       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 5, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-1316
                         Lower Tribunal No. 18-10539
                             ________________


                                 Gerrel Snell,
                                    Petitioner,

                                        vs.

        Daniel Junior, Director, Miami-Dade Corrections and
        Rehabilitation Department, and The State of Florida,
                                  Respondents.



      A Case of Original Jurisdiction – Habeas Corpus.

     Carlos J. Martinez, Public Defender, and James Odell, Assistant Public
Defender, and Maria E. Lauredo, Chief Assistant Public Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken,
Assistant Attorney General, for respondent The State of Florida.


Before SALTER, LOGUE, and LINDSEY, JJ.

      LINDSEY, J.
       Gerrel Snell petitions this Court to issue a writ of habeas corpus ordering

that the Nebbia or “source of funds” hold issued by the trial court be stricken as an

unlawful order of pretrial detention. For the reasons set forth below, we deny the

petition.

       Mr. Snell was arrested on Miami Beach on May 23, 2018, and charged with

multiple counts of sale and possession of marijuana and being a felon in possession

of a firearm. The police obtained a warrant for the search of his home and vehicle

wherein they found a shoebox containing over $18,000 in U.S. currency, numerous

bags of marijuana, a loaded .380 caliber firearm and a box of .380 caliber

ammunition. The arrest affidavit indicates his occupation as a landscaper.

       At his first appearance hearing on May 24, 2018, bond was set at $40,500

but the trial court placed a Nebbia1 hold on the bond to verify the source of the

funds that would be used to post that bond. On June 21, 2018, Mr. Snell filed a

motion for removal of the Nebbia hold arguing that there is no authority under

Florida law for the court to hold Mr. Snell pending a hearing to address the source


1 As the trial judge correctly explained at the hearing on Mr. Snell’s motion for
removal of the Nebbia hold, “Nebbia really is what we use in shorthand to mean
source of funds and to avoid citing the criminal procedure rule and the statute.”
Hr’g Tr. 12, June 22, 2018; see also Winer v. Spears, 771 So. 2d 621, 622 n.1 (Fla.
3d DCA 2000) (Sorondo, J., concurring) (“United States v. Nebbia, 357 F.2d 303
(2d Cir. 1966) (This case stands for the proposition that a court can require a
criminal defendant to establish, prior to posting bond, that the money and/or
property used to pay the same were not derived from illicit activities). See also §
903.046, Fla. Stat. (2000)”).

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of funds to post a bond. The trial court denied Mr. Snell’s motion, contending that

he was not “holding Mr. Snell in pretrial detention” but rather that the Nebbia

inquiry was a condition of posting the bond. The trial court further noted that if

the first appearance judge had not conditioned the bond on a Nebbia inquiry, it

would have imposed a much greater bond. Mr. Snell declined to present any

information to the trial court as to the source of funds he might use to post a bond.

      Mr. Snell relies on Casiano v. State, which held that:

             [U]nder 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.”

241 So. 3d 219, 220 (Fla. 2d DCA 2018) (quoting Parrino v. Bradshaw, 972 So. 2d

960, 962 (Fla. 4th DCA 2007) (Warner, J., concurring)), jurisdictional briefs

pending, SC 18-642. The Second District further explained that “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.” Casiano, 241 So. 3d at 220.

      The State contended in response that Casiano, 241 So. 3d 219, conflicts with

the majority opinion in Parrino, 972 So. 2d 960, and two decisions from this Court:

Artamendi v. Manning, 700 So. 2d 476 (Fla. 3d DCA 1997) and Winer, 771 So. 2d

621. In Parrino, the defendant was “charged with two counts of trafficking in


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Roxycodone (over four grams), aggravated assault on a law enforcement officer,

aggravated battery on a law enforcement officer, and kidnapping.” 972 So. 2d at

961. While incarcerated, the defendant sought a writ of habeas corpus from an

order granting the state’s motion for a Nebbia hearing. The majority denied the

petition and held that:

             Section 903.046(2), Florida Statutes (2007) and Florida
             Rule of Criminal Procedure 3.131(b) authorize the court
             to inquire into “the source of funds used to post bail,” as
             well as into any other facts, to insure defendant's
             appearance. The motion filed by the state, and the order
             entered by the court granting that motion, are authorized
             by the statute and the rule, and accordingly the issue as to
             the applicability of Nebbia, a federal case, is beside the
             point.

Id.

      The instant petition does not involve a situation where the court is

“continuing to hold an accused who has posted the bail set at first appearance”

without the State having filed a motion for pretrial detention. See Casiano, 241 So.

3d at 220. Here, the first appearance judge set the bond at $40,500 conditioned on

a Nebbia inquiry. Mr. Snell has neither tendered nor proffered that he could post

the $40,500 bond but for the Nebbia hold.2 And, Mr. Snell has not presented any

2 The CJIS docket filed with this Court indicates a motion for modification of bail
filed on the same day as the motion for removal of the Nebbia hold and denied on
June 22, 2018. At the hearing on the motion for removal of the Nebbia hold, the
Clerk advised the trial court of same. In any event, neither Mr. Snell nor the State
have raised the motion for modification of bail as a basis for granting the instant
petition.

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information to the trial court as to the source of any funds he might use to post a

bond.3 Thus, Mr. Snell is in no worse position than if no Nebbia hold had been put

in place in the first instance. Rather, he remains incarcerated, apparently, because

he is unable to post the bond set at the first appearance hearing, irrespective of the

Nebbia hold.4

      Based on the facts and the procedural posture of this case, we deny the

petition. See § 903.046(2)(f), (h), Fla. Stat. (2018) (“When determining whether to

release a defendant on bail or other conditions, and what that bail or those

conditions may be, the court shall consider: . . . (f) The source of funds used to

post bail or procure an appearance bond, particularly 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 of establishing the noninvolvement in or

nonderivation from criminal or other illicit activity of such proffered funds, real

property, property, or any proposed collateral or bond premium falls upon the

defendant or other person proffering them to obtain the defendant’s release. . . .

3 At the hearing on the motion for removal of the Nebbia hold, the trial court
specifically inquired of Mr. Snell’s counsel whether they had any information as to
the source of the funds that Mr. Snell would seek to use to post the bond. Mr.
Snell, through his counsel, stated: “No, Your Honor, not at this time.” Further, the
transcript of the first appearance hearing is not part of the record before us and
neither Mr. Snell nor the State has represented to this Court that any information
was presented to the first appearance judge as to the source of the funds.
4 Mr. Snell has not alleged that he has asked the trial court for a reduction of bond.



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(h) The street value of any drugs or controlled substance connected to or involved

in the criminal charge.”) (emphasis added); Fla. R. Crim. P. 3.131(b)(3) (“In

determining whether to release a defendant on bail or other conditions, and what

that bail or those conditions may be, the court may consider the nature and

circumstances of the offense charged and the penalty provided by law; . . . the

source of funds used to post bail;”); Artamendi, 700 So. 2d at 477 (“Upon the

conclusion that the evidence adduced below established that the standards of

United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966) were satisfied as a matter of

law, the trial court is ordered to require the acceptance of the tendered $

700,000.00 bond and thereupon to release the petitioner from custody.”); Winer,

771 So. 2d 621.

      PETITION DENIED.




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