Rowe v. State
| Decision Date | 22 July 1982 |
| Docket Number | No. 61090,61090 |
| Citation | 417 So.2d 981 |
| Parties | Mary Cheek ROWE, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
William T. Lassiter, Jr. and William T. Edwards, Jr., Jacksonville, for petitioner.
Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
The sole question before us is whether Florida Rule of Criminal Procedure 3.691 prohibits the granting of bail pending appeal to a person who is convicted of a capital offense when that person is sentenced to life imprisonment pursuant to section 775.082(1), Florida Statutes (1979). The district court of appeal answered this question in the affirmative and has certified this question as one of great public importance. Rowe v. State, 402 So.2d 489 (Fla. 1st DCA 1981). We agree with the First District and hold that under rule 3.691 a person convicted of a capital offense, even though receiving a life sentence, may not be released on bail pending review of the conviction.
Mary Cheek Rowe was convicted of the first-degree murder of her husband, Elijah Rowe, and was sentenced to life imprisonment with the requirement that she serve no less than twenty-five years before becoming eligible for parole. After filing her appeal from her first-degree murder conviction with the First District, she filed a motion with the trial court to set bail. The trial court, in granting bail and setting bond at $10,000, found that Mrs. Rowe had no criminal record, that her first-degree murder conviction involved a family dispute, that she was not likely to commit any offense if released on bail, that she is fifty-five years old and has serious medical problems, that she has not been known to be a troublemaker, that she was not likely to flee the jurisdiction, that she would live with her daughter, and that prior to trial she was free on bond for over six months and appeared in court on each court date. The State sought review of this order in the district court on the basis that, since Mrs. Rowe had been convicted of a capital offense, she was not entitled to bail on appeal. The district court reversed the trial court's order on the basis of its prior decision in Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981), a companion case involving Mrs. Rowe's son, Douglas McArthur Rowe.
Thereafter, the First District affirmed Mrs. Rowe's conviction without discussion of any of her points on appeal. Because of its previous order reversing the trial court's grant of bail pending her appeal, however, the First District certified the question relating to bail on appeal and referred to its decision in Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981).
Rule 3.691 provides in pertinent part:
(a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans vs. State, 90 So.2d 308 (Fla.1956) .... (Emphasis added.)
Mrs. Rowe contends that, by employing the terminology "not capital" in rule 3.691, this Court eliminated the discretion of the trial court to grant bail on appeal to only those who are convicted of a capital offense and who receive a sentence of death. This rule, however, clearly and unambiguously states that a person adjudicated guilty of the commission of a capital offense is not entitled to bail on appeal. A capital offense is one that is punishable by death. In Florida, murder in the first degree is the only existing capital offense. Just because a person is not sentenced to death upon being adjudicated guilty of murder in the first degree does not mean that person has not been adjudicated guilty of the commission of a capital offense. Section 775.082(1) expressly describes the penalty to be imposed upon a person who is adjudicated guilty of a capital offense but for whom the trial court does not find the penalty of death warranted. This statutory provision states that "[a] person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death." Section 921.141 also makes clear that one who does not receive a death sentence upon being adjudicated guilty of first-degree murder has nevertheless been convicted of a capital crime and shall be punished as such pursuant to section 775.082.
In Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981), the First District recognized the nonambiguity of rule 3.691 and determined that the trial court did not have discretion to grant bail on appeal to a person convicted of a capital offense, whether that person be sentenced to death or life. That case involved Mrs. Rowe's son, Douglas McArthur Rowe, who had also been convicted for the first-degree murder of Elijah Rowe and who had likewise been sentenced to life imprisonment. He had been granted bail by the trial court pending appeal of his murder conviction, but the First District reversed the trial court's order granting bail. The First District correctly explained that Hedden v. State, 275 So.2d 52 (Fla. 2d DCA 1973), relied upon by Mr. Rowe in claiming his entitlement to bail, does not stand for the proposition that bail may be allowed pending appeal where a person has been convicted of a capital offense but has been sentenced to life imprisonment. Hedden was decided when there were no capital offenses in Florida because capital punishment as then legislated had been abolished by the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and because in Donaldson v. Sacks, 265 So.2d 499 (Fla.1972), this Court had determined there could be no capital offense without capital punishment. The First District in Rowe also properly concluded that section 924.065(3) did not restore the discretion to the trial court to grant bail in the present situation. It read this provision in conjunction with section 903.132 and pointed out that, although in 1976 the legislature amended 903.132 and by a two-thirds vote repealed that portion of rule 3.691(a) which allowed the trial court discretion with regard to permitting post-conviction bail where a person has been previously convicted of a felony, it left intact that portion of rule 3.691(a) which eliminated discretion as to those convicted of capital offenses. If the legislature had intended to give the courts this discretion, it could have repealed that portion of the rule as well. The First District correctly declined to imply such legislative intention from section 924.065(3).
Accordingly, we hold that rule 3.691 prohibits the granting of bail pending appeal to a person convicted of a capital offense when that person is sentenced to life imprisonment. The decision of the First District is approved.
It is so ordered.
The majority view is indeed beguiling. It is simply logical that "capital offense" refers to any crime potentially punishable by death. The simplicity of the majority opinion is at once its allure and its infirmity. Scrutiny beyond semantic logic reveals that rule 3.691 contemplates discretionary post-trial release for those not sentenced to death. I therefore must dissent.
I am persuaded to this conclusion by an analysis of Hedden v. State, 275 So.2d 52 (Fla. 2d DCA 1973), cert. denied, 419 U.S. 1031, 95 S.Ct. 513, 42 L.Ed.2d 306 (1974), a case which the majority too easily dismisses. The majority begins and ends its analysis of Hedden by pointing out that the case was decided during the capital punishment hiatus following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The implication is that Hedden was fortuitously granted leave to...
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