Opinion
Delivered March 27, 1995
On October 31, 1994, we published a proposed Rule 36.5 relating to bail on appeal and set January 1, 1995, as the deadline for receiving comments from the bench and bar. On November 19, 1994, the Supreme Court Committee on Criminal Practice met and adopted a recommendation to amend the proposed rule by adding a new subsection which reads:
The circuit court in which the defendant was convicted shall retain jurisdiction to hear and decide any motion to revoke the bail of a defendant set at liberty pursuant to this rule, even if the record on appeal has been lodged with the Supreme Court or the Court of Appeals.
We adopt the new Rule 36.5, effective immediately. The amendment favored by the Criminal Practice Committee will become new subsection (d). The following subsections (now (d), (e), and (f)) will be appropriately redesignated (e), (f), and (g). This rule will supersede former Rules 36.5 through 36.8.
Reporter's Notes to Rule 36.5 (1995): In March 1994, the General Assembly enacted 1994 Ark. Acts 3, First Extraordinary Session. The act, which governed bail on appeal after conviction, was struck down by the Arkansas Supreme Court in Casement v. State, 318 Ark. 225 (1994), the Court having found that the act conflicted with post-conviction appeal procedures established by rules of the Court.
Rule 36.5 is, in essence, Act 3, modified to eliminate the requirement that a defendant free on bail pending appeal surrender to the Arkansas Supreme Court upon the affirmance of his conviction. Under this rule the defendant is to surrender to the sheriff of the county in which the defendant was convicted.
The term "bail bond" in subsection (a) of the act has been replaced by "appeal bond" in subpart(a) of the rule. In addition, subpart (b)(1) of the rule, restating subsection (b)(1) of Act 3, has been modified to speak of filing "a notice of appeal" rather than "an appeal," it being reasonably clear that this was the intent of the Act 3's drafters.
Subpart (c)(1) of the rule, restating subsection (c)(1) of Act 3, has been amended to speak of the circuit court's granting an "appeal bond" rather than "the appeal." Guidelines for imposing conditions of release have been included.
Subpart (d) vests jurisdiction to hear revocation motions in the circuit court.
Subpart (e), restating subsection (d)(1) of Act 3, has been amended to speak of the trial court's granting "an appeal bond," not "an appeal." The rule contains no counterpart of subsection (d)(2) of the act, which was viewed as surplusage.
Finally, language clarifying the procedure to be followed by the Clerk of the Supreme Court and circuit clerks has been added.
Rule 36.5 will supersede A.R.Cr.P. 36.5 through 36.8.