{
  "id": 6140126,
  "name": "Sylvia Dianne VINEYARD v. STATE of Arkansas",
  "name_abbreviation": "Vineyard v. State",
  "decision_date": "1989-11-08",
  "docket_number": "CA CR 89-147",
  "first_page": "180",
  "last_page": "185",
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      "cite": "29 Ark. App. 180"
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    {
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      "cite": "782 S.W.2d 370"
    }
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    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
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    "name_long": "Arkansas",
    "name": "Ark."
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    {
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      "category": "laws:leg_statute",
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          "page": "171-172"
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  "last_updated": "2023-07-14T20:00:46.162740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Sylvia Dianne VINEYARD v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nOn June 1,1989, a motion for rule on clerk was filed in this case in the Arkansas Supreme Court under number RC 89-25. The motion, signed by appellant\u2019s attorney, alleged the appellant had been convicted of manslaughter in the Union Circuit Court and by \u201cJudgment and Commitment Order dated March 29,198 8, sentenced to imprisonment for a term of ten (10) years in the Department of Correction.\u201d The motion also alleged that a notice of appeal had been filed and the time for lodging the record on appeal had been extended to August 15, 1988.\nThe motion for rule on clerk further alleged that counsel for appellant (there is no indication that counsel was court-appointed) received the record on appeal within the period for lodging the record as extended by the trial court, but due to counsel\u2019s fault the record was not filed in the appellate court within that period. The motion prayed for a rule directing the appellate court to file the record. On June 19,1989, the Arkansas Supreme Court granted the motion on the basis that appellant\u2019s attorney \u201cadmits that the failure to file the record in time was due to fault on his part.\u201d And on that date, June 19,1989, the record was filed in the Arkansas Court of Appeals.\nHowever, prior to the filing of the record on appeal, the trial court, on May 30, 1989, entered an order revoking appellant\u2019s appeal bond for the reason that the record had not been filed in the appellate court. Therefore, after the record had been filed in the Court of Appeals, the appellant, on August 3, 1989, filed a \u201cPetition for Certiorari or Motion for Mandamus\u201d in the Court of Appeals alleging that the trial court had revoked appellant\u2019s bond without a hearing and asking the appellate court to reinstate the bond or to reinvest the trial court with authority to conduct a hearing on appellant\u2019s motion for bond and to certify the record of that hearing to this court. On August 16, 1989, under the authority of Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982), this court entered an order reinvesting the trial court with jurisdiction to hear the motion for bail.\nThereafter, on October 17, 1989, the appellant filed in this court a \u201cMotion to Supplement the Record and Motion for Bail on Appeal\u201d alleging that the trial court had held a hearing on August 29, 1989, but had denied appeal bail to appellant, and appellant prayed that this court review the action of the trial court and issue an order admitting appellant to bail.\nWe have reviewed the record of the trial court\u2019s action taken in response to our per curiam of August 16,1989. This record was tendered in two parts. The first portion was tendered September 25,1989, and contains a copy of the trial court\u2019s docket showing a hearing held on August 28,1989, pursuant to our per curiam. The second portion of the record was tendered on October 17, 1989, and contains the testimony taken at the trial court\u2019s hearing and the court\u2019s written order entered on October 2, 1989, denying bail.\nThe record before us shows that at the beginning of the hearing conducted pursuant to our per curiam, the trial court reminded counsel for appellant that after the appellant had been sentenced on March 29,1988, she was at that time permitted to remain on bond; that the trial transcript had been filed with the clerk of the trial court on June 23, 1988, and picked up by appellant\u2019s counsel on July 27,1988; and that the transcript was not filed in the appellate court until June 19, 1989, when the Arkansas Supreme Court granted a motion for rule on the clerk. The trial court clearly informed counsel that his delay in filing the record on appeal was the primary reason the appellant\u2019s bond had been revoked on May 30, 1989 (almost a year after counsel had picked up the record from the clerk of the trial court). And the trial court clearly informed counsel that it was the court\u2019s opinion that under Ark. Code Ann. \u00a7 16-91-110(b)(2) (Supp. 1987) (as amended by Act 31 of 1987), counsel had the burden of establishing that the appeal was \u201cnot for the purpose of delay and that it raises a substantial question of law or fact.\u201d Counsel for appellant, however, made only general references to issues he was in the process of briefing for the appellate court, stated he did not have his notes on those issues with him, but contended that the issues he would raise on appeal were \u201cnot frivolous.\u201d\nA deputy prosecuting attorney told the trial judge that the state \u201cwould clearly disagree\u201d with appellant as to whether the appeal had any merit. He stated that the issues on appeal referred to by appellant\u2019s counsel concerned admissibility of evidence and reminded the court that this matter had been briefed for the trial court before trial and that the court had ruled on the questions presented based on \u201cthe case law as presented by both parties.\u201d\nThe trial judge concluded the hearing by giving counsel for appellant ten days in which to submit a \u201cwritten brief or any written matter\u201d to convince the court that the appeal was not for delay but raised a substantial question of law. Counsel told the judge he would be \u201chappy to do that\u201d and stated that ten days would \u201cbe sufficient.\u201d\nHowever, the supplemental record filed here shows that the trial judge entered a written order stating no brief had been submitted to the court; the court was convinced that the appeal was \u201cfiled for purpose of delay\u201d; and the appellant\u2019s motion for bond on appeal was denied.\nIn appellant\u2019s \u201cMotion to Supplement the Record and Motion for Bail on Appeal,\u201d filed in this court on October 17, 1989, appellant\u2019s counsel admits that no brief was filed with the trial court; alleges that he has now filed the appellant\u2019s brief in this court which shows there is merit to the appeal; and states that the appellant has now been incarcerated in the Department of Correction.\nWe find that the trial judge\u2019s action in refusing to release the appellant to bail pending appeal is supported by the record before us. In Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982), the court said:\nAppeal bonds are governed by [Criminal Procedure] Rules 36.5, 36.6, and 36.7. When such a bond is to be set the circuit judge has already heard the evidence at the trial, knows the actual sentence imposed, and is thus in an improved position to weigh the risk of defendant\u2019s nonappearance pending appeal. Moreover, under Rule 36.5 the trial judge may deny an appeal bond altogether and deliver the defendant to the custody of the sheriff, under conditions that were not even applicable when the pretrial bond was set. With respect to the appeal bond there is no requirement that the trial judge make written findings in fixing the amount of the bond. If this petitioner thinks that the appeal bond is too high, his remedy is not in this court but in the trial court.\n275 Ark. at 171-172. Criminal Procedure Rule 36.5 provides persons convicted of crimes other than capital offenses shall be admitted to bail or otherwise set at liberty by the trial court except if the court finds:\n(a)\n(i) there is substantial risk that the defendant will not appear to answer the judgment following conclusion of the appellate proceedings; or\n(ii) there is substantial risk that the defendant will commit a serious crime, intimidate witnesses, harass or take retaliatory action against any juror, or otherwise interfere with the administration of justice.\nA comparison of the above provisions of Rule 36.5(a) and the provisions of Ark. Code Ann. \u00a7 16-91-110(b)(1) (Supp. 1987), referred to by the trial court, reveals that they cover the same things except that the code adds \u201cor pose a danger to the safety of any other person\u201d after the words \u201cor otherwise interfere with the administration of justice.\u201d Paragraph (b) of Rule 36.5 provides:\n(b) In making the release determination the trial court shall take into account the nature of the crime and sentence imposed in addition to the factors enumerated in Rule 8.5(b) as relevant to a release decision.\nOne of the factors set out in Rule 8.5(b) is (vi) \u201cthe nature of the current charge and any mitigating or aggravating factors that may bear on the likelihood of conviction and the possible penalty.\u201d Ark. Code Ann. \u00a7 16-91-110(b)(2) (Supp. 1987) provides that a criminal defendant sentenced to imprisonment may not be released on bail pending appeal unless the court finds: \u201cThat the appeal is not for the purpose of delay and that it raises a substantial question of law or fact.\u201d\nThus, it is clear that Ark. Code Ann. \u00a7 16-91-110 makes substantially the same requirements for bond on appeal as does Criminal Procedure Rule 36.5 (including the factor set out in Rule 8.5(b)(vi), referred to in Rule 36.5). The trial court specifically found in its order entered on October 10, 1989, that \u201cbond on appeal is denied in accordance with [Ark. Code Ann.] 16-91-110(b)(1) and (2). Both the code and the rule require that the trial court consider whether the criminal defendant (1) will appear at the conclusion of the appellate proceedings, and (2) the likelihood of conviction. We think the record before us supports the trial court\u2019s order in both respects. Although the evidence shows the appellant contacted the sheriffs office each day (after the trial court revoked her bond) to see if there was space in the Department of Correction for her, this does not necessarily mean she could be found if she were on bail when her ten-year sentence was affirmed on appeal. At least, this is a matter for the trial court to decide.\nMoreover, the record made before the trial court clearly supports its finding that this appeal is for the purpose of delay and does not raise a substantial question of law or fact, and we think that alone is sufficient to support the trial court\u2019s order denying bail pending appeal.\nThe motion for bail pending appeal is denied, and the clerk of this court is directed to file the supplemental record tendered September 25, 1989, and the supplemental transcript tendered October 17, 1989, as parts of the record in this case.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Don G. Gillaspie, for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Lynley Arnett, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Sylvia Dianne VINEYARD v. STATE of Arkansas\nCA CR 89-147\n782 S.W.2d 370\nCourt of Appeals of Arkansas En Banc\nOpinion delivered November 8, 1989\nDon G. Gillaspie, for appellant.\nSteve Clark, Att\u2019y Gen., by: Lynley Arnett, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0180-01",
  "first_page_order": 204,
  "last_page_order": 209
}