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BENCH MEMORANDUM
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MATTER—The Meaning of “Punishable”

AUTHOR—Hon. William H. Burgess, III
DATE—September 15, 2020
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This memorandum sets forth the law regarding the meaning of “punishable by life
imprisonment” in relation to the right of pretrial release under Florida Rule of
Criminal Procedure 3.131(a).
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Florida Rule of Criminal Procedure 3.131(a) provides in relevant part that “Unless
charged with a capital offense or an offense punishable by life imprisonment and the proof of
guilt is evident or the presumption is great, every person charged with a crime or violation of
municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.”1 If
the defendant is charged with a capital offense or an offense punishable by life imprisonment, the
State must establish at a hearing that the proof of guilt is evident or that the presumption of guilt
is great in order to deny pretrial bail.2 The trial court has the discretion, upon a finding of
probable cause that the defendant committed a capital offense or an offense punishable by life
imprisonment, to defer ruling on bail and to detain the defendant for a reasonable time to conduct
a full bond hearing: To exercise such discretion, the court is not required to make a preliminary
finding of “proof evident, presumption great.”3 If the State fails to satisfy that burden, bail must
be granted. Even if the State meets its burden, the court has the discretion to admit the defendant
to bail.4 The rule does not define either “capital offense” or “offense punishable by life
imprisonment,” but the meanings of those expressions can be derived from other sources.

Historically, a “capital” offense was a crime for which the guilty offender could be
executed. In the wake of Furman v. Georgia,5 and other decisions, which held that, at least under
existing statutes, capital punishment had been abolished generally or as to certain crimes such as
rape, the Florida legislature and state courts were forced to decide whether procedural rules

1
Fla. R. Crim. P. 3.131(a). This portion of the rule is a verbatim recitation of the first sentence of Article I,
Section 14, of the Florida Constitution.
2
State v. Arthur, 390 So. 2d 717 (Fla. 1980).
3
Thourtman v. Junior, 275 So. 726, 739 (Fla. 3d DCA 2019).
4
State v. Arthur, 390 So. 2d 717 (Fla. 1980).
5
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 272, 633 L. Ed. 2d 346 (1972).
referring to capital offenses were still in effect for offenses that were no longer punishable by
death. The line of reasoning followed in Florida has been the classification rationale, based on
the concept that “capital offenses” does not refer strictly to the punishment that may be imposed,
but encompasses a category of offenses that have been classified according to their gravity, so
that the classification as “capital” endures regardless of whether the death penalty can be
imposed. The results are that for purposes of sentencing, a capital offense is one where a
sentence of death is a possible penalty, whereas for purposes of entitlement to release, the
legislature’s classification of a crime as a “capital offense” controls even where death is not a
possible punishment.6

In determining whether an offense is “punishable by life imprisonment,” on the other

hand, Florida follows the traditional penalty rationale, as opposed to the classification rationale
used for capital offenses.

“Punishable” has been long understood to mean deserving of or capable or liable to

punishment; capable of being punished by law or right.7 If an offense may be punished by a
certain penalty, it is “punishable” by such penalty, although at the discretion of the court other
penalties may be imposed. Its meaning is not restricted to such an offense as must be so
punished.8 A crime thus is punishable by any punishment which the court is authorized by law

6
Batie v. State, 534 So. 2d 694 (Fla. 1988) (ineligibility for post-conviction bond); Florida Parole
Commission v. Criner, 642 So. 2d 51 (Fla. 1st DCA 1994) (parole release calculations). See also Rusaw v. State,
451 So. 2d 469 (Fla. 1984) (elimination of the death penalty does not cause an offense the legislature has designated
as capital to become a non-capital offense); State v. Hogan, 451 So. 2d 844, 845 (Fla. 1984) (sexual battery of a
child, while still defined as a capital crime by the legislature, is not capital in the sense that a defendant might be put
to death and does not require a 12-person jury).
7
Black’s L. Dict. 1234 (6th ed. 1990), citing People v. Superior Ct. of City & County San Francisco, 116
Cal. App. 412, 414, 2 P. 2d 843 (Ct. App. Cal. 1931). See also U.S. v. Guy, 47 F. 3d 425 (5th Cir. 1995)
(punishable” means capable of being punished); State v. Taylor, 151 Fla. 296, 297-298, 9 So. 2d 708 (Fla. 1942)
(“punishable” may be defined as capable of being punished by law or right); U.S. v. Parker, 19 F. Supp. 450, 456
(D.N.J. 1937) (the word “punishable” means possibly punishable); U.S. v. Evans, 28 App. D.C. 264 (Ct. App. D.C.
1906) (“punishable” means liable to punishment); Miller v. State, 58 Ga. 200, 203 (Ga. 1877) (“punishable” means
liable to be punished); Com. v. Pemberton, 118 Mass. 36 (Mass. 1875) (“punishable” means liable to punishment);
see also U.S. v. Nieves-Rivera, 961 F. 2d 15, 17 (1st Cir. 1992) (“punishable” in ordinary English simply means
“capable of being punished”); U.S. v. Denson, 588 F. 2d 1112, 1116 (5th Cir. 1979) (“punishable” means deserving
of, liable of, or capable of being punished by law or right). Where “punishable” has referred to the offender, it has
been held to mean liable to punishment or liable to be punished, and where the reference is to the offense the same
word has been held to be “may be punished.” People v. Superior Ct. of City & County San Francisco, 116 Cal. App.
412, 414, 2 P. 2d 843 (Ct. App. Cal. 1931).
8
John Houston Merrill, American & English Encyclopedia of Law, Vol. XIX (Northport, Long Island, New
York: Edward Thompson Co. 1892) 568. See also People ex rel. Miller v. Murphy, 185 Ill. 623, 626, 57 N.E. 820
(Ill. 1900) (“punishable” means, not must be so punished, but liable to be so punished, or may be so punished); In re
Mills, 135 U.S. 263, 268, 10 S. Ct. 762, 34 L. Ed. 107 (1890) (“punishable” embraces offenses which, although not
imperatively required by statute to be so punished, may, in the discretion of the court, be so punished); State v.
Neuner, 49 Conn. 232, 233 (Conn. 1881) (meaning of “punishable” is not “must be punished,” but “liable” to be so

The Meaning of “Punishable”

2 Hon. William H. Burgess, III (September 14, 2020)
or right in its discretion to impose. It is punished by the punishment actually imposed.9 The
expression “punishable by” is identical in meaning with “liable to punishment,” “capable of
being punished,” “which may be punished,” or other similar expressions.10 The category of
offenses “punishable by life imprisonment,” as that phrase is used in Rule 3.131(a), therefore
includes all charged crimes for which there is a possibility the defendant could receive a life
sentence upon conviction.

punished).
9
See U.S. v. Watkinds, 7 Sawy. 85, 6 F. 152 (D. Ore. 1881).
10
People v. Godding, 55 Colo. 579, 585, 136 P. 1011 (Colo. 1913) (the effect and intent of “punishable by,”
“liable to be punished,” or “may be punished” is practically the same). Similarly, the catch-all phrase “felony
punishable by life” includes both life felonies and first degree felonies punishable by life, since they both carry the
maximum penalty of life imprisonment. See Knight v. State, 808 So. 2d 210, 213 (Fla. 2002); Brown v. State, 830
So. 2d 835 (Fla. 1st DCA 1999).

The Meaning of “Punishable”

3 Hon. William H. Burgess, III (September 14, 2020)