Selph v. State

Full title: EDWARD SELPH, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fourth District

Date published: Dec 6, 1989

553 So. 2d 344 (Fla. Dist. Ct. App. 1989)

Opinion

No. 89-0779.

December 6, 1989.

Appeal from the Circuit Court for St. Lucie County, Marc A. Cianca, J.

Kendall J. Phillips of Phillips Gale, P.A., Fort Pierce, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee.

GARRETT, Judge.

AFFIRMED. Appellant seeks review of the trial court's revocation of the bail posted during appeal of his capital felony conviction for sexual battery of a child eleven years of age or younger.

In November of 1987, relying on Nussdorf v. State, 495 So.2d 819 (Fla. 4th DCA 1986), rev. denied, 503 So.2d 328 (Fla. 1987), the trial court set bail which led to appellant's postconviction release. In December of 1988, the Florida Supreme Court in Batie v. State, 534 So.2d 694 (Fla. 1988), disapproved of Nussdorf and held that "it was the intent of the legislature and (the) court to deny postconviction bail to a person convicted of sexual battery upon a child of the age of eleven years or younger." In January of 1989, the trial court granted the state's motion to revoke appellant's bond.

We reject appellant's argument that Batie should not be applied retroactively. Lowry v. Parole and Probation Commission, 473 So.2d 1248 (Fla. 1985). Nor are we persuaded that appellant's financially detrimental reliance upon the original bail order should preclude revocation. Whatever the cost, appellant was compensated with fourteen months of unwarranted "freedom."

ANSTEAD, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge, dissenting.

I would reverse the trial court's revocation of the defendant's post-conviction bond and remand with direction to reinstate same.

In my view, both of appellant's arguments have merit. First, he justifiably relied upon Nussdorf v. State, 495 So.2d 819 (Fla. 4th DCA 1986), rev. denied, 503 So.2d 328 (Fla. 1987), and committed financial resources which otherwise would have been available to him for other post-conviction legal assistance; thus Batie v. State, 534 So.2d 694 (Fla. 1988), disapproving Nussdorf should not be applied retroactively to revoke his bond. Second, the state failed to seek judicial review of the granting of bond based upon Nussdorf; thus its motion some fourteen months later to revoke the bond is untimely and should not be allowed to disturb an otherwise final legal conclusion that appellant was entitled to bond.