287 A.2d 389 | Conn. Super. Ct. | 1971
The defendant was convicted on November 9, 1970, of two counts of sale of heroin and two counts of possession of narcotic drugs. The defendant was convicted on April 2, 1971, of one count of possession of a narcotic drug with intent to sell and a number of counts of possession of either a controlled or a narcotic drug. In both cases the defendant was sentenced to the Connecticut correctional institution, Somers; in both cases he has appealed; in both cases he has been released on bond pending appeal. The defendant has been arrested without warrant on narcotics offenses on January 21, February 8 and June 16, 1971. On June 16, 1971, as a result of the issuance of a search warrant, a large quantity of narcotics was found at the defendant's premises, as a result of which seizure the defendant was arrested. On June 24, 1971, the defendant was seized under an arrest warrant and charged with possession of stolen goods. In all of these cases the defendant has waived examination, he has been bound over to the Superior Court, and his cases are pending. The state has now moved to revoke bail in the cases on appeal, claiming that the defendant's conduct since conviction justifies revocation of bail. The defendant asserts in opposition that, a stay of execution having occurred by operation of law, the court now lacks the authority to revoke bail.
In a criminal case the imposition of sentence is the judgment of the court. State v. Smith,
Bail is the by-product of custody. The power to admit to bail is inherent in the court so long as the prisoner is in its custody. The power exists both before and after conviction. Before conviction, admission to bail is governed by constitutional considerations. "The power to admit to bail after conviction is not a statutory but a common-law power; the constitutional provision does not apply; bail is then a matter of absolute discretion, to be exercised by the court, however, with great caution, and rarely to be allowed when the crime is serious." State v.Vaughan,
The question presented here is whether a court which lacks authority to terminate a stay of execution can nevertheless revoke bail. The defendant's position is that bail and stay of execution go together like Siamese twins. It is suggested that the purpose of a stay of execution is to delay incarceration, while the effect of a revocation of bail is to produce incarceration. To permit a revocation of bail, it is argued, while the court is without power to terminate a stay, is to allow the court to do indirectly what it cannot do directly. While this argument is plausible, it misses the mark. A stay of execution prevents a transfer of custody from the court to the commissioner of correction. A revocation of bail, although resulting in incarceration, still leaves the prisoner in the custody of the court. His incarceration is subject to control of the court. The revocation is not final. With a change of circumstances, the prisoner may be readmitted to bail. Where, however, the stay is terminated and the prisoner is taken in execution, the court's jurisdiction is at an end; its power to admit to bail thereafter is gone. State v. Vaughan, supra, 461.
The history of §
It remains to consider the factual basis which would justify a revocation of bail in this case. The defendant was convicted in November, 1970, and sentenced in December, 1970, for sale and possession of heroin, to an effective term of six to nine years at the Connecticut correctional institution, Somers. He was again convicted and sentenced on narcotics charges in April, 1971, to an effective term of nine to fifteen years, concurrent with his first sentence. Additionally, since the first conviction the defendant has been arrested four times on narcotics charges and was the object of a search warrant which uncovered a large quantity of narcotics at his premises. The least that can be said about these postconviction events is that they show the defendant as having a peculiar affinity for narcotics on a continuing basis. Because the welfare of the community is placed in jeopardy by the narcotics traffic, the existence of facts showing probable jeopardy is a sufficient *344
reason for revoking postconviction bail. UnitedStates v. Erwing,
An order may enter revoking bail in both cases pending final disposition of the appeal or until further order of the court.