JOHN CARTER, ROBERT CARTER, TOM ALDRED, CECIL BIGGS, PETITIONERS,
v.
DALE CARSON, SHERIFF OF DUVAL COUNTY, FLORIDA, RESPONDENT
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The court held that a special condition of bond requiring petitioners not to engage in employment connected with obscene materials was an impermissible prior restraint and unrelated to assuring appearance at trial.
[1] A condition of pre-trial release is invalid if it does not bear a reasonable relationship to the assurance of the defendant's appearance at future court proceedings.
[2] A trial court may impose conditions on pre-trial release that restrict travel, association, or place of abode, or any other condition deemed reasonably necessary to ensur…
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Join FLexlaw to unlock all legal intelligencePetitioners were arrested for violating obscenity laws and had their bond reduced with a special condition prohibiting employment related to obscene m…
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PER CURIAM.
Petitioners were arrested and charged with a misdemeanor violation of the obscenity laws, Florida Statute 847.011, and each was placed under bond of $50,000.00. They then filed petition for writ of habeas corpus seeking reduction of their bonds, which resulted in an order reducing the monetary bond in each instance. In the order reducing bond the trial court included as a “special condition”, the requirement that petitioners
. shall not engage in employment connected with or dealing in the possession of obscene materials with the intent to show, sell or distribute the same.” (Order reducing bond, March 9, 1979)
Petitioners timely filed their notice of appeal from the March 9 order, and subsequently applied for a constitutional stay writ which this court denied, but at the same time ordered filing of respondent’s brief within ten days, and further ordered that the cause be submitted without oral argument.
Respondent first contends that there is no showing before this court that petitioners at any time during the proceedings in the trial court ever objected to the condition of the bond of which they now complain, and that barring such objection, this court is precluded from considering the issue. State v. Barber, 301 So. 2d 7 (Fla.1974). Secondly, respondent argues that the contested condition does no more than to place a requirement upon petitioners that they refrain from violating the criminal laws. Finally, respondent argues that even if the court struck the particular condition complained of petitioners would obtain no real relief, because they would still face the prospect of rearrest in the event they commit further illegal acts.
We note in the first instance that Rule 3.130, Fla.R.Cr.P., governing “Pre-Trial Release” sets forth certain requirements regarding release upon bail and revocation of bail. Subparagraph (b)(4) of that Rule sets out particular “forms of release” recognized as “bail” under the Rule. In addition to the usual forms of monetary bail, the court may place restrictions on the travel, association, or place of abode of the defendant during the period of release (Rule 3.130(b)(4)(i)(4)) or impose any other condition deemed reasonably necessary to insure appearance as required (Rule 3.130(b)(4)(i)(4) and (6)).
Since the particular condition in the order is not specifically provided for by the rules, we must find justification, if any, in the provisions of sub-subparagraph (b)(4)(i)(6) as a condition “deemed reasonably necessary to assure appearance as required”. We fail to see any reasonable relationship between the special condition and the assurance of defendants’ appearance to answer the charges against them, and respondent’s brief has suggested no basis for such a conclusion, and no authority for the condition. We conclude that the special condition enjoins, or attempts to enjoin, some conduct which may or may not be criminal under the laws of Florida, and which has not been shown to bear any relationship to the legitimate purposes of bail, that is, to insure the defendants’ appearance at future court proceedings. Cf. The Ladoga Canning Corp., etc. v. McKenzie, etc., 370 So. 2d 1137, holding invalid as an impermissible prior restraint injunctions prohibiting distribution of “other printed materials which violate the provisions of Florida Statute 847.011(l)(a),” pointing out that the right to a prior judicial determina tion of what may be enjoined as obscene may not be circumvented either through a blanket injunction which prohibits, in essence, the sale of “all obscene materials” or which places the burden of making this determination upon the vendor. We reject respondent’s contention that petitioners must reapply to the trial court in order to have the special condition stricken from the order. We further would conclude from a reading of the entire rule regarding pre-trial release that the court has ample authority under the rules for revocation or increase of bail “for good cause” (Rule 3.130(f), (h)). With the special conditions stricken defendants still remain subject to rearrest for violation of any and all criminal laws, and they may be appropriately dealt with at such time as that event occurs.
That portion of the order reducing bond containing the special condition above referred to is hereby reversed, and shall be deemed of no force and effect, without prejudice to further consideration by the trial court of its own motion, or upon motion of the state, to impose such other conditions of release or additional security for appearance of the defendants as the court may deem necessary after due notice and hearing.
ROBERT P. SMITH, Acting C. J., and ERVIN and LARRY G. SMITH, JJ., concur.
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Hernandez v. Roth, 890 So. 2d 1173 (Fla. 3d DCA 2004)…is inconsistent with Hernandez’s presumption of innocence. See State v. Rodriguez, 575 So. 2d 1262 (Fla.1991). Our decision today places us in direbt conflict with the Fourth District in Glinton and Harp and the First District in Carter v. Carson, 370 So. 2d 1241, 1242 (Fla. 1st DCA 1979) (concluding that the trial court had no authority to set a special condition which enjoined the defendant from engaging in employment connected with or dealing in the possession of obscene materials because the condition wa…
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Glinton v. Wille, 457 So. 2d 563 (Fla. 4th DCA 1984)…Id. at 624. Florida Rule of Criminal [*565] Procedure 3.131(a), as amended in 1983, does permit use of conditions of release to protect persons in the community from physical harm, but that purpose is not applicable here. See also Carter v. Carson, 370 So. 2d 1241 (Fla. 1st DCA 1979) (condition of pretrial release prohibiting defendants from selling obscene material improper as not bearing any relationship to insuring their appearance at future court proceedings). Thus, the trial court could not impose the co…
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Middleton v. Polk, 399 So. 2d 1105 (Fla. 5th DCA 1981)…every person shall be entitled to release on reasonable bail.1 The word “reasonable” is not restricted to the monetary amount of the bail bond but may also relate to the sufficiency of the surety and to the conditions of the bond. Carter v. Carson, 370 So. 2d 1241 (Fla. 1st DCA 1979). Even in determining which form of release will reasonably assure appearance before a finding of guilt the trial judge is required to take into account the defendant’s family ties. Fla.R.Crim.P. 3.130(b)(4)(iii). Under the circum…
Authorities Cited
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- The Ladoga Canning Corp. v. Sydney H. McKENZIE, III, 370 So. 2d 1137 (Fla. 1979)