Gallie v. Wainwright

• Decision Date: 14 September 1978
• Docket Number: No. 52749,52749
• Citation: 362 So.2d 936
• Parties: Roland GALLIE, Petitioner, v. Louis L. WAINWRIGHT, etc., Respondent.
• Court: Florida Supreme Court

Page 936

362 So.2d 936

Roland GALLIE, Petitioner, v. Louis L. WAINWRIGHT, etc., Respondent.

No. 52749.

Supreme Court of Florida.

Sept. 14, 1978.

Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, and Dominic P. Gentile of National College of Criminal Defense Lawyers and Public Defenders, University of Houston, Houston, Tex., for petitioner.

Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler and Robert L. Bogen, Asst. Attys. Gen., West Palm Beach, for respondent.

ENGLAND, Chief Justice.

Roland Gallie was convicted of possessing cocaine and sentenced to three years imprisonment. To avoid immediate incarceration he requested bond pending his appeal of that conviction. The trial court's denial of bond precipitated Gallie's petition for a writ of habeas corpus in this Court, asking that we allow and set bond for him. We have jurisdiction. Article V, Section 3(b)(6), Florida Constitution.

The state objected to any bond for Gallie on the basis of Section 903.132(1), Florida Statutes (1977), and Florida Rule of Criminal Procedure 3.691(a), both of which provide that bond pending an appeal is not available to one convicted of a felony who has previously been convicted of another felony, and whose civil rights have not been restored. ¹ Gallie, it seems, had been convicted of a felony in 1969. He had served his full sentence and been released in 1973, but he had never sought or obtained a formal restoration of his civil rights from Florida's clemency authority, the governor and cabinet. ² Gallie argued, however, that in 1975 the governor and cabinet adopted a rule which provides for an automatic restoration of civil rights upon final release of a prisoner, ³ so that he met all the eligibility requirements for bond pending appeal. The trial judge rejected Gallie's request for bond, despite his assertion, on the ground that the governor's and cabinet's automatic restoration rule invalidly abdicates constitutional responsibility to evaluate individually each applicant for a restoration of civil rights. ⁴ (The trial judge also expressed uncertainty as to whether the rule would operate retroactively on a felony conviction obtained prior to its effective date, and noted that neither the bond-denial statute nor rule would have any practical effect if the automatic restoration rule were given effect.)

We considered Gallie's contentions concerning his alleged unlawful detention to be sufficiently compelling to require a written response from the state, and we allowed oral argument on the issues. ⁵ After respondent had filed a return to the writ of habeas corpus, Gallie called to the Court's attention the decision in Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla. 1977), which addressed certain of the constitutional questions raised by Gallie's petition. So that these issues could be more fully developed, we directed both parties to submit supplemental briefs ⁶ on the constitutional questions. Having now reviewed the arguments of the parties on all points presented, we conclude that Gallie is not entitled to the relief requested on any grounds.

Gallie first asserts that he is entitled to an automatic restoration of his civil rights under Sections 940.05 and 940.06, Florida Statutes (1975), both of which have been in effect since 1969. ⁷ The former states that convicted felons "may" be entitled to a restoration of civil rights upon completion of their prison terms, and the latter directs that the Parole and Probation Commission "shall" submit to the governor and cabinet the names of persons eligible under Section 940.05. The maximum relief which Gallie could obtain from this Court under these provisions is a writ of mandamus commanding the Commission to perform its statutory duty of submitting his name to the clemency official. ⁸ Our directive would not assure a restoration of Gallie's civil rights, however, since Rule 6B of the Rules of Executive Clemency now in effect requires an "application" for a restoration of rights by any person released from jail prior to November 1, 1975, the effective date of the rules. ⁹ Gallie admittedly has not filed such an application. We decline to issue a writ of mandamus to a state agency to perform a ministerial act which Gallie could himself perform under applicable clemency procedures.

Gallie's second point here reliance on the governor's and cabinet's automatic restoration rule ¹⁰ is met with the state's assertion and the trial court's determination that the rule is in violation of the Constitution. Once again we decline to address that issue ¹¹ because Rule 6B, by its terms, requires an application for a restoration of rights. Since Gallie admits that he had not complied with that procedural prerequisite, we do not have a proper case in which to consider the constitutional question posed. ¹²

Finally, Gallie challenges the constitutionality of the statute and rule which prohibit bail pending appeal for previously convicted felons, principally on the grounds that they deny him equal protection and due process of law as guaranteed by the Constitution of the United States and of the State of Florida. ¹³ Relying heavily on the recent United States District Court decision in Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla.1977), he argues that these provisions violate equal protection by creating a classification that affects his fundamental rights in a way which is not the least restrictive means of effectuating the state's objective, and that they deny due process by establishing an irrebuttable presumption that is arbitrary and unreasonable.

In Escandar, the federal district court was confronted with an attack on the constitutional validity of Article I, Section 14 of the Florida Constitution and Florida Rule of Criminal Procedure 3.130(a), which together establish a right to reasonable bail before a conviction unless the accused is charged with "a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great." ¹⁴ In granting the petitioners' request for a writ of habeas corpus, the court concluded that the Florida courts' interpretation ¹⁵ of those provisions as denying all discretion to allow bail in such cases rendered them unconstitutional on federal equal protection and due process grounds.

As to equal protection, the court reasoned that because the constitutional provision and procedural rule create a classification which denies the accused in such cases equal treatment with that afforded other criminal defendants, and because that classification affects certain fundamental rights namely, the presumption of innocence and the right to a fair trial (through ability to assist in the preparation of his defense) the apparent prohibition of those provisions could "only be upheld if it promotes a compelling governmental interest and is the least restrictive means of effectuating this compelling governmental interest." ¹⁶ The court then determined that although the state has a compelling interest in assuring the presence of the accused at trial, there exists a less restrictive means of achieving that interest that is, by requiring the trial judge to hold an evidentiary hearing for the determination of whether on the totality of the circumstances the defendant should be admitted to bail. In addition, the court found that because one who is convicted of first degree murder and sentenced to life imprisonment is eligible for bond pending appeal under Florida law, ¹⁷ it is, "as a matter of law, . . . totally unreasonable to deny bond to a defendant awaiting trial on a life felony charge where the proof is evident and the presumption thereof great, and then to allow bond to that same defendant after he has been proven guilty beyond a reasonable doubt." ¹⁸

Turning to the due process argument, the Escandar court found that the Florida procedure denies the accused any opportunity to demonstrate that he would be a good bail risk, thereby establishing an irrebuttable presumption that defendants in such cases will fail to appear in court when their presence is required. Relying on the "irrebuttable presumption" test employed by the United States Supreme Court to invalidate certain state statutes in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the federal district court ruled that the irrebuttable presumption created by Florida's Constitution and criminal rule "is not 'necessarily or universally true in fact', and the State, by affording a hearing on that issue, has 'reasonable alternative means of making the crucial determination' ". ¹⁹ The court thus concluded that "(s)uch an irrebuttable presumption sweeps too broadly, and thereby violates the Due Process Clause of the Fourteenth Amendment." ²⁰

Gallie contends that although different provisions relating to bail are involved in the present case, the reasoning of the Escandar court is equally applicable to the statute and rule challenged here, and should be considered persuasive authority on the issues before this Court. The state argues that Escandar was wrongly decided, but that even if correct it is inapplicable here because fundamentally different principles and policy considerations apply when bail is sought After the accused has been adjudicated guilty of a second or subsequent felony. We agree.

The predecessor to Section 903.132(1) ²¹ was the object of an unsuccessful attack in Greene v. State, 238 So.2d 296 (Fla.1970), in which this Court analogized the statute to habitual offender acts and disposed of the equal protection challenge as being "without merit." ²² Assuming for the sake of argument that the equal protection analysis utilized in Escandar is applicable here, it still does not avail Gallie inasmuch as the statute and rule which preclude bond pending...