*1 512 Arkansas v. H. THOMAS STATE
William CR 2d 284 76-111 S.W. 542 25, October delivered
Opinion Banc) (In P.A., Walker, & L. Mays, Kaplan Richard Mays, appellant. Tucker, Gen., Asst. Atty. Atty. Guy by: Jones, Jackson Jim
Gen., for appellee. Conley the bail in this case is Byrd, Involved Justice. Little Rock procedure Municipal conducted bond H. Thomas William record shows that Court. The petitioner 8, 1976, at approximately was arrested on Saturday May *2 at for sale. Bail 11:45 marijuana possessing p.m. allegedly all cоurt for that time municipal by prearrangement 10, 1976, $20,000. On May such offenses was set at Monday court, municipal first petitioner’s he was a resident and when it was determined that $5,000 made a State, to be the bail was reduced to only by no was It that bail bondsman. hearing appears professional the matter on motion of the State had at that time and 26, 1976. On was May detention May passed petitioner’s 11, 1976, counsel filеd a mo his present petitioner through a $5,000 reduce bail bond. In hold tion to refusing Pro., Rules of Crim. to Ark. pretrial inquiry pursuant Rule 8.5 stated: the municipal judge
“It’s and tomorrow going my position today with the that that’s everybody possession charged hard intent to sell or some other drugs, marijuana and reduced it will Thousand Dollars to start be Twenty facts a then the Court hears more about after At- minimum of Five Thousand unless the Prosecuting in with аdditional information and comes torney That has recommends a lower bond. been my policy. to be and there’s no use It’s anybody going my policy mind. ...” this Court’s time to change my taking trying a went Following hearing municipal petitioner Writ of to the circuit court a “Petition for upon Supervisory Habeas Mandamus and Certiorari and for Writ of Corpus.” — 14, 1976, The circuit court held two one on May hearings and the 1976. other on Thе first con- May hearing Pro., 8.3(c), ducted to Ark. Rules of Crim. Rule pursuant wherein it was determined that while petitioner, driving men, automobile two or three other had been occupied by and that a search of the car stopped by police The court at that turned two pounds police marijuana. up $5,000 time fixed bail at to “be bail a by surety, money 17th a bond” surety May hearing. property pending 17th, cir- the mandаmus on May dismissing petition, cuit court stated:
“THE COURT: I out what set
Well, I would want the precedent 8.3 is man- here, Rule set and that that have out held, must be that a cause probable hearing datory, must be held. inquiry MR. MAYS: held, in this case? has been
But that one THE COURT: and, if held in there was any has been this case
One I the one that I held. And it was cured by deficiency, we have that this will take care assume any problems I and, in there that also, can under this bond yоu put dollars, that I hold that thousand think that twenty *3 dollar first— thousand twenty MR. MAYS: Pre-set.
(Interposing) COURT: THE bond before the has an
Pre-set judge opportunity he have which hear and this pretrail hearing, I don’t next is reasonable. morning, always very in ad- see else we need to cover there. Court’s anything journed.
MR. MAYS: Thank Honor. you, your
(THEREUPON, the hearing concluded.)” was writ of the trial a temporary Following ruling court certiorari this by releasing petitioner granted “$5,000 10% of that bail with or surety by upon depositing bail with the clerk of Court.” the Municipal
Petitioner’s contentions in this are as follows: court “1. The in to direct the Circuit Court erred refusing Court to conduct Municipal inquiry bail; before setting money 2. The erred Circuit Court refusing require that no condition to determine other Court Municipal would in court ensure appellant bail; before setting money
3. The Circuit Court erred refusing require to select least restrictive Court Municipal type arrangеment.” far of Arkansas so as Constitution State here pertinent provides: shall, “. conviction,
Art. 2 8 . . All be persons § sureties, offenses, bailable sufficient by except capital when the is evident or proof great.” presumption ” Art. 2 9. “Excessive shall not . . . required. § Procedure, The Arkansas Rules of Criminal 6, 1976, Court on so far as promulgated by January here applicable provide: 8.
RULE RELEASE BY OFFICER JUDICIAL AT FIRST APPEARANCE “RULE 8.1 First Prompt Appearance
An arrested who is not released citation other lawful manner shall be taken before a *4 officer without judicial unnecessary delay.
RULE 8.3 First Nature Appearance (a) the first defendant Upon appearance shall him officer inform judicial The charge. shall officer also inform the defendant that: judicial is not to he and that (i) required say anything, him; he can be used anything says against counsel; (ii) he to right (iii) he has a communicate his right counsel, friends, his or his and that reasonable family, means will be for him to do so. provided
(b) No further other than steps proceedings release be taken until the defendant pretrial inquiry may his counsel have had adequate opportunity waived his confer, defendant has intelligently unless the of counsel. the assistance refused or has counsel right officer, unable to if (c) dispose The judicial to decide аt the first shall proceed case appearance, In so of the defendant. release of the pretrial question an in- first determine shall officer judicial doing, formal, there whether hearing non-adversary the arrested cause for pen- probable detaining for standard further The determining proceedings. ding the same as that shall be cause at such probable hearing a warrant. with or without which arrests governs In What Circumstances RULE 8.4 Pretrial ReleaseInquiry: Conducted. the rele- officer into
(a) An judicial inquiry release deci- vant facts which affect pretrial might sion shall be made: maximum where the
(i) all cases penalty (1) one and the the offense exceeds year charged not does stipulate attorney prosecuting his on own defendant released recognizance; mаy the maximum (ii) those cases where penalty (1) than one and in for the is less offense year charged notice to the which a law enforcement officer gives release of the officer that he intends oppose judicial defendant on his own recognizance. cases,
(b) other officer judicial In all may the defendant on his own or on release recognizance in- without order conducting appear quiry. Conducted:Nature When 8.5 Pretrial Release
RULE Inquiry: of- shall be conducted by (a) A pretrial inquiry the first to or at officer prior judicial the defendant. an assess- the form of take (b) inquiry decision, *5 to the of relevant
ment factors pretrial such as: status, history defendant’s
(i) the employment condition; and financial the and extent of his
(ii) nature family relationships; residence;
(iii) his and past present (iv) his character and reputation; (v) who to assist him agree attending persons times; court at the proper
(vi) nature the current and charge any or factors that bear on may mitigating aggravating likelihood of conviction and possible penalty; (vii) record, if defendant’s criminal prior any, and, trial, if he has been released previously pending whether he as appeared required;
(viii) facts any indicating possibility violations of law if the defendant is rеleased without restrictions; and
(ix) facts other indicate that the tending defendant ties to the and is strong not community flee likely jurisdiction.
(c) The should make prosecuting attorney recommendations to the officer judicial concerning:
(i) advisability appropriateness release; (ii) the bond; amount type (iii) conditions, if which should im- any, on the defendant’s release. posed
RULE 9. THE RELEASE DECISION RULE 9.1 Releaseon Ordertо or on Own Appear Defendant’s Recognizance.
(a) At the first officer judicial may release the on defendant his or personal recognizance an order to upon appear.
(b) Where conditions are found officer necessary, one judicial (1) or impose more of the conditions: following
(i) the defendant under care of place qualified organization agreеing supervise the defendant court; and assist him in appearing
(ii) the defendant under the place supervision officer or probation other appropriate of- public ficial;
(iii) reasonable on impose restrictions the ac-
tivities, movements, and residences associations defendant; hours the
(iv) during working defendant return to specified him to custody but require times; or in- restriction to
(v) other reasonable impose the of the defendant. surе appearance 9.2 on Bail. RULE Release Money officer shall set (a) only money judicial will other conditions he determines that no after of the defendant the ensure reasonably court. should be If determined that
(b) it is (1) one set, the officer shall judicial, require following: bond
(i) the execution of an unsecured officer, either amount judicial signed specified by not; other or by persons in an (ii) an unsecured bond the execution of officer, amount judicial accompanied specified by to ten cent of cash securities per or equal by deposit of cent of face the bond. (10%) Ninety per amount at the conclu- (90%) of the shall be returned deposit of the defendant sion the proceedings, provided of the conditions not defaulted performance bond; or bond (iii) the execution of a secured by cash, or full other amount proper- deposit sureties. qualified ty, obligation officer the amount of bail the (c) judicial setting risk of take into account all facts relevant wilful nonappearance including: defendant’s
(i) character length in the residence community; status, and financial (ii) his employment history condition;
(iii) ties and his family relationship; and mental cоndi- (iv) character his reputation, tion;
(v) his legal process; history response past record; (vi) his criminal prior members of the (vii) the identity responsible who vouch for the defendant’s community reliability; (viii) the nature of the current charge, ap- of conviction and the parent probability likely *7 sentence, in so far as these are to the factors relevant risk of and nonappearance;
(ix) other factors the defendant’s any indicating roots in the community.” 9.2
The committee’s to Rule states: comment drafting bail in form a and to be last resort any “Money ought to used assure defendant’s only appearance.” 1, 1, v. 342 96 L. 3 Stack U.S. 72 S. Ct. Ed. Boyle, (1951), the twelve had indicted in the been petitioners District Court a of to violate the charge upon conspiring $50,000 Act. The trial court set at Smith each The offered a evidence Government on petitioner. only motion for of reduction bond a certified record showing that four convicted under the Smith Act persons previously had forfeited bail. In that the in leav- District Court holding $50,000 at had violated both ing con- statutory bail, stitutional standards for admission to a majority court, in Vinson, Chief stated: through speaking Justice
“First. From of Act of Judiciary passage 1789, 73, 91, 1 Stat. to Federal Rules of рresent Procedure, Criminal Rule 46(a)(1), federal law has un- that a for a arrested non- equivocally provided offense shall be admitted bail. to This traditional capital to the un- freedom before conviction right permits, defense, aof hampered serves to preparation pre- vent the infliction of to conviction. See prior punishment Parker, 277, v. Hudson 156 (1895). U.S. Unless this to bail before trial is of right preserved, presumption innocence, secured after centuries of only struggle, would lose its meaning. to trial conditioned right upon
the accused’s assurance that he will adequate giving stand trial and submit if found sentence Ex guilty. Milburn, 9 Pet. 710 (1835). Like the ancient parte of oaths practice securing responsible persons accused, stand as sureties for the the modern practice bail bond or of a sum rеquiring deposit as additional assurance serves forfeiture
subject than Bail set higher of an accused. figure presence fulfill this purpose calculated amount reasonably See Amendment. United is ‘excessive’ under Eighth Motlow, (1926, Mr. 2d 657 v. 10 F. opinion by States Circuit). of the Seventh Circpit Butler as Justice Justice limited, the of bail is Since the function fixing must be based defendant bail for individual upon to the assuring standards relevant purpose standards as traditional defendant. The presence Procedure of Criminal in the Federal Rules expressed case to each defendant. In to be each are applied under the are offenses case petitioners charged and, their are sub- if found convictions Smith Act guilty, our with the care demanded review ject scrupulous *8 States, 516 v. United U.S. Constitution. Dennis conviction, (1951). final judgment petitioners Upon five fine of not than and a face more years imprisonment $10,000. It not denied that bail for of not more than is much been fixed in a sum higher each petitioner with like offenses than that penalties usually imposed no to such been factual and there has showing yet justify the courts to in this The Government asks action case. norm the in- from the without by assuming, depart evidence, that each is а pawn troduction petitioner a will, in to flee the a obedience superior, conspiracy from the fact of indictment alone To infer jurisdiction. is amount an ar- bail in an need for unusually high into our own would act. Such conduct inject bitrary the very principles government system to which totalitarianism Congress seeking guard the statute under which petitioners against have passing indicted.” been
In a elaborated: separate opinion Justice Jackson un- fixed a is that the District Court
“It complained of the nature consideration iform blanket chiefly by into and did not take account of the accusation defen- between different difference in circumstances occurred, of Rule this it is a clear violation dants. If bar of as 46(c). Each defendant stands before the justice defendants Even оn a charge individual. conspiracy While it might do not lose their identity. separateness in finan- are identical that these defendants be possible — to the and relation charge cial character ability, has directed to fixing be regarded elements Congress — Each violates the law I think it probabilities. due to his benefits accused entitled good record, a bad record should and misdeeds or prеjudice when of them. The those who are guilty question only to each one’s for bail is made relates application trustworthiness to what will for trial and security appear his reasonable assurance of appearance.” supply “But and the defect in the protest charges, be, that, below proceedings appears provoked by of certain conviction, Communists after flight Government demands and public opinion supports use of the bail Communist power keep defendants Thus, before conviction. jail amount is said to have been fixed not as a reasonable assurance of their trial, at the but also as an presence assurance they would remain in There seems reason to believe that jail. have been the to which the may courts below spirit have and it is yielded, to the whole contrary policy of bail. This is not philosophy defen- say every dant is entitled to such bail as he can but he is provide, entitled to an it make in a opportunity reasonable *9 amount. I think the whole matter should be recon- sidered the in by the appropriate traditional judges of bail spirit procedure.” 8.5, Rule mandates that the
Obviously of- supra, judicial ficer hold a release pretrial the first inquiry upon appearance Likewise, of an arrested Rule 9.2 person. mandates a deter- mination that no other condition would ensure the of the arrested appearance before setting money bail.
When we consider the record before us with reference to the law and the bail, applicable of we must purpose pretrial with that the agree circuit court petitioner erred refusing direct the court to conduct a in- municipal release pretrial court’s ad- The bail. municipal
quiry setting money $20,000 of arrests amantive bail drug money requirements $5,000 bail money with a reduction time of arrest as a release can be classified pretrial for state residents hardly above substance It form classify would putting inquiry. of whether determination limited to аn arbitrary inquiry $5,000 bail as $20,000 or money pretrial bail would be the 8.5, Rule supra. of within the meaning inquiry extent the nature and not determine we need Consequently, of a of a satisfy requirements hearing necessary we note that must this connection inquiry. was fearful that such Honorable inquiries Municipal Judge court. the business would municipal seriously impede However, out that the Constitution of we must point on the in- Rules much stress State and the place foregoing with the view that and were drafted dividual rights persons their would the authorities discharge responsibilities facilities for the courts and courtroom sufficient providing those individual rights. protection were Rules Criminal Procedure drawn Since Ark. bail in form should be from the that any standpoint money of an as a last resort to ensure ac- used only appearance with the circuit we must that сused in agree petitioner to make court court erred in require municipal refusing no would ensure other condition determination bail on- in court before money petitioper’s setting appearance ly- 9.2 we that Rule con- must
Finally, petitioner agree bail, that in officer will money judicial templates fixing use the least set restrictive type arrangement 9.2(b) out Rule an arrested securing рerson. circuit court con
The State to sustain action were tends that if there deficiencies municipal in the circuit court then were cured they proceedings is not the record which court. This contention sustained by shows bail the circuit court offense fixed by solely upon *10 and without to the individual charged responsibility regard a The is that tenor of record before us appellant. persоn drug in or forfeit on a either remain jail arrested must charge
523 sum(1) a a considerable Thus bail bondsman. professional in either case the is arrested substantially penalized trial. The the trial of bail court fixing by spirit contravened the committee’s view that bail drafting “money form last resort to be a and be used ought only assure defendant’s appearance.”
The State also that not certiorari is suggеsts proper to review the remedy in the circuit court. proceedings However, Nelson, we Co., out State v. Petroleum pointed Berry Ark. 2d 33 (1969), that S.W. certiorari is available in the exercise of this court’s control superintending a over tribunal which is and where there proceeding illegally no other is mode review. adequate
Writ granted.
Holt, not J., participating.
Fogleman, concurs. J., Fogleman, A. I concurring, Justice, concurring. John with I one opinion. only majority disagree particular an ade- cannot that court did not conduct the circuit agree The circuit inquiry. judge specifically quate found, held, would insure that only money $5,000 the bail declined to set appellant’s appearance, amount of the allow of ten of the face percent payment court, that bail form of either bail into prescribing stated bond. trial surety judge specifically property he not this was the case for a cash that did feel that proper of ten the bail. that circuit It percent deposit appears did take into factors and made consideration relevant judge found, as a certain that He also basis for regard. findings bail, there that was a convic- probability requiring and a tion substantial sentence of remarking imprisonment, deal which that offense with juries harshly appellant I do made not believe charged. requirement the circuit court or forfeiture of a bail mandated jail fee. reliable bondsman’s One as as represented appellant (1)The charge professional bondsman is regulated trial 1964), Ark. Stat. Ann. 43-732 (Repl. and ordinarily amounts § 10% of face amount of bond. *11 without make a bond” be able to be would likely “property the fee. risking
ARKANSAS STATE HIGHWAY COMMISSION
v. TAYLOR et al Jr. Joe 2d 498 76-91 542 S.W. 25, delivered October Opinion 22, [Rehearing denied November 1976.] Gowen, B. Thomas appellant. N. Philip Keys Beebe, Tedder, Hannah & for appellees. Lightle, This action involves the se Roy, T. Elsijane Justice. cond of this condemnation case. See Arkansas State appeal 681, 509 2d 817 v. 256 Ark. S.W. Commission Highway Taylor, (1974). 1975, returned the second trial in July, jury
Upon $56,550. motion to filed a in the amount of verdict Appellees 1975, verdict, the trial and on set aside September motion, new trial to the response granted