State v. Currington

• Decision Date: 27 March 1985
• Docket Number: No. 15307,15307
• Citation: 108 Idaho 539,700 P.2d 942
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Edward CURRINGTON, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 942

700 P.2d 942

108 Idaho 539

STATE of Idaho, Plaintiff-Appellant, v. Edward CURRINGTON, Defendant-Respondent.

No. 15307.

Supreme Court of Idaho.

March 27, 1985.

Rehearing withdrawn June 26, 1985.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-appellant.

Klaus Wiebe, Boise, on brief, Alan E. Trimming, Boise, Laird B. Stone, Twin Falls, for defendant-respondent.

SHEPARD, Justice.

This is an appeal from an order of the trial court, releasing the defendant-respondent Currington on bail during the pendency of his appeal from a conviction and sentence of ten years for arson, enhanced by five years for a persistent violator charge. We affirm.

We assume for the purpose of this opinion that the order of the trial judge admitting the defendant to bail is appealable (see I.A.R. 11(c)(6), allowing an appeal of right from an order made after judgment, affecting the substantial rights of defendant or the State). In any event, the obvious need for resolution of the question presented herein would impel the court to hear this appeal in the exercise of its inherent power. See State v. White, 98 Idaho 781, 572 P.2d 884 (1977); Idaho Const. art 5, § 9, Cf. State v. Molinelli, 105 Idaho 833, 673 P.2d 433 (1983).

Following Currington's conviction, imposition of sentence against him, and the filing of an appeal, Currington moved the trial court for release on bail pending appeal. The State opposed such motion, on the basis of Currington's alleged ineligibility for bail, under I.C. § 19-2905. That statute provides:

"Bail may be allowed to the defendant where good cause is shown, in all cases in which the appeal is from the trial, conviction or sentence for a criminal offense; except that no bail shall be allowed when the defendant has been sentenced for the said criminal offense to death, life imprisonment or for a term of incarceration exceeding five (5) years or where there has been an enhanced penalty imposed pursuant to sections 19-2520 or 19-2520A, Idaho Code."

Nevertheless, the trial court, on the basis of I.C.R. 46(b), found Currington eligible, and granted bail pending appeal. I.C.R. 46(b) states:

"A defendant may be admitted to bail or released upon his own recognizance by the court in which he was convicted pending an appeal upon consideration of the factors set forth in subsection (a) of this rule above unless it appears that the appeal is frivolous or taken for delay. Application for admittance to bail or release upon his own recognizance may be made by a defendant to the appellate court upon a showing in the application that the court in which he was convicted has refused to admit him to bail or release him on his own recognizance."

Evidence was presented regarding Currington's suitability for release on bail. No question is raised on this appeal regarding such suitability, other than relating to the statute-rule conflict, and we do not address other factors going to his suitability for bond. The trial court granted bail in the amount of $5,000 and imposed certain other conditions upon Currington's release.

The only argument of substance on this appeal is whether the granting of bail is a matter of substantive law and therefore within the exclusive province of the legislature or whether, as argued by Currington and concluded by the trial court, the question is merely one of procedure and therefore a matter falling within the rule-making authority of the Supreme Court.

A criminal defendant's right to bail in all but exceptional cases is provided in Idaho Const. art. 1, § 6, which states:

"All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted."

That provision confers a right to bail only prior to trial and not following conviction during a pending appeal. In re France, 38 Idaho 627, 224 P. 433 (1924); In re Schriber, 19 Idaho 531, 114 P. 29 (1911). See also State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974); In re Scaggs, 47 Cal.2d 416, 303 P.2d 1009 (1956). The Idaho Constitution does not contain any provision authorizing or restricting post-conviction bail. ¹

Our constitution in art. 5, § 13 provides in pertinent part:

"The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government ..."

Our legislature has recognized and confirmed the procedural rule-making power of the Supreme Court. I.C. §§ 1-212, 1-213.

Our decision at bottom is whether post-conviction bail is one of substantive right within the prerogative of the legislature, or is rather a procedural consideration governed by the rules of this Court. We hold that as to the very narrow issue presented here, i.e., the authority of a trial court to allow post-conviction bail to a convicted criminal made ineligible for bail by a statutory enactment, the issue is one of procedure rather than of substantive law. As has been well stated by the Washington Court in State v. Smith, 84 Wash.2d 498, 527 P.2d 674, 676-77 (1974):

"Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated. [Citations] ...

* * *

* * *

"Since the inherent power to fix bail is grounded in the power to hold a defendant, and thus relates to the manner of ensuring that the alleged offense will be heard by the court, we believe it to be implicit that the right to bail is essentially procedural in nature. Therefore, we hold that CrR. 3.2(h) was validly promulgated by the Supreme Court pursuant to its inherent rule-making authority to prescribe rules of procedure.

"Since the promulgation of rules of procedure is an inherent attribute of the Supreme Court and an integral part of the judicial process, such rules cannot be abridged or modified by the legislature. [Citations] Thus, the right to bail (and release) after verdict and pending appeal in the two cases consolidated and considered in this opinion is governed solely by the provisions of CrR. 3.2(h)." (Emphasis and parenthetical material in original.)

We note that, where conflict exists between statutory criminal provisions and the Idaho Criminal Rules in matters of procedure, the rules will prevail. State v. Lewis, 107 Idaho 616, 691 P.2d 1231 (1984); State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979). See also State v. Yoder, 96 Idaho 651, 534 P.2d 771 (1975); R.E.W. Const. Co. v. District Court of Third Jud. Dist., 88 Idaho 426, 400 P.2d 390 (1965); State v. Smith, supra.

The fixing of bail and release from custody are matters traditionally within the discretion of the courts. State v. Kerrigan, 98 Idaho 701, 571 P.2d 762 (1977); State v. Jiminez, 93 Idaho 140, 456 P.2d 784 (1969); State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967). We believe that these matters are most wisely left to the trial judge.

The order of the trial court is affirmed. Costs to respondent. No attorney's fees on appeal.

DONALDSON, C.J., and HUNTLEY, J., concur.

BISTLINE, Justice, dissenting.

Where this Court has just recently declared itself vested with the inalienable and inherent right to promulgate Rules of Evidence which in many instances are clearly substantive enactments and not mere matters of procedure, any voice heard in dissent is for all practical purposes a futile oral exercise. However, in other days down the road, it may help that the record is here kept straight.

I.C. § 19-2905, as set forth in the majority opinion, is not the full extent of the statutes governing bail on appeal. Since 1864 and throughout territorial days, through the formulation and adoption of our Constitution, and for 90 years of statehood, other than for convictions where the offense was punishable by death, admission to bail to a defendant who has appealed was a matter of judicial discretion. I.C. § 19-2905 prior to the 1980 amendment. During that entire 116-year period, side-by-side with § 19-2905, § 19-2906 provided the conditions of bail:

After conviction, and upon appeal:

.... 2. If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified or upon the appeal being dismissed; or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof.

For over a century, then, and, of extreme importance, through the move to statehood with the adoption of the Constitution, it has been the legislature which declared the rules for admission to bail, with discretion in the courts as to its allowance in each given case. All of that time the legislature set the qualifications of bail, I.C. § 19-2910; justification of bail, I.C. § 19-2911; and discharge from custody of a defendant on making bail, I.C. § 19-2912, ad infinitum through § 19-2937.

As stated by the majority, "Our legislature has recognized and confirmed the procedural rule-making power of the Supreme Court." This occurred in 1941.

I.C. § 1-212 provides:

Rule-making power recognized.--The inherent power of the Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized and confirmed.

I.C. § 1-213 provides:

Duty to make rules--Limitation.--The Supreme Court shall prescribe, by general rules, for all the courts of Idaho, the forms of process, writs, pleadings and motions, the...