STATE OF FLORIDA, APPELLANT,
v.
ARTHUR SHIPMAN AND FREDERICK A. PIERCE, APPELLEES
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DAUKSCH, Judge.
Appellees have sought our review of an order below setting bond for them pending the state’s appeal of an order granting a suppression of evidence.
They complain they are being denied equal protection of the law because they had to post a bond where an indigent person would be released on his own recognizance, without bond. They cite a sentence from Sec. 924.071(2) Florida Statutes (1975) which says:
“A defendant in custody whose case is stayed either automatically or by order of the court shall be released on his own recognizance pending the appeal if he is charged with a bailable offense.”
Appellees maintain that because an indigent person is entitled to be released on his own recognizance then they should also be so entitled. In a strict construction of the statute appellees make a most convincing argument. Everyone is entitled to equal protection of the law, not just poor people. However, in State of Florida ex rel. Harrington v. Genung, 300 So. 2d 271 (Fla. 2d DCA 1974), it was held the word “shall” in Sec. 924.071(2) means “may” because the legislature does not have the authority to mandate the courts in matters of bail. It was held that the quoted statute is directory rather than mandatory. We agree with the holding in that case for the reasons stated in the opinion. Therefore, an indigent defendant is not always entitled to be released on his own recognizance and can be held in custody if he is unable to post bail, in the sound discretion of the committing magistrate. With that all are given equal protection.
The order is affirmed.
ALDERMAN, C. J., and GREEN, OLIVER L., Associate Judge, concur.
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Dade Cnty. v. Goldstein, 384 So. 2d 183 (Fla. 3d DCA 1980)…where to do so would be an unreasonable infringement on the inherent power of the court to perform its judicial functions. Simmons v. State, 160 Fla. 626, 36 So. 2d 207 (1948); Tascano v. State, 363 So. 2d 405 (Fla. 1st DCA 1978); State v. Shipman, 360 So. 2d 782 (Fla. 4th DCA 1978); State ex rel. Harrington v. Genung, 300 So. 2d 271 (Fla. DCA 1974); Rose v. Palm Beach County, 361 So. 2d 135 (Fla.1978). In exercising its inherent power, the Court notes that the Supreme Court has recently held that a defendan…
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Reserve Ins. Co. v. Gulf Fla. Terminal Co., 386 So. 2d 550 (Fla. 1980)…t contains some minimal degree of conceivability — I would still find the law unreasonable because it embodies a classification based on financial status. “Everyone is entitled to equal protection of the law, not just poor people.” State v. Shipman, 360 So. 2d 782 (Fla. 4th DCA 1978). I would affirm the trial court’s decision and hold chapter 71-292, section 1, Laws of Florida, unconstitutional.…
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State v. Parrish, 470 So. 2d 869 (Fla. 1st DCA 1985)…upport the trial court’s ruling and affirm. Appellee’s motion for pretrial release pending state’s appeal was properly denied under the discretion granted. See State ex rel Harrington v. Genung, 300 So. 2d 271 (Fla. 2nd DCA 1974); State v. Shipman, 360 So. 2d 782 (Fla. 4th DCA 1978). Accordingly, the order granting defendant’s motion to suppress is affirmed and order denying defendant’s motion for pretrial release is affirmed. SHIVERS, J., concurs. BOOTH, J., dissents.…
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- State of Fla. ex rel. Kenneth Harrington v. Genung, 300 So. 2d 271 (Fla. 2d DCA 1974)