JOHNSTONE, Justice.
The petitioner, Rex Edward Watson, is the defendant in a criminal case. He petitions us for a writ of mandamus or, in the alternative, a writ of habeas corpus to effect his release from the county jail during the pendency of his appeal from his conviction. We determine that he is due a writ of mandamus under the circumstances.
After a jury trial, the defendant was convicted of theft of property in the first degree. The trial court sentenced the defendant to eight years' imprisonment in the state penitentiary and payment of a fine of $1,000; a victim's compensation assessment of $250; court costs; and restitution in the sum of $71,985. The trial court split the imprisonment, ordered the defendant to serve weekends for the ensuing three months in the county jail, and suspended the balance of the term of imprisonment for a period of five years of formal probation on the condition, inter alia, that the defendant pay the moneys required by his sentence on a prescribed schedule. Thereafter, the defendant timely filed notice of appeal, and the trial judge set the appeal bond in the sum of $100,000. The defendant made a good corporate surety appeal bond for the $100,000 and filed it with the circuit clerk, who approved it and duly caused the sheriff to release the defendant from custody during the pendency of his appeal.
Ten days later, the district attorney filed a motion asking the trial court to reconsider the defendant's appeal bond and "to set the defendant's appeal bond at $71,985.00 cash" in order to secure the defendant's payment of the restitution to the victim of the theft. The trial judge conducted a hearing on the motion and, over the defendant's articulate and thorough arguments and objections (through defense counsel), granted the motion and required the defendant to post, in addition to his existing $100,000 corporate surety appeal bond, a $30,000 cash bond and remanded the defendant to the custody of the sheriff until such time as the defendant would make the additional $30,000 cash bond. Later that same day, the defendant filed a motion to reconsider with the trial court; and, four days later, he filed a "Motion to Set Aside Order Requiring Supersedeas Bond/Petition for Writ of Habeas Corpus" with the Court of Criminal Appeals, which denied relief. On the day after the Court of Criminal Appeals denied relief, the defendant filed the instant "Petition for Writ of Mandamus or Petition for Writ of Habeas Corpus" with this Court.
The remaining operative facts in this case consist of the contents of the defendant's original notice of appeal itself, the grounds and reasons advanced by the district attorney to persuade the trial judge to reconsider and to revise the original appeal-bond requirements, and the grounds and reasons stated by the trial judge in imposing the additional requirement of a $30,000 cash appeal bond. The defendant's notice of appeal itself reads, in pertinent part, as follows:
"Comes now the Defendant, Rex Edward Watson, by and though the undersigned counsel, pursuant to Rule 4, [Ala. R.App. P.], and tenders this notice of appeal to the Court of Criminal Appeals of Alabama from the judgement and sentence entered on, to-wit: September 3, 1999, in the above matter.
"Further, your Defendant makes known to the court that the Defendant elects not to commence service of the sentence imposed in this case, and requests this Court, pursuant to Rule 8(d), [Ala. R.App. P.,] to enter a Stay of Execution of the sentence and payment of any ordered fines, costs, and restitution, pending the appeal. Your Defendant would also request this Court to continue the present appearance bond, or in the alternative set an appeal bond that is appropriate under the premises."
(Emphasis added.) The trial judge's original order setting the defendant's original appeal bond at $100,000 operated to grant the defendant's request that the trial court, "pursuant to Rule 8(d), ... enter a Stay of Execution of the sentence and payment of any ordered fines, costs, and restitution, pending the appeal" and "set an appeal bond that is appropriate under the premises." As this opinion will explain, the trial court could have, and still can, discriminatingly tailor its stay and its appeal-bond requirements to do justice for the State, the victim, and the defendant.
The "Motion to Reconsider Bond" filed by the district attorney with the trial court reads, in pertinent part, as follows:
"1. The defendant was convicted of Theft of Property, first degree. Following a lengthy probation and sentencing hearing, the defendant was sentenced to 8 years, ordered to pay restitution, and placed on probation for 5 years after serving several weekends in jail.
"2. Due to the unusual nature of this case, the State requests the Court to set the defendant's appeal bond at $71,985.00 cash. The State cites two primary reasons for this request:
"(a) The victim is elderly and suffers from cancer. The defendant stole the money in which she planned to use to care for herself. By appealing, the defendant does not have to pay any money for a year to two years. It is entirely possible the victim may be deceased by such time. By setting a cash bond in the amount of restitution there will be some security of payment in the future. In a civil case, the defendant is required to post security for the amount of judgment if the defendant appeals. There is no reason for the defendant not to do so.
"(b) The defendant lied to the Court at the probation hearing. The defendant begged, pleaded and cried for the Court to do exactly what it did. The defendant assured the Court that he would do as the Court desired. The defendant never indicated that he would appeal, and attempt to make a mockery of the Court's mercy.
"3. There is not a single legitimate issue for the defendant to appeal. The Court was extremely fair to both sides. No novel or peculiar issues were presented. The entire trial simply presented a factual issue for the jury to decide.
"Wherefore, the State moves the Court to set the defendant's appeal bond at $71,985.00."
At the hearing conducted by the trial court on the district attorney's Motion to Reconsider Bond, the district attorney summarized his position as follows:
"What we are simply asking is that there be some security, that in the event this case is affirmed, which we fully believe it will be; [the victim] will get her money if she is still living. Initially I filed asking the Court for a cash bond in the amount of the restitution. The more I have thought about it since then, I will amend that somewhat and request the Court, as opposed to changing the bond, leave it the way it is but as a condition of the bond, to post the amount of restitution ordered, some seventy-two thousand dollars in cash or a CD or some sort of commercial note with the Clerk of the Court. She can hold it and if it is reversed, give it back. And, it can be drawing interest in this time. Also Your Honor is fully aware that we could have asked for interest on the restitution that the Court ordered. We did not do that. We normally don't do it. I could have, but we didn't even get into that under the belief that, you know, he would be paying like he is supposed to. Now, the summer of '97, this is some, over three years later now and we are waiting another year to five years and what is the interest on that money during the time it is on appeal? If it is affirmed, you know, she won't be getting any interest from it, either. The reasonable thing, due to the circumstances of this case, she is not a wealthy woman, no money has been paid back to her. Why not, what at all is unreasonable about posting that amount in cash to be held in trust by the Clerk of the Court or the Sheriff pending a resolution of this case[?] Again, if it is reversed, they can get the money back. We are not saying give it to her, because they have the right to appeal. Finally, the only other thing we would offer, again, you remember the lengthy [sentencing] hearing that we had and they pleaded and begged for Your Honor to do exactly what you did. We submit to the Court that was just a sham on the Court. That was just a put[-]on. You know, we think the Court should take that in account as well. Thank you for hearing this motion. That is all we have."
The State has not contended and does not contend that the defendant waived his right of appeal. In fact, at the hearing before the trial court, the district attorney, in the words quoted above and those quoted below, expressly recognized the defendant's right to appeal:
"We are not trying to be punitive in any way, but at the Probation and Sentencing Hearing, they pled and begged and cried and carried on for you to give them exactly, basically, what you ended up giving them. They were going to pay the restitution and you set them up on a payment plan to do that. They didn't mention anything about any intention of appealing. Of course, they don't have to mention that. They have forty-two days to do that. I am not trying to do anything to stop his right to appeal...."
In ruling, the trial court stated its position:
"You know the problem I am having with this? Of course, you are in on this case now and you were not here during the trial and did not hear the testimony. But, you know there is something wrong with the law when a man is convicted of Theft of Property in the First Degree by a Jury of twelve people over here for stealing seventy-two thousand dollars from an elderly woman with cancer and he now hires [appellate] counsel. I have a fear he is hiring [appellate] counsel through using
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