NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MARCOS CASIANO, )

)

Petitioner, )

)

v. ) Case No. 2D17-4150

)

STATE OF FLORIDA, )

)

Respondent. )

___________________________________)

Opinion filed February 14, 2018.

Petition for Writ of Habeas Corpus to the

Circuit Court for Lee County; H. Andrew

Swett, Judge. 

Kathleen A. Smith, Public Defender, and 

Marisa Boysen, Assistant Public Defender, 

Fort Myers, for Petitioner.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Laurie Benoit-Knox, 

Assistant Attorney General, Tampa, for 

Respondent.

NORTHCUTT, Judge.

Marcos Casiano is charged with drug possession offenses. At his first 

appearance hearing the court set bail, but it granted the State's request to order 

Casiano held pending a hearing pursuant to United States v. Nebbia, 357 F.2d 303 (2d 

Cir. 1966). In so doing, the court disregarded defense counsel's objection that the State 
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had not filed a proper motion for pretrial detention under the rules of criminal procedure. 

Casiano petitioned us for a writ of habeas corpus, which we granted by a prior order 

that advised that an opinion would follow. We now explain that detaining an accused 

prior to trial pursuant to Nebbia is not authorized in Florida.

With increasing frequency, some courts in this district are placing socalled "Nebbia holds" on accuseds after setting bond at first appearance hearings. In 

Nebbia, the United States Second Circuit Court of Appeals held that after an accused 

posted a $100,000 bail in cash, the trial court had discretion to inquire into the source of 

the funds in order to ensure that the accused would appear in future proceedings. 357 

F.2d at 304-05. The federal rules permit this on either the government's motion or the 

court's own motion. See Fed. R. Crim. P. 46(a); 18 U.S.C. § 3142(g)(4).

Similarly, in Parrino v. Bradshaw, 972 So. 2d 960 (Fla. 4th DCA 2007), the 

Fourth District denied a petition for writ of habeas corpus, holding that a first 

appearance court could consider the State's motion for a hearing regarding the source 

of funds used by the petitioner to post the bail set by the first appearance court. Id. at 

961. But we find no provision in Florida law authorizing the first appearance court to 

detain an accused pending a separate hearing to address the source of bail funds.

Indeed, the Florida Constitution guarantees the right to pretrial release.

Unless charged with a capital offense or an offense 

punishable by life imprisonment and the proof of guilt is 

evident or the presumption is great, every person 

charged with a crime or violation of municipal or county 

ordinance shall be entitled to pretrial release on 

reasonable conditions. If no conditions of release can 

reasonably protect the community from risk of physical 

harm to persons, assure the presence of the accused at 

trial, or assure the integrity of the judicial process, the 

accused may be detained.
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Art. I, § 14, Fla. Const. Thus, every accused has a constitutional right to pretrial release 

on reasonable conditions, with two—and only two—exceptions. First, a person charged 

with a capital offense or an offense punishable by life imprisonment has no right to 

pretrial release if the proof of the accused's guilt is evident or the presumption that he or 

she committed the crime is great. Second, any accused may be detained if no 

conditions of release can reasonably protect the community from physical harm to 

persons, ensure the accused’s presence at trial, or ensure the integrity of the judicial 

process.

"This sentiment also resonates in Florida Rule of Criminal Procedure 

3.131[(a)] . . . ." State v. Blair, 39 So. 3d 1190, 1192 (Fla. 2010). That rule, along with 

statutory sections 907.041 and 903.046, Florida Statutes (2016), effectuate the 

constitutional right by establishing procedures and criteria for prescribing reasonable 

conditions of pretrial release. Under rule 3.131, the conditions are to be devised by the 

first appearance court. See Fla. R. Crim. P. 3.131(a). One of the factors the court may 

consider in setting conditions is "the source of funds used to post bail." See 

§ 903.046(2)(f); Fla. R. Crim. P. 3.131(b)(3).

Thus, we agree with Judge Warner's concurring opinion in Parrino. She 

noted that because in that case the petitioner's bail had already been set, the State 

should have requested a modification of bail by showing good cause pursuant to rule 

3.313(d)(2); however, the petitioner had waived that issue by failing to raise it. Further, 

and more important, Judge Warner observed that "[t]o the extent that a court inquires at 

the first appearance hearing as to the source of the funds available to post bail, it is for 

the purpose of ascertaining whether the bail set is sufficient to secure the defendant's 
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appearance, not to deny him pretrial release. Art. I, § 14, Fla. Const.; Fla. R. Crim. P. 

3.131." 972 So. 2d at 962 (Warner, J., concurring). Indeed, continuing to hold an 

accused who has posted the bail set at first appearance is tantamount to pretrial 

detention, which may only be ordered after proceedings on a proper motion for pretrial 

detention filed by the State. See Fla. R. Crim. P. 3.131(b)(1) ("Unless the state has filed 

a motion for pretrial detention pursuant to rule 3.132, the court shall conduct a hearing 

to determine pretrial release.").

Accordingly, we hold that under our state's constitution, Florida courts lack 

authority to detain accuseds for the purpose of inquiring into the source of funds used to 

post bail. Moreover, any such inquiry "is for the purpose of ascertaining whether the 

bail set is sufficient to secure the defendant's appearance, not to deny him pretrial 

release." Parrino, 972 So. 2d at 962 (Warner, J., concurring).

Petition granted.

CASANUEVA and CRENSHAW, JJ., Concur.