Brandon Thourtman v. Daniel Junior, etc.

Supreme Court of Florida
____________

No. SC19-1182
____________

BRANDON THOURTMAN,
Petitioner,

vs.

DANIEL JUNIOR, etc., et al.,
Respondents.

March 17, 2022

PER CURIAM.

In this case, we consider a question related to the application

of the provision of article I, section 14 of the Florida Constitution

that restricts entitlement to release on bail for persons “charged

with a capital offense or an offense punishable by life

imprisonment” when “the proof of guilt is evident or the

presumption is great.” Specifically, we consider whether that

provision prohibits a trial court from detaining a defendant beyond

first appearance for a reasonable time to conduct a hearing

concerning whether the proof of guilt is evident or the presumption
of guilt is great unless the trial court makes a preliminary finding

that the standard for denial of bail has been met. We have for

review Thourtman v. Junior, 275 So. 3d 726, 739 (Fla. 3d DCA

2019), in which the Third District Court of Appeal held that a trial

court at first appearance, upon a finding of probable cause that the

defendant committed a crime punishable by capital punishment or

life imprisonment, may defer ruling on pretrial release and detain

the defendant for a reasonable time to conduct a “full” Arthur 1

hearing without violating article I, section 14. The Third District

certified conflict with Gray v. State, 257 So. 3d 477, 478 (Fla. 4th

DCA 2018), and Ysaza v. State, 222 So. 3d 3, 6 (Fla. 4th DCA

2017), both cases in which the Fourth District Court of Appeal

interpreted the relevant portion of article I, section 14 as requiring a

preliminary finding at first appearance that the proof of guilt is

evident or the presumption is great to detain a defendant beyond

first appearance in order to conduct a “full” Arthur hearing without

setting reasonable conditions of pretrial release. We have

1. State v. Arthur, 390 So. 2d 717 (Fla. 1980).

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jurisdiction. See art. V, § 3(b)(4), Fla. Const. We approve the Third

District’s holding in Thourtman and disapprove Gray and Ysaza.

I. BACKGROUND

Article I, section 14 of the Florida Constitution guarantees

every person charged with a crime the right to pretrial release on

reasonable conditions, such as bail, with two exceptions: the

“capital punishment or life imprisonment” exception set forth in the

first sentence of article I, section 14 and the “pretrial detention”

exception, set forth in the second sentence of article I, section 14.

Article I, section 14 states:

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.

Art. I, § 14, Fla. Const.

Petitioner Brandon Thourtman was arrested for armed robbery

with a firearm on November 9, 2018. The next day, at Thourtman’s

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first appearance, 2 the trial court reviewed the arrest affidavit, noted

that Thourtman was charged with a crime punishable by life

imprisonment, and announced “no bond,” thereby deferring a

decision on pretrial release pending an Arthur hearing, should

Thourtman choose to request one. 3

Thourtman was arraigned November 30, 2018, on one count of

robbery using a firearm or deadly weapon, a first-degree felony

punishable by life imprisonment. At that time, Thourtman entered

a plea of not guilty and requested an Arthur hearing, which was set

for December 6, 2018, four working days after the arraignment.

The day before the scheduled Arthur hearing, Thourtman filed a

2. See Fla. R. Crim. P. 3.130(a), (d) (requiring that every
arrested person shall be taken before a judge within 24 hours of
arrest, at which time the judge shall proceed to determine
conditions of release under rule 3.131). Rule 3.131(a) echoes the
language of the first sentence of article I, section 14.

3. In doing so, the trial court followed the standard practice
taught to trial judges in Florida. See, e.g., Fla. Court Educ.
Council, Criminal Benchguide for Circuit Judges at 7 (2016) (“In
cases in which death or life imprisonment is a possible penalty, the
first appearance judge, upon finding of probable cause, will typically
order that the defendant be held with no bond. The defendant is
then obligated to set the matter for an Arthur hearing.”).

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petition for a writ of habeas corpus in the Third District challenging

his pretrial confinement.

The Arthur hearing was held as scheduled. At the conclusion

of the hearing, the trial court found that the State’s evidence that

Thourtman committed a robbery rose to the level of “proof evident,

presumption great,” but the State’s evidence that he used a firearm

did not. Because unarmed robbery is not punishable by life, the

court granted Thourtman pretrial release with conditions of house

arrest and bail in the amount of $25,000. Although the grant of

pretrial release after the Arthur hearing rendered Thourtman’s

habeas petition moot, the district court found that the petition

presented a question capable of repetition yet evading review and

nonetheless accepted jurisdiction to hear the merits.

Thourtman argued in the district court that the first sentence

of article 1, section 14 creates a two-step procedure that begins

with a preliminary finding at first appearance that the proof of guilt

is evident or the presumption is great. This argument was based on

the Fourth District’s decisions in Gray and Ysaza. In those cases,

the defendants were charged with crimes punishable by life

imprisonment, and the first appearance courts ordered each

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defendant detained without setting reasonable conditions of pretrial

release or making a preliminary finding that the State’s evidence

rose to the level of “proof evident, presumption great.” In both

cases, the Fourth District concluded that the trial courts’ refusals

to authorize pretrial release or to make the required findings at first

appearance that the proof of guilt was evident or the presumption

great violated article I, section 14. Gray, 257 So. 3d at 478; Ysaza,

222 So. 3d at 6. 4

The Fourth District

explained that if the first appearance court finds that [the
proof evident or presumption great] standard has been
met and declines to set bond, the defendant can later
move to set bond and request a full Arthur hearing, where
the defendant has a right to present evidence and to ask
the court to exercise its discretion to set bond.

Gray, 257 So. 3d at 478 (citing Ysaza, 222 So. 3d at 6).

The Third District disagreed with the Fourth District’s

interpretation of article 1, section 14 as requiring a preliminary

finding at first appearance that the proof is evident or the

presumption is great. The Third District noted that “there is

4. In neither the instant case nor Gray or Ysaza did the State
seek to have the defendant detained under the second sentence of
article I, section 14, and that provision is not implicated here.

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nothing in the text [of article 1, section 14] that requires both a

preliminary Arthur hearing at first appearance and a subsequent

full Arthur hearing, as held by Ysaza and Gray” and that “[t]he right

to ‘pretrial release’ in [a]rticle I, section 14 refers to release pending

trial, not to release pending a constitutionally or legally required

bond hearing.” Thourtman, 275 So. 3d at 733.

Thourtman’s “main argument” to the district court was that

this Court, by stating in Arthur, “We hold, therefore, that before

release on bail pending trial can ever be denied, the [S]tate must

come forward with a showing that the proof of guilt is evident or the

presumption is great,” had interpreted article I, section 14 as

creating the two-step procedure. Id. at 736 (quoting Arthur, 390 So.

2d at 720). The Third District rejected this argument, concluding

that “if interpreted in such a manner, the sentence would comprise

nothing more than classic obiter dicta,” id., because the sentence

was written in answer to the second certified question in Arthur,

which asked whether the accused or the State bore the burden of

proving that the proof of guilt is evident or the presumption is great.

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Id. at 737 (citing Arthur, 390 So. 2d at 719). 5 In certifying conflict

with Gray and Ysaza, the Third District thus held

that [a]rticle I, section 14 of the Florida Constitution does
not prohibit the trial court the discretion at first
appearance, upon a finding of probable cause that the
defendant committed a crime punishable by capital
punishment or life imprisonment, to defer ruling on bail
and to detain the defendant for a reasonable time to
conduct a full Arthur bond hearing. To exercise such
discretion, the court is not required by the Constitution
to make a preliminary finding of “proof evident,
presumption great.”

Id. at 739.

II. ANALYSIS

Resolution of the conflict presented requires us to determine

whether the first sentence of article I, section 14 of the Florida

5. The two certified questions in Arthur were:

1. Does a trial court have discretion to grant bail to
a defendant who is charged with a capital offense or an
offense punishable by life imprisonment and the proof of
guilt is evident and the presumption great?

2. Does the accused or the [S]tate, in a capital case
or a case involving life imprisonment where the accused
is seeking to be admitted to bail, have the burden of proof
on the issue of whether the proof of guilt is evident and
the presumption great?

Arthur, 390 So. 2d at 717.

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Constitution prohibits a trial court from detaining a defendant

beyond first appearance without setting reasonable conditions for

pretrial release unless the court has made a preliminary finding

that the proof of guilt is evident or the presumption is great. We

conclude that it does not.

Thourtman asserts that for a court to detain a defendant

beyond first appearance without setting reasonable conditions of

pretrial release under the capital punishment or life imprisonment

exception in the first sentence of article I, section 14, the State

must have already met its burden of showing that the proof of guilt

is evident or the presumption is great. Thourtman considers the

right to pretrial release lost if reasonable conditions for pretrial

release are not set at first appearance. In support of his position

that detention beyond first appearance requires a preliminary

finding that the proof of guilt is evident or the presumption is great,

Thourtman relies on language in Arthur stating that “before release

on bail pending trial can ever be denied, the [S]tate must come

forward with a showing that the proof of guilt is evident or the

presumption is great.” Arthur, 390 So. 2d at 720. But Thourtman’s

view that the right to pretrial release is lost if reasonable conditions

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of release are not set at first appearance and his reliance on Arthur

are unwarranted.

We find no basis in the constitutional text or elsewhere in the

law to support Thourtman’s view that detaining a defendant beyond

first appearance and deferring a ruling on pretrial release to

conduct a “full”6 Arthur hearing is tantamount to a loss of the right

to pretrial release. Nor is there anything in the constitution or our

caselaw that would require a trial court to make a preliminary

finding that the proof is evident or the presumption is great before

ordering a defendant detained pending an Arthur hearing, should

the defendant choose to request one. The right to pretrial release is

not lost until a court makes a definitive ruling on the issue of

pretrial detention. The logic of Thourtman’s argument that holding

a defendant under the capital punishment or life imprisonment

6. A “full” Arthur hearing as described by the parties and the
district court contemplates a hearing at which both parties are
given ample opportunity to present their cases for and against
pretrial release, and even where “the proof is evident or the
presumption great that the accused committed a capital or life
imprisonment offense, the accused may still come forward with a
showing addressed to the court’s discretion to grant or deny bail.”
Arthur, 390 So. 2d at 719. The idea that this describes a “full”
Arthur hearing as opposed to a “preliminary” Arthur hearing, is a
fallacy. There is only one type of hearing contemplated by Arthur.

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exception prior to an Arthur hearing violates the first sentence of

article I, section 14 would support the conclusion that detention of

the same defendant between the time of arrest and first appearance

would also necessarily violate article I, section 14, because a

defendant typically has no right to pretrial release during that

time. 7 But as the district court recognized “it has never been held

that requiring certain defendants by law to be detained until first

appearance implicated rights under [a]rticle I, section 14.”

Thourtman, 275 So. 3d at 733 n.5.

Thourtman’s reliance on the language in Arthur stating that

“before release on bail pending trial can ever be denied, the [S]tate

must come forward with a showing that the proof of guilt is evident

or the presumption is great,” Arthur, 390 So. 2d at 720, to support

his position that a preliminary finding of proof evident, presumption

great is required for detention beyond first appearance under the

7. While defendants typically have no right to release prior to
first appearance, a defendant may be able to obtain release before
first appearance if a standard bail schedule is followed in the
jurisdiction of the crime and arrest or, in the event of an arrest
under a warrant, by meeting the conditions of release if any were
set by the issuing judge.

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capital punishment or life imprisonment exception does not

withstand analysis. This is true because that language was written

in response to the second certified question in Arthur: “Does the

accused or the [S]tate, in a capital case or a case involving life

imprisonment where the accused is seeking to be admitted to bail,

have the burden of proof on the issue of whether the proof of guilt is

evident and the presumption great?” Id. at 717. This Court’s

answer to that question was “that before the court can deny bail the

[S]tate must have carried the burden of establishing that the proof

of guilt is evident or the presumption great,” id., and later in the

opinion, this Court restated its answer to the second question,

using the slightly different language on which Thourtman relies, id.

at 720 (“We hold, therefore, that before release on bail pending trial

can ever be denied, the [S]tate must come forward with a showing

that the proof of guilt is evident or the presumption is great.”).

Because the language relied on by Thourtman was written in

response to the question of whether the accused or the State has

the burden of proof on the issue of whether the proof of guilt is

evident or the presumption is great, its purpose was not to

announce a particular timeframe in which a ruling on pretrial

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release must be made or that a deferred ruling on pretrial release is

the equivalent of an unconstitutional denial of that right.

The question of whether a defendant may be detained under

the first sentence of article 1, section 14 between first appearance

and a hearing on a motion to set bail thus was not presented for the

Court’s consideration under the facts of Arthur, which arose after

the defendant filed a motion to set bail and was afforded a hearing

on the motion at which “the court received all evidence sought to be

presented by Arthur.” Arthur v. Harper, 371 So. 2d 96, 100 (Fla.

4th DCA 1978), approved in part, quashed in part, 390 So. 2d 717.

Because the issue of detention beyond first appearance pending a

bail hearing was not raised by the facts in Arthur, implicated by

either of the certified questions in Arthur, or analyzed or discussed

in Arthur, the language from Arthur relied on by Thourtman—

despite the fact that it was self-described as a holding—constitutes

dicta and does not control our decision here. See State v. Yule, 905

So. 2d 251, 259 n.10 (Fla. 2d DCA 2005) (“A holding consists of

those propositions along the chosen decisional path or paths of

reasoning that (1) are actually decided, (2) are based upon the facts

of the case, and (3) lead to the judgment. If not a holding, a

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proposition stated in a case counts as dicta.”) (Canady, J., specially

concurring) (quoting Michael Abramowicz & Maxwell Stearns,

Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005)).

Beyond the fact that neither the constitution nor our caselaw

expressly mandates that a trial court make a preliminary finding

that the proof is evident or the presumption is great at first

appearance, the imposition of such a requirement would be rife

with impracticalities. For example, given the high level of evidence

needed to meet the proof evident or presumption great burden—a

burden that this Court has held to be even higher than the beyond

a reasonable doubt standard required to obtain a conviction at trial,

see State ex rel. Van Eeghen v. Williams, 87 So. 2d 45, 46 (Fla.

1956) (noting that “proof that guilt is evident or the presumption of

guilt is great is actually a greater degree of proof than that which is

required to establish guilt merely to the exclusion of a reasonable

doubt” (citing Russell v. State, 71 So. 27, 28 (Fla. 1916)))—in many

cases, it is highly unlikely that the State will have time before a first

appearance to marshal its evidence, prepare exhibits for admission

into evidence, and secure the attendance of witnesses needed to

meet that burden. At the time of first appearance, it is typical that

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 the assistant State attorney who will prosecute has not
been assigned. . . . [T]he “transcripts and affidavits” upon
which the information will be based do not yet exist. The
victim has not given a formal statement. [And m]uch of
the physical evidence has not been collected, much less
analyzed or tested.

Thourtman, 275 So. 3d at 735. This fact is not lost on Thourtman;

he conceded below “that ‘most often,’ in fact ‘in many, many cases,’

the State will be simply unable to offer evidence rising to the level of

‘proof evident, presumption great’ at first appearance.” Id. And in

his initial brief in this Court, Thourtman stated, “The District Court

below is not wrong that at first appearance the [S]tate is unlikely to

be able to present evidence sufficient to satisfy the ‘proof of guilt is

evident or the presumption is great’ standard.” Initial Brief of

[Petitioner] at 25.

Even assuming the State could by the time of a first

appearance muster the necessary evidence and witnesses to meet a

burden that exceeds the beyond a reasonable doubt burden

required to obtain a conviction at trial after months or even years of

preparation, in many, if not all, jurisdictions, it would be

impractical or impossible to allot the State time during first

appearance hearings to present the case required to meet this

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heavy burden. As the district court noted, “In urban settings, first

appearances occur on congested, fast-paced dockets. . . . Often, the

defendant appears by video from jail. Defendants, of course, have a

right to be heard, but experienced criminal lawyers and judges steer

substantive motions relating to pretrial release to later, less

congested calendars.” Thourtman, 275 So. 3d at 734-735 (citing

Greenwood v. State, 51 So. 3d 1278, 1281 (Fla. 2d DCA 2011)

(noting the “practical realities” stemming from “the significant

number of defendants present at the typical first appearance

hearing on any given day in a busy urban court”)). Even beyond

“urban settings,” in counties with fewer defendants on the first

appearance docket, a court is unlikely to be able to clear its

calendar for a preliminary Arthur hearing—which could take hours

or even days—at the drop of a hat. And although Thourtman

conceded below that “virtually always, the defendants at first

appearance will also be unable to exercise their constitutional right

to present evidence,” id. at 730, assuming that a defendant were

prepared to present his or her case for release at a “preliminary”

Arthur hearing, a court would then likely find itself holding a “full”

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Arthur hearing at first appearance, which Thourtman agrees “is

neither constitutionally required nor practical,” id. at 729.

Requiring a proof evident or presumption great finding at first

appearance is also likely to thwart judicial economy. The probable

lack of preparedness on either side can be expected to result in

multiple hearings on the same subject matter. And to the chagrin

of many judges who require the parties to attempt to come to an

agreement on acceptable terms of pretrial release prior to an Arthur

hearing, requiring an impromptu hearing at first appearance will

lessen the chance that the parties will reach a stipulation that

would resolve the matter without burdening the court with a

potentially lengthy hearing.

III. CONCLUSION

For the reasons explained, we approve the Third District’s

holding—

that [a]rticle I, section 14 of the Florida Constitution does
not prohibit the trial court the discretion at first
appearance, upon a finding of probable cause that the
defendant committed a crime punishable by capital
punishment or life imprisonment, to defer ruling on bail
and to detain the defendant for a reasonable time to
conduct a full Arthur bond hearing

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id. at 739—and disapprove the conflicting decisions of the Fourth

District in Gray and Ysaza.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
COURIEL, J., concurs with an opinion, in which LAWSON, J.,
concurs.
LABARGA, J., dissents with an opinion.

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

COURIEL, J., concurring.

I join the Court’s opinion because the detention to which

Thourtman objects was supported by probable cause and

reasonable in duration. Justice Labarga contends that, in State v.

Arthur, 390 So. 2d 717 (Fla. 1980), we required that a trial court

make the “proof evident, presumption great” determination at a

defendant’s first appearance hearing because we said such a

determination must be made “before release on bail can ever be

denied.” Id. at 720. As the Court’s decision explains, Arthur

contains no such requirement. A capital defendant may, at any

time prior to conviction, move for a hearing to determine whether

the State can carry its evidentiary burden and deny access to

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pretrial release on reasonable conditions. Thourtman had that

hearing four business days after he requested it.

I write separately to address what the dissent calls “the liberty

interest protected by article I, section 14, of the Florida

Constitution.” We have said that provision “embodies the principle

that the presumption of innocence abides in the accused for all

purposes while awaiting trial.” Arthur, 390 So. 2d at 719.

Though it may result in a denial of bail and in that very real

sense affect a liberty interest of the defendant, a judge’s ruling at

the conclusion of an Arthur hearing does not mean the defendant is

presumed guilty, even if the court finds the State has met the “proof

evident, presumption great” standard. For an Arthur hearing, while

it involves a proffer of what the evidence may be at trial, is not a

trial at all. It is before a judge, not a jury. Its purpose is not to

determine the defendant’s guilt, but whether the defendant is

eligible for bail, and if so, on what conditions. For these reasons,

the deprivation of liberty in which it can result, temporary though it

may be, must be supported by evidence that meets a more

demanding standard of proof than even proof beyond a reasonable

doubt, the jury’s standard. See Russell v. State, 71 So. 27 (Fla.

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1916); State ex rel. Van Eeghen v. Williams, 87 So. 2d 45, 46 (Fla.

1956).

In the case of a defendant charged with a capital offense, as

with other defendants, probable cause supplies the first basis for

the defendant’s detention. Probable cause remains a basis for the

defendant’s detention until the jury supplies another basis upon

which to adjudicate the defendant’s right to liberty: its verdict. But

in the case of a defendant charged with a capital offense or an

offense punishable by life imprisonment, our constitution, like the

constitutions of at least thirty-six other states, supplies another

basis for detention—one about which, despite its long history, we

have said relatively little.

I

The Florida Constitution says:

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. The plain language of this provision tells us

that every defendant charged with a noncapital crime, or a crime for

which the maximum punishment is less than life imprisonment, is

entitled to pretrial release on reasonable conditions, if such

conditions can reasonably protect the community from harm,

assure the defendant will appear at trial, and assure the integrity of

the judicial process. If conditions do not allow any one of those

things, the defendant may be detained.

The provision also means that a different analysis applies

when the crime charged is a capital offense or an offense

punishable by life imprisonment, and the proof of guilt is evident or

the presumption of guilt is great. Id. When these things are true,

the defendant is not entitled to pretrial release on reasonable

conditions, even if such conditions could keep the community safe,

assure that the defendant would appear at trial, and assure the

integrity of the judicial process.

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 A

An accused’s right to seek release on bail was settled as a

matter of colonial jurisprudence prior to the founding. 8 And,

also prior to the founding, courts and legislatures qualified

this right for capital defendants. As early as 1682, the

Fundamental Law of Pennsylvania held that “all prisoners

shall be bailable by sufficient sureties, unless for capital

offences, where the proof is evident, or the presumption great.”

Pa. Frame of Government of 1682, Laws Agreed Upon in

England, art. XI (May 5, 1682); see also Caleb Foote, The

Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959,

975 (1965) (tracking the history of the “proof evident,

presumption great” standard).

This language found its way into the constitutions of

many states9 thanks in part to the Northwest Ordinance of

8. 4 William Blackstone, Commentaries, *296-97 (stating the
common law rule that, after an arrest and a determination that the
charge against the defendant “was [not] wholly groundless,” the
accused “must either be committed to prison, or give bail; that is,
put in securities for his appearance, to answer the charge against
him. This commitment therefore being only for safe custody,
wherever bail will answer the same intention, it ought to be taken;
as in most of the inferior crimes: but in felonies, and other offences

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1787. That act of Congress declared that inhabitants of a

territory “shall always be entitled to the benefits of the writ of

habeas corpus, and of the trial by jury . . . and of judicial

proceedings according to the course of the common law,”

including bail, “unless for capital offenses, where the proof

shall be evident or the presumption great.” An Ordinance for

the Government of the Territory of the United States North-

of a capital nature, no bail can be a security equivalent to the
actual custody of the person. For what is there that a man may not
be induced to forfeit, to save his own life?”); see also Jennings v.
Rodriguez, 138 S. Ct. 830, 863 (2018) (Breyer, J., dissenting)
(summarizing Blackstone and concluding that “American history
makes clear that the settlers brought this practice [of allowing every
prisoner (except for a convict serving his sentence) to seek release
on bail] with them to America”).

9. Ala. Const. art. I, § 16; Alaska Const. art. I, § 11; Ariz.
Const. art. II, § 22; Ark. Const. art. II, § 8; Cal. Const. art. I, § 12;
Colo. Const. art. II, § 19; Conn. Const. art. I, § 8; Del. Const. art. I,
§ 12; Idaho Const. art. I, § 6; Ill. Const. art. I, § 9; Ind. Const. art. I,
§ 17; Iowa Const. art. I, § 12; Kan. Const. Bill of Rights, § 9; Ky.
Const. Bill of Rights, art. I, § 16; La. Const. art. I, § 18; Me. Const.
art. I, § 10; Mich. Const. art. I, § 15; Minn. Const. art. I, § 7; Miss.
Const. art. 3, § 29; Mo. Const. art. I, § 20; Mont. Const. art. II, § 21;
Neb. Const. art. I, § 9; Nev. Const. art. I, § 7; N.M. Const. art. II, §
13; N.D. Const. art. I, § 11; Ohio Const. art I, § 9; Okla. Const. art.
II, § 8; Or. Const. art. I, § 14; Pa. Const. art. I, § 14; R.I. Const. art.
I, § 9; S.D. Const. art. VI, § 8; Tenn. Const. art. I, § 15; Tex. Const.
art. I, § 11; Vt. Const. ch. II, § 40; Wash. Const. art. I, § 20; Wyo.
Const. art. I, § 14.

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West of the River Ohio, July 13, 1787 (Northwest Ordinance),

art. II. Any prospective state seeking to join the Union was

required to acknowledge the Northwest Ordinance as part of

its fundamental law upon admission. 10

Florida was no exception. Upon its establishment in 1822, the

territorial government of Florida was the subject of an act of

Congress providing for its organization and administration. The act

required:

That, to the end that the inhabitants may be protected in
their liberty, property, and the exercise of their religion,
no law shall ever be valid, which shall impair, or in any
way restrain, the freedom of religious opinions,
professions, or worship. They shall be entitled to the
benefit of the writ of habeas corpus. They shall be
bailable, in all cases except for capital offences where the
proof is evident or the presumption great. All fines shall
be moderate and proportioned to the offence; and
excessive bail shall not be required, nor cruel or unusual
punishments inflicted. No ex post facto law, or law
impairing the obligation of contracts, shall ever be

10. See Matthew J. Hegreness, America’s Fundamental and
Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 937 (2013) (“Congress
often imposed only two conditions on states in order for admittance
into the Union: (1) that they be republican and (2) that their
constitutions not be repugnant to the principles of the Northwest
Ordinance.”); Northwest Ordinance, art. I, § 11 (declaring that
territorial governments “shall have authority to make laws in all
cases, for the good government of the district, not repugnant to the
principles and articles in this ordinance established and declared”).

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 passed; nor shall private property be taken for public
uses, without just compensation.

An Act for the Establishment of a Territorial Government in Florida,

ch. XIII, § 10, 3 Stat. 654 (1822) (emphasis added). The inclusion of

a qualified right to bail among other well-recognized rights—

described in nearly the same words as the provision at issue

today—speaks to its endurance in our constitutional conception of

ordered liberty.

Florida’s constitutions have each included a comparable bail

provision. Our first constitution declared:

That all persons shall be bailable, by sufficient securities,
unless in capital offences, where the proof is evident, or
the presumption is strong; and the privilege of habeas
corpus shall not be suspended, unless when in case of
rebellion or invasion, the public safety may require it.

Art. I, § 11, Fla. Const. (1838). The second constitution, written at

the onset of the Civil War after Florida had abandoned the Union,

copied this standard. Art. I, § 11, Fla. Const. (1861). The third

constitution—penned and adopted by the Florida legislature after

the surrender at Appomattox but rejected by Congress 11—again

11. Eric Biber, The Price of Admission: Causes, Effects, and
Patterns of Conditions Imposed on States Entering the Union, 46 Am.
J. Legal Hist. 119, 143-144 (2004).

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made no change to the bail standard, though it made minor

alterations to the habeas corpus clause. Art. 1 § 11, Fla. Const.

(1865).

The fourth constitution, under which Florida was ultimately

readmitted to the Union, slightly changed the wording of the bail

provision, but maintained essentially the same standard. 12

Adopting the precise language of the Northwest Ordinance—i.e.,

substituting “great” for “strong”—the 1868 constitution read: “All

persons shall be bailable by sufficient sureties, unless for capital

offenses when the proof is evident, or the presumption great.”

Declaration of Rights, § 7, Fla. Const. (1868). This language was

retained in Florida’s fifth constitution, the Reconstruction era

constitution of 1885. See Declaration of Rights, § 9, Fla. Const.

(1885). Florida’s 1968 constitution expanded the bail provision to

also include offenses punishable by life imprisonment, but

otherwise maintained the “proof evident, presumption great”

standard.

12. The clause protecting the privilege of habeas corpus,
which until 1868 appeared in the same section as the bail
provision, was moved to its own dedicated section. Declaration of
Rights, § 5, Fla. Const. (1868).

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 In 1982, Florida voters approved an amendment to article I,

section 14, adding a clause stating that “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.” Art.

I, § 14, Fla. Const. (1968) (amended 1982).

The “proof evident, presumption great” standard has thus

remained substantively unchanged throughout Florida’s

constitutional history. And for just as long, it has coexisted with

the presumption of innocence.

B

“The principle that there is a presumption of innocence in

favor of the accused is the undoubted law, axiomatic and

elementary, and its enforcement lies at the foundation of the

administration of our criminal law.” Coffin v. United States, 156

U.S. 432, 453 (1895); see also Fla. Bar v. Rose, 823 So. 2d 727, 732

(Fla. 2002) (“[A] defendant is innocent until proven guilty, no matter

what the charge and no matter how insidious the allegations.”);

State v. Blair, 39 So. 3d 1190, 1192 (Fla. 2010) (“Our criminal

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justice system is based on the presumption that every person

charged with a crime is innocent until proven guilty.”).

The U.S. Supreme Court long ago resolved the tension between

the availability of pretrial detention in some cases and the

presumption of innocence in all. See Bell v. Wolfish, 441 U.S. 520,

533 (1979) (“The presumption of innocence is a doctrine that

allocates the burden of proof in criminal trials; it also may serve as

an admonishment to the jury to judge an accused’s guilt or

innocence solely on the evidence adduced at trial . . . . But it has

no application to a determination of the rights of a pretrial detainee

during confinement before his trial has even begun.”). In this case

as in Bell, neither party “question[s] that the Government may

permissibly detain a person suspected of committing a crime prior

to a formal adjudication of guilt” or “that the Government has a

substantial interest in ensuring that persons accused of crimes are

available for trials.” Id. at 534.

That interest is distinct from the State’s interest in seeing that

those who have been convicted of crimes receive appropriate

punishment; it is an interest in ensuring the administration of

justice and ensuring public safety. Thus “the mere fact that

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[Thourtman was] detained does not inexorably lead to the

conclusion that the government has imposed punishment” for his

alleged crime, nor made any judgment about his guilt. United

States v. Salerno, 481 U.S. 739, 746-47 (1987) (citing Bell, 441 U.S.

at 537). Article I, section 14, of our constitution reflects, as well as

a concern for the presumption of innocence, a mindfulness that, as

the Supreme Court put it with respect to the Bail Reform Act of

1984, “the Government’s regulatory interest in community safety

can, in appropriate circumstances,” and for an appropriate time,

“outweigh an individual’s liberty interest.” Id. at 748. Vindication

of those interests at a bail hearing does not implicate the

defendant’s liberty interest in the presumption of innocence. See

Ex parte Tully, 66 So. 296 (Fla. 1914). 13

13. “In this [bail] proceeding it cannot be determined whether
the petitioners are guilty or innocent of the capital offense charged
against them, or of any offense. . . . The only question here
presented for determination is whether ‘the proof is evident or the
presumption great’ that each of the petitioners did [commit the
alleged crime], so as to adjudge whether the petitioners are lawfully
held in custody without bail, pending a trial in due course of law to
legally determine their guilt or innocence of the alleged capital
offense. No action taken on this application for bail should enter
into the ultimate determination of the guilt or innocence of the
petitioners.” Id. at 297.

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 II

The courts of states with constitutional provisions similar to

article I, section 14, that have addressed the question have

(apparently without exception) reasoned as the Court does today,

concluding that a reasonable interval between first appearance and

a “proof evident, presumption great” bail hearing for a capital

defendant does not offend due process. In State v. Passino, 577

A.2d 281 (Vt. 1990), the Supreme Court of Vermont found a court

“can hold a defendant charged with an offense punishable by life

imprisonment without bail for such time as is necessary to enable

the parties to prepare for a full bail hearing and to make

appropriate motions,” and concluded that a twelve-day delay

between arraignment and commencement of a (three-day) bail

hearing was reasonable. Id. at 382-84; but see State v. Wade, No.

2021-115, 2021 WL 2311957, at *1 (Vt. June 1, 2021)

(unpublished) (holding that delaying a weight-of-the-evidence

hearing for seven and a half weeks “[did] not meet the constitutional

imperative”).

Arizona’s Court of Appeals relied on Passino in deciding

whether an evidentiary hearing was required before determining, as

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part of the decision whether to admit a defendant to bail, that “the

proof is evident or the presumption great that [the defendant] is

guilty of the offense and the offense charged is a capital offense.”

Simpson v. Owens, 85 P.3d 478, 481 (Ariz. Ct. App. 2004). It held

that it was, and that “[i]t would be a rare occasion when an

adequate bail hearing could be conducted at the initial appearance”

for a capital or life-eligible offense. Id. at 495.

In Fry v. State, 990 N.E.2d 429 (Ind. 2013), the Supreme

Court of Indiana held that, in the case of a capital defendant, the

state bears the burden of proof at a bail hearing to “show—by a

preponderance of the evidence—that the proof is evident or the

presumption strong.” Id. at 451. In reasoning to that conclusion, it

noted that the defendant’s state of incarceration prior to the hearing

was a substantial consideration in placing the burden on the state,

contemplating that the defendant would in fact be in custody for

some time prior to admission to bail.

And in State v. Kastanis, 848 P.2d 673 (Utah 1993),

reaffirming a prior holding that a capital defendant must be allowed

a bail hearing under that state’s “proof evident, presumption

strong” constitutional provision, the Utah Supreme Court stated

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that the defendant would have an opportunity to “bring his own

evidence and witnesses and . . . cross-examine the State’s

witnesses. Defendant must be given adequate notice to prepare for

the hearing,” a tall order at first appearance. Id. at 676. 14

14. Finally, contrary to the dissent’s reading of Florida Rule of
Criminal Procedure 3.130(d), our criminal law and rules of
procedure do not require a “proof evident, presumption great”
determination at first appearance. True, that rule, entitled “First
Appearance,” does say “[t]he judge shall proceed to determine
conditions of release pursuant to rule 3.131,” but it also says the
judge “may release the offender with or without bail to await further
hearing . . . relating to pretrial detention and release.” Id. at
3.130(d)(2) (emphasis added). The rule’s use of the words “proceed
to” and contemplation of a later hearing on bail is in sharp contrast
to what the rules say about something indisputably required at first
appearance: appointment of counsel. See Fla. R. Crim. P.
3.130(c)(1) (“When the judge determines that the defendant is
entitled to court-appointed counsel and desires counsel, the judge
shall immediately appoint counsel. This determination must be
made and, if required, counsel appointed no later than the time of
the first appearance.”) (emphasis added). There is also the fact the
State has five days from the filing of a complaint to seek pretrial
detention, during which time a defendant may be detained pending
a hearing. § 907.041(4)(f), Fla. Stat. (2021). This rule, applicable to
noncapital or life-eligible defendants, would be hard to square with
a requirement that the State muster its evidence more quickly for a
defendant whose risk of flight or potential danger to the community
is greater.

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 III

Today’s decision does nothing to lessen the liberty interest at

the heart of article I, section 14 of our constitution, the

presumption of innocence.

LAWSON, J., concurs.

LABARGA, J., dissenting.

An accused person is “entitled to pretrial release on reasonable

conditions.” Art. I, § 14, Fla. Const. Only pursuant to limited

exceptions may a court deny pretrial release; for instance, if the

accused is “charged with a capital offense or an offense punishable

by life imprisonment and the proof of guilt is evident or the

presumption is great.” Id.

To that end, this Court has explained: “[B]efore release on bail

pending trial can ever be denied, the [S]tate must come forward

with a showing that the proof of guilt is evident or the presumption

is great.” State v. Arthur, 390 So. 2d 717, 720 (Fla. 1980) (emphasis

added). In my view, the Fourth District Court of Appeal properly

interpreted this language as requiring that the trial court make the

“proof evident, presumption great” determination at an accused

person’s first appearance hearing. However, the majority attempts

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to lessen the import of Arthur by reasoning: “Because [this]

language . . . was written in response to the [certified] question of

whether the accused or the State has the burden of proof on the

issue of whether the proof of guilt is evident or the presumption is

great, its purpose was not to announce a particular timeframe . . . .”

Majority op. at 12. Such reasoning is insufficient to discount this

Court’s definitive statement in Arthur that the trial court must make

a “proof evident, presumption great” determination “before release

on bail pending trial can ever be denied.” Arthur, 390 So. 2d at 720.

Consequently, I dissent to today’s decision, which holds that a

defendant may be detained beyond first appearance without a trial

court making a preliminary “proof evident, presumption great”

determination. See majority op. at 9, 18.

Florida Rule of Criminal Procedure 3.130(d) requires that at

first appearance, “[t]he judge shall proceed to determine conditions

of [pretrial] release pursuant to rule 3.131.” (Emphasis added.) In

a case involving a capital offense or an offense punishable by life

imprisonment, it is incumbent upon the trial court to determine

whether the proof of guilt is evident or the presumption is great

because the accused person’s conditions of pretrial release cannot

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be determined in compliance with rule 3.130(d) without doing so.

Despite the majority’s suggestion that it is impractical for a

court to make a “proof evident, presumption great” determination at

first appearance, a preliminary determination is not typically as

labor intensive as the majority suggests. As observed by the Fourth

District Court of Appeal in Gray 15 and Ysaza, 16 the determination

may be made by reviewing a probable cause affidavit. Because only

capital offenses and offenses punishable by life imprisonment are

implicated by the “proof evident, presumption great” standard, a

probable cause affidavit usually contains sufficient evidence to

permit the trial court to make a determination.

Thourtman’s case illustrates the importance of making a

“proof evident, presumption great” determination at first

appearance. Thourtman was accused of committing armed

robbery, an offense punishable by life imprisonment. Following his

first appearance, Thourtman was held without bond until his

arraignment three weeks later, at which time he requested an

15. Gray v. State, 257 So. 3d 477, 478 (Fla. 4th DCA 2018).

16. Ysaza v. State, 222 So. 3d 3, 6 (Fla. 4th DCA 2017).

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Arthur hearing that was held several days later. The trial court

concluded at the end of the Arthur hearing that the evidence of

robbery satisfied the “proof evident, presumption great” standard,

but it also concluded that there was insufficient evidence to support

the allegation that Thourtman used a firearm during the robbery.

Because the charge of robbery without a weapon is not punishable

by life imprisonment, the court was obligated to grant Thourtman

pretrial release.

Because a “proof evident, presumption great” determination at

first appearance is consistent with the liberty interest protected by

article I, section 14, of the Florida Constitution, I would approve the

decisions in Gray and Ysaza, and disapprove the Third District

Court of Appeal’s decision in Thourtman. 17 Respectfully, I dissent.

Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions

Third District – Case No. 3D18-2433

(Miami-Dade County)

Carlos J. Martinez, Public Defender, Maria E. Lauredo, Chief
Assistant Public Defender, and John Eddy Morrison, Assistant
Public Defender, Eleventh Judicial Circuit, Miami, Florida,

17. Thourtman v. Junior, 275 So. 3d 726 (Fla. 3d DCA 2019).

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 for Petitioner

Ashley Moody, Attorney General, Tallahassee, Florida, Michael
Mervine, Bureau Chief, Magaly Rodriguez and Asad Ali, Assistant
Attorneys General, Miami, Florida,

for Respondent, State of Florida

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