               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
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 so-

called "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.
                                              -2-
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
                                         -3-
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.




                                           -4-
