​HOW IS BOND DETERMINED IN CRIMINAL CASES? BY: MYLES B. SCHLAM, ESQ

Most criminal defendants in Florida who are accused of a crime have a right to bail or pre-trial release as matter of law under Florida General Statute 893. Those accused of crimes that do not have a right to bail or pre-trial release include those individuals facing crimes punishable by death or life imprisonment or those defendants that the state seeks to file a motion for pretrial detention. Overall, the vast majority of criminal defendants are released on bail or pre-trial release after being arrested. The conditions of the pretrial release or bail can differ greatly from accused to accused. The First Appearance Judge is the one who sets the conditions of bail or pretrial release for those facing criminal charges in Florida.

The primary purpose of bail or pre-trial release is to ensure that the accused will appear in all of their court proceedings. The secondary purpose is to protect the community from further harms and or crimes by the defendant while he or she is out on bail or pretrial release. The court will look at several factors when determining whether to release a defendant on bail. In determining what the bail and/or conditions of release may be, the court will consider the following:

1. The nature and circumstances of the offense charged. This means the court will look at the nature and body of the crime and weigh any mitigating or aggravating factors. This area can be viewed as to whether or not the crime was committed in a heinous or non-heinous way. Was the crime motivated by greed or by necessity?

2. The weight of evidence against the accused. This will be a factor as to what conditions the court will impose on a defendant during his or her bail hearing. Factors that the court will look into when judging the weight of the evidence against the accused are whether: the accused confessed to the crime, the freshness or staleness of the arrest, the presences of physical evidence like DNA or fingerprints, the value or motive of a testifying witness or victim and the statements or confession of co-conspirators.
 
3. The defendant’s family ties to the community. The judge will consider how long the defendant has resided in the community. The length of time the defendant has actually lived in his or her current residency or place of abode. The employment history and job skills of the accused and whether or not the defendant has a job to return back to if released. The defendant’s financial resources and their ability to support themselves, is also a determination that the judge can make when determining the conditions of bail. The mental condition of the accused is also considered by the judge, including the defendant’s history of any mental illness, drug and or alcohol abuse or suicide in a bail determination.

4. The defendant’s past and present conduct. This is a factor taken into consideration by the court as it relates to the defendant’s prior criminal record and court appearances and is an area of concern for a judge in setting bail. If it is the defendant’s first offense, then this factor is given weight by the court, as is a defendant who has many prior arrest or failures to appear for scheduled court appearances.

5. The nature and probability of danger which the accused poses to the community upon his or her release is a consideration of the judge. If the crime alleges to have a victim, the relationship between the accused and the victim is a consideration for the judge. The age, vulnerability, mental or physical handicaps of the alleged victim are also considerations of a judge in victim crimes. The nature of the alleged crime and whether the defendant possesses traits to commit the crime upon his or her release falls within the probability of danger test.

6. Legitimacy of funds: Whether or not the funds, collateral or bond premium are being paid by funds linked to criminal activity or illegal funding. This is what is termed a Nebbia hearing. The Judge will determine whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden rests on the defendant or family member posting the bail funds to prove to the court that the bond or collateral are derived from a legal and legitimate source.

7. Prior release: Whether the defendant is already on release pending resolution of another criminal proceeding or on probation, parole, or other release pending completion of a sentence. The judge will have the assistance of the prosecutor to provide him or her with the defendant’s prior criminal record at the First Appearance and this will show the current status of the accused. If the accused is out on bond, on probation or serving a sentence for another crime, the judge will heavily weigh those factors.

8. The street value of any drug or controlled substance This involves drugs which are allegedly connected to or involved in the criminal charge. The Florida legislature has made it policy that drug crimes have a serious effect on Florida’s social wellbeing and that those involved in the drug trade are at a higher risk of flight.  Therefore, judge’s considering bail must consider this policy set by the legislatures. The Legislature has stated that the courts should balance the value of the street drugs to the value of the bail being set.

9. Street gang factor: During First Appearance, the judge may also take into consideration the fact that the defendant falls under Chapter 874 or is a member of a street gang, and the crime was committed in the furtherance of the enterprise. Another tenant under this area is that if the defendant is considered a sexual offender or sexual predator then the judge may consider this factor before setting bail.

10. The Catchall provision: Finally, the judge has a catchall provision that allows them to consider any relevant factors in determining a defendant’s pretrial release. While there are too many reasons to list here, they include the age of the defendant, the unsophisticated nature of the offense or of the defendant, the defendant’s standing in the community, and many other social factors which may be considered when determining bail or pretrial release.

If enhanced under Florida's "career criminal" statutes, the State has the right to ask the judge to increase the bond.  This is because under these statutes, an accused person faces greater prison time or even mandatory prison time than a accused person without an enhancement.  Enhancements, which are announced in court at the time or arraignment, include Habitual Offender (HO), Habitual Violent Offender (HVO), Violent Career Criminal (GORT), 3-Time Violent Felony Offender, and Prison Releasee Reoffender (PRRP).  

The request to increase the bond for an enhanced defendant is almost always made by the prosecutor at arraignment. The prosecutor argues that with the enhancement (which was not announced at the initial bond hearing) changes the terms of the bond, since the defendant now faces more prison time than originally presumed.  The State argues that this change in circumstances makes them a greater flight risk.  Some judges will grant these motions and turn $5,000 bonds into $50,000 bonds.  Other judges will not grant these motions, but will ask the defense attorney to contact the bondsman.  If the bondsman agrees to stay on the bond, the judge will not grant the motion to increase.

Motions to reduce bond are often filed in trafficking cases as well.  This is because trafficking cases have mandatory minimum sentences, which may provoke flight in an accused person scared of going to prison.  
 
Trafficking offenses, such as trafficking in oxycodone (OxyContin), trafficking in alprazolam (Xanax), trafficking in heroin, trafficking in methamphetamine, and trafficking in cocaine all have high bonds with requirements that the person paying the bond premium present proof to the court that the money is coming from a "clean" source.  In other words, this person must present an affidavit showing that this money was not earned through drug trafficking.

Reducing a bond in a trafficking case is easier when it is the defendant's first time in trouble.  Showing that the accused has ties to the community, is presently working or in school, and has a strong family support system may give the court the persuasion it needs to reduce the bond. The fact that the defendant has enrolled into a drug rehabilitation facility may sometimes be taken into consideration by the court in determining a bond reduction. 

Diversion Programs:
Certain types of offenses and offenders may qualify for programs that result in the dismissal of the case against the defendant upon completion of specified conditions.  These programs go by several different names, but they all remove the defendant from the ordinary channels of prosecution so that the defendant may complete certain conditions.  Once the defendant meets the conditions, either the prosecutor or the court will dismiss the charges.  In many cases the decision to divert a defendant’s case is made soon after the arrest and if the defendant agrees to the diversion program they may be “ROR’d” (released on own recognizance) and not required to post a monetary bond.
These programs are typically used for drug or domestic offenses, although we have been successful getting them for other offenses such as first time petit theft and prostitution cases as well.  They are generally reserved for first-time offenders.  The conditions imposed typically include some form of counseling and/or probation, and require the defendant to demonstrate good conduct throughout the program.  Drug Court in Florida is an example one of the more prominent diversion programs.
There are two types of these kinds of programs: those that require the defendant to first plead guilty to the charge and those that do not.  The former type is usually known as deferred adjudication, while the latter category is generally known as pretrial diversion.  In my next article, I will give a more in depth overview of the difference between these programs.