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Nebbia Holds

In state court, the judge at first appearance can add a condition to bond known as a "Nebbia Hold" (sometimes called the "Nebia Hold," "Nebbia requirement," or "Bail Source Hearing"). A Nebbia hold allows the court to inquire into the source of the funds used for the bond. The problem with a Nebbia Hold is that it can delay a person being released from custody. An experienced criminal defense attorney can make sure that the Nebbia Hold does not delay a person's release.

In Casiano v. State, 2D17-4150, --- So.3d ----, 2018 WL 844053, at *2 (Fla. 2d DCA Feb. 14, 2018), the court found that under Art. I, § 14, Fla. Const., Florida courts lack authority to detain a person accused of a crime for the purpose of inquiring into the source of funds used to post bail when the state had not filed a motion for pre-trial detention. The court also held that such inquiry “is for the purpose of ascertaining whether the bail set is sufficient to secure the defendant's appearance, not to deny him pretrial release.” Id. (citing Parrino v. Bradshaw, 972 So.2d 960, 962 (Fla. 4th DCA 2007).

The Casiano decision noted the "increasing frequency" of placing so-called “Nebbia holds” after setting bond at first appearance hearings. The case promises to end the practice of routinely detaining people for the so-called "Nebbia Hold."

Under this new decision, the criminal defense attorney must object if the State Attorney's Office does not file the proper motion for pretrial detention under the rules of criminal procedure. If the court then details the accused pursuant to Nebbia, the criminal defense attorney should file a petition for a writ of habeas corpus which is often decided on an emergency basis within a matter of days.


What is the so-called "Nebbia Hold"?

In many of the cases, the defendant and co-signers of the bond (his friend or family member) will be asked to produce and disclose the source of bail premium and collateral prior to the defendant's release on bail. As a practical matter, if a bail bond company will be used then all that is usually required is a letter from the bail bond company explaining the source of funds and that the company is ready to post the full amount.

If the state does not immediately agree to a stipulation, then the criminal defense attorney files the appropriate motion to lift the Nebbia hold and schedules the hearing. The agent for the bail bond company usually comes to court with the letter and is prepared to testify at the hearing. The criminal defense attorney will often file a motion to reduce the bond amount in conjunction with the motion to lift the Nebbia hold.

The legal premise for the Nebbia holds are based on the decision in U.S. v. Nebbia, 357 F.2d 303 (2d Cir.1966). In Florida, both rule and statute authorize a similar type of hearing. Section 903.046(2) authorizes the court to inquire into "the source of funds used to post bail" as well as into any other facts, to ensure the defendant's appearance in court.

Furthermore, Florida Rule of Criminal Procedure 3.130(d) requires the first appearance court to determine the issue of pretrial release pursuant to rule 3.131. Specifically, the trial court must decide "whether to release a defendant on bail or other conditions and what that bail or those conditions may be...." Fla. R.Crim. P. 3.131(b)(3). Under this rule, one factor to be considered is the "source of funds" used to post bail.

During the Nebbia hearing, the defendant must show that the source of the bail premium and collateral are from a legitimate source and were not acquired through illegal activities, or from the profits of a crime such as drug trafficking, money laundering, theft or fraud. In state court, judges in counties throughout Florida, including Hillsborough County, Pinellas County, Pasco County, and Hernando County, now routinely imposing "Nebia Holds" in certain types of drug trafficking, fraud, and conspiracy cases.


How to Get the "Nebbia Hold" Lifted?

An experienced criminal defense attorney can quickly schedule the Nebbia Hearing. The criminal defense attorneys at the Sammis Law Firm filed a Proffer and Petition to Lift the Nebbia Order. If the prosecutor stipulates to the motion and proposed order, then the Nebbia hold can sometimes be lifted in a matter of hours. If the prosecutor refuses to stipulate, then an emergency Nebbia hearing must be scheduled with the judge for an emergency hearing.

The proffer is a written response to the Nebbia hold that outlines proof showing that the funds being used to pay the bond are from legitimate sources. In most cases, little documentation is required. Although rarely needed under the rules, the person posting the funds might be asked to include a copy of bank records, mortgage and real estate property records, income statements, and other financial records which trace the funds being used to pay the bond.


What information is needed at the Nebbia Hearing?

An experienced criminal defense attorney can help you present the necessary documents to the prosecutor and the court to lift the Nebia Hold when needed. When this is done properly, the prosecutor might agree to stipulate to the hold being lifted without a hearing. The stipulation can then be accepted with the court's permission.

In those cases, a joint stipulation order can be filed. If the prosecutor will not agree to the stipulation, then the hearing will take place. At the hearing, the criminal defense attorney will present evidence, including documents and testimony, to show the court that the source of the funds is legitimate.

A Nebbia Hold should never be used by the State Attorney's Office or by the Court to detain someone who has already posted bond.

At the Sammis Law Firm, in Tampa, FL, we can quickly help you avoid being detained based on a "nebbia hold." We can help you raise the proper objections at first appearance, file a petition for a writ of habeas if the court violates the rules, file a Nebbia Proffer and Notice of Hearing, or secure a stipulation from the prosecutor.


What if the funds for the bond premium or collateral have been borrowed?

There is nothing wrong with borrowing the funds when the loan will be repaid with legitimate funds.


Will the Defendant's friends or family have to testify?

Probably not. If the prosecutor does not stipulate to lifting the hold based on the proffer, then the person providing the funds could be asked to testify in very limited circumstances. In most cases, an experienced criminal defense attorney, well-versed on Nebbia requirements can make this process quick and simple and avoid unnecessary delays.

The bail bondsman is often the only person to testify and simply explains how the funds will be posted and why the source of the funds are legitimate.


Why is it called a Nebbia Hearing or a "Nebia Hold"?

For cases in state court, the reference to a "Nebbia" is perhaps technically imprecise but it refers to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), a federal case. For cases in state court, the term "Nebbia" refers to the source of funds inquiry referenced in rule 3.131(b)(3) and section 903.406(2)(f). Under Florida law, the inquiry is conducted under the rule and statute and not under the authority of Nebbia or the separate federal statute.

In United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), the court held that when a defendant posted $100,000.00 bail in cash, the trial court was permitted to ask questions about the source of the funds. The rationale behind the decision was that if the defendant had acquired the $100,000.00 through illegal activities such as trafficking drugs, fraud or theft, then the funds would create little incentive to return to court.

For this reason, the Nebbia decision applies to Federal Cases, however, the Florida State Courts have interpreted Florida Statutes and the Florida Rules of Criminal Procedure, specifically Section 903.046(2), and Rule 3.131(b) to authorize a court to question the source of funds used to post bail before release.

A motion for this hold can be requested by the prosecutor or arresting officer, or set by the court at first appearance court. In a court-initiated nebbia hold, the court can add the Nebbia hold condition to the arrest warrant, although Florida law is not well-settled on whether such a procedure is allowed under the law.


Court-Initiated Nebbia Holds in Florida

The Court is authorized to consider the source of funds used to post bail under both of the following provisions:

  • Fla. R. Crim. P. 3.131(b)(3) - “In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider . . . the source of funds used to post bail[.]”);
  • and Florida Statute § 903.046(2)(f), Fla. Stat. (“When determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court shall consider: . . . (f) The source of funds used to post bail or procure an appearance bond, particularly whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities.).

In State v. Felton, 25 Fla. L. Weekly Supp. 452a (12th Jud. Cir. Manatee County 2017), the defendant argued that a Court-initiated Nebbia hold is tantamount to a pretrial detention, which must be initiated by the State. The case involved a procedure used in Manatee County in which a judge signing a warrant for a sale of a controlled substance offense would routinely add a provision to the warrant that provided: “Court orders Nebbia hold/hearing prior to Defendant posting bond.” 

While the court agreed with the defense that in a true pretrial detention situation, Florida Rule of Criminal Procedure 3.132(a) expressly requires the State to initiate that request, the court disagreed that a court-initiated nebbia hold was a pretrial detention situation at all. The court found that it does "have the authority -- in the absence of a written request by the State -- to initiate a requirement to have a defendant demonstrate that the source of funds she or he will use to post bond are not derived from an illegal source."


Tampa Lawyers to Lift the Nebia Hold in Hillsborough County, FL

If you need to discuss a "Nebia Hold" pending against an individual arrested in Hillsborough County, Pinellas County, Pasco County, or Hernando County, then contact the attorneys at Sammis Law Firm for a free consultation at 813-250-0500 to discuss your case today.

We can help you understand the charges pending against you, the best way to request a reduction in the bond amount, and the best way to get the Nebbia Hold condition lifted without delay.


This article was last updated by on Friday, March 30, 2018.