VERDIS WHITEHEAD, PETITIONER,
v.
SUSAN MCCAMPBELL, AS SHERIFF OF BROWARD COUNTY, FLORIDA, RESPONDENT
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The court held that the trial court erred in denying the petitioner's motion to set bond by applying an incorrect standard of proof.
The trial court denied the petitioner's motion to set bond, refusing to apply the standard that the state must prove guilt is evident or presumption g…
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PER CURIAM.
We grant the petition for writ of habeas corpus.
In denying petitioner’s motion to set bond, the trial court was expressly unwilling to accept the standard recited in Elderbroom v. Knowles, 621 So. 2d 518 (Fla. 4th DCA 1993), holding the state to a burden of proof greater than that required to establish guilt beyond a reasonable doubt, in demonstrating that the proof of petitioner’s guilt was evident or the presumption great. See Art. I, § 14, Fla. Const.; Fla. R.Crim. P. 3.131(a). The state does not attempt to explain how the trial court was correct in refusing to apply that standard.
The third district in State v. Perry, 605 So. 2d 94 (Fla. 3d DCA), rev. denied, 613 So. 2d 9 (Fla.1992), which this court cited in Elderbroom, 621 So. 2d at 520, explained the burden as follows:
[WJhere the state’s evidence, although not insufficient to convict for a capital or life offense, is arguably impeached in substantial respects by other evidence or is rendered doubtful by substantial contradictions and discrepancies in the state’s case, the proof is not stronger than beyond a reasonable doubt and, accordingly, the accused is entitled to pretrial bail as a matter of right for such offense. Russell v. State, 71 Fla. 236, 71 So. 27 (1916).
Perry, 605 So. 2d at 96-97.
Petitioner presented evidence at the bond hearing which substantially contradicted the state’s case. Therefore, the trial court is directed on remand to release petitioner on such bond and on such conditions as the trial court may determine.
GLICKSTEIN, POLEN and FARMER, JJ., concur.
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Preston v. Sheriff David GEE, 133 So. 3d 1218 (Fla. 2d DCA 2014)…d, we district courts have done precisely that, and we have continued to apply the Russell standard of proof to bail issues. See Mininni, 477 So. 2d at 1015; Bleiweiss v. State, 24 So. 3d 1215, 1216 n. 1 (Fla. 4th DCA 2009); Whitehead v. McCampbell, 700 So. 2d 135 (Fla. 4th DCA 1997); Kirkland v. Fortune, 661 So. 2d 395 (Fla. 1st DCA 1995); State v. Perry, 605 So. 2d 94 (Fla. 3d DCA 1992). The CRA in Preston’s case fell well shy of the Russell standard in terms both of the quantum of its proof and of the com…
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Bleiweiss v. State, 24 So. 3d 1215 (Fla. 4th DCA 2009)…the offenses. Moreover, the evidence in the statements, and presented at the hearing, is not of the quantity or quality to meet the heavy burden on the state in an Arthur hearing. See Elderbroom, 621 So. 2d at 520; see also Whitehead v. McCampbell, 700 So. 2d 135 (Fla. 4th DCA 1997). Multiple witnesses told investigators that the petitioner had fondled them and then asked to perform oral sex. When those witnesses said “no,” the petitioner did not force the act, indicating that the petitioner may not have act…
Authorities Cited
- Russell v. State, 71 Fla. 236 (Fla. 1916)
- Robertson v. State, 605 So. 2d 94 (Fla. 4th DCA 1992)
- State v. Perry, 605 So. 2d 94 (Fla. 3d DCA 1992)
- Elderbroom v. Knowles, 621 So. 2d 518 (Fla. 4th DCA 1993)
- Ronan v. Ronan, 621 So. 2d 518 (Fla. 1st DCA 1993)