Greene v. State, No. 39453

CourtUnited States State Supreme Court of Florida
Writing for the CourtDREW; ERVIN; ERVIN
Citation238 So.2d 296
Docket NumberNo. 39453
Decision Date30 July 1970
PartiesPerry Furn GREENE, III and Junior Cleveland Richburg, Appellants, v. STATE of Florida, Appellee.

Page 296

238 So.2d 296
Perry Furn GREENE, III and Junior Cleveland Richburg, Appellants,
v.
STATE of Florida, Appellee.
No. 39453.
Supreme Court of Florida.
July 30, 1970.

Page 297

Henry Clay Mitchell, Jr., Pensacola, and Brooks Taylor, Crestview, for appellants.

Earl Faircloth, Atty. Gen., and Horace A. Knowlton, Asst. Atty. Gen., for appellee.

ON MOTION TO REVIEW ORDER DENYING BAIL PENDING APPEAL

DREW, Justice.

Defendants Richburg and Greene were found and adjudicated guilty of possessing burglary tools and of attempting to break and enter an automobile with intent to commit a misdemeanor, for which offenses each was sentenced to consecutive terms of three and five years in the state prison.

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Defendants' motions to set bail pending prosecution of their appeals in the district court of appeal were orally denied by the trial court. They then filed in the district court a consolidated Motion Requesting Review of Order Denying Bail Pending Appeal. The district court in accordance with Florida Appellate Rules 2.1(a)(5)(a) and 2.1(a)(5)(d), 32 F.S.A. properly transferred the motion to this Court for consideration. After we relinquished the cause to the trial court for the purpose of stating more particularly the grounds for denying defendants' bail pending appeal, 1 the trial court entered its written order reading in part as follows:

'1. That the defendants are denied bail pending appeal by reason of Section 903.131, Florida Statutes (F.S.A.), (Chapter 69--307, Laws of Florida), (now codified as § 903.132 in the Official Florida Statutes, 1969) both defendants having previously been convicted of a felony.

'2. That said statute is constitutional under both the Florida and United States Constitutions, the Court being of the view that it is procedural.'

We have jurisdiction under Article V, Section 4(2) of the Florida Constitution, F.S.A., because the trial court passed upon the constitutionality of a state statute.

Defendants committed the offenses on April 26, 1969, and the informations were filed against them in August of 1969, before the effective date of Section 903.131 on September 1, 1969. Defendants argue that the statute relied upon violates the Florida and United States constitutional prohibition against ex post facto laws and against laws denying equal protection; that it violates the separation of powers clause in Article II, Section 3 of the Florida Constitution--1968 Revision; and that it offends the Eighth Amendment to the United States Constitution forbidding excessive bail requirements. The statute under attack appears as follows:

'No person may be admitted to bail upon appeal from a conviction of a felony if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person's civil rights have not been restored. Section 2. This act shall take effect September 1, 1969.' (Fla.Stat. § 903.131, F.S.A.)

Article I, Section 14 of the Florida Constitution--1968 Revision, guarantees each accused person release on reasonable bail 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. This guarantee is now expressly limited to the time prior to adjudication of guilt. 2

Release on bail pending appeal or review of the conviction by a higher court is not an absolute right guaranteed by the Florida Constitution but normally rests within the sound discretion of the trial court. 3 An abuse of that discretion is subject to review and correction. 4 Virtually all jurisdictions with constitutional provisions guaranteeing a right to release on bail, whether or not expressly restricted to release before conviction, have held

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that his constitutional right does not continue subsequent to the conviction. 5

Our federal courts generally agree that although the concept of release on reasonable bail after conviction is basic and fundamental to our legal system, it is not an absolute right constitutionally guaranteed by the Eighth Amendment to the United States Constitution. 6 Even those federal courts that have expressly held or assumed, arguendo, that the bail provision of the Eighth Amendment to the United States Constitution applies directly to state action, have recognized that a state may constitutionally by statute or exercise of judicial discretion grant release on bail in some cases and deny it in others, as long as the state acts reasonably and not arbitrarily or discriminatorily. 7

It is obvious that the statute complained of rests upon, among other grounds, the known propensity of an habitual offender to continue a pattern of criminal activity of a serious nature. Denial of his release on bail after conviction pending appeal because of the likelihood that he will be a poor bail risk cannot be said to be an arbitrary or unreasonable action on the part of the state. The statute does not contravene the Eighth Amendment to the United States Constitution.

Defendants' argument that the statute is unconstitutional under Articie II, Section 3 of the Florida Constitution--1968 Revision 8 because it represents a legislative encroachment upon the powers of the judiciary is without merit. Historically the trial court has exercised wide discretion in determining the severity of punishment meted out to the convicted criminal. Yet the limits of this discretion are altered whenever the Legislature increases or decreases the minimum or maximum fine or imprisonment allowable for a given offense. The Legislature long ago preempted judicial discretion when it set mandatory death or life imprisonment punishments for rape and murder in the first degree. 9 The Legislature has gone no further in passing the statute here attacked. Section 903.131 does not suffer the infirmity of violating the separation of powers doctrine.

The argument that the statute contravenes equal protection rights guaranteed by the Florida 10 and Federal 11 Constitutions

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was rejected by this Court and the Supreme Court of the United States in considering the similar effect of habitual offender acts, 12 and is without merit.

Defendants' final contention is that Section 903.131 is ex post facto in its effect upon these defendants, and therefore invalid as to them under Article I,...

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25 practice notes
  • U.S. v. Affleck, Nos. 85-1009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1985
    ...society's interest in protecting persons who may have a reversible conviction." 412 N.E.2d at 74. 11 But see Greene v. State, 238 So.2d 296, 300-01 (Fla.1970) (application of bail statute to deny bail pending appeal from conviction on second felony violated ex post facto clauses where ......
  • Weaver v. Graham, No. 79-5780
    • United States
    • United States Supreme Court
    • February 24, 1981
    ...imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence. Greene v. State, 238 So.2d 296 (Fla.1970); Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924); Herberle v. P. R. O. Liquidating Co., 186 So.2d 280, 282 (Fla.App.1......
  • State v. Wassillie, No. 3603
    • United States
    • Supreme Court of Alaska (US)
    • February 29, 1980
    ...holding. 27 Florida has gone through various changes with respect to this question. The Florida Supreme Court, in Greene v. State, 238 So.2d 296 (Fla.1970), recited the statutory basis of bail rights. However, a later opinion, Bernhardt v. State, 288 So.2d 490 (Fla.1974), invalidated statut......
  • United States v. Cirrincione, No. 82 CR 778.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • January 16, 1985
    ...pending appeal had "ex post facto" overtones but cited no cases nor discussed any reasons for its holding. In Greene v. State, 238 So.2d 296 (Fla.1970), the Florida Supreme Court held that retroactive application of a statute denying post-conviction bail to repeat offenders was ex......
  • Request a trial to view additional results
25 cases
  • U.S. v. Affleck, Nos. 85-1009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1985
    ...outweighs society's interest in protecting persons who may have a reversible conviction." 412 N.E.2d at 74. 11 But see Greene v. State, 238 So.2d 296, 300-01 (Fla.1970) (application of bail statute to deny bail pending appeal from conviction on second felony violated ex post facto clauses w......
  • Weaver v. Graham, No. 79-5780
    • United States
    • United States Supreme Court
    • February 24, 1981
    ...imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence. Greene v. State, 238 So.2d 296 (Fla.1970); Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924); Herberle v. P. R. O. Liquidating Co., 186 So.2d 280, 282 (Fla.App.1......
  • State v. Wassillie, No. 3603
    • United States
    • Supreme Court of Alaska (US)
    • February 29, 1980
    ...holding. 27 Florida has gone through various changes with respect to this question. The Florida Supreme Court, in Greene v. State, 238 So.2d 296 (Fla.1970), recited the statutory basis of bail rights. However, a later opinion, Bernhardt v. State, 288 So.2d 490 (Fla.1974), invalidated statut......
  • United States v. Cirrincione, No. 82 CR 778.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • January 16, 1985
    ...bail pending appeal had "ex post facto" overtones but cited no cases nor discussed any reasons for its holding. In Greene v. State, 238 So.2d 296 (Fla.1970), the Florida Supreme Court held that retroactive application of a statute denying post-conviction bail to repeat offenders was ex post......
  • Request a trial to view additional results

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