State v. Wassillie

applied the Uniform Com- note Code, by adopted which was mercial holding of Texas in 1966. A course Bank become a holder in due did inconsistent, opinion, in our would be pre- law in 1968. We will statutory Texas Estrada view in and not sume that the regarding Bell that in the case in assign- contracts written notes, would be ments as endorsements Supreme Court of Texas the view that in 1968 if the matter adopted would have presented had been to it. argument its

The Bank also reiterates to commis- that Wear forfeited his e., by inducing Centu- by “twisting,” sions i. Century pol- their ry policyholders to cancel instead with another insur- icies and insure Rice, Hed- Ingraham, Hoppner, Millard company represented by Wear so ance land, Fairbanks, Ingraham, Fleischer & first-year commis- get higher he could appellant. original opinion sions. As we held in Kleinfeld, Fairbanks, ap- Andrew J. case, argument is untenable and pellee. without merit. original We adhere to our decision CONNOR, Before and MAT- BURKE superior court. judgment of the reverses the THEWS, JJ., DIMOND, Justice. Senior BOOCHEVER, RABINOWITZ, J.,C. PER CURIAM. J., participating. not rehearing. for a petitioned Bank has petition granted. petition rehearing, In its the Bank

argues determining in our holder in due course

Bank was note, promissory we overlooked

Wear’s

controlling the Bank decision. decision Bell, 88

refers to is First Nat’l Bank v. (Tex.Civ.App. Worth S.W.2d 119 —-Fort 1935). as The Bell decision was criticized Petitioner, Alaska, STATE of being Nego- a sound construction of panel another tiable Instruments Law Appeals the Texas in Estrada Civil Court WASSILLIE, Respondent. Teddy Co., v. River Bank & Trust 550 S.W.2d Oaks No. 3603. Dis- (Tex.Civ.App., Houston [14th Thus, of a deci- in the absence trict] Supreme of Alaska. Court on this sion the Texas con- question, the Bell decision cannot be Feb. decision,” “controlling as the

sidered as a

Bank asserts. reaching the Bank our decision Wear’s in due course of

was not a holder presentence report and a filed.

conducted ap- Sentencing scheduled to be held in was proximately thirty days. jury’s ver-

Following the return of dicts, that he be contin- requested Wassillie sentencing. ued on release status until thereafter, request Shortly granted. was revoking Was- state moved for an order custo- remanding him to sillie’s release pro- motion on the dy. The state based its 12.30.040(b). That statute visions of AS provides: (a) provisions of Notwithstanding the section, person of this if the offense murder, degree been convicted of is first (as robbery, kidnapping, rape or armed 11.15.130), may he not be defined in AS sentencing released on bail either before pending appeal. Cohen, Intern, Legal Norman A. Victor Krumm, Bethel, superior court denied the state’s motion Atty., C. Avrum M. Dist. Gross, Juneau, ground applied on the that the statute “as Gen., Atty. petitioner. to this case . . is an unconstitution- Defender, Allan Beiswenger, Asst. Public right to infringement al bail” Bethel, Defender, Shortell, Brian Public upon ground that under Alaska further Anchorage, respondent. 32(a), Rule of Criminal Procedure it was Wassillie vested with discretion to continue BOOCHEVER, J., Before C. and RABI- on release status.1 NOWITZ, CONNOR, BURKE and MAT- petitioned Thereafter the state for re- THEWS, JJ. view, asserting the constitutional terminated

OPINION guilt and that Alaska Pro- Rule Criminal 41(a)2 cedure mandates that 12.30.- AS MATTHEWS, Justice. 040(b) apply. granted We have review in n Respondent Teddy recognition of the fact that Wassillie Wassillie was indicted full dangerous Substantively, for the crimes assault with a has now been sentenced.3 weapon, petition important re- rape, assault with intent to commit “involve[s] [an] rape. curring capable Guilty verdicts were returned as issues of law evading each We have therefore count. The court then review.”4 discretionary that a decided to exercise our review presentence investigation ordered immediately custody 32(a) provides 1. Alaska R.Crim.P. in relevant was then remanded to part “[p]ending begin serving imprisonment. sentence the court his term of An opinion commit the defendant or continue or alter the issued in connection with the given bail.” sentence from the sentence state’s Wassillie, See 578 P.2d 971 Wassillie. 41(a) provides 2. Alaska R.Crim.P. that “[t]he (Alaska 1978). proceeding defendant in a criminal is entitled to pursuant be admitted to bail AS 12.30.010- State, (Alaska 4. Martin 517 P.2d 12.30.080.” 1974) (footnote omitted). See Doe v. (Alaska 1971); P.2d 47 In re 483 P.2d 23, 1977, September 3. On Wassillie was sen- (Alaska 1971); RLR v. imprisonment eight tenced to a term of years, years suspended. with six He half State,8 In Martin the case is authority despite fact we held that probation bail does extend moot as to Wassillie. proceedings. revocation We stated: “While We limit review our the Alaska Constitution and statutes insure whether clause of Alaska Con- the bail prosecutions accused in all stitution the conviction of a applies right bail, Martin was not accused person aof crime.5 The alternative accused prosecution a criminal the time he re superior court, basis for the of the decision quested bail from the trial court.”9 discretionary power court has the distinguishing types proceedings the two of rape admit one convicted of bail under we noted probation revocation “[a] Alaska 32(a), Rule of Criminal Procedure hearing prosecution is not a criminal look involves right whether ing toward an guilt of or inno procedural bail is meaning within the of cence.” Although this language lends IV, article 15 of section the Alaska Consti- support position right state’s tution,6 and, so, whether Alaska Rule of to bail only to the “adjudication extends 41(a) Criminal pro- Procedure which was guilt innocence,” it dispositive is not mulgated interpreted petition.11 in 1973 this as encompassing subsequent changes in the The right to bail an original was not statutes which it incorporated. concept of the framers of the Alaska Con- briefing points entirely on these is inade- establishing stitution. Provisions bail as a quate, aspect supe- and therefore this right matter of constitutional are contained rior court’s decision will not be reviewed.7 most, perhaps constitutions of I, provides: authority plain disregard 5. Alaska do Const. Art. not have § statute, words of the or alter the statute Rights prosecu- of Accused. In all criminal procedural rules. tions, right the accused shall have repeatedly This court has that inade stated speedy public trial, by impartial jury quately briefed issues will not be considered. twelve, except legislature may of provide that the Barron, g., Spitzer See e. L.E. Co. v. 581 P.2d jury for of not more than twelve (Alaska 1978); Wetzler, v. Wetzler nor less th'an six in courts record. The (Alaska 1977); 570 P.2d n.2 Kristich v. accused is entitled to be informed of the State, 1976); (Alaska Wern accusation; 550 P.2d nature and cause of the to be Ass’n, berg v. Elec. P.2d bail, Matanuska except capital released on for offenses State, 1972); (Alaska Lewis v. P.2d proof presumption when the great; is evident or the (Alaska 1970). 691-92 n.2 be confronted with witnesses him; against compulsory process to have for (Alaska 1974). 8. 517 favor, obtaining witnesses in his and to have the assistance of his counsel for defense. (footnote omitted). 9. Id. IV, provides: 6. Alaska Const. Art. 15§ (footnote omitted). Id. was cited in Rule-Making supreme Martin Power. The (Alaska Gilbert 540 P.2d promulgate governing shall make and rules 1975) deny- proposition order “an the administration of all courts. It shall crime, yet but not promulgate governing prac- to one accused make and rules Const, convicted," procedure inwas violation of Alaska tice and in civil and I, changed by art. § in all These courts. rules legislature by vote of two-thirds prosecu- members elected to each house. 11. This court’s definition “criminal Const, I, tion” as Alaska 11 does § used in art. 7. The state’s “Petition for Review” does not point what not indicate at to bail “Supplemen- mention these issues at all. In its tal Petition for Review” the entire treatment See, City g., e. Alexander terminates. Anchorage, 1971); (Alaska P.2d 910 RLR v. given as them is follows: 1971); (Alaska 487 P.2d Browder, (Alaska 1971); has the to extend 486 P.2d 925 Baker v. individuals, Fairbanks, City bail to convicted and it has done so on certain limited This situations. constitutional, statutory, origin. bail is nature, It is so also substantive in that courts all, broadly accepted to deviate from provision usual meant American states.12 reads, state to slight interpretation.15 with variations from If a result at variance by suf- “All shall be bailable persons state: experience sister historic of our offenses, sureties, except capital ficient intended, were would states framers evident, proof guilt is or the when express found it. Far have the words great.” presumption thereof so, doing customary chose they largely from everywhere had phraseology which else clause Such clauses are similar to the bail grant been taken be a I, 11 of the contained in article section before a It to us only plain conviction. “The provides: Alaska Constitution intend- . . to be released framers of our constitution accused entitled capital offenses when except the same ed result. great proof presumption or the evident reject argument expressed by We the anything, them- they If lend dissenting opinion rights that each of the readily selves more to a construction I, enumerated in article section 11 of they apply does post conviction than bail Alaska must terminate at Constitution clause, they our bail since refer to “all point same course of a case. criminal persons” ours is limited to “the ac- why, see no reasons for ex- compelling We However, interpreta- cused.” the uniform counsel, right trial ample, speedy they tion Alaska had received when the and the right, right to bail should share approved Constitution was drafted and point these same of termination because they only a con- applied bail before rights separate largely serve unrelated viction.14 no either in There is indication Moreover, purposes. even under the dis- language or the min- constitution senting opinion, they do not share -a com- utes constitutional convention that point right because mon termination the framers of Alaska Constitution 146, Flowers, provision provid- 12. See A.2d 147 of the Louisiana Constitution State v. 330 (Del.1974). post See also Annot. 19 A.L.R. 807 bail matter of conviction as a ” (1922) (1932). right). 77 A.L.R. Annot. 1237 Herndon, 68, 13. Ex P. 820 Parte 18 Okl.Cr. 192 con- 15.In fact minutes of the constitutional 921, (1920). See, Podesto, g., e. In re 15 Cal.3d experience follow vention reflect a desire to Cal.Rptr. 97, (1976); 127 v. 544 P.2d 1297 State concerning right other bail. states Flowers, (Del.1974); 146 Ex Parte 330 A.2d delegate stated, virtually Thus Victor Fischer Heath, 393, (1910); 227 Ex Mo. 126 S.W. 1031 only recorded comment made to the consti- Halsey, 318, Parte 271 124 Ohio St. 178 N.E. concerning tutional convention the bail clause: (1931); Helton, 105, Wyo. 72 261 P.2d language in the Federal Constitution (1953). 46 generally reads to the effect that excessive required. bail shall number of not be A provision “The . does changed language provide states have not refer to cases wherein a conviction have, language more or that the less competent jurisdiction.” been had in a court of except on accused be released 820, Herndon, 68, Parte Ex 18 192 P. Okl.Cr. practically every capital But offenses. (1920). Voll, g., Ex See e. Parte 41 Cal. used, language case where this new Schriber, (1871); Ex 19 Idaho P. Parte “when, pre- proof words is evident and the (1911); Lady, S.W.2d 664 Braden great” necessary sumption is a [sic] Heath, (Ky.1955); Ex Parte 227 Mo. protection for the accused and we should Bradsher, (1910); S.W. 1031 State v. 189 N.C: majority follow the of the states in this case. (1955); Halsey, Ex S.E. 349 Parte proven practice. It has desirable The actu- (1931); City Ohio St. of Sioux 178 N.E. person al of when a is released determination Marshall, Falls v. 48 S.D. 204 N.W. bail, offense, capital charged with a (1925); Hicks v. 179 Tenn. up judge. [Emphasis still to the added]. (1943); Berry, S.W.2d 781 Ex Parte 198 Wash. Proceedings of the Alaska Constitutional Helton, (1939); 88 P.2d 427 State v. (Jan. 1344-45 Convention Contra, Wyo. New Lacoste, So. 865 Orleans 169 La. (This (1930) express an decision based on through rights counsel appeal16 continues an various of an accused. Alaska while, dissent, Constitution, I, according right provides: article section 11 sentencing bail terminates when has been In all prosecutions, the ac- completed. cused shall speedy have the to a trial, public impartial jury For these reasons we hold that the bail twelve, except that the clause in our constitution does not afford a provide jury for a of not more than post-conviction bail. twelve nor less than six in courts not of record. The accused is entitled to be WITZ, Justice, dissenting. RABINO informed of the nature and cause of the disagree I majority’s holding accusation; to be except released on under the Alaska capital offenses proof when the only Constitution extends presumption evident or the great; to be guilt. disagree also with the majority confronted with the against witnesses that it need not consider the other basis for him; to have compulsory process for ob- court’s denial of the state’s taining favor; witnesses in his and to motion to custody pend- return Wassillie to have the assistance of counsel for his ing sentencing. defense.

Here the majority that the rel- concludes I am convinced that this distinctive con- evant clause in the Alaska Constitution text calls forth other principles of constitu- should be conformity construed in tional determining construction in issues provisions of most other states. But raised the instant matter.3 For “[t]he jurisdictions these separate have sections in general rule in constitutional construction is their pertaining subject constitution to the give to import every to word make of bail. provisions Generally, regard- these nugatory.” none Hootch v. Alaska State bail, ing right notes, the majority to as the Operated System, School 801 provide that: persons “All shall be bailable (Alaska 1975)(footnote omitted). sureties, sufficient except capital of- rights It is clear that of the enumerated fenses, evident, when proof guilt the of Constitution, in this section of Alaska’s oth- 1 presumption great.” the thereof is bail, right er than the to the neither ac-

The Alaska provision constitutional is not right right cused’s the to counsel nor to a of this Only form. in Alaska speedy extinguished and Connecti- trial is once a determi- right cut2 is the part guilt to bail made nation of has been made.4 Under the provision enumerating constitutional the Amendment to the Sixth Constitution of Douglas California, 353, 356, 372 U.S. the convention 83 made on the floor of vention the effect that the 814, 816, (1963). language S.Ct. 9 L.Ed.2d Alaska is similar majority of the state constitu- that found tions. compilation 1. For a of the state constitutional delegate’s are obtuse the remarks find provisions Duker, right on the see W. that, purposes so different and directed toward Right Inquiry, to Bail: A Historical view, any light my they the shed on in present fail to Albany (1977). L.Rev. 93 n.373 controversy. I, case law art. 8. Connecticut § Conn.Const. adjudication guilt 4.Using as a the time suggests right that in that state the point for certain termination rights terminates at See State v. Chish conviction. impact have no of an accused would olm, Conn.Sup. 287 A.2d rights of the nature to be informed the (1971); Vaughan, A. State v. Conn. jury. impartial How- or to have an accusation ever, However, ap (1899). interpretation this point adoption of such a termination the pears to be versions of the based on earlier arguably impinge the accused’s would rights the form Connecticut constitution which took with the witnesses to be confronted already found in other mentioned. states as him, trial, public against com- and to have I, (1955); See Conn.Const. art. Conn. § witnesses, obtaining process pulsory at Const, I, § art. pertain sentencing rights hear- least as these ings. majority weight re- 3. The also attaches delegate con- marks of a to the constitutional in a “crimi- accused” terms “the States, that all the provided it is “in the United en decisions the accused shall prosecutions, Judicial prosecution.”8 nal the one joy the to have assist that right interpretation ... the adopted have for his defense.” Gideon a determina- ance counsel “accused” longer no 372 U.S. S.Ct. been Wainwright, have place has taken guilt tion of held (1963), L.Ed.2d 799 following grounds: based on in a state criminal pre- to counsel release, the pre-trial major reasons stage every at exists prosecution and assistance sumption of innocence Mempa Subsequently, proceeding. defense, extinguished are preparation 254, 19 Rhay, 389 L.Ed.2d S.Ct. U.S. accused that an risk point; this recognized (1967), explicitly the Court make will not guilty found who been has stage of a sentencing is a critical crimi increased, since appearances future prosecution presence in which the nal certain; and nowis sanctions imposition of Concerning required.6 counsel possibility regarding concern trial, in Gonzales v. speedy noted found been who one punishing (Alaska 1978), that the adjudication eliminated guilty is language of the Sixth Amendment guilt.9 and article United States Constitution Constitution is section 11 of Alaska precedent holding that Judicial held in sen identical. We Gonzales that sentencing through bail extends tencing governed by are both the delays stage proceeding emphasize of a criminal guaran federal and Alaska constitutional presumption of innocence should These speedy tees of a trial.7 decisions imposed continue until court has sen- dealing to a rights speedy with an accused’s verdict, a guilty After the court is tence. my trial and to the assistance of counsel in necessarily bound verdict point opinion an appropriate resolution may prosecution or to act to terminate petition. guilt set the of in re- aside judicial precedent sponse Relevant variety post-trial to a of sparse. authorized None of cases I sentencing place, have Until takes it reviewed treat motions. specifically the phraseology sentencing of uncertain whether the the “ac- remains cused” in a prosecution.” “criminal will any period Those sanction include of incarcer- jurisdictions which have though considered the ation. Even there an increased during of bail period public risk to the will flee between accused adjudication guilt an adjudication of sentencing and there has an of fo- been cus “conviction” guilt, right and not on the recognition mean- of a to bail does 1, speedy encompass sentencing 11 of Alaska trial was text of article section held 630, delays. parallels Sixth 632- that of Federal Gonzales v. Constitution (Alaska 1978). 33 Amendment. 552, Quinn, Ariz.App. 8. See State v. 778, Gagnon Scarpelli, 411 U.S. 6. See also 658, Brown, (1969); parte Ex 68 Cal. 1756, Cohen, (1973); Sen- S.Ct. 36 L.Ed.2d 656 176, 829, (1885); 8 P. 830-33 cf. State v. Chris tencing, Probation, the Rehabilitative tiana, 247, 580, (1966), 249 La. 186 So.2d Mempa Rhay, Ideal: The View from denied, 835, 77, cert. 385 U.S. 87 S.Ct. 1, (1968). Texas L.Rev. (1967). L.Ed.2d 68 analysis 7. Our in Gonzales did not involve a See, g., Flowers, e. State v. 330 A.2d particular construction of the constitutional (Del.1974); Fowler, Commonwealth v. 451 Pa. policy. text but relied on considerations of In 304 A.2d 129-30 Gonzales, we concluded while not all policy support right considerations which speedy strictly a trial are relevant to sen- tencing delays, enough right are so that the to a sentencing foreclose al- not court from ka Constitution must so construed to tering the bring harmony conditions accused’sbail to it in rights with other which flight,10 granted reduce risk of are an a prose- accused in criminal Interpreting cution. the terms “accused” in Additionally, appropriate I think it prosecution” “criminal in their familiar States, Bradley that in note United legal sense leads to the conclusion that an U.S. S.Ct. L.Ed.2d accused retains the status an accused (1973), the Supreme Court was confronted judgment entered,12 until a conviction problem determining mean- prosecution criminal remains a ing “prosecution” clause, in a savings prosecution criminal which terminated 103(a) Comprehensive section Drug entry conviction, of a judgment Abuse Prevention and Control Act of adjudication an guilt. providing that prosecutions, prior to the statute, effective date I would not thus would hold that insofar as AS 12.30.040(b) affected. The Court purports stated: to limit the bail of an prosecution accused in Í criminal using Rather every- than terms in their adjudication after an guilt, prior but day sense, law legal uses familiar ‘[t]he sentencing, it contrary conflicts with and is ‘prosecution’clearly sense.’ The term im- to bail as embodied article ports a beginning an end. section 11 of the Alaska Constitution. States, Berman v. United 302 U.S. (1936), Furthermore, L.Ed. arguendo S.Ct. 164 assuming said, judgment ‘Final in a criminal to bail does not case means sentence. The sentence is the sentencing, agree extend to I cannot judgment.’ sense, legal prosecu majority’s In the legisla- conclusion only tion terminates when sentence is ture limit the court’s discretion to imposed, (citations omitted)11 grant bail.

Given the foregoing, an conclude that The order of the court in deny- accused’sright to bail in a prosecu- the state’s motion to return Wassillie to wording tion under the of article custody only section held 12.30.040(b) that AS 11 of the Alaska Constitution extends be- was in violation of the Alaska Constitution yond guilt but obligated continues court was to follow until sentencing been completed. applicable Ad- pertaining criminal rules mittedly, policy supersede considerations any procedural both provi- against closely any this conclusion are bal- sions of inconsistent statute unless the Nevertheless, anced. I think the to was specific statute enacted for the purpose 11, bail under article section changing of the Alas- of a superior court rule.13 The People Quinlan, 10. page (4th ex Dictionary rel. Moffitt v. 12. 69 Misc.2d Black’s Law Ed. 1968) following N.Y.S.2d 447 defines “accused” in man- ner: Bradley States, 605, 609, 11. v. United 410 U.S. general ‘Accused’ is the name the defend- 1151, 1154, 93 S.Ct. 35 L.Ed.2d The person a ant in criminal case. [t]he quoted original footnote to the text made; against whom an is accusation one reads: misdemeanor, charged who is with a crime or determining These cases involve a whether (citation omitted) judgment in a criminal case is final for purpose determining whether provides: 13. See Alaska which R.Crim.P. judge the function the trial has con- been promulgated pursuant rules These are to cluded so that he not alter the sentence authority granting making rule previously imposed probation. to include court, power supreme to the and to the ex- precise are, course, The issues different they any pro- tent are inconsistent with from the issue in this case. But these provisions any cedural statute not enacted point do prosecution show the at which terminates, and the issue here. 41(a) notes that Rule the discretion Wassillie Criminal was noted court in its bail decision provi- prior 12.- by virtue of the amended enactment granted the court AS 32(a), 30.040(b) 41(a) in provides 1974. Rule its took sions.of Criminal Rule present “[pjending by through form amendment Su- that: sentence February preme or continue alter commit the defendant Court Order effective Although wording court further held superior the bail.” The is some- removing 41(a) its 12.30.040(b), ambiguous, discre- I what think that Rule AS change alter bail as to certain encompass subsequent tion to continue or not does offenses, specifically was intended Bail Act with not Reform that resulted 32(a) 12.30.040(b). thus no modify Reading Criminal Rule enactment of AS 32(a) 41(a) together pre- effect is void. Criminal Rules legislation, by subsequent cludes alteration it need not majority The concludes purpose change an express absent it was inade- consider this issue because assump- This on the analysis rules. based conclusion, think, quately This briefed. procedure. tion that bail is a matter of procedural fails to consider the context of law, At common whether superior this court ordered Was- case. any accused was on bail at released custody sillie released from and then denied proceedings stage of the was one left to be the state’s motion'to have him returned answered court in its It discretion.14 custody. petitioned for review of state recognized that have generally is still courts Thus, once re- court’s denial. power determinations inherent make granted superior court’s order view is as to bail and or revocation bail conditions Wassillie, releasing it is incumbent us appropriate when such actions are grounds upon to consider both which the process justice, orderly of criminal even granted. I do think that motion was specific statutory the absence of authoriza- permit of one selectively can review As one others, tion. court stated: ground only they consider exist. specific is our that a statute It conclusion granting re- the trial court appeal, On the state does not contend necessary, bail is not since a court voke specifically 12.30.040(b) intend- AS jurisdiction with over criminal has the 32(a) change ed to but that Criminal Rule power just its as to enforce orders 41(a) procedurally dispositive Rule as it has control over other orders.15 provides: matter. This latter rule accepted Despite traditionally power proceeding defendant in a criminal respect courts release entitled to bail pursuant to AS 12.30.010- jurisdictions seem to adhere to the 12.30.080. most rule, Carolina, specific DeAngelis purpose changing v. State of South supersede (D.S.C.1971) (“At to, F.Supp. shall common such statute extent inconsistency. law, power grant such courts had the inherent IV, Nickeson, bail.”); Conn.Sup. Article section the Alaska Constitu- Rose v. provides, part, (1970) (“Since tion this court’s rules bail is not A.2d “may changed by two- custody, power to admit to handmaiden of of members to each thirds vote elected long so as the bail is inherent prisoner court Co., City See Valdez house.” of Valdez v. Dev. custody.’’). is in its Martin, (Alaska 1973); Leege 506 1279 v. P.2d 1963). (Alaska 379 P.2d 447 Court, 578, Superior 15. Mello v. 117 R.I. 370 1262, (1977). also United States A.2d 1265 See King’s 14. “The court of had the bench Smith, 61, (8th 1971), 62 cert. 444 F.2d Cir. v. after, before, bail as well as conviction.” State 977, 1205, denied, 405 92 31 L.Ed.2d U.S. S.Ct. Flowers, 146, (Del. 1974), v. 330 A.2d 148 n.2 253, (1972); Stanley, 822 United v. Ezell, States 449 parte (1874). quoting 40 Ex Tex. 451 See 467, (N.D.Cal.1978); People F.Supp. ex rel. Stanley, 469 U.S.App.D.C. also United 152 States v. Elrod, 74, 170, Hemingway 175, 576, 60 322 (D.C.Cir.1972) (“ap v. Ill.2d N.E.2d 469 581 F.2d 837, (1975). plication pending 840-43 is a func release historically judges”); tion committed to trial

1287 (cid:127) courts, legislature may view define as an incident their scope rights power non-constitutional bail manage proceed- the conduct of and those classes of to which those offenses ings them, deny before or revoke bail instance, rights court, apply.16 One when such appropriate pre- action is termed it a “time-honored rule” that “bail orderly serve the process pro- of criminal any except pur not allowed in case cedure.20 suance of some Yet statute.”17 this same The court held that pre-trial bail release on judicially relied created doctrine questions power were “within the inherent arbitrarily hold that “a citizen cannot authority court” and its “inherent denied a hearing solely because of a enforce its require orders and to reasonable lack statutory authority for release.”18 conduct juris- from those over whom it has In People Elrod, ex Hemingway rel. v. 60 21 diction.” 74, (1975), Ill.2d 322 N.E.2d 837 the Illinois conflict, While this with its overtones rejected the Illinois Assem interpretation, was somewhat bly’s attempt “capital to define offenses” weighted judicial branch, in favor of the subject only discretionary re pre-trial other reveal the difficult nature of lease, Georgia, in the wake Furman v. this of governmental power, veiled 238, 2726, 408 346, U.S. 92 33 S.Ct. L.Ed.2d 22 “procedure.” A denied, “substance” much 902, 89, reh. 409 93 34 U.S. S.Ct. argument more relevant case to Wassillie’s (1972). Assembly L.Ed.2d 163 The substi “murder, Washington Supreme tuted is the decision aggravated offenses Smith, 498, kidnapping or treason” for where Court in v. 84 offenses Wash.2d possible “death punishment” is a in its stat 527 (1974), P.2d 674 which dealt with utory provisions defining “capital of authority source of the right to release 19 fenses.” rejected Illinois Court pending appeal. conviction and attempt offenses, at “classifications” of court, Washington finding no constitutional stating: context, limits on held opinion provisions promulgated our rule the constitutional court, qualified by bail must be conflicting legisla- and not a Landon, 524, 16. challenging proceedings. asy- See Carlson v. 342 U.S. 545- extradition 46, 525, 536-37, 547, statutory provisions 72 S.Ct. 96 563 lum state no L.Ed. had authoriz- (1952) (eighth prevent amendment does not release that context. Congress classifying from offenses those in into which an accused Elrod, is entitled to bail as matter People Hemingway rel. 60 Ill.2d ex v. 74, those 837, in which bail is discretion (1975). 322 N.E.2d 839 Hedman, ary); 708, Mastrian v. 326 710 F.2d (8th 1964), denied, 965, Cir. cert. 376 84 U.S. Id. 322 N.E.2d at 840. 1128, (1964); S.Ct. 11 982 Turco L.Ed.2d v. Maryland, 61, (D.Md. F.Supp. State of 63 324 adopted 21. The court ABA Standards various aff’d, 1971), (4th 1971); People 444 Cir. F.2d 56 Relating (1968) Pretrial law in Release as the Sanders, 735, 153, v. 185 Colo. 522 P.2d Illinois. Id. N.E.2d 841-43. Flowers, 146, (1974); State v. A.2d 458, State, (Del.1974); v. 264 Ind. Critchlow State, 28, 22. See Smiloff v. 579 P.2d 33 n.19 591, (1976); 346 N.E.2d 599-600 Hanson v. 1978) (Alaska (recognizing “that the line be Gladden, 34 Or. 426 P.2d 465 procedure tween substance elusive State, one.”) See also Padie v. P.2d Janing, F.Supp. 17. West v. (Alaska 1977); 1029-30 Thomas v. (D.Neb.1978), Curran, quoting v. United States (Alaska 1977); P.2d 636-38 v. Gieffels (2d 1924). 297 F. Cir. See also United (Alaska 1976); P.2d 667-68 Sine, F.Supp. (D.S.C. States v. Winegardner Anchorage Bor Greater Area 1978); Emery Fenton, (Iowa N.W.2d (Alaska 1975); ough, 545-46 Bernhardt, Flying, Channel Inc. v. 1969); City Anchorage, Ware Janing, F.Supp. 18. West at 552. The P.2d judicially-based right court found a to release pending appeal fugitive” for an “interstate Rule, unless court finds enactment, ques- suant the controlling tive were as to the state or appeal. Supreme that the defendant flee pending of bail The tions danger or to pose conclusion a substantial to another Washington based its Court flight community. and the If such a risk of the distinction between substantive exists, danger the be or defendant procedural authority, reasoning that: ordered detained. for so- prescribes Substantive law norms punishments cietal for viola- conduct and contrast, inval- legislative enactment defines, creates, tions It thus thereof. in set on required idated Smith that bail be regulates In con- primary rights. and cases, provi- except capital in a all trast, practice procedure pertain rule.24 more than the sion charitable court’s operations mechanical essentially Thus, might while be the Smith decision law[s], courts by which substantive traditionally in- as seen consistent rights, remedies are effectuated. power deny or re- herent of the courts to

. to fix power Since the inherent principle voke it contravenes the grounded power a bail is in the to hold legislative defining defendant, thus the man- relates to release on bail. ensuring alleged ner of offense Court, People ex Supreme Illinois court, it will be we believe heard Jones, rel. 237 N.E.2d Stamos Ill.2d implicit be to bail (1968), pro statutory also invalidated a essentially . procedural nature. adopted pro vision which with conflicted its promulgation pro- rules of Since the provided cedural The court’s rules rules. cedure an inherent attribute of a “may convicted defendant be admit Supreme integral part an Court and ted to bail and the sentence judicial process, such rules cannot stayed by reviewing judge of trial or abridged legislature. or modified provided court.” statute that one con Thus, (and release) the right to bail felony of a not be victed forcible “shall appeal. verdict . .is pending entitled to a continuation his bail and the

governed solely by provisions of [the imprisonment sentence shall not criminal rule].23 stayed by the trial court.” The court held “the controlling that its rules were because to a holding, gave In so effect Smith placed responsibility constitution has provided: criminal rule which governing appeal Supreme in the rules Release Verdict. defendant After A Court, Assembly.” and not in the General offense, (1) who is charged capital with parallels The Jones the situation (2) of a context guilty or has been found who instant and furnishes presented case felony awaiting sentence is either 12.30.- support the invalidation of AS pur- appeal, has filed an shall be released Fowler, Smith, Pa. In Commonwealth v. P.2d bail. 23. State v. 84 Wash.2d (1973), Pennsylvania omitted). (1974) (citations 304 A.2d 124 existing law as to bail held that the state embodied also after conviction court 24. Id. 527 P.2d at 676. Smith legislature delegated criminal rules. Id. 304 A.2d 128. court’s noted the that the had fact pending analysis power prescribe values in- of the societal rules for bail After volved, the appeal rationale, concluded; was “a second and alternative principle Id. 527 one.” but not the or basic supervisory capacity In the of our exercise course, could, at 677. The granted to hold bail should not be au- for the court’s asserted remove thority. basis degree of murder in the first one convicted imposi- entry of the verdict and between of formal sentence. tion Jones, People 40 Ill.2d rel. Stamos ex Jones, in Smith and Unlike situation 237 N.E.2d no statutes in conflict Fowler court noted “super- as to or its its criminal rules either visory” holding. also at 498. Other Id. 237 N.E.2d judicial power define assert 040(b) grounds keynote that it on that “the on encroaches to successful adminis- “inherently judicial any system function” com- tration of of bail is the ade- pletely quacy eliminating possibility release of the information which pending appeal, regard ample on bail with to enu- decisions based.” need are The for is particularly merated offenses.27 information acute to inves- tigations potential danger com- argument judicial for discretion is munity, findings which, relative to has as strong pending in the case release sen- said, aptly rest ‘scrupu- been “must on a It a tencing. is anomalous to allow court to inquiry’ lous appellant’s past, into his decide not to a impose term of confinement prospects released, and conditions of (a as a sentence for these result offenses mitigate danger.” release to The tri- contemplated by both relevant statutes al not only court is but traditional law, though unlikely and case cases in most also the for' the tribunal kind for offenses), yet these allow information-gathering which a sound same court the discretion to release the ruling foundation for a bail almost inevi- person pending imposition of convicted tably requires. that, For it is there at a sentence. This in effectively would result a hearing, judge come can face-to-face mandatory minimum sentence of confine- sources, primary informational ment for the weeks or several months often probe obscure, what what trap necessary to obtain the information neces- elusive, and settle what is controver- sary Further, sentencing. there also there, too, sial. It is judge the possibility that court set might aside judicial machinery at his disposal “the grant trial, verdict and a new creating a necessary typically marshal the facts situation in which the defendant was un- inquiry.” -relevant to release justly period incarcerated for at least some of time as a unavailability result of the an individual consideration of bail. Findings on danger the risks of persuaded am of bail matter flight, efficiency particular on the procedural power judicial inherent in the sufficiently conditions release to mini- function. As the District of Columbia risks, obviously mize those are enriched Appeals Court of noted United States v. only a feel of the case that comes from Stanley, 170, 175, 469 152U.S.App.D.C. F.2d participation in the live trial. The re- (D.C.Cir.1972)(footnotes omitted): spect customarily accord district

Not then, surprisingly, judge’s attests the value initial resolution determinations application of an intangibles of his pending ap- appraisal for release which peal is a make historically ultimately function or break case committed judges. trial gainsaid It cannot bail. gone through changes precisely Florida has in the court’s for bail in context various respect State, procedure. question. to this See Rolle v. Florida Su rules of criminal Court, preme 1975); State, (Fla.App. in Greene State ex rel. So.2d 314 So.2d 624 (Fla. 1970), (Fla.App. statutory Harrington Genung, So.2d 271 recited the basis of bail rights. However, State, (Fla. 1974); opinion, 300 So.2d 269 later Bamber Bernhardt v. (Fla. principle 1974), App. 1974). 288 So.2d in these cases was invalidated statutory provisions approval by precluded subsequently both cited with probation parole majority certain in Johnson v. the dissent situa revocation grounds (Fla. 1976). tions on the that bail in 336 So.2d 93 that context pursuant essentially procedural However, legislature, and, thus, au to its nature law, repealed only authority. thority amenable the conflict rule-making Florida court under rules, and the Florida court Several appellate Florida intermediate subsequently rules to stat conformed the interpreted necessarily Bernhardt as in- Florida Rules of Bar re Crimi ute. The Florida validating a statute which eliminated 1247, 1250, (Fla. Procedure, 343 So.2d nal prior felony conviction, for one with a discretionary contrast provided language 32(a) Rule man- that Criminal convinced

Though recognized this court bail decisions. dates individualized than minimal has more post- to define the nature Alaska,28 I think the

conviction releasé in

complete judicial abolition of individualized suitability for release

determination of the an explicit

cannot without accomplished

statutory applicable revision rules29 procedure pertaining to bail.

of criminal

Thus, even the constitutional sentencing, I am

bail does not extend until community’”); Martin See Carman v. 1974) (“In 1977) (Alaska (“Through subsequent addition amend- Act, guarantee to bail Bail Reform in deter- ments of Alaska’s mining Statutes.”). release, is found the Alaska bail and conditions of our empowered courts are now to take into consid- person charged supra. eration whether the offense ‘will note 29. See pose danger persons other

Case Details

Case Name: State v. Wassillie

Court Name: Alaska Supreme Court

Date Published: Feb 29, 1980

Citation: 606 P.2d 1279

Docket Number: 3603

Court Abbreviation: Alaska