Summary
In Castle v. State, 388 So.2d 583 (Fla.App. 1980), the court held that an appeal is in good faith and not frivolous if it "was not vexatious and the defendant has assigned errors open to debate and about which reasonable questions exist."
Summary of this case from State v. BlumOpinion
Nos. 80-354, 80-647.
August 13, 1980.
Appeal from Circuit Court, Orange County; Thomas E. Kirkland, Judge.
James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.
This appeal questions an order denying appellant bail following conviction. The conviction itself is on appeal and we have consolidated the two causes because review of a denial of stay pending review is by motion, not by separate appeal. Rule 9.140(e)(4) Fla.R.App.P.
On the merits, the motion addressed to the trial court did not allege any grounds upon which the court could have granted a stay. The defendant has the burden of showing to the trial court that his appeal following conviction is taken in good faith, on grounds not frivolous but fairly debatable. Rule 3.691, Fla.R.Crim.P.; Younghans v. State, 90 So.2d 308 (Fla. 1956); Baker v. State, 213 So.2d 285 (Fla. 4th DCA 1968). There was no such allegation or showing below.
Additionally, the defendant then has the burden of convincing the court that he will not flee and evade punishment if his conviction is affirmed, because even if he meets the first threshold, the trial court has the discretion to deny bail if the additional showing is not made. Younghans; Baker.
The motion for review is denied.
DAUKSCH, C.J., and COBB, J., concur.