a. INTRODUCTION

Petitioner XXXXXXXXXXX, through counsel, pursuant to Florida Rule of Appellate Procedure 9.100, petitions the court for a writ of habeas corpus directed to the State of Florida (and/or Larry Campbell, as Sheriff of Leon County, Florida), and shows the court as follows:

XXXXXXXXX has been charged with a life felony.  XXXXXXXXXX challenges the trial court’s determination that the proof of his guilt is evident or the presumption is great.  After making the finding which is challenged herein, the trial court released based on its discretion.  Later, the trial court rescinded discretionary release.  XXXXXXXXXX is currently incarcerated in the Leon County Jail without any provision for pretrial release.

I. BASIS FOR INVOKING JURISDICTION 

This court has jurisdiction to issue a writ of habeas corpus pursuant to Article V, section 4(b)(3) of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(b)(3).

Habeas corpus is the proper remedy to test the conditions and/or revocation of pretrial release. Perrys v. State, 22 So. 3d 740 (Fla. 1st DCA 2009); Lepore v. Jenne, 708 So. 2d 980 (Fla. 4th DCA 1998); Bowers v. Jenne, 710 So. 2d 681 (Fla. 4th DCA 1998).

No remedy other than habeas corpus would be adequate to prevent the Petitioner’s continued, unlawful detention.

II. STATEMENT OF THE FACTS

When he was arrested, Petitioner XXXXXXXXXX was a nineteen-year-old honors student at Florida State University with no prior criminal history. (A: 2; 64-65; 71).  He was arrested on March 19, 2012 and charged with attempted first degree murder.  (A: 4).  Law enforcement had been summoned to a dormitory on Florida State’s campus and determined that two subjects involved in a confrontation had suffered stab wounds.  The subjects were XXXXXXXXXX and Petitioner XXXXXXXXXX.  Law enforcement recovered an 8” knife blade in the dormitory.  Both XXXXXXXXXX and XXXXXXXXXX were transported to the hospital with stab wounds. (A: 2-3). XXXXXXXXXX’s roommate reported hearing screams and seeing XXXXXXXXXX straddling and apparently beating XXXXXXXXXX while she was on the floor.  XXXXXXXXXX told witnesses that XXXXXXXXXX had stabbed him. XXXXXXXXXX told witnesses that XXXXXXXXXX had tried to kill her.  XXXXXXXXXX’s fingers were almost severed.  XXXXXXXXXX later told law enforcement that XXXXXXXXXX was jealous of her friendship with a prior boyfriend.  XXXXXXXXXX claimed she was seated at her computer when XXXXXXXXXX began to stab her.  XXXXXXXXXX claimed that XXXXXXXXXX was stabbing her while she was on the floor when her roommate observed them.  XXXXXXXXXX claimed that XXXXXXXXXX later self-inflicted the stab wounds to his body. (A: 2-3).

A first appearance hearing was held.  No bond was allowed by the trial court. (A: 4).  Roughly one week later; XXXXXXXXXX’s defense attorney filed a Motion to Set Bond. (A: 4).  Attached to the motion was an affidavit and curriculum vitae from XXXXXXXXXX who is an associate medical examiner in Jacksonville.  XXXXXXXXXX’ affidavit established that he had performed about 4,900 autopsies and that he had been qualified as an expert witness hundreds of times in the courts of Florida. (A: 6).  In his affidavit, XXXXXXXXXX wrote that he had found within a reasonable degree of medical certainty that the wounds XXXXXXXXXX suffered were defensive wounds incurred while XXXXXXXXXX was attempting to control or take away a bladed weapon from an assailant. (A: 7).  The affidavit listed the medical information which XXXXXXXXXX had reviewed in reaching his opinion. (A: 6).  The affidavit noted that XXXXXXXXXX’s injuries had required surgery to repair the tendons, blood vessels, and nerves in an attempt to preserve the function of the fingers and hands. (A: 6).  The affidavit contains XXXXXXXXXX’ opinion that XXXXXXXXXX’s injuries were consistent with his grabbing or holding a knife blade which had been forcefully pulled away from his hands.  The affidavit contains XXXXXXXXXX opinion that XXXXXXXXXX’s hand wounds caused an immediate inability to grasp or pick up a knife or other object. (A: 7).

The trial court reviewed a recorded statement which law enforcement obtained from Ms. XXXXXXXXXX. (A: 55).  The statement was taken several days after the incident.  Ms. XXXXXXXXXX had a lawyer present when she made the statement. (A: 16).  In the statement Ms. XXXXXXXXXX claimed that XXXXXXXXXX had started stabbing her while she was seated at a computer. (A: 21).  XXXXXXXXXX denied having possession of the knife. (A: 23).  XXXXXXXXXX claimed that XXXXXXXXXX’s injuries were self-inflicted. (A: 24).  XXXXXXXXXX recounted prior incidents where XXXXXXXXXX allegedly acted in a violent manner. (A: 30-33).  XXXXXXXXXX described the relationship dynamic between her, XXXXXXXXXX, and one of her ex-boyfriends. (A: 33-42).  The trial court reviewed photographs submitted by the State. (A: 49-53).  The trial court reviewed the probable cause affidavit which was submitted by the State. (A: 2-3; 55).

A hearing on the Motion to Set Bond was held about three weeks after XXXXXXXXXX’s arrest.  XXXXXXXXXX’s family members testified regarding the concerns they had about XXXXXXXXXX receiving medical treatment while incarcerated and the resources available to XXXXXXXXXX should he be released. (A: 56-60; 60-64).  The trial court reviewed XXXXXXXXXX’ report as well as his curriculum vitae. (A: 65).  The State confirmed that it was proceeding under an Arthur[1] theory and requested the trial court deny XXXXXXXXXX pretrial release. (A: 66).  Defense counsel reiterated XXXXXXXXXX’ qualifications and his expert opinion on the wounds which XXXXXXXXXX had received. (A: 66-67).  Defense counsel reminded the court that a finding of proof evident or presumption great is a finding which requires greater proof than beyond a reasonable doubt. (A: 67).  Specifically defense counsel reminded the court that the Associate Medical Examiner generally testified for the prosecution and that he had found that XXXXXXXXXX’s injuries were consistent with defensive wounds and inconsistent with the victim’s version of events.  Defense counsel reminded the court that XXXXXXXXXX roommate witnessed a portion of the fight and did not see any knife.  The knife was allegedly 8” in length. (A: 68).  The State argued that the proof was evident and the presumption was great. (A: 72).  The State argued that the recorded statement of the victim was supported by the roommate’s account and the photographs from the scene. (A: 73).  The State argued that XXXXXXXXXX’ affidavit was made without consulting the State’s evidence. (A: 74).

Defense counsel responded and noted the discrepancies between the victim’s statement and the available evidence. (A: 78).  Defense counsel argued that there was credible evidence of self defense and that therefore proof was not evident, nor presumption great. (A: 78-79).

The trial court refused to accept the defense position.  The trial court acknowledged the affidavit.  Regardless, the trial court found that proof was evident and the presumption was great. (A: 80).  The court then notified the parties that it would consider discretionary release at a future hearing. (A: 81).

Roughly one week later, a second hearing was held.  The trial court had received a psychological report which indicated XXXXXXXXXX displayed no psychosis and was not a threat to himself or others.  (A: 85).  An employee from the Leon County Jail testified about the medical care XXXXXXXXXX was receiving for his injuries. (A: 86-96).  At the conclusion of this hearing the trial court set a bond amount and ordered XXXXXXXXXX be supervised by pretrial release.  XXXXXXXXXX was to be released subject to GPS monitoring.  XXXXXXXXXX was ordered to have no contact with the alleged victim or her roommate and to remain on house arrest at his father’s home.  XXXXXXXXXX was permitted to undertake selected excursions away from his father’s home while accompanied by a parent. These excursions would have to be pre-approved by XXXXXXXXXX’s pretrial release officer. (A: 106-108).  A written order was rendered. (A: 111)

Over the following months XXXXXXXXXX’s pretrial release was modified by subsequent motions and orders. (A: 112-115).

Months later, the State moved to revoke XXXXXXXXXX’s release.  The State alleged that XXXXXXXXXX had been granted permission to go shopping with his mother.  The State alleged that XXXXXXXXXX went shopping while unaccompanied by his mother as was required by the terms of his release. (A: 116-117).  Defense counsel responded and disputed that XXXXXXXXXX was unaccompanied.  Defense counsel attached an affidavit from XXXXXXXXXX’s mother in which she swore that she went to the shopping mall with XXXXXXXXXX and that XXXXXXXXXX never left her sight. (A: 119-123).  The trial court ordered XXXXXXXXXX detained without bond. (A: 124).

A hearing was held on the matter. (A: 128).  XXXXXXXXXX presented witnesses who indicated that he had been accompanied by his mother on the shopping trip. (A: 128; 134; 142).  The State presented a witness who disputed those accounts. (A: 145; 151; 154; 161).

The State argued that the trial court had found the State met its burden under the Arthur framework.  The State argued that, because the trial court had found proof evident or presumption great, the only basis for XXXXXXXXXX’s release was the trial court’s discretion. (A: 164).  The trial court confirmed the earlier ruling with defense counsel. (A: 166-167).

The trial court then ruled that XXXXXXXXXX had abused the court’s trust in being granted discretionary release. (A: 168).  The trial court then revoked XXXXXXXXXX’s discretionary release. (C: 168).

III. NATURE OF THE RELIEF SOUGHT

Petitioner XXXXXXXXXX requests this court grant this petition for writ of habeas corpus and remand to the trial court with direction that the trial court consider pretrial release under rule 3.131, Florida Rule of Criminal Procedure. Young v. Neumann, 770 So. 2d 205 (Fla. 4th DCA 2000).

IV. ARGUMENT 

Trial court erred in finding that proof of XXXXXXXXXX’s guilt was evident or the presumption was great. Article I, Section 14, Florida Constitution allows that every criminal defendant is entitled to pretrial release on reasonable conditions.  The exception to this general rule is where a defendant is charged with an offense which is punishable by life imprisonment, and the proof of guilt is evident or the presumption is great.  (Another exception exists where a trial court finds that no conditions of pretrial release could reasonably protect the community, assure the presence of the accused or protect the integrity of the judicial process).See also Fla. R. Crim. P. 3.131(a).

Where a defendant is charged with a capital offense or an offense punishable by life imprisonment, the State must produce a showing that the proof of guilt is evident or the presumption is great in order to overcome the defendant’s entitlement to pretrial release. State v. Arthur, 390 So. 2d 717, 720 (Fla. 1980).

The 1980 holding in Arthur left undisturbed earlier Supreme Court of Florida decisions which held that; 1) the degree of proof sufficient to find that proof of guilt is evident or the presumption of guilt is great is actually a greater degree of proof than that which is required to establish guilt beyond a reasonable doubt, and 2) where the state’s evidence is sufficient to obtain a conviction for a capital or life offense but is arguably impeached in substantial respects by other evidence, the proof is not stronger than beyond a reasonable doubt, and accordingly, the accused is entitled to pretrial bail as a matter of right. State v. Perry, 605 So. 2d 94 (Fla. 3d DCA 1992)(relying on State ex rel. Van Eeghen v. Williams, 87 So. 2d 45, 46 (Fla. 1956) and Russell v. State, 71 Fla. 236, 71 So. 27 (1916)). See also State ex rel. Hyde v. Thursby, 184 So. 2d 505 (Fla. 1st DCA 1966).

Even where the prosecution’s evidence is sufficient to convict on a capital or life offense, but there is some doubt arising from other evidence, contradictions, or discrepancies, the proof is not evident and the presumption is not great.  The accused is, in such circumstances, entitled to reasonable bail. Elderbroom v. Knowles, 621 So. 2d 518 (Fla. 4th DCA 1993).

Where an accused presents evidence at the bond hearing which substantially contradicts the state’s case; the trial court errs in finding proof evident or presumption great and must release the accused on reasonable pretrial conditions. Whitehead v. McCampbell, 700 So. 2d 135 (Fla. 4th DCA 1997); Hoskins v. Knowles, 757 So. 2d 512 (Fla. 4th DCA 1998).  Thus a Florida defendant charged with a crime punishable by life imprisonment has a substantive constitutional entitlement to bail unless the prosecution can show that proof of his guilt is evident or presumption of his guilt great, i.e., unless the prosecution can, at a pretrial hearing, establish the defendant’s culpability to a standard higher even than that required for a sustainable conviction at trial.

Appellate courts are in the same position as trial courts to determine whether the proof is evident and presumption great, and a trial court’s findings of fact are not entitled to deference. See Thompson v. State, 548 So. 2d 198, 204 n. 5 (Fla. 1989).

At the hearing below, the trial court was presented with defense evidence which substantially contradicted the state’s evidence.  The trial court therefore erred in finding proof was evident or presumption great.  The State presented the trial court with the probable cause affidavit, the victim’s statement, and photographs of the victim in the hospital. (A: 55).  The defense presented the court with an affidavit of an expert witness who gave the opinion that Mr. XXXXXXXXXX’s wounds were in fact defensive in nature. (A: 6-7).  This is corroborated by Mr. XXXXXXXXXX’s statements at the scene of the confrontation where he told witnesses that Ms. XXXXXXXXXX had stabbed him. (A: 3).  Obviously, Ms. XXXXXXXXXX claims that XXXXXXXXXX was the aggressor. (A: 2-3; 17).  The State’s position is based on the statements of Ms. XXXXXXXXXX and the account of her roommate who witnessed a portion of the confrontation.  The defense position is that XXXXXXXXXX was attacked with a bladed weapon and acted in self-defense. (A: 67).  The defense position is based on the expert witness opinion of an Associate Medical Examiner from Jacksonville. (A: 6-7).  The defense position is further corroborated by XXXXXXXXXX’s statements at the scene and also arguably corroborated by the roommate witness account. (A: 68).

XXXXXXXXXX submits that the two positions forwarded at the hearing are both viable.  The State’s evidence therefore can not be held to establish that he is guilty beyond and to the exclusion of every reasonable doubt.  Furthermore, even if the State’s evidence were to be viewed as reaching such a high threshold, the substantial contradiction of the evidence by an Associate Medical Examiner, in his capacity as an expert witness precluded any finding that the proof was evident or presumption great.  Whitehead v. McCampbell, 700 So. 2d 135 (Fla. 4th DCA 1997); Hoskins v. Knowles, 757 So. 2d 512 (Fla. 4th DCA 1998).  The hearing record establishes that independently supported, conflicting positions were presented to the trial court.  Based on the legal meaning of “proof of guilt is evident or the presumption is great” the trial court’s ruling was in error.

 

V. CONCLUSION

 

In conclusion, the State failed to meet its burden of establishing that proof of XXXXXXXXXX’s guilt was evident or presumption great.  The trial court erred in placing XXXXXXXXXX on discretionary release and subsequently rescinding its discretion.  This court should therefore issue a writ of habeas corpus.

 

 

 

 

Respectfully submitted,

 

/s/ Luke Newman

______________________________

Luke Newman

Luke Newman, P.A.

908 Thomasville Road

Tallahassee, Florida 32303

850.224.4444 (phone)

850.224.9335 (fax)

Fla. Bar ID 0859281

luke@lukenewmanlaw.com

Counsel for Petitioner XXXXXXXXXX   

CERTIFICATE OF SERVICE

 

          I hereby certify that a copy of foregoing (along with a copy of the appendix) has been provided to:

 

Office of the Attorney General

(sent via email to: criminalappealsintake@myfloridalegal.com)

 

Office of the State Attorney (hand delivery)

Leon County Courthouse

301 South Monroe Street

Tallahassee, Florida 32301

 

Sheriff Larry Campbell (hand delivery)

Leon County Sheriffs Office

2825 Municipal Way

Tallahassee, FL 32304

 

…on this nineteenth (19th) day of December, 2012.

 

/s/ Luke Newman                              

_____________________________

Luke Newman

Fla. Bar No. 0859281

 

CERTIFICATE OF COMPLIANCE

          Undersigned counsel hereby certifies that the instant petition complies with the font requirements of Florida Rule of Appellate Procedure 9.100(l).

/s/ Luke Newman                                        _________________________

Luke Newman

Fla. Bar No. 0859281


 


[1] State v. Arthur, 390 So. 2d 717 (Fla. 1980).