        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           SNICESON FLEURY,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D18-1852

                              [July 25, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502018CF002910B.

  Greg Rosenfeld of the Law Offices of Greg Rosenfeld, P.A., West Palm
Beach for appellant.

   No appearance required for appellee.

PER CURIAM.

    Sniceson Fleury, a criminal defendant charged with drug trafficking
offenses, petitions for a writ of habeas corpus challenging a pretrial release
condition requiring him to show that the source of funds used to post bond
is not derived from illegal activity (“the bond source condition”). We deny
the petition and certify conflict with Sparrow v. State, 240 So. 3d 841 (Fla.
5th DCA 2018), and Casiano v. State, 241 So. 3d 219 (Fla. 2d DCA 2018),
notice invoking discretionary review filed, No. SC18-642 (Fla. April 26,
2018), to the extent they hold that a bond condition like the one imposed
in this case is not authorized by Florida law.

   According to the probable cause affidavit, police executed a search
warrant at a residence that Defendant shared with his brother and
discovered trafficking quantities of drugs, more than $14,000 in cash, and
several handguns. Defendant is charged with: (1) trafficking in heroin; (2)
trafficking in fentanyl; (3) trafficking in cocaine; (4) possession of
marijuana with intent to sell; and (5) felon in possession of a firearm or
ammunition.

   At first appearance in late March 2018, the court set a total bond of
$500,000. In May 2018, Defendant moved to modify conditions of pretrial
release asking the court to reduce the amount of bond.

   At a hearing on the motion, the court agreed to reduce the bond. As
the court was preparing to announce the modified bond conditions, the
State asked the court to require Defendant to show that the source of
funds used to post bond was not derived from illegal activity. 1 The court
stated, “I thought you would, I was going to address that in a moment.”

   After hearing argument from defense counsel, who contended that the
money would come from family members, the court agreed that the
requirement was appropriate. The judge indicated that, if the money was
coming from family, “that’s fine” and suggested Defendant’s family could
submit an affidavit to satisfy the requirement. The court reduced the
amount of bond to a total of $138,000 and entered an order requiring
Defendant to demonstrate that the funds were from a “legitimate source.”
Defense counsel later lodged an objection referencing unspecified “conflict”
in caselaw.

   This petition follows. Defendant argues: (1) the court erred in granting
the State’s oral motion to impose the bond source condition where the
State had not filed a written motion to modify bond conditions under
Florida Rule of Criminal Procedure 3.131(d)(2); and (2) detention based on
the bond source condition is not authorized by Florida law. Nothing in the
record indicates that Defendant has tried to post the bond or satisfy the
bond source condition.

   Defendant fails to show any error in the trial court imposing the bond
source condition. Defendant filed a motion to modify bond and had
constructive notice that the court would consider all the statutory pretrial
release factors if his motion was granted. See § 903.046(2), Fla. Stat.
(2018) (setting out factors that the court shall consider when determining
pretrial release conditions).

   Section 903.046(2)(f) requires a court setting pretrial release conditions
to consider:

      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

1 The parties at the hearing referred to this as a “Nebbia” requirement, referring
to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966).

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      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.

Id. (emphasis supplied). The underlined language above was added in
2008 and expressly authorizes the bond source condition at issue. See
Ch. 2008-238, § 18, Laws of Fla.

    Defendant relies on Sparrow v. State, 240 So. 3d 841 (Fla. 5th DCA
2018), and Casiano v. State, 241 So. 3d 219 (Fla. 2d DCA 2018), which
hold that “Florida courts lack authority to detain accuseds for the purpose
of inquiring into the source of funds used to post bail.” Casiano, 241 So.
3d at 220. We respectfully disagree.

   Sparrow and Casiano relied on dicta from a special concurrence in
Parrino v. Bradshaw, 972 So. 2d 960 (Fla. 4th DCA 2007). Parrino
predates the Legislature’s 2008 amendment, which expressly places the
burden on the defendant to show that the funds used to post bail are not
derived from illegal activity.

   We disagree that the bond source condition imposed by the court in
this case results in unconstitutional pretrial detention. Article I, section
14 of the Florida Constitution provides:

      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.

Id. (emphasis supplied). The bond source condition at issue does not deny
the Defendant “pretrial release on reasonable conditions.” Defendant does
not show that the requirement is unreasonable under the circumstances
of this case. As argued by the State at the bond hearing, there is probable
cause to believe that Defendant engaged in drug trafficking, and police
allegedly found $14,308 in cash in Defendant’s bedroom.


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    We deny the petition and certify conflict with Sparrow and Casiano to
the extent they hold that a bond source condition like the one imposed in
this case is unauthorized by Florida law. In Casiano, the court set bond
at first appearance but granted the State’s request that defendant be held
pending a hearing pursuant to Nebbia – a so-called “Nebbia hold.”
Casiano, 241 So. 3d at 219. In Sparrow, the court at first appearance set
bond in a drug trafficking case and imposed a “Nebbia hold” on its own
motion. Sparrow, 241 So. 3d at 841. We see no meaningful distinction
between the “Nebbia hold” in those cases and the bond source condition
imposed in this case. We recognize that the condition may result in
temporary detention until the condition is satisfied but do not believe that
this categorically amounts to a denial of “pretrial release on reasonable
conditions” as required by the Florida Constitution.

   “The purpose of a bail determination in criminal proceedings is to
ensure the appearance of the criminal defendant at subsequent
proceedings and to protect the community against unreasonable danger
from the criminal defendant.” § 903.046(1), Fla. Stat. (2018). If a
defendant can use the proceeds of unlawful activity to post bail and
immediately obtain release before an inquiry into the source of funds can
be conducted, then the purpose of bond and the legislative intent in the
bond statute would be frustrated. See § 903.046(2)(h), Fla. Stat. (2018)
(requiring a court setting pretrial release conditions to consider the street
value of the drugs involved and explaining: “It is the finding and intent of
the Legislature that crimes involving drugs and other controlled
substances are of serious social concern, that the flight of defendants to
avoid prosecution is of similar serious social concern, and that frequently
such defendants are able to post monetary bail using the proceeds of their
unlawful enterprises to defeat the social utility of pretrial bail. Therefore,
the courts should carefully consider the utility and necessity of substantial
bail in relation to the street value of the drugs or controlled substances
involved.”) (emphasis supplied).

   Petition denied. Conflict certified.

WARNER, MAY and KLINGENSMITH, JJ., concur.

                             *            *     *

   Not final until disposition of timely filed motion for rehearing.




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