Arthur v. Harper

• Decision Date: 06 October 1978
• Docket Number: No. 78-1512,78-1512
• Citation: 371 So.2d 96
• Parties: Danny W. ARTHUR, Petitioner, v. The Honorable Carl H. HARPER, as Judge of the Fifteenth Judicial Circuit of Florida, and Richard Wille, Sheriff of Palm Beach County, Respondents.
• Court: Florida District Court of Appeals

Page 96

371 So.2d 96

Danny W. ARTHUR, Petitioner, v. The Honorable Carl H. HARPER, as Judge of the Fifteenth Judicial Circuit of Florida, and Richard Wille, Sheriff of Palm Beach County, Respondents.

No. 78-1512.

District Court of Appeal of Florida, Fourth District.

Oct. 6, 1978.

Rehearing Denied Dec. 20, 1978.

Stuart A. Young, West Palm Beach, for petitioner.

Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondents.

ANSTEAD, Judge.

The petitioner, Danny W. Arthur, is seeking review of a trial court order denying pretrial bail.

Arthur was charged with several life felonies. Bail was denied. The trial court's denial was predicated in part upon the provisions of Article I, Section 14 of the Florida Constitution:

Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety 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. (Emphasis supplied)

Rule 3.130(a) of the Florida Rules of Criminal Procedure carries forward the provisions of Section 14 by providing in part:

(A)ll persons in custody for the commission of an offense Unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction. (Emphasis supplied)

At the bail hearing no evidence was submitted concerning the alleged offenses but Arthur requested and was permitted to present other testimony he considered relevant to the issue of bail. At the conclusion of the hearing the trial court issued a written order denying bail.

The first issue raised by Arthur is whether or not a trial court in a life felony case has any discretion to grant bail absent a showing that the proof of guilt is not evident and the presumption not great.

Clearly, under the provisions of the Constitution and the Rules of Criminal Procedure no Right to bail is afforded to Arthur if the proof of his guilt is evident and the presumption great. Under current Florida law a defendant has the burden of demonstrating that the proof is not evident, etc. before he is entitled to bail as a matter of Right. State ex rel. Loper v. Stack, 291 So.2d 207 (Fla. 4th DCA 1974).

Since Arthur presented no evidence as to whether the proof was evident, under Loper, supra, he was not entitled to bail as a matter of right. However, he contends that even if he could not demonstrate that the proof was not evident, etc., the trial court still had discretion to grant bail based upon a consideration of all the evidence presented as to whether Arthur would appear to answer the charges against him. In other words he concedes that he is not entitled to bail as a matter of right but contends that he is entitled to bail in the exercise of discretion by the trial court. To answer this question we must examine the history of Florida law relating to bail.

Under the common law bail was not a matter of right but was granted or denied in the discretion of the trial court:

(A)t common law, bail was granted or denied in the exercise of sound discretion, rather than as a matter of right and subject to established principles and precedents. . . . 4 Fla.Jur. Bail and Recognizance, § 13 (1969) In capital cases, at common law, bail was usually denied, on the theory that a defendant faced with the death penalty would flee, no matter what promises or security were offered to secure his presence at trial. 3 R.C.L., Bail and Recognizance, § 5, pages 7-8.

The notion that an accused had a right to bail was introduced when most of the states enacted constitutional provisions guaranteeing the right. However, the vast majority of these states, apparently carrying forward the common law practice, made an exception in the case of capital crimes where the proof of guilt was evident and the presumption great. Fountaine v. Mullen, 366 A.2d 1138 (R.I.1976). In 1968 Florida added offenses punishable by life imprisonment to the exception. The exception itself, although enacted in virtually identical language in the various states, has been construed in two different ways. One line of cases has construed the exception to mean that once it is determined that the proof of guilt is evident, then a trial court must deny bail and has no discretion to grant bail regardless of any other circumstances. People v. District Court, 529 P.2d 1335 (Colo.1974). A second line of cases has held that although an accused in a capital case no longer enjoys the right to bail when the proof of guilt is evident, the trial court still retains the discretion to grant bail based upon a consideration of all the circumstances in the case. Fountaine v. Mullen, supra.

Although the case law of this state strongly suggests a construction of the exception leaving the trial court without any discretion to grant bail in capital cases once it is determined that the proof of guilt is evident, we have not been cited and are unable to find a case that has decided this specific issue. Most of the Florida decisions considering the exception have had to do with the measure and burden of proof on the issue of whether the proof of guilt is evident. In Florida, the burden is on the accused to prove that the proof of guilt is Not evident. State ex rel. Loper v. Stack, supra. But see James v. State, 241 So.2d 383 (Fla.1970) and Primm v. State, 293 So.2d 725 (Fla. 2d DCA 1974). And the measure of proof in order to sustain a denial of the right to bail has been said to be Greater than beyond a reasonable doubt. Russell v. State, 71 Fla. 236, 71 So. 27 (1916). Also see 4 Fla.Jur. Bail and Recognizance, §§ 14 and 15 (1969) and cases cited therein.

It is our conclusion, based upon the historical development of the right to bail and our perception of the intent of the authors of the constitution, that a trial judge retains discretion to grant bail, even in capital cases where the proof of guilt is evident. First, we note that the trial court had such discretion in capital cases at common law even though the discretion was rarely exercised in favor of the accused when the proof was evident. The constitutional provision, Section 14, Article I, is actually a grant of additional rights since no right to bail existed at common law. We cannot believe that it was intended, in a provision which grants additional rights, that another right be taken away, namely the right to have a trial court exercise discretion in deciding whether to grant bail. Rather, by granting a new right to bail in most cases, we believe it was intended to leave the court with discretion to deny bail in those cases not granted the right, namely capital crimes where the proof is evident. Indeed, the authority to deny bail is the distinguishing factor between bail as a matter of right and discretionary bail. When bail is a matter of right a court Must grant bail, although the terms thereof are discretionary. But when bail is discretionary a court may deny bail. It is our conclusion that it is this authority to deny bail that the authors of the constitution intended to leave in the trial court in capital cases when the proof of guilt is evident. Just as at common law, where there was no right to bail, the trial court was left with discretion to decide the issue upon a consideration of all of the circumstances. In this regard we agree with the Supreme Court of Rhode Island which reached the same conclusion and stated:

As a part of the Declaration of Rights in the Rhode Island Constitution, we believe Arthur also contends that a contrary interpretation of these bail provisions would result in the abridgement of his federal constitutional rights. In support of this contention he cites the case of Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla.1977) which held that Section 14, Article I, if interpreted in such a way as to leave the trial court with no discretion to grant bail in life felony cases where the proof is evident, would be violative of the equal protection and due process provisions of the federal constitution. The federal court further stated:

art. 1, § 9 was intended to expand the bail rights enjoyed by defendants at common law. We believe it would be highly dubious to treat a provision that was enacted as a guarantee of rights in such a way as to retract rights previously enjoyed by defendants, absent clear evidence that the framers intended that result. Fountaine v. Mullen, 366 A.2d 1138, 1144 (R.I.1976).

If the constitutional provision and rule of procedure are interpreted as giving the trial court discretion to grant bond in life felony cases where the proof of guilt is evident and the presumption thereof great, then they are constitutional. (Id. at 57)

In Escandar it was concluded that the accused's right to a presumption of innocence, right to prepare a defense and the right to be free of punishment before conviction would all be substantially abridged if no discretion was allowed. Addressing the issue of equal protection, the federal...