RULE 46. RELEASE FROM CUSTODY
(d) Release Pending Appeal From a Judgment of Conviction.
(1) Motion to Trial Court. Any motion
Application for release, modification of the conditions of release, or revocation of release after a notice of appeal from a judgment of conviction has been filed shall must first be made in the first instance in to the trial court before the motion may be made to the supreme court. If the trial court refuses release pending appeal, or imposes conditions of release, or revokes release, the court shall state in writing the reasons for the action taken.
(2) Motion to Supreme Court. After having first been made to the trial court,
Thereafter, a motion for release, or for modification of the conditions of release, or for revocation of release, pending review may be made to the supreme court or to a justice thereof one of its justices. The motion shall must be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice. The supreme court or a justice thereof one of its justices may order the release of the appellant pending disposition of the motion.
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Rule 46 was amended, effective March 1, 1986; March 1, 1990; January 1, 1995; March 1, 1999;________________________.
Rule 46 is an adaptation of Rule 46, FRCrimP, as amended in 1972.
Subdivision (a) is adapted from the language of the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 214), 18 U.S.C. § 3146.
Subdivision (a) was amended, effective January 1, 1995, to make the safety of any other person or the community a relevant consideration when determining which conditions of release will reasonably assure the appearance of a person charged with an offense. Additional conditions of release were added from the Bail Reform Act of 1984, 18 U.S.C. § 3142(c).
Subdivision (b) is adapted from the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 215), 18 U.S.C. § 3147(a).
Subdivision (c) follows subdivision (b) of the federal rule and provides for bail during trial. This provision continues previous North Dakota law (Section 29-08-08, N.D.C.C.).
Subdivision (d) and N.D.R.App.P. 9(b) are identical
and are derived from FRAppP 9(b). These subdivisions regulate the procedure for release of the defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision Subdivision (d) and N.D.R.App.P. 9(b) were was amended, effective March 1, 1986, to permit modification or revocation of the release of a defendant who was initially released pending appeal, and to clarify that an application a motion for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court.
Subdivision (d) was amended stylistically, effective ________________________.
Subdivision (e) is similar to 18 U.S.C. § 3149.
Subdivision (f) follows subdivision (d) of the federal rule.
Subdivision (g)(1) follows subdivision (e)(1) of the federal rule and previous North Dakota law (Section 29-08-21, N.D.C.C.) and requires a forfeiture of the bond must be declared if there is a breach of conditions on the bond. Although this provision has been held to be mandatory, subdivision (g)(2) permits an excusal of the forfeiture if "justice does not require the enforcement of the forfeiture". "The forfeiture provision is designed to discourage violations of bail covenants and to deter defaults which create unnecessary delay and expense to the government [prosecution]." Smith v. United States, 357 F.2d 486, 490 (5th Cir. 1966).
Subsection (g)(3) follows subdivision (e)(3) of the federal rule and establishes a single procedure, copied from
Rule 65.1, FRCivP Fed.R.Civ.P. 65.1, through which the court, on motion, can enforce forfeited bail bonds. Subdivision (g)(3) was amended, effective March 1, 1986, to delete "district" court and make clear that obligors, by entering into bond, subject themselves to the jurisdiction of an appropriate court and appoint the clerk as their agent for service of any papers.
Subdivision (g)(3) was amended, effective March 1, 1999, to allow copies of the motion to be served via commercial carrier as an alternative to mail.
Subdivision (g)(4) follows subdivision (e)(4) of the federal rule. A determination for remission should be made only after judgment of default has been entered. [United States v. Miller, 323 F.2d 403 (6th Cir. 1963).]
Subdivision (h) follows subdivision (e)(4) of the federal rule. The provision that the surety may surrender the defendant into custody, whether or not the case has been disposed of, is consistent with previous North Dakota law (Section 29-08-20, N.D.C.C.) and avoids a breach and forfeiture when the surety has reason to anticipate that defendant will not appear.
Subdivision (i) follows subdivision (g) of the federal rule.
SOURCES: Joint Procedure Committee Minutes of ____________________________; January 29-30, 1998, page 20; April 28-29, 1994, pages 4-6; January 27-28, 1994, pages 18-23; September 23-24, 1993, pages 21-23; April 20, 1989, page 4; December 3, 1987, page 15; November 29, 1984, page 12; April 26, 1984, pages 11-17 and 21; January 19, 1984, pages 5-9; April 24-26, 1973, pages 14-15; December 11-15, 1972, pages 50-53; November 18-20, 1971, pages 12-22; Rule 46, FRCrimP.
SUPERSEDED: 29-08-04, 29-08-05, 29-08-06, 29-08-07, 29-08-08, 29-08-09, 29-08-10, 29-08-11, 29-08-12, 29-08-13, 29-08-14, 29-08-15, 29-08-17, 29-08-18, 29-08-19, 29-08-20, 29-08-21, 29-08-23, 29-08-24, 29-08-25, 29-12-02, 29-21-34, 29-28-16, 29-28-17, 31-03-21, 31-03-22, 31-03-23, 33-12-10, 33-12-36, 33-12-37, 33-12-38, N.D.C.C.
CONSIDERED: 12-01-13, 22-02-09, 29-05-12, 29-05-13, 29-05-14, 29-08-01, 29-08-02, 29-08-03, 29-08-16, 29-08-22, 29-08-26, 29-08-27, 29-21-21, 29-21-23, 29-22-31, 31-03-19, 31-03-20, 31-03-24, N.D.C.C.