FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
for Writ of Habeas Corpus to the Circuit Court for Lee
County; H. Andrew Swett, Judge.
Kathleen A. Smith, Public Defender, and Marisa Boysen,
Assistant Public Defender, Fort Myers, for Petitioner.
Jo Bondi, Attorney General, Tallahassee, and Laurie
Benoit-Knox, Assistant Attorney General, Tampa, for
Casiano is charged with drug possession offenses. At his
first appearance hearing the court set bail, but it granted
the State's request to order Casiano held pending a
hearing pursuant to United States v. Nebbia, 357
F.2d 303 (2d Cir. 1966). In so doing, the court disregarded
defense counsel's objection that the State had not filed
a proper motion for pretrial detention under the rules of
criminal procedure. Casiano petitioned us for a writ of
habeas corpus, which we granted by a prior order that advised
that an opinion would follow. We now explain that detaining
an accused prior to trial pursuant to Nebbia is not
authorized in Florida.
increasing frequency, some courts in this district are
placing so-called "Nebbia holds" on accuseds after
setting bond at first appearance hearings. In
Nebbia, the United States Second Circuit Court of
Appeals held that after an accused posted a $100, 000 bail in
cash, the trial court had discretion to inquire into the
source of the funds in order to ensure that the accused would
appear in future proceedings. 357 F.2d at 304-05. The federal
rules permit this on either the government's motion or
the court's own motion. See Fed. R. Crim. P.
46(a); 18 U.S.C. § 3142(g)(4).
in Parrino v. Bradshaw, 972 So.2d 960 (Fla. 4th DCA
2007), the Fourth District denied a petition for writ of
habeas corpus, holding that a first appearance court could
consider the State's motion for a hearing regarding the
source of funds used by the petitioner to post the bail set
by the first appearance court. Id. at 961. But we
find no provision in Florida law authorizing the first
appearance court to detain an accused pending a
separate hearing to address the source of bail funds.
the Florida Constitution guarantees the right to pretrial
Unless charged with a capital offense or an offense
punishable by life imprisonment and the proof of guilt is
evident or the presumption is great, every person charged
with a crime or violation of municipal or county ordinance
shall be entitled to pretrial release on reasonable
conditions. If 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
Art. I, § 14, Fla. Const. Thus, every accused has a
constitutional right to pretrial release on reasonable
conditions, with two-and only two-exceptions. First, a person
charged with a capital offense or an offense punishable by
life imprisonment has no right to pretrial release if the
proof of the accused's guilt is evident or the
presumption that he or she committed the crime is great.
Second, any accused may be detained if no conditions of
release can reasonably protect the community from physical
harm to persons, ensure the accused's presence at trial,
or ensure the integrity of the judicial process.
sentiment also resonates in Florida Rule of Criminal
Procedure 3.131[(a)] . . . ." State v. Blair,
39 So.3d 1190, 1192 (Fla. 2010). That rule, along with
statutory sections 907.041 and 903.046, Florida Statutes
(2016), effectuate the constitutional right by establishing
procedures and criteria for prescribing reasonable conditions
of pretrial release. Under rule 3.131, the conditions are to
be devised by the first appearance court. See Fla.
R. Crim. P. 3.131(a). One of the factors the court may
consider in setting conditions is "the source of funds
used to post bail." See § 903.046(2)(f);
Fla. R. Crim. P. 3.131(b)(3).
we agree with Judge Warner's concurring opinion in
Parrino. She noted that because in that case the
petitioner's bail had already been set, the State should
have requested a modification of bail by showing good cause
pursuant to rule 3.313(d)(2); however, the petitioner had
waived that issue by failing to raise it. Further, and more
important, Judge Warner observed that "[t]o the extent
that a court inquires at the first appearance hearing as to
the source of the funds available to post bail, it is for the
purpose of ascertaining whether the bail set is sufficient to
secure the defendant's appearance, not to deny him
pretrial release. Art I, § 14, Fla Const; Fla R Crim P
3131" 972 So.2d at 962 (Warner, J, concurring). Indeed,
continuing to hold an accused who has posted the bail set at
first appearance is tantamount to pretrial detention, which
may only be ordered after proceedings on a proper motion for
pretrial detention filed by the State. See Fla. R.
Crim. P. 3.131(b)(1) ("Unless the state has filed a
motion for pretrial detention pursuant to rule 3.132, the
court shall conduct a hearing to determine pretrial
we hold that under our state's constitution, Florida
courts lack authority to detain accuseds for the purpose of
inquiring into the source of funds used to post bail.
Moreover, any such inquiry "is for the purpose of
ascertaining whether the bail set is sufficient to secure the
defendant's appearance, not to ...