Hold On – What is a Nebbia Hold in Florida?

One of the integral parts of the arrest process in Florida is the bond process, in which a defendant may post a certain amount of money with the court in exchange for being released from custody until trial. However, the state may complicate that process with certain procedures and hurdles that only an experienced attorney can navigate. Following is a discussion of the Nebbia Hold and how it may affect you if you are in custody in Florida.

Basics

The US Constitution guarantees those in police custody the right to be free from excessive bail under the Eighth Amendment, which was adopted in 1791:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The Excessive Bail Clause was patterned after a similar passage in the English Bill of Rights, which was adopted almost a century earlier. Prior to 1689, sheriffs set bail for criminal suspects, but that process was fraught with abuse. The power to set bail was eventually given to judges, but those judges also abused the process by failing to set bail for crimes that were eligible for it, or by setting bail to an impossibly high amount.

Florida Bail Statute

Although there is some debate as to whether the Excessive Bail Clause has been incorporated to the individual states, Florida has its own statute that defines the bail system. The Florida bail statute sets forth the conditions the courts shall consider, which are

• The nature and circumstances of the charged offense,
• The weight of the evidence against the defendant,
• The defendant’s ties to the community,
• The defendant’s past conduct, including convictions and flights from prosecution,
• The probable danger to the community if the defendant is released,
• The source of funds from which the bail amount may be met,
• Whether the defendant is already out on bail for another charge,
• The street value of any drug or controlled substance in the defendant’s possession upon arrest,
• The potential danger to victims,
• Whether there is reason to believe that the defendant committed other crimes while on bail,
• Any other facts that the court deems relevant,
• Whether the defendant is potentially subject to enhanced punishment, and
• Whether the defendant is a registered sex offender.

Nebbia Bond Hold

In some cases, law enforcement or the judge him/herself may pursue a Nebbia Bond Hold. A Nebbia Bond Hold is the product of the US Supreme Court ruling in U.S. v. Nebbia, 357 F.2d 303 (2d Cir.1966), in which the Court found that the trial court may inquire into the source of funds used to post bail.

In effect, the Nebbia hold shifts the burden of proof to the defendant to show that the source of funds to go towards the bail premium and collateral were obtained by legitimate means and not by crime. Nebbia holds are commonly placed on defendants who are charged with drug trafficking, conspiracy, and fraud cases.

Prior to 2018, Nebbia holds were widely used in such cases, placing an onerous burden on many defendants in state custody. However, thanks to the decision in Casiano v. State, 241 So. 3d 219 (Fla. 2d DCA 2018), the court may not determine the source of bail funds unless the state filed a motion for pre-trial detention. In such a case, the defendant may object to a Nebbia hold if the state did not make such a motion, and if the court does not lift the Nebbia hold, the defendant may then file a writ of habeaus corpus and obtain an emergency hearing on the issue.