State v. Dobrova

694 P.2d 157, 1985 Alas. LEXIS 229

Opinions

OPINION

MATTHEWS, Justice.

The question presented is whether a trial court has the authority to admit to bail a convicted defendant who is appealing his sentence, but not his conviction. The court of appeals held that trial courts have inherent authority to permit bail during sentence appeals. Dobrova v. State, 674 P.2d 834 (Alaska App.1984). We agree for the reasons expressed by the court of appeals.

At common law, bail decisions including questions of bail pending appeal were considered to be part of the inherent power of the courts.¹ Whether that inherent power in Alaska is subject to legislative control, either by an enactment or by amendment of the court rules of procedure,² need not be decided in this case. Compare State v. Wassillie, 606 P.2d 1279 (Alaska 1980) (Legislative control was at issue, but because it was inadequately briefed the court did not reach the issue.)

The only statute relevant to the question presented here is AS 12.55.120(c),³ which neither grants nor denies the right to bail pending appeal.⁴ Thus, there exists no basis for concluding that the legislature intended to limit the inherent authority of the court.

The opinion of the court of appeals is AFFIRMED.

Footnotes

1

. DeAngelis v. State of South Carolina, 330 F.Supp. 889, 891 (D.S.C.1971); Rose v. Nickeson, 29 Conn.Sup. 81, 271 A.2d 855, 856 (1970); Comment, In Re Podesto and the Motion for Bail Pending Appeal: Toward Reducing the Abuses of Judicial Discretion, 3 New Eng.J.Prison L. 273, 280 (1976).

2

. Alaska Const, art. IV, § 15 provides:

Rule-making Power. The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house.

3

. AS 12.55.120(c) provides:

A sentence appeal under this section does not confer or enlarge the right to bail pending appeal. When the defendant, in the prosecution of a regular appeal, urges excessiveness of the sentence as an additional ground for appeal, the defendant’s right to bail pending appeal is governed by the relevant statutes and the rules of the court.

4

.Justice Compton is of the view that AS 12.30.-040(a) (quoted in his concurrence), which provides that a person who has filed an appeal is entitled to release in accordance with the provisions of the bail statute applicable to defendants before trial, applies to sentence appeals as well as to merit appeals. Neither party has asserted this position. We believe that the term "appeal” used in .040(a) does not apply to sentence appeals since they were not statutorily authorized in 1966 when .040(a) was enacted. When the legislature did authorize sentence appeals by enacting AS 12.55.120 (ch. 117, § 4, SLA 1969) it implied in the last sentence of .120(c), quoted in footnote 3 supra, that as to bail a sentence appeal was to be distinguished from a "regular appeal,” and that sentence appeals would be governed by the existing bail statute, .040, only when they were combined with merit appeals. If sentence appeals were intended to be governed by .040, the final sentence of .120(c) would serve no purpose.