BROWN, J.
On July 10,1972, Mary dander was found dead in her apartment. After an investigation had been conducted and an autopsy performed, it appeared that Mary dander had died as a result of blows to the heart and chest area, and that a fire had been set after she had suffered the blows. There was also evidence of robbery or theft.
On July 11, 1972, the police received a telephone call from the father of the plaintiff in error, Marvin Rohl, (the defendant) informing them that he believed Marvin and another son, Randall Rohl, were involved in the crime. The next day the police obtained a search warrant and searched Marvin and Randall’s residence. No evidence of the crime, however, was discovered. Shortly after the search, the police questioned Sue Nelson, -a friend of Marvin’s sister. She told the police that Marvin had shown her a bloody stick that was used to hit Mrs. Glander. She claimed that the stick was in Marvin’s bedroom closet. A subsequent search was conducted, but no stick was ever found. However, based on Sue Nelson’s statements of conversations that she allegedly had with Marvin and her statement that Marvin had shown her the stick, Marvin was arrested, and on July 29, 1972 charged with first-degree murder, arson, robbery and sexual perversion.
After the preliminary hearing, the sexual perversion count was dismissed, and the defendant was bound over for trial on the other three charges.
A trial was held beginning October 30, 1972, and on November 4, 1972, the jury returned verdicts of guilty of third-degree murder, arson and robbery. A motion for a new trial was made on December 2, 1972. The trial [27]*27court dismissed, the robbery charge, denied the motion for a new trial and entered a judgment of conviction on third-degree murder and arson. The defendant was sentenced to twenty (20) years on the third-degree murder charge and five (5) years on the arson charge, the sentences to run consecutively. The convictions were affirmed by the Wisconsin Supreme Court in Rohl v. State, 64 Wis.2d 443, 219 N.W.2d 385 (1974), rehearing denied, September 4, 1974.
On May 15, 1977, a petition for post-conviction relief was filed pursuant to sec. 974.06, Stats., which alleged that Sue Nelson had acknowledged committing perjury in her trial testimony. The motion was' accompanied by Miss Nelson’s sworn affidavit in which she admitted perjury in all material respects of her trial testimony. She asserted that she had taken a polygraph examination which confirmed the truth of her perjury admissions.
After the post-conviction motion was filed, the district attorney and the police department were ordered to give defense counsel access to all the records in the case. The defense counsel later learned that a silver flashlight found at the scene of the crime was the property of the victim, Mrs. Glander. Accordingly, on November 22, 1977, an amended petition was filed by the defendant alleging that exculpatory evidence had not been turned over to the defendant at trial, and that consequently the defendant had been denied his constitutional right to due process. The amended petition was later supplemented by an affidavit of Patrick J. Harlow, the assistant prosecutor in the defendant’s trial. The affidavit stated that Mr. Harlow knew prior to trial that the flashlight found at the scene and depicted in a photograph introduced at trial was the property of the victim, and had been returned to the victim’s son and daughter-in-law without ever being submitted to the Wisconsin State Crime Laboratory. This fact was never disclosed to the defendant.
[28]*28The defendant’s post-conviction motions, as amended, alleged that the State’s use of perjured testimony and its failure to produce exculpatory evidence had deprived the defendant of a fair trial and due process of law. Following a hearing to determine whether an evidentiary hearing was appropriate, the circuit court rejected the defendant’s request for an evidentiary hearing and denied the motions for post-conviction relief. The defendant is appealing from both the order denying an evidentiary hearing and the order denying the motion for a new trial.
The defendant has raised the following issues on appeal:
(1) Did the trial court err in denying the defendant a new trial based on the evidence in the record showing that the State had failed to produce exculpatory evidence at trial?
(2) Did the trial court err in denying the defendant an evidentiary hearing on whether the defendant was entitled to a new trial due to prosecutorial misconduct?
(8) Did the trial court err in denying the defendant an evidentiary hearing on whether the defendant’s conviction was based on perjured testimony?
FAILURE TO PRODUCE EXCULPATORY EVIDENCE
On a motion under sec. 974,06, Stats., the defendant has the burden of proving that he is entitled to relief. Sec. 974.06(6), Stats. The defendant is only entitled to relief if he can show by clear and convincing evidence, State v. Carlson, 48 Wis.2d 222, 230, 179 N.W.2d 851, 855 (1970) ; State v. Reppin, 35 Wis.2d 377, 385, 151 NW2d 9, 13 (1967), that the judgment was rendered without jurisdiction or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the [29]*29constitutional rights of the defendant as to render the judgment vulnerable to collateral attack, sec. 974.06(3) (d), Stats. In this case, the defendant has alleged that he is entitled to a new trial because there has been such a denial or infringement of a constitutional right that the judgment is vulnerable to collateral attack. He has alleged that prior to, during, and for six years after his trial the State failed to disclose exculpatory evidence material to guilt or innocence which resulted in a denial of a fair trial and due process of law under the fourteenth amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution. This allegation, if proven, entitles the defendant to a new trial under sec. 974.06(3) (d), Stats.
Suppression of evidence or information favorable to an accused has long been held to violate due process when the evidence is material to guilt or innocence, irrespective of the good faith or bad faith of the prosecution. Giglio v. United States, 405 U.S. 150, 154 (1972) ; Brady v. Maryland, 373 U.S. 83, 87 (1963) ; State v. Amundson, 69 Wis.2d 554, 577, 230 N.W.2d 775, 787 (1975) ; Nelson v. State, 59 Wis.2d 474, 479, 208 N.W.2d 410, 412 (1973). The exculpatory evidence, however, must be in the exclusive knowledge or control of the State before it will be considered suppressed. State v. Calhoun, 67 Wis.2d 204, 212-17, 226 N.W.2d 504, 507-10 (1975) ; Lampkins v. State, 51 Wis.2d 564, 575-76, 187 N.W.2d 164, 170 (1971) ; State v. Clarke, 49 Wis.2d 161, 179, 181 N.W.2d 355, 364 (1970).
Thus, the defendant is entitled to a new trial if he has shown by clear and convincing evidence that:
(1) the State failed to produce some evidence;
(2) the evidence not produced was in the sole knowledge or control of the State;
[30]*30(3) the evidence was favorable to the defendant; and
(4) the evidence was material to guilt or innocence.
The record and files in this case show the following. On the first day of trial, the State introduced several photographs of Mrs. dander’s apartment after she was found dead. One of the photographs introduced by the State was a picture of a dresser with the drawer open. The photograph showed that the contents of the dresser drawer had been ransacked, and on top of the contents in the drawer was a silver flashlight. Several days later, just before the State’s chief witness, Sue Nelson, took the stand to testify, the State asked that the pictures be given to the jury and circulated. Sue Nelson then took the stand and began testifying. She testified that at about 2 a.m. on July 10, 1972 she went over to the defendant’s home and met the defendant, his brother Randy and his sister Cindy. They met in the driveway and proceeded to walk to Washington Park across the street from Mrs. dander’s apartment.
The prosecutor then asked Sue Nelson the following questions:
Q. Do you recall if anybody was carrying anything?
A. Yes.
Q. And who was carrying something?
A. Randy.
Q. And what was he carrying if you recall?
A. A flashlight and a pole.
Q. And can you describe that flashlight for us ?
A. It was silver — that’s all I know.
She then testified that Marvin and Randy went across the street into Mrs. dander’s apartment. After they came out they returned to the park where she and Cindy were waiting. The prosecutor then asked her the following question:
Q. Sue, you testified before that on the way over to the park Randy was carrying a flashlight and a pole. [31]*31Did you see such, a flashlight after the defendant and his brother came from the dander house ?
A. No.
Later in her testimony, Sue testified that about four weeks before the trial, Mrs. Rosinsky, the defendant’s mother, had asked her to go back to Mrs. dander’s apartment and get the flashlight that Marvin and Randy had left there.
This testimony, together with the photograph which had been shown to the jury shortly before Sue’s testimony, created the strong inference that the flashlight depicted in the photograph was the flashlight Randy had allegedly carried into Mrs. dander’s apartment. The flashlight in the picture fit the description given by Sue Nelson. The flashlight in the picture was on top of the contents in the drawer. This inference was false, and even though the State knew it was false,1 the State remained silent and made no effort to correct or dispel the inference.
It was also clear throughout the trial that the defendant considered the ownership of the flashlight to be extremely important to his case.
From the beginning of the trial, the defendant attempted in vain to establish that the flashlight belonged to the victim and was not in any way connected to the alleged crimes. On the very first day of trial, Mrs. dander’s daughter-in-law was asked on cross-examination if Mrs. dander owned a flashlight. The daughter-in-law [32]*32testified that she did not know. When shown the photograph depicting the flashlight, she testified that she knew the flashlight was there when they cleaned up the apartment after the crimes, but she did not know to whom the flashlight belonged. Later in the trial, Sue Nelson was asked time and again about her statement that Mrs. Rosinsky had asked her to retrieve the flashlight. Mrs. Rosinsky was called and denied ever telling Sue Nelson anything about a flashlight. The importance of the ownership of the flashlight was clear to the defendant, and yet the State remained silent about any knowledge they had of the ownership of the flashlight found at the scene and depicted in the photograph.
If the exculpatory nature of the ownership of the flashlight and the probability that an inference would be made from Sue Nelson's statement and the picture that the flashlight belonged to the defendant was not clear during trial, it became abundantly clear on appeal. In affirming.the defendant’s conviction on appeal, the supreme court held that Sue Nelson’s testimony, while sufficient in and of itself to convict the defendant if the jury chose to believe it, was also corroborated by other evidence. They pointed to the fact that a flashlight did appear in a picture of the scene of the crime, and while the flashlight was never produced at trial, the jury could infer from the picture and Sue Nelson’s testimony that the flashlight belonged to the defendant, thereby placing him at the scene of the crime. Rohl v. State, 64 Wis.2d at a 450, 219 N.W.2d at 387-88. Thus, not only could the inference have been made by the jury to convict the defendant, but the inference was used to affirm the defendant’s conviction. Yet, when the defendant petitioned for á rehearing to correct this inference, the State still remained silent.
It wasn’t until after a post-conviction motion was filed six years later and an order was issued requiring the [33]*33police and the prosecutor to open the case files for inspection by the defendant’s lawyer, that anyone learned that the flashlight, in fact, belonged to the victim and not the defendant. At that point, the defendant amended his post-conviction motion and procured the affidavit from Mr. Harlow. Despite this undisputed information, the trial judge denied both the defendant’s request for an evi-dentiary hearing and the motion for a new trial. The trial court ruled that the motion, files and records in the action conclusively showed that, regardless of the facts presented or which could be presented at an evidentiary hearing, the defendant would not be entitled to any relief. We disagree. We think these facts show by clear and convincing evidence that the defendant was denied due process of law and is entitled to a new trial.
A. The State failed to produce some evidence.
The record in this case clearly shows, and the State admits, that at no time did the State ever inform the defendant that the flashlight found at the scene of the crime and depicted in the photograph was the victim’s flashlight, it had not been sent to the crime lab for analysis, and was, in fact, returned to the victim’s family long before trial. This evidence was not discovered until six years after the defendant’s conviction and even then only after the police and the prosecutor were ordered to open their files to the defense counsel for inspection.
B. The evidence was in the sole knowledge and control of the State.
The record also amply shows, and the State admits, that the evidence relating to the ownership of the flashlight was within the sole knowledge and control of the State. The prosecutor in charge of the investigation, Mr. [34]*34Harlow, was the only person who had knowledge that the flashlight depicted in the picture was not sent to the crime lab for testing, was identified as the victim’s flashlight and was returned to the victim’s family. The defendant attempted to discover information relating to the ownership of the flashlight. He had made a request -.for, all exculpatory evidence. The trial court had informed the prosecutor, Mr. Harlow, of his obligation under Brady to disclose exculpatory evidence. At trial, the defendant’s attorney questioned the victim’s daughter-in-law about the ownership of the flashlight depicted in the photograph. Under the test set forth in State v. Calhoun, 67 Wis.2d at 212-17, 226 N.W.2d at 507-10, the evidence was in the sole knowledge or control of the State.
C. The evidence was favorable to the defendant.
The evidence in the record was sufficient to establish, and the State admits, that the information relating to the ownership of the flashlight was favorable to the defendant. Sue Nelson testified that the defendant entered Mrs. dander’s apartment with a silver flashlight and twenty minutes later came out without it. The flashlight in the picture fit the description Sue Nelson gave of the flashlight the defendant was carrying when he entered Mrs. dander’s apartment. Had the defendant known that the flashlight in the picture belonged to the victim and the jury had been informed of that fact, at the very least this knowledge would have dispelled any inference the jury could make that the flashlight in the photograph belonged to the defendant and was left there in haste. Evidence dispelling that inference was clearly favorable to the defendant.
[35]*35The State also admits that the nondisclosed evidence might have undermined Sue Nelson’s credibility. Sue Nelson was the State’s chief witness and the only witness connecting the defendant to the crimes. Any evidence which might undermine her credibility would have been favorable to the defendant and should have been disclosed. Giglio v. United States, 405 U.S. at 154; Tucker v. State, 84 Wis.2d 630, 641, 267 N.W.2d 680, 636 (1978); Nelson v. State, 59 Wis.2d at 481, 208 N.W.2d at 413.
D. The evidence was material to guilt or innocence.
In determining whether nondisclosed evidence was sufficiently material to guilt or innocence to amount to a denial of due process under Brady, we must consider two factors: (1) whether the prosecutor had notice that the evidence was exculpatory and (2) the nature of the non-disclosed evidence. See United States v. Agurs, 427 U.S. 97 (1976); Tucker v. State, 84 Wis.2d at 642-43, 267 N.W.2d at 636-37.
Generally, the prosecutor receives notice that some evidence is important when the defendant makes a specific request for evidence. However, in some situations, a specific request is not necessary. As the court said in Agurs, “there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request.” 427 U.S. at 110. When the nature of the evidence itself gives the prosecutor notice that the evidence is valuable to the defendant’s case, no specific request is necessary. The standard for materiality under Brady is then the same as if a specific request had been [36]*36made — it is sufficiently material unless.we are convinced beyond a reasonable doubt that it would not have affected the jury’s verdict if it had been disclosed. See United States v. Agurs, 427 U.S. at 104-06; Tucker v. State, 84 Wis.2d at 642, 267 N.W.2d at 636-37.
-The nondisclosed evidence in this case was obviously of substantial value to the defendant. It could have dispelled an inference that placed the defendant at the scene of the crime. Furthermore, aside from Sue Nelson’s testimony, it was the only uncontradicted evidence that connected the defendant to the scene of the crimes. As such, the evidence was highly material to the guilt or innocence of the defendant, particularly in light of the numerous conflicting statements Sue Nelson had given. The State knew prior to trial that Sue Nelson’s credibility would be seriously questioned and attacked. The State may not have known prior to trial how significant or important the ownership of the flashlight would be. However, once the State saw the defendant attempting in vain to discover the true ownership of the flashlight and once Sue Nelson had testified creating- the inference which placed the defendant at the scene, the State knew or should have known that the ownership of the flashlight had substantial value to the defendant. The photograph, along with Sue Nelson’s testimony, created an inference that the flashlight in the photograph belonged to the defendant and was left there by him in his haste to leave the scene of the crime. This inference was false. The State knew or should have known that the false inference could have been drawn by the jury, and thus, the State had a duty to correct it. Giglio v. United States, 405 U.S. at 153; Napue v. Illinois, 360 U.S. 264, 269-70 (1959). As the Supreme Court stated in Napue:
[I] t is established that a conviction obtained through use of false evidence, known to be such by representatives of [37]*37the State, must fall under the fourteenth amendment . . . . The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. . . .
. . . “A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. . . . That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.” [Citations omitted.] 360 U.S. at 269-70.
When presenting evidence, the State must be mindful of the inferences that can be drawn from the evidence it presents. If the evidence presented might create a false inference, the State has a duty to correct that inference even if the State did not knowingly and intentionally create the inference. In this case, the State’s evidence created a false inference. This inference placed the defendant at the scene of the crime, and as such, it was highly prejudicial to the defendant. As a result, the non-disclosed evidence, which could have negated this inference, was obviously of substantial value to the defendant and should have been disclosed. We cannot say beyond a reasonable doubt that the false inference did not affect the jury. Therefore, the nondisclosed evidence was sufficiently material under Brady.
Furthermore, we believe the evidence in this case was sufficiently material under the stricter test in Agurs. When the prosecutor is not given notice, either by a specific request or because the evidence was obviously of substantial value to the defendant, the nondisclosed evidence will not be considered sufficiently material unless the reviewing court can conclude that the nondisclosed [38]*38or suppressed evidence creates a reasonable doubt as to the defendant’s guilt that did not exist otherwise.
If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. United States v. Agurs, 427 U.S. at 112-13.
While we do not think the undisclosed evidence in this case was of minor importance to the defendant, the newly discovered or nondisclosed evidence creates a reasonable doubt that did not otherwise exist.
The evidence in this case, if believed by the jury, was sufficient to convict the defendant. However, even with the false inference it was a close case. Without this inference placing the defendant at the scene of the crime, we think the scales of justice shift creating a reasonable doubt that did not otherwise exist.
There was ample evidence presented by the State that the crimes involved in this case were committed by someone. However, the only evidence connecting the defendant to the crimes was the testimony of Sue Nelson who, at the time, was fourteen years old. She testified that the defendant and his brother entered the victim’s apartment with a stick and a flashlight. They returned with the stick but without the flashlight. The stick looked like it had blood on it. She also testified that the defendant told her that Randy had hit the victim with the stick. Yet, the pathologist testified that the blows to the victim were caused by a very firm but somewhat resilient object such as a bag of sand, gloved knuckles or a karate chop. A stick was not mentioned.
Sue testified that the defendant had shown her the stick which was in the defendant’s apartment for two [39]*39weeks after the crimes were committed. Yet, when the police searched the defendant’s apartment on a number of occasions shortly after the crimes were committed, no stick was ever found.
Sue testified that approximately two weeks after the crimes were committed, the defendant gave her the stick which she then gave to a man named Dennis St. John. Yet, St. John testified that Sue Nelson never gave him a stick, and when the police searched St. John’s apartment, no stick was found.
Sue Nelson also testified that on the night of the crimes the defendant gave her some jewelry and $53 allegedly taken from the victim. She testified that she gave this money and jewelry to St. John. Yet, the amount allegedly taken from the victim’s home was $65 not $53, and St. John denied that Sue ever gave him any jewelry or money. When St. John’s apartment was searched neither the money nor the jewelry were found.
She testified that when the defendant returned from the victim’s apartment, he had blood on his shirt. No clothes were ever found with blood on them.
Sue Nelson testified that when the defendant entered the victim’s apartment, he entered through the front door. Yet, the victim’s son testified that the victim was in the habit of locking that door. Furthermore, when the downstairs neighbor noticed the fire and went upstairs to check on the victim, the front door was locked from inside,.
Lastly, Sue Nelson testified that three or four weeks prior to the trial, the mother of the person she was testifying against — the defendant — had asked her to return to Mrs. Glander’s apartment and get the flashlight that the defendant and his brother had left there. This supposedly took place some three months after the crimes were committed and long after the victim’s family had cleared [40]*40out and closed up the victim’s apartment. Mrs. Rosinsky also denied asking Sue Nelson to do any such thing.
It should also be noted that throughout these proceedings, Sue Nelson had given numerous conflicting stories. At one point during the preliminary hearing, the State had to request that their chief witness be declared a hostile witness.
A statement by the defendant’s father was also introduced in which he stated that he found a bloody shirt in the garbage can. At trial, however, the father testified that on the night he supposedly gave that statement to the police, he was drunk, had taken a lot of pills, and he did not recall giving that statement to the police. He also testified that he often blamed his sons for things they did not do, and had in the past turned his sons in to the police for crimes they did not commit. He also testified that he never found any bloody shirts in the garbage can.
The State argues, nevertheless, that the father’s testimony corroborated Sue Nelson’s testimony because he stated that the bloody pole was over the television for two weeks. The State contends that this statement is consistent with Sue’s statement that the defendant gave her the pole about two weeks after the crimes were committed. If the father’s testimony is reviewed carefully, however, his statement does not necessarily corroborate Sue Nelson’s testimony. The only reference to the pole being “over the TV” was the following statement made by the father during trial.
Q. State whether or not the clothing that you took to the police was your own clothing?
A. The clothes they brought up was the bag from my winter clothes that Judy Blaschka threw it out, and here’s the bloody murder club and everything. They had it over the tv for two weeks, ....
[41]*41The term “they” was never explored, and while it could be interpreted to mean the defendant and his brother, it also could be interpreted to mean the bloody murder club the newscasters were referring to in their broadcasts during the two weeks following the crime. This latter interpretation would have been consistent with the fact that the police never found a bloody club when searching the defendant’s apartment several times shortly after the crimes were committed. Since there were two possible interpretations of this statement, we cannot say that the father’s statements corroborated Sue Nelson’s testimony or that the jury interpreted it as corroborating Sue Nelson’s testimony.
Thus, the only unambiguous and uncontradicted evidence that went to the jury was that a flashlight was found at the scene of the crime matching Sue Nelson’s description of the flashlight that the defendant and his brother took into the victim’s apartment and returned without. While the fact that the flashlight actually belonged to the victim does not necessarily prove that Sue Nelson was lying or that the defendant was not guilty of the crimes, we believe that had the jury known the true ownership of the flashlight, their verdict may have been different. The nondisclosed evidence was, therefore, sufficiently material to the defendant’s guilt or innocence.
Having concluded that the files and records in this ease show by clear and convincing evidence that the State failed to produce exculpatory evidence within its sole knowledge and control which was material to the defendant’s guilt or innocence, the defendant was denied his constitutional right to a fair trial and due process of law under the fourteenth amendment to the U. S. Constitution and article I, section 8, of the Wisconsin Constitu[42]*42tion. Consequently, the trial court erred in denying the motion for a new trial.
In light of our disposition of the first issue raised by the defendant, we need not address the remaining issues.
By the Court. — Orders reversed and cause remanded with directions to grant the defendant’s motion for a new trial, vacate the judgment of conviction, and order that a new trial be held within a reasonable time or that the defendant be released from custody.
Before Voss, P.J., Brown, J., and Bode, J.
VOSS, P.J.
The petitioner, Marvin Rohl, has filed a petition with this court requesting that he be released from custody and placed on bail pending a new trial. As grounds for his relief, he claims that he is being unlawfully held under a judgment of conviction which this court held in Rohl v. State, Case No. 78-121-CR (Ct. of Appeals, decided April 6, 1979), was obtained in violation of his constitutional rights to a fair trial and due process under the fourteenth amendment. He, therefore, claims he is entitled to be placed on bail pending a new trial. He has requested that bail be set in the sum of ten thousand ($10,000) dollars with permission to post ten (10%) percent cash.
In Rohl v. State, supra,, this court did hold that the defendant’s conviction was obtained in violation of his constitutional rights. We ordered the judgment vacated and a new trial. When a judgment is vacated, the defendant is in the same position that he was prior to trial. State v. Pohlhammer, 78 Wis.2d 516, 254 N.W.2d 478, 82 Wis.2d 1, 260 N.W.2d 678 (1978). He is, therefore, entitled to pretrial bail pursuant to sec. 969.01, Stats. Ordinarily, bail pending a new trial would be set by the trial court. However, the trial court has no juris[43]*43diction to act until it receives the remittitur in this case. State v. Neutz, 73 Wis.2d 520, 243 N.W.2d 506 (1976). The judgment and opinion in this case is not transmitted to the trial court for thirty-one days after the decision of this court. See. 809.26, Stats. Until the remittitur is sent to the trial court, the trial court has no final decision upon which it could determine whether the defendant is entitled to bail. While the State conceded at oral argument that the trial court has no jurisdiction to act until it receives the remittitur, it argued that thiry-one days was not an unreasonable time for the defendant to wait in prison until the trial court regains jurisdiction. The State claims that this time period was intended to permit them to petition for review and that in the meantime the legislature deemed the thirty-one days to be a reasonable time to hold the defendant in custody until either a petition for review is filed or the remittitur is sent back to the trial court at which time the defendant could move the trial court for bail pending a new trial. We do not feel that even one day is a reasonable amount of time to hold a defendant in prison unlawfully. The defendant, in this case, has been in prison for seven years. His conviction has been held constitutionally infirm. To accept the proposition that the defendant must simply sit in prison under an invalid conviction for at least thirty days is unconscionable.
In addition to the fact that the trial court has no jurisdiction in this case until it receives the remittitur, even if the remittitur had been received by the trial court, counsel for both parties informed this court at oral argument that there is no trial judge at the present time to hear a motion for bail. Under sec. 808.07(2) (a) 3., Stats., both the trial court and the appellate courts have the authority to make any order appropriate to preserve the effectiveness of a judgment subsequently to be entered. [44]*44While ordinarily these motions should be made in the trial court, they may be made in the appellate court if it is impractical to seek relief in the trial court. Sec. 809.12, Stats. The trial judge who decided the post-conviction motion claimed that he had no jurisdiction to grant bail. The Chief Judge of Manitowoc County, Judge Deehr, was the prosecutor in the case at trial, and all other judges have recused themselves. While a new judge could be assigned to hear the motion, this again would take time. Meanwhile, the defendant remains in prison. Under these circumstances, we feel that we have the jurisdiction to grant the defendant relief. Until the remittitur is sent back to the trial court, or until a petition for review has been filed in the supreme court, this court retains jurisdiction of the case. See, State v. Neutz, 73 Wis.2d at 523, 243 N.W.2d at 508. This court has the power and authority to enforce its judgments and determinations and to exercise its jurisdiction. Sec. 752.37, Stats. This is the case particularly where there is no other court with jurisdiction to enforce our judgments. The petition for release on bail pending a new trial is a request to this court to enforce our judgment that the defendant’s conviction was unconstitutionally obtained and that he is entitled to a new trial. Being entitled to a new trial, he is entitled to bail pending a new trial and new conviction. Sec. 969.01(1), Stats. This court has the authority to issue all writs necessary in aid of its jurisdiction. Sec. 752.01(3), Stats. Therefore, we feel we have the jurisdiction and authority to grant the defendant’s request for bail pending a new trial.
The State has argued that the defendant’s petition is not á petition for bail pending a new trial but rather a petition for bail pending appeal which must be brought in the trial court pursuant to sec. 809.31, Stats. State v. Whitty, 86 Wis.2d 380, 389, 272 N.W.2d 842, 846 (1978). [45]*45In State v. Whitty, the defendant had been convicted in the circuit court and had filed an appeal from that conviction with this court. He sought bail pending the decision by this court on his appeal. The supreme court held that where an appeal was pending in either the court of appeals or the supreme court, the motion for bail pending appeal must be made first in the trial court. In this case, however, there is no appeal pending. This court has issued its decision on the appeal in Rohl v. State, supra, which decision is a final determination. No petition for review has been filed with the supreme court. Furthermore, the State does not have an appeal to the supreme court as of right. Secs. 808.10 and 809.62, Stats.1 Therefore, there is no appeal pending, and the motion for bail is not a motion for bail pending appeal. It is a motion for bail pending a new trial.
Lastly, even assuming we do not have the authority to grant bail pending a new trial under secs. 752.01, 752.37 and 969.01(1), Stats., we feel we have the authority to grant the defendant’s relief pursuant to sec. 809.51, Stats. We also note that if this court has no jurisdiction to grant the defendant’s requested relief based on the petition filed in this case, his remedy would be recognizable as a writ of habeas corpus, which this court does have the jurisdiction to issue. Sec. 292.03, Stats. [46]*46While the petition the defendant filed with this court was not a writ of habeas corpus, we could treat it as such and grant the defendant’s requested relief. State ex rel. Furlong v. Waukesha County Court, 47 Wis.2d 515, 177 N.W.2d 333 (1970). Because we felt that we did have the authority to grant the defendant’s requested relief, however, we did not treat his petition as a writ of habeas corpus. Such writs are available only when all available remedies have been exhausted.2
In view of the fact that the defendant is being held under a judgment of conviction which was obtained in violation of his constitutional rights, and there being no trial court with jurisdiction to set bail, this court, after hearing arguments from both parties,3 orders the defendant, Marvin Rohl, released from custody on ten thousand ($10,000) dollars bail with permission to post ten (10%) percent of the amount of bail in cash with the Manitowoc County Clerk of Circuit Court. We feel this amount is reasonable after considering the following factors: (1) the length of time the defendant has been incarcerated (seven years); (2) the defendant’s financial ability to meet bail; (3) the nature and strength of the State’s evidence against the defendant, and (4) the seriousness of the crimes for which the defendant can [47]*47be retried. Release on bail will be on the following conditions :
(1) The defendant shall not leave the State of Wisconsin without permission of this court or the trial court;
(2) The Manitowoc County Clerk of Circuit Court shall hold the bail funds until further order of this court;
(3) The State shall have ninety (90) days from the date of this decision to commence a new trial ¿
(4) If during the ninety (90) days the State decides not to retry the defendant, it shall inform this court, the trial court and the Manitowoc County Clerk of Circuit Court at which time, upon petition to this court, the defendant shall be released from bail and the funds returned to the persons posting the bail;
(5) If after the ninety (90) day period the State has not commenced a new trial, upon petition to this court, the defendant shall be released from bail, and the funds shall be returned to the persons posting the bail;
(6) If the State files a petition for review of this court’s decision in Rohl v. State, supra, within the time period allowed for review, the ninety (90) day period shall be stayed. The defendant, however, shall remain on bail pending a decision by the supreme court on the merits of the appeal or unless the supreme court directs otherwise. If the supreme court denies the petition for review, the State then has ninety (90) days from the date of denial of the petition to review to commence a new trial, and the defendant shall remain on bail during this ninety (90) day period or until the State notifies this court, the trial court and the Manitowoc County Clerk of Circuit Court that it will not retry the defendant. If the State determines that it will not retry the defendant or the State has not commenced a new trial during the ninety (90) day period, whichever comes first, upon petition to this court, the defendant shall be released from bail and the bail funds returned to the persons posting the bail;
[48]*48(7) If the supreme court grants the petition for review in Rohl v. State, supra, the defendant shall remain on bail pending a decision on the merits or unless the supreme court directs otherwise. If the supreme court affirms our decision that the defendant is entitled to a new trial, the State again has ninety (90) days from the date of the decision to commence a new trial. If the State determines it will not retry the defendant or the State has not commenced a new trial within ninety (90) days, upon petition to this court, the defendant shall be released from bail and the bail funds returned to the persons posting bail.
By the Court. — Motion for release on bail granted.