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Court Abuses Discretion by Denying Bond Despite Satisfied Nebbia Requirements
If you think making people who haven’t yet been convicted of a crime pay substantial sums of money to ensure their liberty while they fight for their rights is wrong, you may be shocked to learn the wrong doesn’t stop there. Anyone in the legal system can erode the foundation of our country’s principles when they try to undermine the rule of law. The following case from the 3rd District Court of Appeal illustrates what happens when the Court strays from the rules as articulated by the rules of criminal procedure.
In Jenkins v. State (3rd DCA 2024), the Florida appellate court granted a petition for writ of habeas corpus after finding the trial court abused its discretion by continuing to enforce a Nebbia (U.S. v. Nebbia, 357 F. 2d 303 (2d Cir. 1966) hold—even after the defendant had met the legal standard.
Below you will find an explanation of Florida’s pretrial release framework, a summary of a concept called a Nebbia hold (most frequently used in drug and RICO cases), and a recent case which discusses the rules applicable to both.
Florida Pretrial Release and Nebbia Explained
To understand the ruling in this case, you need to know the rules of pretrial release in Florida. This first thing to know is Florida Rule of Criminal Procedure 3.131(a) which states the following:
“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.” (emphasis added).
Following this rule is a second step –
unless the State has filed a motion for pretrial detention (which it did not in Jenkins’ case), the trial court shall impose one or more of a list of release conditions that are reasonably calculated to assure his presence at trial. Fla. R. Crim. P. 3.131(b)(1)
Then assuming the Defendant meets the criteria for pretrial release, Courts may recognize the law from Nebbia – where a defendant posts bail or an appearance bond in cash, section 903.046(2), Florida Statutes (2024), authorizes the court to inquire into “the source of funds used to post bail” to ensure defendant’s appearance
That statute placed the burden on the Defendant (arguably) to show that the funds used to post the appearance bond were legitimate and not derived from illegal activities. The ability to pay the promissory note – is not relevant to the Nebbia analysis.
Jenkins Case
Jenkins was charged with multiple felonies for allegedly attempting to defraud an elderly individual. His bond was initially set at $45,000 with a Nebbia hold, later reduced to $24,000. Jenkins’ mother, Ms. Kelly, paid the 10% bond premium ($2,400) from her Social Security income and savings. Because of the Nebbia hold, the bond was not processed until a Nebbia package was submitted, documenting the source of the funds and including a promissory note and indemnity agreement with the bail company, Sunshine State Bail Bonds (SSBB).
Despite several hearings and affidavits showing the funds were legitimate, the trial court refused to lift the Nebbia hold. The court reasoned that Ms. Kelly lacked the ability to repay the promissory note and questioned the bond company’s credibility for posting bail without collateral, suggesting “potential fraud.”
The appellate court disagreed. It held that Nebbia analysis is limited to ensuring the funds used for bail are not tied to illicit activity. Ms. Kelly had demonstrated that the funds were legitimate, satisfying Nebbia requirements. The trial court improperly conflated concerns over Ms. Kelly’s financial hardship and the bond company’s risk tolerance with the statutory and constitutional standards for pretrial release.
Importantly, the court emphasized that indigency or lack of collateral does not justify denying pretrial release where legitimate funds are used and the surety has accepted responsibility for ensuring the defendant’s appearance. The appellate court ordered Jenkins’ immediate release, affirming the foundational principle that pretrial release must be based on reasonable conditions, not financial ability alone.
Due Process and Bond
The Florida statutes and the rules of criminal procedure lay out the criteria of how bonds should be calculated and factors to be considered. When prosecutors and Judges overstep the bounds of the law as written by the Florida legislature or as articulated by the DCA or Florida Supreme Court, they frequently get into hot water. It’s already an uphill battle ensuring that the rights of all people are protected, and not everyone gets the result of Jenkins.
A trial court may not use financial hardship or distrust of a bonding company to override a defendant’s right to pretrial release once the Nebbia requirement is met. The legitimacy of bail funds—not the ability to repay a promissory note—is the controlling factor. Hopefully this rule will be followed by all Florida Courts, and we never need to see this kind of error happen again.
For more about Bond, or Pretrial Release, click here.
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