THE STATE OF FLORIDA
v.
LILLIA N. G. FREAR
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The Florida Supreme Court dismissed the State's appeal from a bail order, holding that the State lacks statutory authority to appeal a trial court's discretionary decision to admit a defendant to bail after a mistrial. The court clarified that such discretionary bail decisions are reviewable only on certiorari, which does not apply to discretionary judicial determinations.
The State has no authority to appeal a bail order because Florida Statute 924.07 limits the State's appellate rights and does not authorize appeals from orders admitting to bail—only from judgments discharging a prisoner. Additionally, bail decisions are discretionary matters not subject to certiorari review.
“A judgment admitting to bail is not a judgment discharging prisoner. That this is true is too well settled to permit of serious question.”
Establishes the critical distinction between bail orders and discharge judgments that determines whether the State has appellate authority.
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Join FLexlaw to unlock all legal intelligenceAfter indictment for first-degree murder, Lillia Frear was remanded without bail. Following trial, the jury could not agree on a verdict and a mistria…
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The appellee, having been indicted charged with murder in the first degree, procured writ of habeas corpus and upon hearing was remanded without bail. Thereafter she was brought on for trial under the said indictment which trial resulted in a mistrial because the jury was unable to- agree on a.verdict óf guilty of any degree of unlawful homicide.
After trial; appellee made application under the provisions of Chapter 903 Fla. Statutes, 1941, to be released on bail. Upon hearing on the petition the circuit court made and entered an order allowing her to be released on bail in the sum of $3,000.00. From this order the State filed its notice of appeal and has brought the record here seeking review of such order.
We find no authority for review by' the Supreme Court of an order of this sort either on behalf of the State or the Petitioner. The right of the State to appeal is fixed and circumscribed by Section 924.07 Florida Statutes, 1941, (same F.S.A.), which is as follows:
“924.07. Appeal by State. — An appeal may be taken by the State from:
“(1) An order quashing an indictment or information or any count thereof;
“ (2) An order granting a new trial;
“ (3) An order arresting judgment;
“ (4) A ruling on a question of law adverse to the State where the defendant was convicted and appeals from the judgment;
*481• • “ (5) The sentence, on the-ground that, it is illegal; ■
■ “(6) Judgment discharging prisoner on habeas’corpus.” ■
It will be' observed that subparagraph 6 of the abové quoted section provides for appeals by the State in habeas corpus cases, ónly from a “judgment discharging prisoner.” A judgment admitting to' bail'is not a judgment discharging prisoner. That this is true is 'too well settled to pérmit of serious question. In such cases fhe prisoner* is not discharged but his custody is transferred from the keeper of the prisoh to the makers of his bail or bail’ bond and these custodians have the power and authority at any time to deliver: the prisoner up to -be reincarcerated and to thereby: be* relieved of the obligation of the bail bond.
It has been contended here that even though appeal oA behalf of the State may not lie, the challenged order may be reviewed on certiorari. We do not think this position ;'is te'n-able because the granting of bail in criminal cases after indictment is a matter within the discretion of the court having jurisdiction of the trial of the cause. See 8 C.J.S. page 77, Sec. 39, and authorities there cited.
It is elementary that the exercise of discretion is •• not subject to review on certiorari.
It is also contended that the judgment remanding petitioner to custody which was entered prior to the trial became res adjudicata and the trial court was without power to admit to bail when that judgment of remand stood unreversed. We do not think this is a tenable position because the record shows that after the entry of 'that judgment a trial was had which resulted in a mistrial and the record further shows, without objection having been made and without contradiction, that at the trial the States Attorney announced to the jury that the State would not contend that the evidence was sufficient to show the defendant guilty of murder in the second degree.
The record further shows that after the mistrial was declared the court lifted the ban of secrecy and was informed by a. juror or jurors that the jury stood eight for- conviction of murder in the second degree and four for acquittal.
*482This brought about a changed condition and, therefore, the court was no longer precluded by the former judgment of remand from entering such other or different judgment from that formerly entered.
It, therefore, follows that the court, not being bound by the former judgment of remand, could exercise its discretion as to whether or not it would admit petitioner to bail and that this exercise of lawful discretion cannot be reviewed on certiorari.
For the reasons stated, the appeal is dismissed.
So ordered.
CHAPMAN, C. J., TERRELL and SEBRING, JJ., concur.
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Castlewood Int'l Corp. v. LaFLEUR, 322 So. 2d 520 (Fla. 1975)…v. Herring, 146 Fla. 154, 200 So. 376 (1941); motion for mistrial, Wirt v. Fraser, 158 Fla. 777, 30 So. 2d 174 (1947); motion for new trial, Cloud v. Fallis, 110 So. 2d 669 (Fla.1959). . Grant v. Corbitt, 95 So. 2d 25 (Fla.1957). . State v. Frear, 155 Fla. 479, 20 So. 2d 481 (1945). . Wallace v. State, 41 Fla. 547, 26 So. 713 (1899). . Miller v. Gardner, 144 Fla. 339, 198 So. 21 (1940). . State ex rel. Evans v. Chappel, 308 So. 2d 1 (Fla.1975). The foregoing are examples only and are not intended to be…
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State v. Chapman Levi Creighton, 469 So. 2d 735 (Fla. 1985)…nce of statutes defining the circumstances under which the state could appeal adverse rulings in criminal cases was to be controlling. Thus it is clear that before the 1956 amendment, the state’s right of appeal was purely statutory. State v. Frear, 155 Fla. 479, 20 So. 2d 481 (1945). In 1956 article V was revised and the district courts of appeal were created. The appellate jurisdiction of those courts was defined in pertinent part as follows: (3) Jurisdiction. Appeals from trial courts in each appellate…
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Buchanan v. The State of Fla. ex rel. Louis Ghelfi, 178 So. 2d 606 (Fla. 3d DCA 1965)…PER CURIAM. On the court’s motion this cause is dismissed for lack of jurisdiction. State v. Frear, 1945, 155 Fla. 479, 20 So. 2d 481. This action is not to be construed as a ruling on the merits of the case. For the reason stated, the appeal is dismissed. It is so ordered.…