Everything you need to know to prepare an effective bond hearing in Florida
Updated: Jan 10, 2020
Exploring 903.046, caselaw, and other relevant factors to assure you get your bond as low as possible.
Where to start?
The first thing your lawyer should do is inform the Court where to look for making its determination to set bond. The rules of statutory construction, which I will not review in this guide, clearly state,
“When making a determination to set bond, the Court should look to the plain language of Florida Statute §903.046.”
Why look to 903.046? That is the statute for setting bond in the State of Florida. It details the purpose of setting bond, considerations for the court, and relevant factors detailing those considerations which will be discussed later. The purpose of setting bond is to procure the Defendant’s presence at court hearings and to protect the community. Your lawyer should gently remind the Court that every defendant is entitled to release on reasonable conditions unless they are charged with a capital offense and the Defendant's guilt is evident, and the presumption great. “Unless charged with a capital offense where the proof is evident and the presumption great, every person charged with a crime . . . . shall be entitled to pretrial release on reasonable conditions.” In re Amendments to Fla. Rules of Crim. Procedure, 26 So. 3d 534, 538 (Fla.R. Crim P. 3.131 2019). See State v. Blair, 39 So. 3d 1190 (Fla. 2010).
Do not read this first section and run into your hearing saying that Mike Stover said everyone is entitled to bond, judge. There are a myriad of considerations.
The next thing the Court needs to know is that there is a presumption in both the Rules of Criminal Procedure, the bond statute 903.046 and the case law dictates that the Court MUST entertain non-monetary conditions of release before imposing a non-monetary bond. THIS DOES NOT APPLY TO CAPITAL OFFENSES where the proof is evident and the presumption great. Non-monetary conditions are the preferred conditions of release. It is clear that "it is the intent of the legislature to create a presumption in favor of release on non-monetary conditions for any person who is granted pre-trial release." (§ 903.15, Fla. Statute). This is reiterated in the Rules of Criminal Procedure which states "there is a presumption in favor of release on non-monetary conditions for any person who is granted pre-trial release." Fla R. Crim. P. 3.131(a)(1). That must be in your argument to make a complete record and to hold the Court and the State accountable.
Let's talk about application here. Say you have a Battery on a LEO case. The client was drunk and is accused of spitting on a police officer and calling him a derogatory term. That is the type of action that begs for a very high bond. So how do we get to non-monetary conditions? Well, you probably don't. But let's say the client has a felony history that includes an escape charge where she took a step out of a police car while handcuffed when she was 18 and she has a history of substance abuse or alcohol issues. In that case, you are going to want to get out in front of any harm. You know the guy (or gal) has a history but you think it is ridiculous. Don't be scared of it, show the court how absurd it is the state is relying on flimsy charges from when the client's prefrontal cortex was still goop. Additionally, you are going to want the court to know, judge we don't need a monetary bond to protect the community, which is one of the court determinations at a bond hearing the court has to make.
You tell the court we need: A. Random drug testing B. A scram monitor C. to put my client on house arrest pending trial. Your responsibility in this regard is to give the Court the tools and the record to make a determination where the judge won't look like a buffoon in the event our client goes and kills someone while out on bond.
903.046 and Its Layers
Ok, hold on tight. 903.046 is the statute in the State of Florida regarding setting bond. Most everything in this guide is paraphrased, refer to the full statute for the language. The purpose of setting bond is to make sure the Defendant shows up and that the community is safe. The Statute directs the court to consider some factors that mean absolutely nothing.
Well that's not very nice, Mike. Why do they mean nothing?
Letter "(k)" on the list tell the court it SHALL consider ANY OTHER FACTS THAT THE COURT CONSIDERS RELEVANT [TO A DETERMINATION OF BOND]"
So don't ever never ever let a judge tell you he or she can't consider a fact at a bond hearing. That being said, sticking to the enumerated factors tends to receive deference from most judges. You should always establish:
Length of residence in the community if applicable;
Family ties, whether or not an individual has a parent willing to take care of them;
If the case involves drugs or violence or if the individual has a mental or intellectual disorder;
Those facts tend to assure the court that the client will appear. Does the client have children that live in the community, has he ever lived anywhere else, does he own a home, a boat, a house.. You need to be really careful because one of the arguments we are going to set up is what to attack when you have a really high bond that can't be justified. As to whether the client is a danger to the community, of course prior violent acts are terrible in a bond hearing. But let's go back to our client who spit on the police. She was drunk. Suppose you speak with her and her father who were the two people present for the crime. The father tells you she has had a drinking problem since 13 when her mother left, and she has never said a cross word to anyone unless she is drunk. You want to establish through questioning, as long as the testimony sounds credible that you don't have a violent client, you have an unfortunate client with a drug issue for 2 reasons.
Judge is less likely to hold a drug addict than an individual who is just violent.
You can recommend drug testing/scram device (Goes around ankle and measures BAC) and other conditions that can control the variable that gives the court pause.
Your entire job in this regard is to identify what parts of the statute the state has strong arguments on, and blow them to hell ethically and honestly. You cannot lie in the court at any time.
Indigency and setting yourself up to get the lowest monetary bond for the client.
Something you should always look into filing before filing a motion for bond is a motion to have the client found indigent. It not only saves money on depositions, but plays very well in what we are about to talk about. In order to do so, you need to have the client fill out an application for indigency which can be found on most clerk's websites. You will turn that form into the clerks office and wait for a determination. Once the clerk finds the client indigent, you draft an affidavit, which most clerk's offices or court websites. The requirements are included in section 27.52 and won't be discussed in this guide. REMEMBER THAT YOU ARE NOT JUST ENTITLE TO RELEASE, YOU ARE ENTITLED TO RELEASE ON REASONABLE CONDITIONS. Also, remember most Florida circuits now have bond schedules. Very difficult for a judge to argue a $50,000 bond is reasonable when bond schedule for the offense is $500 For example, if someone is charged with Grand Theft ($5000 on most bond schedules) and the bond is set at $1,000,000. The bond schedule should be the first thing out of your mouth. When monetary conditions are to be imposed, they are not reasonable if the amount is excessive. Thus, bond should be set in an amount reasonably calculated to fulfill its purpose of assuring the presence of an accused. This means an accused’s financial resources are a primary consideration. Alvarez v. Crowder, 645 So.2d 63 (Fla. 4th DCA 1994). The overall tonality of Alvarez is that if a person can't make a bond, let's say they have zero dollars, then setting one becomes pretty arbitrary.
“Depending upon the financial resources of the defendant, excessive bond may be tantamount to no bond.” Byrd v. Mascara, 197 So. 3d 1211, 1213 (Fla. Dist. Ct. App. 2016). The Court in Byrd found that even when the Defendant had substantial financial resources, where he had substantial ties to the community, a bond of 1.7 million dollars for a five-count charging affidavit involving Racketeering (RICO a level 9 offense on the Scoresheet) was excessive and unreasonable. Additionally, the Court found that, regarding the Defendant’s Racketeering charge, where the only evidence the state relied on is a charging affidavit, that evidence by itself is insufficient to show that the Defendant was involved in a criminal enterprise.
In our case, although the Defendant maintains her innocence, even assuming the facts in the 707 are true, the bond as set is almost triple any bond schedule in the State. Notice the reasoning the Court attached to. The Court found it important that this bond had blown the schedule out of the water, meaning that the bond was EXCESSIVE (a good buzz word for your argument). The court also found that, and you should exploit if this occurs) the State just put in this charging affidavit that this guy was selling a bunch of drugs. If the State puts on no evidence, always use the argument that the charging affidavit alone is not enough to establish whatever the charge is. Lastly, if you are just getting hammered at the hearing, make the argument that the bond as set is tantamount to no bond.
Bond Revocation and Closing
Now, 903.0471 regards when the State may revoke a person's bond. Any time there is probable cause (Usually an arrest or the filing of a new information. Usually a new charging affidavit won't do it unless the person is on pretrial release for a DUI manslaughter and picked up a Driving while license suspended while out on bond. WHY!? The person killed someone with a car and were caught driving again. At that point, the judge understands it is his or her tush if this person is not taken into custody. No one will tell you that, but it's the truth. In the event one of the clients gets his or her bond revoked, you file a motion to set bond or reinstate bond just like you would if you were challenging a high bond. The judge, in his and her discretion, may reinstate a bond. If they do so, it must be twice the original monetary bond set. Additionally, the court shall reinstate a bond where the state has produced documentation that they do not intend to pursue a new law offense. Courts are clear that where the state comes to a conclusion they no longer have probable cause to revoke, the bond should be reinstated.
There are thousands of implications at these hearings, and I've done my best to discuss what I find most important and find most effective as a former state attorney and now a private defense attorney. Please feel free to contact me regarding bonds in general or specific questions from the guide.