final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Habeas Corpus. Lower Tribunal No.
J. Martinez, Public Defender, and Jeffrey Paul DeSousa,
Assistant Public Defender, for petitioner.
Moody, Attorney General, and Magaly Rodriguez, Assistant
Attorney General; Patricia Gladson, General Counsel, and
Gabriela Jimenez Salomon, Assistant General Counsel, for
EMAS, C.J., and LOGUE and HENDON, JJ.
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."
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.
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.
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. 
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.
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
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.
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
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.
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.
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.
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.
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).
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").
Article I, section 14 and its two exceptions.
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
Art. I, § 14, Fla. Const.
"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.
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
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.
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).
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.
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.
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,
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).
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."
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. 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").
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). It was not until the 2017 Ysaza
decision, however, that Article I, section 14 was expressly
interpreted as requiring two Arthur hearings, one of