Powers v. Schwartz

• Decision Date: 23 February 1978
• Docket Number: No. 77-7032-Civ-NCR.,77-7032-Civ-NCR.
• Citation: 448 F. Supp. 54
• Parties: Kimberly Anne POWERS, Petitioner, v. The Honorable Alan SCHWARTZ, as Judge of the Eleventh Judicial Circuit of Florida and Jack Sandstrom, Director of the Dade County Department of Corrections and Rehabilitation, Respondents.
• Court: U.S. District Court — Southern District of Florida

448 F. Supp. 54

Kimberly Anne POWERS, Petitioner, v. The Honorable Alan SCHWARTZ, as Judge of the Eleventh Judicial Circuit of Florida and Jack Sandstrom, Director of the Dade County Department of Corrections and Rehabilitation, Respondents.

No. 77-7032-Civ-NCR.

United States District Court, S. D. Florida, Fort Lauderdale Division.

February 16, 1978.

Supplemental Order February 23, 1978.

Philip Carlton, Miami, Fla., for petitioner.

Richard Katz, Asst. State's Atty., Miami, Fla., for respondents.

ORDER

ROETTGER, District Judge.

THIS CAUSE is before the court on the renewed petition of Kimberly Anne Powers for a writ of habeas corpus. Pursuant to this court's order of December 28, 1977, dismissing the petition without prejudice to permit review by the Supreme Court of Florida, petitioner filed a petition before that court; the petition was denied February 9, 1978.¹ Petitioner is now properly before this court.

Petitioner is a 16-year old girl who is being tried as an adult on charges of several counts of robbery, burglary and kidnapping as well as carrying a weapon during commission of a felony and aggravated battery. The more serious charges are punishable by life imprisonment. Petitioner's co-defendants have pleaded guilty and received life sentences. Petitioner's trial was due to commence February 13, 1978 but she has asserted the defense of insanity and the trial has been continued until March 20, 1978.²

Before recusing himself, State Circuit Court Judge Durant held that the state court lacked jurisdiction to consider petitioner's motion to set bail. At the hearing before this court the parties agreed that the respondent's ruling was also based on a lack of jurisdiction to consider the motion. Although petitioner appeared with witnesses prepared to testify concerning conditions of bail, no testimony was taken in state court.

Petitioner contends that Article I, § 14 of the Florida Constitution³ and Rule 3.130, Florida Rules of Criminal Procedure⁴ as applied by respondent violate her rights under the Eighth Amendment, and to equal protection and due process of law under the Fourteenth Amendment.

It is well settled that the right to freedom before conviction is an important right. Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). As stated in Stack v. Boyle,

"Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." 342 U.S. at 4, 72 S.Ct. at 3.

However, the right is not absolute. The Eighth Amendment prohibits only excessive bail; it does not require bail to be afforded in all cases and under any circumstances. Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964).

What is required is that where the state has set up a classification of bailable and non-bailable offenses, the classification must not violate the right to due process and equal protection guaranteed by the Fourteenth Amendment.

In this regard the court agrees with the conclusions of Judge Mehrtens in Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla.1977), and Florida State Circuit Court Judge Fuller in State of Florida v. McIntosh, # 77-27393 (Sept. 3, 1977) that the Florida Constitution Article 1, § 14 and Rule 3.130, Florida Rules of Criminal Procedure as applied and interpreted by the state court are unconstitutional.

Little can be said to add to the wellreasoned analysis of Judges Mehrtens and Fuller under traditional equal protection principles. However, this court would take a slightly different approach in concluding that Florida's laws violate petitioner's rights to equal protection. The court does not find it necessary to label the right to bail as a fundamental right, thus requiring a compelling state interest to support the classification the state has created. Although varying standards have been devised by the Supreme Court in recent years by which the validity of state statutes are to be tested under the Equal Protection Clause, at a minimum the Court requires that "a statutory classification bear some rational relationship to a legitimate state purpose." Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972) (citations omitted).

The State of Florida has a legitimate interest in insuring that persons charged with serious offenses appear to answer charges and that potentially dangerous criminals not be released into the community.⁵ However, Florida permits life felony defendants to be released on bail after conviction but denies it prior to trial where the proof of guilt is evident or the presumption great.⁶ The arbitrary denial of pretrial release to persons charged with life felonies where the proof of guilt is evident or the presumption great while allowing post-conviction release in such cases is neither a rational nor legitimate means to achieve either of these goals. To the contrary, if the presumption of innocence has any meaning such disparity is irrational.

There is also no rational basis for denying bail to potential life felons while granting it to persons charged with multi-count informations who may actually serve a greater time than persons sentenced to life imprisonment.⁷

Based solely on the foregoing Equal Protection analysis the court finds that petitioner is entitled to a hearing in state court to determine whether she is entitled to bail in the discretion of that court after a consideration of all the factors relevant to the granting of bail in non-life felony cases. Under no circumstances is this order to be interpreted as a suggestion by this court of what the outcome of that hearing should be, as such determination is solely in the discretion of the state court. Accordingly, it is

ORDERED AND ADJUDGED that the petition for habeas corpus is hereby granted, and this cause is hereby remanded to the state court with directions that a bond hearing be held to consider whether petitioner is entitled to bail after a consideration of all the factors set forth in the Florida Statutes regarding bail. It is

FURTHER ORDERED AND ADJUDGED that the court finds the instant order involves controlling questions of law as to which there is substantial ground for difference of opinion, and that an appeal might materially advance the litigation. Therefore this order is hereby certified as appealable pursuant to 28 U.S.C....