Rehearing Denied Sept. 15, 1992.
Robert A. Butterworth, Atty. Gen., and Janet Reno, State Atty., and Paul Mendelson, Asst. State Atty., for petitioner.
Charles G. White, Miami, for respondent.
Before HUBBART, NESBITT and GODERICH, JJ.
The state has filed an original petition for a writ of certiorari seeking review of a trial court order which sets a $250,000 bail bond for a defendant who is charged with two counts of first-degree murder. The trial court concluded that the defendant was entitled to pretrial bail as a matter of right because the proof of guilt was not evident and the presumption of guilt was not great. We have jurisdiction to entertain this petition. Art. V, Sec. 4(b)(3), Fla. Const.; see State v. Pettis, 520 So.2d 250 (Fla.1988); State v. Ajim, 565 So.2d 712 (Fla. 4th DCA 1990).
On May 27, 1992, the respondent Carl Douglas Perry was released on his own recognizance by United States District Court Judge Norman C. Roettger, Jr. after the jury was unable to reach a verdict in a federal RICO prosecution involving fifteen defendants. Before the respondent could be released from custody, however, he was arrested on two state charges of first-degree murder stemming, in part, from the RICO prosecution. Subsequently, on June 17, 1992, the Dade County Grand Jury indicted the respondent on two counts of
first-degree murder allegedly occurring on October 30, 1986, both of which are capital offenses. Sec. 782.04(1)(a), Fla.Stat. (1985). The respondent applied for bail on this indictment before the circuit court below, and a bail hearing was thereafter conducted. At this hearing, the state introduced (1) various case reports and affidavits, and (2) the testimony of the lead police detective in the case who summarized the state's evidence as stated in the reports, affidavits, and other testimony.
The bail hearing evidence revealed that the state's case against the respondent is based almost entirely on the testimony of an alleged accomplice who, as part of a plea bargain, turned state's evidence in exchange for a plea of guilty to four second-degree murder charges and the imposition of a twenty-two-year sentence; there is no physical evidence linking the respondent to the charged murders. The alleged accomplice's testimony, however, is contradicted by (a) the statements of other witnesses which tend to show that the accomplice alone committed the murders in question, and (b) other statements made by the alleged accomplice to the police as to the material events of the double homicide. Because this impeachment evidence was not adequately refuted by independent corroborating proofs, the trial court concluded that the proof of guilt was not evident and the presumption of guilt was not great, and thereafter set a bail for the respondent on these charges in the amount of $250,000. The state's petition for a writ of certiorari follows.
The law in Florida is well settled that "every person charged with a crime ... shall be entitled to pretrial release on reasonable conditions," Art. I, Sec. 14, Fla. Const., subject to two exceptions. The first exception, not relevant here, is the pretrial detention exception: "[i]f no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained." Art. I, Sec. 14, Fla. Const.; see also Sec. 907.041, Fla.Stat. (1991). The second exception, relied on by the state herein, is the capital or life offense exception: pretrial release may be denied to an accused who 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...." Art. I, Sec. 14, Fla. Const.
In State v. Arthur, 390 So.2d 717 (Fla.1980), the Florida Supreme Court held that "before release on bail pending trial can ever be denied [to an accused charged with a capital offense or an offense punishable by life imprisonment], the state must come forward with a showing that the proof of guilt is evident or the presumption is great." Id. at 720 (footnote omitted). This holding directly answered a question certified to the Court by the Fourth District: "[d]oes the accused or the state, in a capital case or a case involving life imprisonment where the accused is seeking to be admitted to bail, have the burden of proof on the issue of whether the proof of guilt is evident and the presumption great." Id. at 717. The Court, however, went beyond answering this question and, in dicta, opined that "[t]he state's burden, in ...