PETER NUSSDORF, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peter Nussdorf appealed a trial court's denial of bond pending appeal after conviction for sexual battery. The appellate court reversed, holding that sexual battery is not a capital offense in Florida despite statutory language to the contrary, because the death penalty is unconstitutional for crimes that do not result in loss of life, and therefore bond pending appeal should be reconsidered under proper standards.
Sexual battery is not a capital offense in Florida because the death penalty has been held unconstitutional for sexual offenders who do not take human life, and therefore the trial court erred in denying bond pending appeal on that basis. Additionally, at least two of the appellant's three grounds for appeal are fairly debatable, warranting reconsideration of the bond request.
[1] Sexual battery is not a capital offense in Florida for purposes of appeal bond, as the death penalty is no longer a permissible punishment for that crime.
[2] A capital offense is defined as one punishable by death; in Florida, only first-degree murder currently qualifies as a capital offense.
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Join FLexlaw to unlock all legal intelligence“It has been held that the death penalty is an excessive penalty for a sexual offender who as such did not take a human life, and therefore unconstitutional pursuant to the Eighth Amendment.”
Establishes that sexual battery cannot be punished by death, therefore is not a capital offense
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Join FLexlaw to unlock all legal intelligenceNussdorf was convicted of three counts of sexual battery upon a young child and sentenced to two concurrent life terms in prison without eligibility f…
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PER CURIAM.
Appellant, Peter Nussdorf, seeks review of the lower court’s order denying his motion for bond pending appeal. We reverse.
Appellant was convicted of three counts of sexual battery upon a young child and sentenced to two concurrent life terms in prison, without eligibility for parole for 25 years. The trial court subsequently denied appellant’s motion for bond pending appeal on the grounds that sexual battery is a capital felony, for which appeal bond is not available, and, in any event, the issues raised on appeal are not fairly debatable.
It has been held that the death penalty is an excessive penalty for a sexual offender who as such did not take a human life, and therefore unconstitutional pursuant to the Eighth Amendment. Buford v. State, 403 So. 2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 1164, 102 S.Ct. 1037, 1039, 71 L.Ed.2d 319, 320 (1982) (citing Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)). Thus sexual battery is not a capital offense in Florida, notwithstanding that contrary language is found in the statutory-section applied in the instant case, section 794.011(2), Florida Statutes (1983).
“A capital offense is one punishable by death. In Florida, murder in the first degree is the only existing capital offense.” Rowe v. State, 417 So. 2d 981, 982 (Fla.1982). We do not think, as the state urges, based on its reading of Rusaw v. State, 451 So. 2d 469, 470 (Fla.1984), that capital means punishable by death for some purposes, but may mean something else for other purposes, such as that of prohibiting appeal bond. If the death penalty is no longer available for punishing a crime, that crime is no longer a capital offense.
It also appears to us that two of appellant’s three grounds for appeal may be fairly debatable. These are (1) that the state failed to prove that the crimes occurred within the time period specified in the information, and (2) that admission into evidence of the victim’s taped statement was error. On remand, the trial court should reconsider appellant’s request for bail in accordance with rule 3.691, Florida Rules of Criminal Procedure, applying the principles enunciated in Younghans v. State, 90 So. 2d 308 (Fla.1956).
REVERSED AND REMANDED.
GLICKSTEIN and DELL, JJ., concur. ANSTEAD, J., specially concurs with opinion.
ANSTEAD, Judge,
specially concurring.
This is a difficult issue, especially in view of the fact that at least at one time it was intended that the offense involved herein be both punishable by death and non-bailable. I write separately only to note the Supreme Court’s unequivocal holding in Reino v. State, 352 So. 2d 853, 858 (Fla.1977):
Hence, it is apparent that all incidents of capital crimes, substantive as well as procedural, become inapplicable upon abolition of the death penalty. It would be conceptually inconsistent to conclude that the procedural advantages inuring to a defendant in a capital case fall with abolition of the death penalty and then conclude that the substantive disadvantages (limitation on entitlement to bail and unlimited statute of limitations) remain viable.
Our holding, then, is that the provision excluding capital offenses from consideration for bail only applies to cases where the death penalty is a possible punishment. In all other cases, absent a specific legal provision to the contrary, the trial court retains discretion to determine whether bail is appropriate.
Cases With Similar Vibessemantic neighbors from the corpus
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Batie v. State, 534 So. 2d 694 (Fla. 1988)…McDonald, justice. We accepted jurisdiction in this cause because of conflict with Nussdorf v. State, 495 So. 2d 819 (Fla. 4th DCA 1986), review denied, 503 So. 2d 328 (Fla.1987). Art. V, § 3(b)(3), Fla. Const. The issue is whether a person convicted of sexual battery of a person eleven years old or less is eligible for consideration for postconviction bond. The d…
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Batie v. State, 521 So. 2d 295 (Fla. 1st DCA 1988)…ince it has been held that the death penalty cannot be imposed, Buford v. State, 403 So. 2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). This reasoning has been adopted by our sister court in Nussdorf v. State, 495 So. 2d 819 (Fla. 4th DCA 1986), review denied, 503 So. 2d 328 (Fla.1987). Appellee’s response to the motion contends that the death penalty is not a prerequisite to the classification of a crime as capital, at least for certain purposes, relying on State v. Ho…
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Nussdorf v. State, 508 So. 2d 1273 (Fla. 4th DCA 1987)
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coker v. Georgia, 433 U.S. 584 (U.S. 1977)
- Buford v. State, 403 So. 2d 943 (Fla. 1981)
- Younghans v. State, 90 So. 2d 308 (Fla. 1956)
- Rusaw v. State, 451 So. 2d 469 (Fla. 1984)
- Rushing v. Jacksonville Elec. Auth., 352 So. 2d 853 (Fla. 1977)
- Bagstad v. Orange Cnty. Transit Dist., 454 U.S. 1163 (U.S. 1982)
- Johns-Manville Corp. v. White, 454 U.S. 1163 (U.S. 1982)
- Renaldo Reino, Sr. v. The State of Fla. & the Honorable Gerald T. Wetherington, 352 So. 2d 853 (Fla. 1977)
- Rowe v. State, 417 So. 2d 981 (Fla. 1982)