               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


CURTIS J. REEVES,                  )
                                   )
              Petitioner,          )
                                   )
v.                                 )                    Case No. 2D14-1784
                                   )
CHRIS NOCCO, as Sheriff of Pasco   )
County, Florida,                   )
                                   )
              Respondent.          )
___________________________________)

Opinion filed July 11, 2014.

Petition for Writ of Habeas Corpus to the
Circuit Court for Pasco County; Pat
Siracusa, Judge.

Frances E. Martinez of Escobar &
Associates, P.A., Tampa, for Petitioner.

Pamela Jo Bondi, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa, for
Respondent.



ALTENBERND, Judge.

              Curtis J. Reeves petitions this court for a writ of habeas corpus,

contending that the circuit court erred in denying him pretrial release while he is
awaiting trial for second-degree murder and aggravated battery. We conclude that he is

entitled to some relief.

              Because Mr. Reeves is charged with second-degree murder, an offense

punishable by life imprisonment, he is one of those exceptional criminal defendants who

is not constitutionally entitled to pretrial release on reasonable conditions under article I,

section 14, of the Florida Constitution so long as the State established at his bond

hearing the proof described in State v. Arthur, 390 So. 2d 717, 720 (Fla. 1980), and

Russell v. State, 71 So. 27, 28 (Fla. 1916). However, even when the State makes this

strong demonstration in such a case, it merely establishes that the defendant has no

constitutional right to pretrial release on reasonable conditions. Under the clear holding

in Arthur, the defendant still has the option of proving certain facts that permit the circuit

court to use its discretion to grant pretrial release under sufficient conditions.

              In this case, Mr. Reeves exercised his option to present such proof.

However, due to a procedural irregularity that we explain later, the circuit court reversed

the logical order for this decision-making process. It first heard Mr. Reeves's evidence

that would entitle him to an appropriate bond and then heard the State's evidence to

support its claim that he was not entitled to the constitutional right to pretrial release. At

the end of the hearing, the circuit court ruled that the State had met its burden and

denied pretrial release. It then explained the terms and conditions of the bond that it

would have authorized if the State had not met its burden. It never expressly ruled on

Mr. Reeves's request to receive discretionary pretrial release.

              From our review of the record, we are inclined to believe that the circuit

court made an error of law and that it did not realize it had the discretionary power to




                                             -2-
grant release on the terms and conditions that it announced. In other words, it believed

it must deny release if the State met its burden. It appears that the circuit court was

impressed with Mr. Reeves's pretrial release evidence, which unquestionably was

strong. The court never expressed any reason or concern that would have caused it to

deny pretrial release, as a matter of reasoned discretion.

              Initially, this court considered merely instructing the circuit court to grant

pretrial release on the conditions that it had announced. But on further review of the

record, we are not completely certain that the trial court made the above-described error

of law. It is at least conceivable that the circuit court silently exercised discretion to

deny release without explaining its reasons for that decision. Accordingly, we grant

relief to the extent that we authorize the circuit court to grant pretrial release on the

conditions that it announced at the conclusion of the hearing on the motion to set bond

or to deny pretrial release in an order that provides a reasoned explanation for that

discretionary decision.

                  I. THE INITIAL PROCEEDINGS IN CIRCUIT COURT

              Mr. Reeves, a seventy-one-year-old retired police officer, is accused of

shooting and killing Chad Oulson in a movie theater on January 13, 2014. The incident

has become a matter of public interest. In ruling on the motion to set bond, the circuit

court declined to discuss its findings concerning the facts of the case for the reasons

explained in State ex rel. Van Eeghen v. Williams, 87 So. 2d 45, 46 (Fla. 1956). We

likewise will refrain from any extensive discussion of the evidence.

              According to our limited record, Mr. Reeves was arrested on January 13,

2014, for second-degree murder. He made his first appearance on January 14, 2014,




                                             -3-
before Judge Lynn Tepper. At that hearing, which occurred prior to the filing of an

information, the State had not filed a motion for pretrial detention pursuant to Florida

Rule of Criminal Procedure 3.132. Thus, the circuit court conducted a hearing to

determine pretrial release pursuant to rule 3.131(b). The court denied pretrial release,

finding that proof was evident based only on the content in the criminal report affidavit.

Thereafter, Mr. Reeves filed a "motion to release defendant on his own recognizance or

set reasonable bail." Judge Siracusa held a lengthy evidentiary hearing on this motion

immediately following Mr. Reeves's arraignment on the charges contained in the

information. It is his ruling on that motion that we examine in this proceeding.1

              After both of these hearings had occurred, this court issued its opinion in

Preston v. Gee, 133 So. 3d 1218 (Fla. 2d DCA 2014). In that case, the defendant filed

a petition for habeas corpus challenging a denial of bond at a hearing comparable to the

first appearance in this case before Judge Tepper. This court held in Preston that the

criminal report affidavit by itself was insufficient to establish the high degree of proof

required under article I, section 14, to deny bond for a robbery charge that was a first-

degree felony punishable by life. Id. at 1221, 1228.

              At the first appearance in this case, the circuit court obviously did not have

the benefit of Preston when it denied bond. At least from our limited record, it appears

that had the order denying bond at first appearance been challenged by a petition for

habeas corpus, this court would likely have granted the petition and remanded for an

appropriate hearing.


              1Thispetition for writ of habeas corpus is the appropriate means to
challenge the denial of pretrial release. See Greenwood v. State, 51 So. 3d 1278, 1279
(Fla. 2d DCA 2011).


                                             -4-
              Fortunately, the extensive hearing before Judge Siracusa approximates

the hearing that we contemplated would occur on remand in Preston. In this opinion we

will not repeat the discussion in Preston that demonstrates the extent to which both the

current rules of procedure and the relevant statutes are designed to handle the typical

case in which pretrial release is treated as a constitutional right under article I, section

14, of the Florida Constitution and are not entirely compatible with the requirements

under Arthur for cases in which the charge is a capital offense or an offense for which

life imprisonment is the penalty. We comment, however, on an unpreserved procedural

error that appears to have contributed to the confusion in the circuit court's announced

decision.

              Because the State did not file a motion to detain Mr. Reeves pursuant to

rule 3.132, Mr. Reeves filed his motion seeking release on reasonable bail. Typically,

the party who files a motion has the burden of both proof and persuasion as to the relief

requested in the motion. Thus, without objection, the circuit court required Mr. Reeves

to present his witnesses first at the hearing on the motion and also required Mr. Reeves

to argue the merits of his motion first. But under the holding in Arthur, 390 So. 2d at

720, it was the State that had the initial burden of proof and persuasion to establish its

right to deprive the defendant of pretrial release under the exception in the first

sentence of article I, section 14. Thus, the State should have commenced the evidence

at this hearing. Mr. Reeves's evidence as to conditions and terms of pretrial release

should not have occurred until the circuit court first determined whether he did or did not

have a right to pretrial release.




                                             -5-
              Although the circuit court confused the order of events at this hearing, the

State repeatedly recognized that it had the burden of proof at the hearing. It also

presented extensive evidence at the hearing. We are convinced that the circuit court

applied the correct burden of proof and persuasion at this hearing.

                    II. WHETHER THE STATE MET ITS BURDEN IS
                         NOT AN ISSUE WE NEED TO REACH

              Mr. Reeves argues that the circuit court erred in determining that the State

met its high burden on the issue of whether he had no right to pretrial release under any

terms and conditions. As this court recently explained in Preston, we continue to

require the State in this context to meet the burden described in Russell, 71 So. at 27.

In this case, there really is no dispute that Chad Oulson is dead and that his death is the

result of Mr. Reeves's shooting him with a handgun. The more difficult factual questions

for the circuit court at the bond hearing were whether Mr. Reeves acted in self-defense

and whether the criminal intent associated with this death was the type of intent

necessary for second-degree murder or the type of intent associated with the offense of

manslaughter. Manslaughter is an offense for which article I, section 14, authorizes

consideration of pretrial release as a matter of right.

              The circuit court required the State to present extensive testimony on

these issues. This is undoubtedly one of the most thorough hearings on bond that this

court has ever reviewed. Whether the State met its burden on the issue of guilt for

second-degree murder as compared to manslaughter is, as recognized by the circuit

court, a close question. We conclude that there is no reason for this court to reach this

issue at this time. If the circuit court grants pretrial release under the limited relief that

we provide in this decision, then it will make no difference whether the release was a



                                              -6-
matter of right or a matter of discretion. If we have misjudged the circuit court's

reasoning and it actually intended to make a discretionary decision to deny release

despite Mr. Reeves's evidence, it will presumably deny release again when it receives

this decision. At that point, and only at that point, would this court need to resolve this

issue.

                             III. DISCRETIONARY RELEASE

              In this case, the defendant presented exceptionally strong evidence in

support of his request for pretrial release. He presented several character witnesses

whose testimony went largely unchallenged by the State. He is an older defendant with

no prior record. He and his wife have been married forty-six years and have several

generations of relatives in the community. He cares for a mother who is more than

ninety years of age. Prior to this event, he had a long and distinguished career as a

police officer and as director of security for a large local business. There is no evidence

of drug or alcohol issues.

              In its written order, the circuit court found that Mr. Reeves possesses

extensive ties to the community and further found, "[w]ithout hesitation . . . , based upon

this testimony and the exhibits that the Defendant is not a flight risk." The court

concluded that it would have "few concerns" that he would be a danger to society if

released pretrial.

              The circuit court explained in the written order the terms and conditions of

pretrial release it would have found appropriate "if the State had not met the burden for

pretrial detention."

              [T]he bond would have been set at $150,000 with a condition
              that the Defendant remain at his residence with the



                                            -7-
              exception of attending religious services, for medical
              treatment and the grocery store. The Defendant would not
              be allowed to have possession of a firearm and all of his
              firearms would be surrendered either to the Pasco Sheriff or
              another person acceptable to the Court after a hearing. The
              Defendant would wear the standard pretrial ankle monitor for
              GPS tracking of his location through one of the approved
              vendors.

              Under article I, section 14, a person charged with an offense for which

pretrial release is a right may nevertheless be denied release "[i]f 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 decision in Arthur effectively reverses the burden for these factors in a

case involving a capital felony or an offense for which life imprisonment is the penalty.

Thus, even if the State meets its burden under Russell, the circuit court may exercise

discretion to grant pretrial release if the defendant can prove that conditions of release

can effectively protect the public from the risk of physical harm, assure his presence at

trial, and assure the integrity of the judicial process.

              In this case, the court clearly found that Mr. Reeves established that he

was not a flight risk. No one seriously argues that detention is needed to assure the

integrity of the judicial process. Indeed, Mr. Reeves was allowed to attend the bond

hearing itself in normal clothing and without handcuffs. Given the singular event at the

theater, one can have some concern for public safety, which is why the circuit court

would essentially require house arrest without firearms and with an ankle monitor for

GPS tracking.

              As we explained at the beginning of this opinion, it appears that the circuit

court denied release merely because it believed it had no discretion to do otherwise if



                                             -8-
the State met its burden. All of the usual factors that would be used to authorize pretrial

release in this context were clearly established by Mr. Reeves at this hearing. The

record suggests no special circumstances or other factors that would justify a reasoned,

discretionary decision to deny pretrial release. But we cannot rule out the possibility

that the circuit court had a reasoned, discretionary basis not to grant release.

              Given the extensive evidence and the full consideration of the terms and

conditions for release at the recent hearing, we see no reason to compel the circuit

court to conduct another hearing. It is authorized to grant release on its own announced

conditions or to provide an order explaining its discretionary decision to deny release. If

the circuit court determines that circumstances warrant additional testimony before

finalizing any terms and conditions of release, it is not barred by this opinion from

conducting that hearing.

              Petition granted to the extent explained within this opinion.



NORTHCUTT and VILLANTI, JJ., Concur.




                                            -9-
