303 (2d Cir. 1966) (standing for the proposition that a court can require a criminal defendant to establish, prior to posting bond, that the money and/or property used to pay the bond were not derived from illicit activities.
2 Over the course of several evidentiary hearings, SSBB maintained,
through the testimony of its bond agent, that it had verified Ms. Kelly's income
sources and was satisfied that the bond premium payment was from
legitimate funds. The bond agent also confirmed that SSBB and its surety,
Continental Heritage, were willing to accept the risk of non-payment knowing
that Ms. Kelly had no substantial resources, and that SSBB was responsible
for Jenkins's attendance at all court appearances.
Ms. Kelly testified to the sources of her income, which included her
social security check, a debit card linked to her checking account, and some
funds that were sent to her from friends and relatives after she made the
bond premium payment. Jenkins' defense counsel contended that, as the
record confirmed, the funds Ms. Kelly used to pay the bond premium were
not derived from illegitimate sources, the Nebbia condition was satisfied.
The trial court denied the defense motion to lift the Nebbia hold. The
trial court stated it was denying the motion because Jenkins' mother had no
realistic ability to repay the $24,000 promissory note, and thus the
circumstances of the bond were inadequate to ensure Jenkins's presence at
trial. The trial court was also unconvinced that the funds Ms. Kelly received
from friends and relatives, without more proof, were not illegitimate. Further,
the trial court stated that the bond company’s willingness to post a bond on
3 a promissory note and indemnity agreement without any collateral suggested
“potential fraud," and denied releasing the Nebbia hold without prejudice to
the defense providing additional information regarding the sources of the
post-bond gift funds.
At the final Nebbia hearing, Jenkins' defense counsel submitted
additional documentation, including an amended promissory note with an
18% interest rate and indemnity agreement, as well as affidavits from those
who had gifted money to Ms. Kelly attesting to the legitimacy of the funds.
Defense counsel asserted that the Nebbia condition was satisfied because
the funds used to pay the bond were proven to be legitimate, and that
whatever was leftover in Ms. Kelly's monthly bank account was irrelevant to
the Nebbia analysis. The State, on the other hand, continued to maintain that
the Nebbia requirement was not satisfied as Ms. Kelly did not have the funds
to pay the promissory note at the 18% interest rate.
The trial court denied the defense motion to lift the Nebbia hold. In
doing so, the trial court again cited Ms. Kelly's inability to pay the promissory
note and expressed its lack of confidence in the legitimacy of the bond
company for agreeing to post a ten-percent bond premium without any
collateral for the promissory note.
2. STANDARD OF REVIEW
4 “A petition for writ of habeas corpus is the proper vehicle to challenge
an order of pretrial detention or release.” Hodges v. State, 327 So. 3d 923,
924 (Fla. 3d DCA 2021). Matters relating to the setting of bail and the
conditions attached to a defendant's pre-trial release on bail are reviewed
under an abuse of discretion standard. Martinez v. Jones, 348 So. 3d 1234,
1236 (Fla. 3d DCA 2022).
3. DISCUSSION
The record shows that the source of funds used to pay the appearance
bond premium were legitimate, thus the purpose of Nebbia was satisfied.
We begin with the express premise of pretrial release as provided by
Florida Rule of Criminal Procedure 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 is great, every person charged with a crime or
violation of municipal or county ordinance shall be entitled to pretrial release
on reasonable conditions." (emphasis added). That rule then provides, that
unless the State has filed a motion for pretrial detention (which it did not in
Jenkins' case), the trial court shall impose one or more of a list of release
conditions that are reasonably calculated to assure his presence at trial. Fla.
R. Crim. P. 3.131(b)(1); Casiano v. State, 241 So. 3d 219, 220 (Fla. 2d DCA
2018) ("[E]very accused has a constitutional right to pretrial release on
5 reasonable conditions, with two—and only two—exceptions. First, a person
charged with a capital offense or an offense punishable by life imprisonment
has no right to pretrial release if the proof of the accused's guilt is evident or
the presumption that he or she committed the crime is great. Second, any
accused may be detained if no conditions of release can reasonably protect
the community from physical harm to persons, ensure the accused's
presence at trial, or ensure the integrity of the judicial process.").
In this case, adding the Nebbia analysis to the presumption of the right
to pretrial release does not alter the outcome. Pursuant to Nebbia and its
progeny, where a defendant posts bail or an appearance bond in cash,
section 903.046(2), Florida Statutes (2024), authorizes the court to inquire
into “the source of funds used to post bail” to ensure defendant's
appearance. Specifically, section 903.046(2)(f) provides,
When determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court shall consider: ....
(f) The source of funds used to post bail or procure an appearance bond, particularly whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden of establishing the noninvolvement in or nonderivation from criminal or other illicit activity of such proffered funds, real property, property, or any proposed collateral or bond premium
6 falls upon the defendant or other person proffering them to obtain the defendant's release.
(emphasis added). That statute placed the burden on Jenkins to show that
the funds used to post the appearance bond were legitimate and not derived
from illegal activities. Jenkins established that the bond premium paid by his
mother was not derived from illegal activity, and based on this record, the
purpose of Nebbia has been satisfied.
Ms. Kelly's ability to pay the promissory note – if Jenkins fails to show
up at every court date -- is not relevant to the Nebbia analysis. Her ongoing
financial status has nothing to do with whether the funds used to post the
appearance bond were derived from illegal sources, and verges on the
proscription against pretrial detention merely for being indigent.
At the final Nebbia hearing, the trial court stated, "I don’t believe that
the bonds company is funding this with legitimate money because they can’t
make the money back," and suggested that the bond company was acting
recklessly by providing bail for indigent defendants. We acknowledge that
the trial court is within its discretion to inquire into the legitimacy of the surety.
As explained in Nebbia, “[T]he right to bail does not prevent the court, in the
exercise of a sound discretion, from rejecting sureties who, however
honorable they may be, become sureties from purely business reasons and
apparently without assuming any of the responsibilities which the law 7 imposes.” Nebbia, 357 F.2d at 304 (quoting United States v. Lee, 170 F. 613,
615 (D.C. Ohio 1909)). Here, however, unlike the surety in Lee, SSBB made
numerous record assurances under oath that it was obligated to ensure
Jenkins' attendance at his court dates. See Universal Bail Bonds, Inc. v.
State, 929 So. 2d 697, 699 (Fla. 3d DCA 2006) (the purpose of bail is to
assure that the defendant will comply with the conditions of the bail bond and
appear or be produced by the surety before the court); § 903.045, Fla. Stat.
(2024) (a criminal surety bail bond “shall be construed as a commitment by
and an obligation upon the bail bond agent to ensure that the defendant
appears at all subsequent criminal proceedings and otherwise fulfills all
conditions of the bond”) (emphasis added); Wiley v. State, 451 So. 2d 916,
922 (Fla. 1st DCA 1984) ("The theory underlying the appearance bond
process is that release on bond commits the accused to the 'exclusive
custody of the surety,' which guarantees the State that the accused will
appear at subsequent hearings'"); Accredited Surety & Cas. Co. v. State ex
rel. Hillsborough Cnty., 383 So.2d 308, 308 (Fla. 2d DCA 1980) (confirming
that the “surety guarantees the state that the accused will appear”); Reese
v. United States, 76 U.S. 13, 17 (1869) ("By a recognizance of bail in a
criminal action the principal is, in the theory of the law, committed to the
custody of the sureties as to jailers of his own choosing, not that he is
8 subjected or can be subjected by them to constant imprisonment, but that he
is so far placed in their power that they may at any time arrest him upon the
recognizance and surrender him to the court ").
In this case, the trial court's rationale deviates from the purpose of
Nebbia. SSBB's and the surety's express assumption of risk in the record –
both of non-payment and of Jenkins' non-appearance – have nothing to do
with the legitimacy of the funds used to pay the appearance bond.
The trial court also suggested that SSBB was operating illegally
because the note was executed without any requirement of collateral.
However, section 648.442, Fla. Stat. (2024) provides that one of the
acceptable forms of collateral security required by a bail bond agent is a
promissory note, which Ms. Kelly executed with the surety. § 648.442,
Florida Statutes (2024) ("Other acceptable forms of security or indemnity
may consist of the following: (a) A promissory note[.]"). Further, and more to
the point, Florida Rule of Criminal Procedure 3.131(b)(1)(B) authorizes the
trial court to, among other conditions, require "execution of an unsecured
appearance premium bond in an amount specified by the judge.") (emphasis
added). Whether the promissory note executed by Ms. Kelly – after she paid
the appearance bond – was secured by collateral or not, has nothing to do
with the Nebbia analysis.
9 4. CONCLUSION
We conclude the requirement of Nebbia was satisfied when Jenkins
affirmatively proved no illegitimate funds were used to pay the appearance
bond. Because the trial court appears to have erroneously conflated the
purpose of a Nebbia with other bail considerations, we conclude that denying
release of the defendant after he satisfied the Nebbia requirement
constitutes an abuse of discretion. Accordingly, we grant the petition for writ
of habeas corpus and remand for the trial court to release Jenkins forthwith.
Petition For Writ of Habeas Corpus granted and remanded with directions.
This opinion shall take effect immediately notwithstanding the
filing of any motion for rehearing or other post-decision motion.