Bail Pending a Criminal Appeal

What happens if you go to trial and the jury returns a guilty verdict? Can you post bail or a supersedeas bond pending the outcome of the appeal?

In state court, the court has the ability to immediately remand you into custody after a guilty verdict is announced. In other words, once you are convicted of a crime, you no longer have a constitutional right to release or bail as provided in Fla. R. Crim. P. 3.550.

Under Fla. R. Crim. P. 9.140(b)(3), the defendant may appeal the conviction and sentence within 30 days of rendition of the sentence by filing a “notice of appeal.”

If the notice of appeal is filed, then the court often has the discretion to release a convicted defendant on bail pending the outcome of a criminal appeal taken in “good faith.”

The issue is raised in a “Motion for Bail Pending Appellate Review,” “Motion for Post Trial Release Pending Appeal,” or “Motion to Set a Supersedeas Bond.”

Under Section 924.16, the court appealed from or a judge of the appellate court may order the defendant released on bail in cases that are bailable (often called the “supersedeas bond pending appeal”).

Likewise, under Section 924.17, if the state appeals after a conviction of the defendant, the judge of the appellate or trial court may, at his or her discretion, admit the defendant to bail.

In other words, after the appeal is taken by the Defendant, then Rule 3.691, Florida Rules of Criminal Procedure, gives the trial court and appellate court the discretion to release any person adjudicated guilty of the commission of any non-capital offense pending review of the conviction.

Attorney for Bail Pending a Criminal Appeal in Florida

After a guilty verdict at trial, contact an experienced criminal appellate attorney in Tampa, FL.

At Sammis Law Firm, our attorneys represent clients in direct appeals and post-conviction motions for relief.

Our offices are located in downtown Tampa. We have a second office located in New Port Richey, FL.

Immediately after the verdict, the criminal appellate attorney can file and litigate a motion for a bond pending the appeal and set a supersedeas bond.

Many of our cases are referred to us by criminal trial attorneys across the state of Florida.

Call 813-250-0500 today.

Requirements for Granting Release on Bail Pending Appeal

As provided by Fla. R. Crim. P. 3.691(a), to be granted bail pending a criminal appellate review, the defendant must demonstrate that the appeal is taken in good faith and on grounds fairly debatable, and not frivolous.

Rule 3.691 applies when a defendant has been convicted of a felony or a misdemeanor. See Dotson v. State, 764 So. 2d 6, 7 (Fla. 4th DCA 1999).

The trial court cannot hold the appellant to a higher standard. Childers v. State, 847 So. 2d 1120 (Fla. 1st DCA 2003).

If the court grants bail or supersedeas bond pending appellate review, the terms of bail must include that the defendant will:

  • Duly prosecute the appeal;
  • Surrender himself or herself if the conviction is affirmed on appeal; and
  • Appear in court if the conviction is reversed and a new trial is ordered.

No release of the defendant can be granted until the notice of appeal is filed as required by Fla. R. App. P. 9.140(h)(1).5.

If the defendant violates any condition of the bail requirements while the appeal is pending, it can result in the dismissal of the appeal as explained in Fla. Stat. § 924.20.6.

During the appeal, Fla. R. App. P. 9.600(h) provides that the trial court retains jurisdiction to consider matters relating to post-trial release under Fla. R. App. P. 9.140(h).

Any review of post-trial release orders must be made by written motion in the appellate court as required by Fla.R. App. P. 9.140(h)(4).

To determine whether bail pending appellate review should be granted, the court should consider various factors listed in Younghans v. State, 90 So. 2d 308 (Fla. 1956), including:

  • Any other factors indicating whether the defendant is a flight risk;
  • The defendant’s habits and community ties;
  • Any term of imprisonment imposed;
  • The severity of the punishment or temptation to flee; and
  • The defendant’s respect for the law.

Eligibility Criteria for Bail Pending a Criminal Appeal

As a general rule, Florida law permits bail pending appeal for a defendant convicted of certain non-capital offenses. Bail pending appeal is not permitted for capital offenses including first-degree murder and capital sexual battery.

Bail pending appeal is prohibited under Section 903.133, F.S., for a conviction of any of the following crimes;

  • Section 794.011(2), F.S. (sexual battery on a child under 12); or
  • Section 794.011(3), F.S. (sexual battery on a person 12 or over with the use of a deadly weapon or physical force likely to cause serious injury).

Under Florida law, to be eligible for bail pending a criminal appeal, the defendant must not have been convicted of a previous felony or have other felony charges pending, if probable cause has been shown that he or she committed the felony.

A court in Florida is prohibited from granting bail pending appellate review if:

  • The defendant was convicted of a previous felony and his or her rights have not been restored; or
  • Other felony charges are pending against the defendant and a court has found probable cause that the defendant committed the felony.

A court may not grant bail pending appellate review if the conviction is for:

  • Any specified drug offenses, including:
  • Arson – § 806.01
  • Kidnapping – § 787.01
  • Specified sexual battery offenses
  • Second degree felony murder
  • Second degree murder
  • Any first degree felony
  • Any specified life felony sexual battery offense
  • Any capital offense.

Effective October 1, 2020, CS/HB 333 expanded the list of offenses for which a conviction prohibits a court from granting bail to a defendant pending appeal to include any offense requiring registration as a sexual offender or sexual predator, if, at the time of the offense:

  • The defendant was 18 or older; and
  • The alleged victim was a minor child.

Therefore, in Florida, no bail pending appeal is permitted in a capital case if:

  • the person was “previously convicted of a felony” if:
    • the commission of that felony occurred prior to the commission of the subsequent felony; and
    • the person’s civil rights have not been restored
  • the person has pending other felony charges (and a probable cause determination has been made).

The rules for when the court can grant bail pending appeal can be found in Rule 3.691(a) and § 903.132(1), Florida Statutes.

Determinations at Hearing on the Motion for Bail Pending Appeal

Our attorneys can help you file and litigate a “Motion for Bond Pending Appeal” pursuant to Fla. R. Crim. P. 3.691.

The motion for bail pending appeal and any ruling on the motion must be in writing as required by FL R. Crim. P. 3.691(b).

At the hearing on the “Motion for Bond Pending Appeal” pursuant to Fla. R. Crim. P. 3.691, the court will consider the testimony and evidence presented and the factual information contained in the Pre-Sentence Investigation (PSI).

Being admitted to bail pending appeal is not a matter of right. Instead, the appellate bond issue is left to the discretion of the trial court.

Before determining the facts involving the necessary exercise of that judicial discretion, the Court must decide if the Defendant falls into one of the exceptions which mandate the exclusion of the Defendant from consideration for bail pending appeal.

The first exclusion applies if the Defendant was previously convicted of a felony at a time prior to the commission of the instant offense. FL. R. Crim. P. 3.691(a). The second exclusion applies if the Defendant has open felony charges.

The third exclusion applies if the conviction is for a capital offense or certain additional offenses listed in Florida Statute 903.133 which are listed above. If no exclusion applies, then the next inquiry involves whether, at the Court’s discretion, an appeal bond should be set.

The preliminary question to be answered is whether the defendant can establish that the appeal is taken in good faith, on grounds not frivolous, but fairly debatable.

The Fourth District Court of Appeal in Baker v. State, 213 So2d 285 (4th DCA 1998), reasoned that:

“good faith does not mean there is probable cause to believe the judgment will be rendered, but simply that the appeal is not vexatious and the Defendant has assigned error that are open to debate and about which reasonable questions exist.” Id. at 287.

If the Defendant establishes the appeal is not frivolous, then the Court must consider the following relevant factors:

  1. The habits of the individual as to respect for the law;
  2. The defendant’s local attendance to the community by way of family ties, business, or investments;
  3. The severity of the punishment imposed;
  4. Any other circumstances that would make the Defendant a flight risk.

If the motion is denied, the ruling might be appealed to a higher court. “Given that post-trial release is a discretionary matter, an appellate court’s review is limited to discerning whether the trial court’s exercise of discretion is arbitrary or capricious.” Baptiste v. State, 134 So. 3d 1025, 1026 (Fla. 4th DCA 2012).

What is a Supersedeas Bond to Stay the Sentence Pending Appeal?

The definition for “supersedeas” according to Black’s Law Dictionary is “[t]he name of a writ containing a command to stay the proceedings at law. . .”

The word “stay” is defined to mean:

The act of arresting a judicial proceeding by the order of a court. Also that which holds, restrains, or supports. A stay is a suspension of the case or some designated proceedings with it. . . .

Black’s Law Dictionary, Sixth Edition (West Publishing Company, 1990).

Setting an Appellate Bond in a Domestic Violence Case

Pursuant to F.S. 741.2901(3), the Florida legislature has stated that the following shall be considered in setting bond:

  • the defendant’s “prior arrests for domestic violence, prior arrests for non-domestic charges, prior injunctions for protection against domestic and repeat violence filed listing the defendant as respondent and noting the history of other victims, and prior walk-in domestic complaints filed against the defendant”; and
  • the safety of the victim and any other person who may be in danger if the defendant is released.

Pursuant to F.S. 741.2902, “(i)t is the intent of the Legislature with respect to domestic violence cases, that… the court shall consider the safety of the victim… and exercise caution in releasing the defendants.”

What if the Appeal is Taken by the Prosecuting Attorney?

If an appeal is taken by the State, then any incarcerated defendant charged with any bailable offense shall be released on own recognizance (ROR) pending appeal by State, unless the trial judge finds good cause. Fla. R. Crim. P. 3.691(h)(2).

An appeal by the State from an order granting a new trial stays the order. §924.19, Florida Statutes.

So if a defendant is adjudicated guilty of an offense not bailable upon appeal and granted a new trial by the trial judge, then the defendant remains ineligible for bail while the state pursues the appeal. State v. Jimenez, 508 So. 2d 1257 (Fla. 3d DCA 1987).

Pursuant to Fla. Stat. § 924.07(2), Florida law also provides for an automatic stay if the State appeals:

  • an order suppressing evidence or confession; or
  • an order dismissing the search warrant.

Criminal Appellate Bail in Federal Court

For cases tried in federal court, the rule regarding being granted a bail bond pending the appellate review is addressed in the Bail Reform Act of 1984.

The Bail Reform Act of 1984 provides that federal criminal defendants who want to remain free on bail after a conviction must show that their appeal will have enough merit to raise at least one “substantial question.”

This article was last updated on Friday, January 6, 2023.