After the Nebbia Hold was granted by Judge Riva, the Defendant’s attorney effectively filed an emergency appeal known as a writ of habeas corpus to have the higher court reverse her decision, which ultimately allowed the Defendant the ability to post bond and be released from custody.
The Sarasota case originated when the Defendant was arrested and charged with battery and possession of heroin. When he appeared at his advisory hearing, or “first appearance” hearing, the presiding judge set a bond of $2500 for the battery charge, and a $10,000 bond on the heroin charge, for a total of $12,500. The prosecutor, Austin Eason, was successful in having the judge place what is called a “Nebbia Hold” on the Defendant as well, which complicated his ability to be released from jail. A Nebbia Hold, which I have attempted to explain in greater detail in a previous post, requires the person in custody to establish that the funds used to post bond are not obtained from illegal or fraudulent sources.
Several days after the first appearance, the Defendant’s attorney, Aaron Getty, filed a motion to lift the Nebbia Hold. At that hearing, Mr. Getty called the Defendant’s girlfriend as a witness, who testified that she was hiring a bail bondsman to post the bond, and that she was going to pay the ten percent bondsman’s fee, $1250, with her own money. Since the bondsman was willing to work with payments, she only needed $500 to bond him out. The girlfriend further testified that she was gainfully employed, and that she had a bank account and savings.
Despite what seemed to be a complete and proper defense for lifting the Nebbia Hold, Judge Riva refused, ruling that the witness did not provide the court with actual bank records or pay stubs to establish her income. The Judge did not cite any case law for her ruling, and because of this, the Defendant remained in custody, unable to bond out of the Sarasota county jail.
Attorney Getty immediately filed a writ of habeas corpus to challenge this ruling with the Second District Court of Appeals, which has jurisdiction on Sarasota felony cases. Mr. Getty was absolutely correct that actual documentation of the sources of income is not required to lift a Nebbia Hold. He provided the court during the Nebbia hearing with an actual witness, who testified under penalties of perjury regarding her sources of income. By testifying, she made herself available for cross examination. The prosecutor for the State Attorney’s Office did not ask her a single question during the Nebbia hearing.
The Second District ruled in Mr. Getty’s favor almost immediately after the writ was filed, striking Judge Riva’s ruling. The Court found no basis to sustain the Nebbia Hold, given the facts and testimony. The Nebbia Hold was lifted against the Defendant.
The Twelfth Judicial Circuit, comprised of Sarasota, Manatee and Desoto counties, has seen a large increase in the use of Nebbia Holds since I first arrived here in 1996. Over the past several years it has become increasingly common for the State Attorney’s Office to ask for these Nebbia Holds, and for the courts to grant these requests. Because of this, a person who is in custody needs to know what his or her rights are regarding bond. If you should have any questions about Nebbia Holds, bond hearings, or your case in general, please call me at 941 954-5333 for a free no obligation consultation.
