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Thourtman v. Junior

Florida Court of Appeals, Third District

June 12, 2019

Brandon Thourtman, Petitioner,
v.
Daniel Junior, etc., et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

          A Case of Original Jurisdiction - Habeas Corpus. Lower Tribunal No. 18-22561

          Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.

          Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General; Patricia Gladson, General Counsel, and Gabriela Jimenez Salomon, Assistant General Counsel, for respondents.

          Before EMAS, C.J., and LOGUE and HENDON, JJ.

          LOGUE, J.

         The defendant, Brandon Thourtman, filed a petition for writ of habeas corpus challenging his confinement in the Miami-Dade County jail. The question presented concerns whether Article I, section 14 of the Florida Constitution prohibits a trial court from detaining a defendant beyond first appearance for a reasonable time pending an Arthur bond hearing unless the trial court makes a preliminary finding of "proof evident, presumption great."

         By way of background, the Florida Constitution gives a person arrested for a crime the right to pretrial release on reasonable conditions such as bond, subject to certain exceptions. Art. I, § 14, Fla. Const. The "capital or life offense" exception applies when the person is charged with a crime punishable by capital punishment or life imprisonment and the State can demonstrate "the proof of guilt is evident or the presumption is great." Id. A person held under this exception is entitled to an adversarial, evidentiary bond hearing that examines the State's evidence to determine if it rises to the level of "proof evident, presumption great." State v. Arthur, 390 So.2d 717 (Fla. 1980). The parties agree that it is neither constitutionally required nor practical to hold the full Arthur bond hearing at first appearance, which occurs within 24 hours of arrest.

         Here, the trial court at first appearance found probable cause that the defendant committed a crime punishable by capital punishment or life imprisonment. But the trial court did not make a preliminary finding of "proof evident, presumption great." Without such a preliminary finding, the defendant contends, Article I, section 14 prohibits his detention beyond first appearance, even for a reasonable time to conduct the Arthur bond hearing. In making this argument, he concedes that the State will in many cases be unable to meet the high standard of "proof evident, presumption great" at first appearance.

         We are not persuaded by the defendant's argument. For the same reasons that it is not constitutionally required or practical to conduct a full Arthur hearing at first appearance, it is not constitutionally required or practical to hold a "preliminary" Arthur hearing at first appearance. Nothing in Article I, section 14 prohibits a trial judge at first appearance, upon finding probable cause that the defendant committed a crime punishable by capital punishment or life imprisonment, to defer ruling on a bond and to detain the defendant for a reasonable time necessary to conduct an Arthur bond hearing. To exercise such discretion, the court is not required by the Constitution to make a preliminary finding of "proof evident, presumption great." That issue is reserved for the Arthur hearing. [1]

         FACTS

         On November 9, 2018, the defendant was arrested for armed robbery with a firearm. The next day, November 10, 2018, the defendant made his first appearance. The defendant appeared by video from the jail. The matter was scheduled for an afternoon court calendar involving first appearances for approximately 40 defendants.

         When the defendant's case was called, the court reviewed the arrest affidavit. In it, the arresting officer averred he obtained the following information from the investigating detective:

The victim is an overnight security [guard], who was working at the incident location, when the def[endant] approached her from the rear, as she sat in a golf cart. The def placed a firearm to the victims head (left side) and demanded that the victim lay on the ground. The victim in fear complied at which point the def asked the victim if she was armed. The victim advised the def that she was not. The def then patted the victim down removing a bus pass from her front shirt pocket. The def then grabbed the victim's purse and fled on foot with her property.
During the course of the investigation the def's identity was established. The victim positively identified the def from a photographic array.
On 11/9/2018 the defendant was apprehended by MDPD Officers Ortiz and Coello. A routine records check of the defendant revealed the P[robable] C[ause] message pursuant to this investigation. The defendant was arrested and transported to [the jail] without incident.

         Noting the defendant was charged with a crime punishable by life imprisonment, the court announced "no bond" at first appearance, thereby deferring the bond decision to the full Arthur hearing. In doing so, the trial court followed the standard practice taught to trial judges in Florida. See, e.g., Fla. Court Educ. Council, Criminal Benchguide for Circuit Judges at 7 (2016) ("In cases in which death or life imprisonment is a possible penalty, the first appearance judge, upon finding of probable cause, will typically order that the defendant be held with no bond. The defendant is then obligated to set the matter for an Arthur hearing."). Neither the defendant nor his attorney spoke. The hearing took less than two minutes.

         On Friday, November 30, 2018, the defendant was arraigned. The State filed an information charging the defendant with one count of robbery using a firearm or deadly weapon, a first-degree felony punishable by life imprisonment. The defendant entered a plea of not guilty, propounded discovery, demanded a jury trial, and requested an Arthur hearing. The defendant also objected to being detained beyond first appearance without a preliminary finding of "proof evident, presumption great." The court overruled the objection. The court, the State, and the defendant then agreed to set the Arthur hearing on the following Thursday, December 6, 2018, four working days later. On Monday, December 3, 2018, the defendant filed this petition for habeas corpus.

         On December 6, 2018, the court held the Arthur hearing as scheduled. The investigating detective testified. He authenticated the victim's December 5, 2018, written statement which was entered into evidence. He authenticated surveillance videos retrieved from the scene which showed the defendant fleeing with a purse. He testified that a GPS record, entered into evidence, revealed the victim's stolen cellphone was moved to the vicinity of the defendant's house after the robbery. He explained how the defendant, after signing a Miranda warning, confessed to the robbery but denied using a firearm. He also described the photographs, entered into evidence, which were used in a line-up where the victim identified the defendant.

         At the end of the Arthur hearing, the court found the State's evidence that the defendant committed a robbery rose to the level of "proof evident, presumption great," but the State's evidence that the defendant used a firearm did not. Because unarmed robbery is not punishable by life, the court ordered the pretrial release of the defendant on house arrest with a $25, 000 bond.

         At the oral argument in this court, the defendant's counsel, an experienced assistant public defender, conceded three points. First, he conceded that "most often," in fact "in many, many cases," the State at first appearance will be simply unable to offer evidence rising to the level of "proof evident, presumption great" because the only proof normally available at first appearance is the arrest affidavit which, as here, consists of several levels of hearsay and shows little more than probable cause. Second, virtually always, the defendants at first appearance will also be unable to exercise their constitutional right to present evidence. Third, under existing law, the full Arthur hearing must be held - not at first appearance, which is impractical for both parties - but within a reasonable time.

         ANALYSIS

         A. Jurisdiction.

         The trial court deferred ruling on the defendant's release at first appearance and detained him until the Arthur hearing. After the Arthur hearing, however, the trial court granted bail and authorized the pretrial release of the defendant. This matter is therefore moot as to the defendant. This court was recently presented with an identical challenge, which became moot when the petitioner was granted pretrial release, and we dismissed the petition without opinion. Moore v. Junior, 3D18-2310 (Fla. 3d DCA Dec. 3, 2018).

         Now, however, with the defendant's petition presenting virtually identical facts and raising an identical issue, and the petition also becoming moot because bail was ultimately granted, we must acknowledge that "[b]ecause this petition presents a question capable of repetition yet evading review, this court has jurisdiction to hear the merits even if the petition is moot." Gould v. State, 974 So.2d 441, 444 (Fla. 2d DCA 2007). See, e.g., Greenwood v. State, 51 So.3d 1278, 1279-80 (Fla. 2d DCA 2011) (accepting jurisdiction "[e]ven though both defendants subsequently filed successful motions to reduce bond . . . because the error is capable of repetition but evading review").

         B. Article I, section 14 and its two exceptions.

         Article I, section 14 of the Florida Constitution guarantees every person charged with a crime the right to pretrial release, with two exceptions: the "capital or life offense" exception and the "pretrial detention" exception. Article I, section 14 reads:

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 detained.

Art. I, § 14, Fla. Const.

         The "capital or life offense" exception applies when a person is charged with a crime punishable by capital punishment or life imprisonment, and the State can demonstrate "the proof of guilt is evident or the presumption is great." The "pretrial detention" exception applies when, regardless of the level of crime charged, the State can demonstrate that no conditions of release will protect the community, ensure the presence of the accused at trial, or assure the integrity of the judicial process. This case concerns the "capital or life offense" exception but, as will be seen, the Supreme Court's rule-based interpretation of the time that the Constitution allows a defendant to be detained pending the hearing required under the "pretrial detention" exception will inform our discussion.

         C. Defendant's Contention: Article I, section 14 creates a two-step procedure which begins with a preliminary finding of "proof evident, presumption great" at first appearance.

         The defendant's argument is based on two recent cases by the Fourth District, Gray v. State, 257 So.3d 477 (Fla. 4th DCA 2018) and Ysaza v. State, 222 So.3d 3 (Fla. 4th DCA 2017). In both cases, the defendants were charged with crimes punishable by life imprisonment. Gray, 257 So.3d at 478; Ysaza, 222 So.3d at 5. At first appearance, the trial courts ordered each defendant detained pending the Arthur hearing. The trial courts declined to make a preliminary finding that the State's evidence rose to the level of "proof evident, presumption great." The defendants challenged their detention by filing petitions for writs of habeas corpus and arguing "that the refusal to set bond or make the required findings violates [A]rticle I, section 14 of the Florida Constitution." Gray, 257 So.3d at 478.

         The Fourth District agreed in both cases. In Ysaza, the Fourth held that Arthur interpreted Article I, section 14 as establishing a two-step "procedure." Ysaza, 222 So.3d at 6. The two steps in the procedure are: (1) "to hold the defendant without bond pending an Arthur hearing . . . the first appearance judge [i]s 'required to find that the probable cause affidavit (or other materials before the court) establishe[s] that proof of guilt [i]s evident or the presumption [i]s great'"; and (2) "if the first appearance court finds that this standard has been met and declines to set bond, the defendant can later move to set bond and request a full Arthur hearing, where the defendant has a right to present evidence and to ask the court to exercise its discretion to set bond." Gray, 257 So.3d at 478 (citing Ysaza, 222 So.3d at 6).

         Nevertheless, in both cases, the Fourth District ultimately denied the petitions. Rather than order the release of the defendants pending a full Arthur hearing, the Fourth District independently reviewed the arrest affidavits, and summarily concluded the arrest affidavits alone met the "proof evident, presumption great" standard. Gray, 257 So.3d at 478; Ysaza, 222 So.3d at 7.

         D. Interpreting Article I, section 14 as creating a two-step procedure which begins with a preliminary finding of "proof evident, presumption great" represents a break with historical understanding.

         At the outset, we note Ysaza and Gray's interpretation of Article I, section 14 as requiring two bond hearings including a preliminary finding at first appearance of "proof evident, presumption great" reflects a significant innovation in the understanding of Article I, section 14.

         Versions of the "capital or life offense" exception of Article I, section 14 appeared as early as Florida's first constitution. Art. I, § 11, Fla. Const. (1838) ("That all persons shall be bailable, by sufficient securities, unless in capital offenses, where the proof is evident, or the presumption is strong."). Historically, it was understood that the defendant would exercise his or her right under this provision by filing an application for bail in which the defendant had the burden of proving the absence of "proof evident, presumption great." Russell v. State, 71 So. 27, 28 (1916). [2]

         In 1982, the Supreme Court in Arthur overturned prior precedent and shifted the burden of proof from the defendant to the State. Arthur, 390 So.2d at 717. However, it did not change the process whereby the hearing was triggered by the defendant making an application for bond. Id. Nor did it change (at least expressly) the existing law that a defendant could be detained pending the bond hearing on the issue of "proof evident, presumption great." Id.

         After Arthur, the general understanding of Article I, section 14 remained that there occurred only one Arthur bond hearing and that the defendant could be detained a reasonable time past first appearance pending the hearing. This understanding was reflected in the benchguides prepared by Florida's most experienced trial judges, distributed throughout the judiciary by the court system, and issued after Arthur.[3] This understanding was followed by, for example, the trial judges in Ysaza, 222 So.3d at 7, Gray, 257 So.3d at 478, and Brackett v. State, 773 So.2d 564, 565 (Fla. 4th DCA 2000) (noting "[b]ond was denied at the first appearance, pending a full [Arthur] bond hearing").

         Trial courts sometimes ventured to make a preliminary determination of "proof evident, presumption great" at first appearance (usually being reversed and ordered to conduct a full hearing, but not being ordered to release the defendant pending the hearing).[4] It was not until the 2017 Ysaza decision, however, that Article I, section 14 was expressly interpreted as requiring two Arthur hearings, one of ...


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