Opinion
No. 66-257.
April 26, 1966.
Appeal from the Circuit Court for Dade County, Francis J. Christie, J.
Lurie Capuano, Miami, for appellant.
Earl Faircloth, Atty. Gen., Herbert P. Benn, First Asst. Atty. Gen., Richard E. Gerstein, State Atty., and I. Richard Jacobs, Asst. State Atty., for appellee.
Before HENDRY, C.J., and PEARSON and SWANN, JJ.
This is an appeal from an order denying a petition for writ of habeas corpus and remanding the petitioner, Robert Wilbur Ball, to the custody of the Sheriff of Dade County, Florida.
The petitioner, essentially, desires to be released on bond pending his trial on charges of the first degree murder of his wife, Regina Ball, and one Daniel D. Nash. His petition is grounded on Section 9, Declaration of Rights, Constitution of Florida, F.S.A., which provides:
"All persons shall be bailable by sufficient sureties, except for capital offences where the proof is evident or the presumption great."
The petitioner contends that he shot and killed the parties in self defense after Nash had shot him twice. After a full evidentiary hearing, the trial court found that the proof was evident and the presumption great as to the guilt of the petitioner.
We have carefully reviewed the transcript of record and the briefs, and have heard oral argument of counsel. The petitioner having been charged with a capital offense is entitled to a speedy hearing, but the burden is on him to take the initiative and show from the evidence that the proof of his guilt is not "evident or the presumption great." Larkin v. State, Fla. 1951, 51 So.2d 185. He failed to carry this burden, and we therefore find that the trial court was correct in denying his application for bail.
The order of the trial court is
Affirmed.