In Florida, with the exception of capital felonies, a defendant is entitled to a bond upon arrest. However, such a bond can be revoked and modified or set a "no bond" if the defendant violates the conditions of the original bond.
The most common event that results in a bond being revoked is a new arrest. A condition of any release on bond by statute is that the defendant “refrain from criminal acivity of any kind.” Because this condition of release is imposed by statute, it is not required that the defendant be specifically told this at first appearance or that it be in any order related to the bond or pretrial release. This is because all citizens are notice not to engage in criminal activity.
When a defendant out of jail on bond is arrested on a new offense, assuming it is not a capital felony or other offense for which “no bond” would be imposed at first appearance, he or she will get a bond a first appearance. The first appearance judge may or may not know that the defendant is out on bond depending on the information available to the judge. If the judge knows that the defendant is already out on bond, that may be considered in establishing a bond for the new offense. In other words, expect the judge to set a higher bond than otherwise would be set if everything else were the same.
If the defendant makes bond on the new offense, not all is well. The judge over the original offense – on his or her own or by motion of the state attorney – may revoke the previous bond. A common scenario occurs: a defendant out on bond gets arrested a new offense and makes bond. At the next court hearing for the original offense, the state attorney informs the court of the new arrest. The court takes judicial notice of the arresting affidavit for the new offense and, after hearing from the defendant, revokes the bond on the original case and the defendant is taken into custody immediately from the courtroom. This creates a legal dilemma with respect to jail credit because the defendant is technically still out on bond for the new offense unless the defendant voluntarily asks the court to revoke that bond.
So what is the best strategy for a defendant who is arrested for a new offense to remain out on bond for both offenses? First, it is dangerous for the defendant to make bond on the new offense without speaking to his or her attorney on the original offense and discussing the likelihood that the original bond will be revoked by the court. To make bond may only mean that a lot of money was spent for a few days of freedom. Second, the defendant needs to consider how the new arrest impacts any negotiations in the original case. For example, a state attorney may be considering probation up and until the new arrest occurs. Now the state attorney wants jail or prison time. Fighting to remain out of bond may only delay the inevitable (jail or prison time) and staying in jail earns day for day credit. Third, if the defendant does not post bond and requests the original bond be revoked (to get credit for that case for time in jail), the state attorney and the court may consider such action an expression of acceptance of responsibility during sentencing, resulting in a lesser sentence.
Every case is unique and every defendant is unique. There are a variety of factors that must be considered before a defendant posts a bond for a new arrest while out on bond.
Attorney Patrick Korody is a former state, federal, and military prosecutor. He has been practicing criminal defense in and around Jacksonville, Florida (Duval County) since 2015, when he left active duty in the U.S. Navy Judge Advocate Generals Corps (JAG).