TERRELL, Acting Chief Justice.
Appellant was tried and convicted for rape. The jury recommended mercy and he was sentenced to fifteen years in the State penitentiary. He took an appeal to this court and applied to the trial court for supersedeas bond pending appeal. His application was denied. We are confronted with an application under Rule 35, Rules of Practice in Supreme Court, 30 F.S.A., to review the trial judge's order and grant appellant supersedeas bond pending his appeal.
Since rape is a capital offense not bailable under the law of this State, the point with which we are confronted is whether or not one convicted of rape is entitled to bail pending appeal despite the fact that he was recommended to mercy and sentenced to fifteen years in the State penitentiary.
Section 9, Declaration of Rights, Constitution of Florida, F.S.A., provides that "All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great." Since appellant was tried and convicted and the evidence is not yet before us, we are not now concerned with whether the "proof is evident or the presumption great." This inquiry will be directed solely to the question of whether the recommendation to mercy and sentence to fifteen years in the State penitentiary makes a capital offense bailable in view of Section 9, Declaration of Rights.
In Ex parte Lamb, 89 Fla. 481, 104 So. 855, 8 C.J.S., Bail, § 36, page 72; 77 A.L.R. 1236, this court held that a verdict of murder in the first degree, with recommendation to mercy which automatically carries life imprisonment does not entitle the accused to bail pending appeal. Such is the rule approved in this State and it is the rule generally approved throughout the country. 8 C.J.S., Bail, § 36, page 71; 6 Am.Jur. 83. This rule is not universal because some jurisdictions hold that one convicted of a capital offense with recommendation to mercy and sentence to life imprisonment or for a lesser term of years, is entitled to bail pending appeal. Walker v. State, 137 Ark. 402, 209 S.W. 86, 3 A.L.R. 968; 6 Am.Jur., 83; 8 C.J.S., Bail, § 36, page 72. Even in capital cases where the proof is not evident and the presumption of guilt not great, bail should be allowed. Ex parte Tully, 70 Fla. 1, 66 So. 296.
Ex parte Lamb and Walker v. State, previously cited, are typical of the two views in the country as to bail, pending appeal in capital cases. Ex parte Berry, 198 Wn. 317, 88 P.2d 427, also contains a very interesting discussion of the question. So does State v. Christensen, 165 Kan. 585, 195 P.2d 592. While these cases expound both lines of decision and reveal the conflict of authority, they also recognize authority to the effect that when one is convicted of a capital offense with recommendation to mercy and less than the death penalty is imposed, whether or not the accused should be admitted to bail pending appeal is within the sound discretion of the court depending on the facts of the particular case.
We think the latter rule may be applied to this case. It is at least not governed by the Lamb case because the court was authorized to reduce the penalty within his discretion and did in fact reduce it to fifteen years on the strength of the unanimous recommendation to mercy. That is less time than may be given for manslaughter and some other felonies, all of which are bailable. There must have been extenuating circumstances else the trial court would not have reduced what might have been life imprisonment to fifteen years. Not only that, the co-defendant plead guilty to an offense less than capital and was given ten years, the maximum penalty though the trial court thought each was equally guilty. In view of these considerations we think bail pending appeal should have been granted.
The request for bail is accordingly granted and the cause is remanded to the trial court to fix the amount and conditions of the bond.
It is so ordered.
CHAPMAN, ADAMS and ROBERTS, JJ., concur.
HOBSON, J., and LEWIS, Associate Justice, dissent.
HOBSON, Justice (dissenting).
I agree with the statement made by Mr. Justice TERRELL that the question of whether or not Clyde Gray should have been admitted to bail pending appeal is one which rests within the sound judicial discretion of the Court. It appears from this record that a motion for supersedeas bond was filed before the trial judge, Honorable Hal W. Adams, who entered an order denying said motion. In his order the learned Circuit Judge stated: " Under the circumstances of this case, taken in connection with the law, as the court understands it and applicable to cases of this nature as regards bail, the Court is of the opinion that the motion to fix amount and allow supersedeas bond to the Defendant, Gray, should be, and the same is hereby denied."
It is my conclusion that the trial judge exercised his discretion and denied the motion for supersedeas bond. Upon the present application to this Court I am of the opinion that the question for our determination is whether the trial judge in denying the motion for supersedeas bond abused his sound judicial discretion. I am not inclined to answer this question in the affirmative. Nor can I bring myself to the point of agreeing with the conclusion reached by the majority opinion to the effect "There must have been extenuating circumstances * * *." It is my view that the trial judge was in a better position to consider all the circumstances, including "extenuating circumstances," than is this Court. The movant, Clyde Gray, has failed to demonstrate clearly, or at all, that the trial judge abused his sound judicial discretion.
I am, therefore, forced to dissent.
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