State v. Frear
| Decision Date | 23 January 1945 |
| Citation | 155 Fla. 479,20 So.2d 481 |
| Parties | STATE v. FREAR. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; Ross Williams Judge.
J. Tom Watson, Atty. Gen., John C. Wynn, Asst. Atty. Gen., and Stanley Milledge, State Atty., of Miami, for appellant.
Worley & Kehoe, of Miami, for appellee.
The appellee having been indicted charged with murder in the first degree procured writ of habeas corpus and upon hearing was remanded without bail. Thereafter she was brought on for trial under the said indictment which trial resulted in a mistrial because the jury was unable to agree on a verdict of guilty of any degree of unlawful homicide.
After trial appellee made application under the provisions of Chapter 903, Fla. Statutes 1941 F.S.A., to be released in bail. Upon hearing on the petition the Circuti Court made and entered an order allowing her to be released on bail in the sum of $3,000. From this order the State filed its notice of appeal and has brought the record here seeking review of such order.
We find no authority for review by the Supreme Court of an order of this sort either on behalf of the State or the petitioner. The right of the State to appeal is fixed and circumscribed by Section 924.07, Florida Statutes 1941, same F.S.A., which is as follows:
'924.07. Appeal by state. An appeal may be taken by the state from:
'(1) An order quashing an indictment or information or any count thereof;
'(2) An order granting a new trial;
'(3) An order arresting judgment;
'(4) A ruling on a question of law adverse to the state where the defendant was convicted and appeals from the judgment;
'(5) The sentence, on the ground that it is illegal;
'(6) Judgment discharging prisoner on habeas corpus.'
It will be observed that subparagraph (6) of the above quoted section provides for appeals by the State in habeas corpus cases only from a 'judgment discharging prisoner.' A judgment admitting to bail is not a judgment discharging prisoner. That this is true is too well settled to permit of serious question. In such cases the prisoner is not discharged, but his custody is transferred from the keeper of the prison to the makers of his bail or bail bond and these custodians have the power and authority at any time to deliver the prisoner up to be reincarcerated and to thereby be relived of the obligation of the bail bond.
It has been contended here that even though appeal on behalf of the State may not lie, the challenged order may be reviewed on certiorari. We do not think this position is tenable because the granting of bail in criminal cases after indictment is a matter within the discretion of the court having jurisdiction of the trial of the cause. See 8 C.J.S., Bail, page 77, § 39 and...
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State v. Creighton
...to be controlling. Thus it is clear that before the 1956 amendment, the state's right of appeal was purely statutory. State v. Frear, 155 Fla. 479, 20 So.2d 481 (1945). In 1956 article V was revised and the district courts of appeal were created. The appellate jurisdiction of those courts w......
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...174 (1947); motion for new trial, Cloud v. Fallis, 110 So.2d 669 (Fla.1959).2 Grant v. Corbitt, 95 So.2d 25 (Fla.1957).3 State v. Frear, 155 Fla. 479, 20 So.2d 481 (1945).4 Wallace v. State, 41 Fla. 547, 26 So. 713 (1899).5 Miller v. Gardner, 144 Fla. 339, 198 So. 21 (1940).6 State ex rel. ......
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Magbanua v. McNeil
...constitute a change in conditions and allow the trial court to reconsider a prior ruling on pretrial release. See State v. Frear , 155 Fla. 479, 20 So. 2d 481, 481–82 (1945). But Magbanua did not challenge the trial court's failure to hold a hearing on her second motion for pretrial release......
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