final until disposition of timely filed motion for rehearing.
for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Michael I.
Rothschild, Judge; L.T. Case No. 062014CF007293A88810.
Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for
Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for respondent.
State filed a petition for writ of certiorari seeking to
quash the court's order finding section 903.0351(1)(b),
Florida Statutes (2016), unconstitutional. We grant the
petition and quash the order.
Defendant pled no contest to felony driving with a revoked
license and was placed on probation. During the probationary
period, he was charged by affidavit with violating his
probation by committing several new substantive offenses
including robbery, burglary, grand theft, battery, possession
of a weapon by a convicted felon, possession of cannabis, and
witness tampering. He fled the scene of the crime; however,
he was later taken into custody and released on bond.
Subsequently, the State moved to revoke bond pursuant to
section 903.0351(1)(b), Florida Statutes (2016), because he
had been arrested for the qualifying offenses of robbery and
Defendant responded to the State's motion and argued that
section 903.0351(1)(b) was unconstitutional. Specifically, he
argued that this section violates due process by precluding
bond based on defendant's "arrest" without (i)
requiring that the arrest be supported by probable cause or
(ii) providing for an evidentiary hearing on the issue.
court denied the State's motion to revoke bond. The court
found that, because section 903.0351(1)(b) does not
implicitly require that the predicate arrest be lawful, a
defendant has no opportunity to challenge the revocation of
his bond even if the arrest "is of a questionable
nature." Therefore, the court held that section
903.0351(1)(b) is unconstitutional on its face and as
applied, because it violates due process.
State filed a petition for writ of certiorari, seeking to
quash the order.
903.0351(1)(b), Florida Statutes (2016), is not
unconstitutional for failing to provide a mechanism to seek
bail pending a violation of probation hearing. A probationer
arrested for a new crime during the period of his probation
does not have the same constitutional rights as a person not
on probation at the time of arrest. Peraza v.
Bradshaw, 966 So.2d 504, 505 (Fla. 4th DCA 2007). A
person not on probation at the time of arrest is
presumed innocent until proven guilty beyond a reasonable
doubt, but a person on probation at the time of arrest is not
entitled to that same presumption. Id. Further, a
person on probation at the time of his arrest does not have a
constitutional right to be released prior to his violation of
probation hearing. Id. (citing Genung v.
Nuckolls, 292 So.2d 587 (Fla. 1974); McCarthy v.
Jenne, 861 So.2d 99 (Fla. 4th DCA 2003)).
there is a fundamental flaw in the argument that the statute
is unconstitutional because it lacks a procedure for a
probationer arrested of a new crime to seek bail. That
probationer is not constitutionally entitled to bail pending
the violation of probation hearing, and there can be no
constitutional violation in failing to provide ...