Yes, a trial court has discretion to consider releasing a defendant on bail following conviction and pending sentencing. Florida Rule of Criminal Procedure 3.550 expressly allows this: “If the defendant is at large on bail, the defendant may be taken into custody and committed to the proper official or remain at liberty on the same or additional bail as the court may direct.” After conviction, release on bond pending sentencing is not a matter of right but is discretionary with the court. The Kraft v. State, 156 So.3d 1116 (Fla. 4th DCA 2015) case recognizes that this is allowed. This is different than seeking bail on appeal, which has a much higher standard.

Florida Statute 903.133 sets forth the offenses which makes a defendant ineligible for an appeal bond, also known as a supersedeas bond. In 2020, the legislature made it stricter and prohibited convicted defendants from obtaining an appeal bond if 1) the offense required sexual offender or predator registration; and 2) the offender was over 18 and the victim was a minor. So there is no bond on appeal for those charged with lewd molestation, lewd conduct, or lewd battery offenses involving a minor if the offender is an adult.

Consideration of a defendant’s lack of remorse used to be prohibited in Florida criminal courts. This was prohibited because this was deemed a due process violation, as well as a violation of a defendant’s Fifth Amendment right to remain silent. Mr. Forman has successfully overturned sentencing in criminal appeals when this occurred in the past, but things have changed.

In a dramatic shift, the Florida Supreme Court ruled earlier this month in Davis v. State, 2021 WL 5710820 (Fla. 2021), that a trial judge can impose a harsher sentence if a defendant fails to show remorse. The Court held “when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility. ”

This ruling will have a chilling effect on whether a defendant testifies at sentencing. Criminal defense lawyers now have to choose between having their client remain silent at sentencing unless they are going to admit guilt and apologize. Other considerations must now be considered. Will the Florida Supreme Court expand this ruling to also include testimony at trial? What happens if a defendant appeals and prevails, can this admission be used at trial? This certainly is not the last we hear on this issue.