Release a Convicted Defendant During Appeal

The law governing appeal bonds in criminal cases and stays of criminal sentences is stated in Rule 7.2(c), Ala. R. Crim. P., and Rule 8(d), Ala. R. App. P. Although Rule 9(b), Ala. R. App. P., states that "release after judgment of conviction shall be governed by Ala. Code 1940 (Recomp. 1958), Title 15, 368 and 372 Ala. Code 1975, 12-22-170," the Code Commissioner's note to that Code section and the committee comments to Rule 7.2, Ala. R. Crim. P., say that Rule 7.2 modifies the absolute right to an appeal bond granted by 12-22-170 to a defendant sentenced to 20 years or less of imprisonment. In accord with this view, the defendant-petitioner relies on Rule 7.2, Ala. R. Crim. P., and Rule 8(d), Ala. R. App. P., rather than on 12-22-170. The provisions of Title 15, 372, were brought forward into Ala. Code 1975, at 12-22-170. the provisions of Title 15, 368, apparently were not brought forward into the 1975 Code. See Ala. Code 1975, vol. 2 (1990 repl. vol.), at 576, "Table of Comparative Sections -- Showing Code of Alabama, Recompiled 1958 Sections and Corresponding Sections in Code of Alabama, 1975." We are quoting from Alabama Rules of Court -- State (West Group 1999). the Lawyers Cooperative Publishing version of Rule 9(b), Ala. R. App. P., refers to the current Code section, 12-22-170, contrary to the actual out-of-date language of the Rule. Subsections (c) and (d) of Rule 7.2, Ala. R. Crim. P., provide: "(c) After Conviction and Sentencing "(1) a defendant who has been convicted of an offense and who for that offense has been sentenced to punishment by death, by life imprisonment, or by imprisonment for a term in excess of twenty (20) years, shall not be released. "(2) Any defendant who has been convicted of an offense for which the defendant has been sentenced to a term of imprisonment for twenty (20) years or less may be released on a secured appearance bond or on the defendant's personal recognizance, "(i) Upon application for release made concurrently with the filing of a notice of appeal, or "(ii) If the application for probation is made, upon application for release made at any time before probation has been granted or denied. "(d) Denial of Released ease. Release shall be denied after conviction and sentence if the trial court has reason to believe that an appearance bond or conditions of release will not reasonably assure that the defendant will not flee, or that the defendant's being at large poses a real and present danger of harm to any other person or to the public at large, or if at the time the sentence was rendered, the defendant filed a notice of appeal and elected to waive release and to begin serving the sentence." Rule 8(d), Ala. R. App. P., regarding stays of execution of sentences in criminal cases, provides in pertinent part: "(2) Imprisonment. a sentence of imprisonment or hard labor for the county or to the penitentiary shall be stayed if an appeal is taken and the defendant elects not to commence service of the sentence or is admitted to bail. "(3) Fines. a sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the trial court or by the appellate court upon such terms as the court deems proper. the court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk of the court, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating assets. "(4) Probation. An order placing the defendant on probation shall be stayed if an appeal from a judgment of conviction is taken, and the time while such appeal is pending shall not be credited as service of the probationary sentence." First, the law afforded the trial court options for promoting the collection of the restitution not presented by the State either to the trial court or to this Court. The general rule in Alabama is that a circuit court money judgment remains in full force and effect unless and until it is stayed. Rule 8, Ala. R. App. P. a restitution order is a money judgment, just as an order to pay a fine and costs is a money judgment. A restitution order may be secured and collected with all of the powers available under the law for securing and collecting civil judgments, see Rules 64 and 69, Ala. R. Civ. P., albeit without some of the constraints, such as the debtor's exemptions from civil judgments. See 15-18-78, Ala. Code 1975; Moore v. State, 706 So. 2d 265 (Ala. Crim. App. 1996); and Rice v. State, 491 So. 2d 1049 (Ala. Crim. App. 1986). The provisions for staying sentence requirements for the payment of money, Rule 8(d)(3), Ala. R. App. P., are distinct from the provisions for staying imprisonment required by sentence, Rule 8(d)(2). Independently of whether the trial judge stays or does not stay the imprisonment imposed by a sentence, the trial judge can refuse a stay of the money-payment requirements of a sentence or can grant a stay of the money-payment requirements on the conditions stated in Rule 8(d)(3), Ala. R. App. P. The criteria for mandamus are (a) a clear legal right to the order sought, (b) an imperative duty on the respondent (the trial judge in this case) to act and a refusal so to act, and (c) the lack of another adequate remedy. Ex parte State ex rel. McKinney, 575 So. 2d 1024 (Ala. 1990).