Greene v. State, 39453
| Decision Date | 30 July 1970 |
| Docket Number | No. 39453,39453 |
| Citation | 238 So.2d 296 |
| Parties | Perry Furn GREENE, III and Junior Cleveland Richburg, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
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
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.
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.
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:
(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 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 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, Section 10 of the Florida Constitution--1968 Revision, 13 and Article I, Section 10 of the United States Constitution. 14 We agree.
In Cross v. State 15 and Washington v. Mayo, 16 we decided that the habitual offender statutes 17 were not rendered ex post facto in effect by providing enhanced punishment for a subsequent offense because of convictions occurring prior to passage of the statutes. Although the rationale behind passage of Section 903.132 no doubt differs in some respects from that underlying the habitual offender act, the practical effect of each act--an additional 'punishment' because of past offenses--is analogous, and we treat the two acts alike for purposes of determining whether the statute is ex post facto in effect.
Neither the habitual offender act nor Section 903.132 is in any sense retroactive. Each is designed to be prospective in operation, imposing enhanced punishment or consequences on future crimes committed after enactment of the legislation. As we said in Cross v. State 18:
However in the case of these defendants, both felonies were Committed before the statute's effective date. Each was Convicted of a second felony After the effective date of the statute. Although both Section 903.132 and the habitual offender act depend upon Conviction of he second or subsequent offense, as we noted in Cross, supra, the significant even as far as judging the ex post facto effect is the date of the Offense rather than the conviction. Denial of defendants' release on bail pending appeal attached to offenses that were committed prior to the effective date of the statute. Under these circumstances, the statute as applied to these defendants is: 19
"One which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which in relation to the offense or its consequences, alters the situation of a party to his disadvantage."
As to these defendants Section 903.132, Florida Statutes, F.S.A., was ex post facto in effect and should not have been relied upon in denying release on bail pending appeal. The Motion to Review Order Denying Bail Pending Appeal is granted, the order of the trial court denying bail pursuant to Section 903.131 is quashed, and the cause is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
ERVIN, C.J., concurs specially with opinion.
Since the question of the validity of F.S. Section 903.132, F.S.A. as applied to these petitioners has been rendered moot by virtue of the decision of the District Court of Appeal, First District, affirming the judgments of conviction so that the relief requested in the form of bail pending appeal can no longer be made available and effective, it seems to me the better practice would dictate a dismissal of this case. See DuBose v. Meister, 92 Fla. 995, 110 So. 546 (1943); McCormick v. Bond, 75 Fla. 819, 78 So. 681 (1918); Barrs v. Peacock, 65 Fla. 12, 61 So. 118 (1913).
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