Opinion
No. 7113
Decided May 12, 1975
1. Given the fact that the record of the testimony at a relatively short hearing on the question of post-conviction bail had not been transcribed three months after defendant had paid the transcription costs, and accepting defendant's allegation that he would not engage in serious misconduct if released on bail and considering his conduct while on pretrial bail, the supreme court ordered that, upon the furnishing of bail to the superior court, defendant is to be released forthwith from his incarceration in State prison during the pendency of his appeal so as to provide him with an opportunity for a meaningful appeal before he becomes eligible for parole in July 1975.
Warren B. Rudman, attorney general, and Gregory H. Smith, assistant attorney general (Mr. Smith orally), for the State.
Smith, Welts Currier and Richard E. Boyer (Mr. Boyer orally) for the defendant.
MEMORANDUM OPINION
Defendant was convicted of aggravated assault by a jury and sentenced on December 4, 1974, to no more than three years and not less than one year and one day in State prison. Defendant filed a reserved case seeking the transfer to this court of his exceptions taken during the trial. On December 9, 1974, he filed a motion to stay execution of his sentence and for release on bail pending his appeal. This motion was heard and denied on December 13, 1974. On January 2, 1975, defendant filed a petition in this court for a review under RSA 490:4 (Supp. 1973) of this denial of bail and seeking a transfer to this court of the transcript of the December 13, 1974 hearing for that purpose. On January 2, 1975, this court issued an order that pleadings be filed by the parties on or before January 16, 1975.
Defendant's petition was heard by this court on May 7, 1975. Although defendant paid on February 13, 1975, the required costs of transcription in the amount of $150, the record of the testimony at the relatively short December 13, 1974 hearing has not yet reached this court. Given that fact and accepting defendant's allegation that he will not engage in serious misconduct if released on bail, and considering also his conduct while on bail prior to trial, the court makes the following order so as to provide defendant with an opportunity for a meaningful appeal before he becomes eligible for parole in July 1975. This order is made without reference to the trial court's initial exercise of discretion so as to provide the defendant with an opportunity for a meaningful appeal. See State v. Booton, 114 N.H. 152, 317 A.2d 18 (1974); ABA Standards, Criminal Appeals 2.5 (Approved Draft, 1970).
Upon the furnishing of bail by defendant to the superior court in the amount of $2,000, which is double the amount of the pretrial bail, defendant is to be released forthwith from his incarceration in State prison during the pendency of his appeal.
So ordered.