perfects its appeal. The clear and unambiguous terms of
the statute remove any expectation of finality that a
defendant may vest in his sentence; its stay provisions
ensure that he will not begin serving that sentence until
the State’s notice of appeal is filed. Of course, bail must
be established by the trial court in accordance with R.
2:9-3(d) within a reasonable period after the State’s
appeal is taken.
5. Obligation of Surety
a. R. 2:9-4 contemplates new bail, not continued
bail. State v. Vendrell, 197 N.J. Super. 232 (App. Div.
1984).
b. A judicial determination to admit defendant to
post conviction bail cannot by itself extend a surety’s
obligation to provide bail. State v. Vendrell, supra; R. 2:9-
4.
6. Bail Pending Resentencing Hearing
No provision is made for bail on application for
resentencing under N.J.S.A. 2C:1-1d(2). After
conviction defendant has no right to bail unless
specifically provided pursuant to R. 2:9-4. State v.
Cavanaugh, 174 N.J. Super. 90 (Resentencing Panel
1979). See State v. Love, 233 N.J. Super. 38, 46 (App.
Div. 1989) (discussing continuance of bail pending
appeal after the conclusion of appeal so that defendant
could file a motion for reconsideration), certif. denied, 118
N.J. 188 (1989).
7. Revocation of Bail Pending Appeal.
See State v. Korecky, 333 N.J. Super. 78 (App. Div.
2000) (trial court properly revoked bail for violation of
“no contact” provision, but erred in ordering forfeiture);
State v. Maccioli, 110 N.J. Super. 352 (Law Div. 1970).
III. ENLARGEMENT UPON RECOGNIZANCE
(pending Petition for Habeas Corpus)
(See also, HABEAS CORPUS, this Digest)
A. Rules of Court Governing
Fed.R.App.P.23(b) and (c)Pending review of a decision failing or refusing to
release a prisoner in such a proceeding, the prisoner may
be detained in the custody from which release is sought,
or in other appropriate custody, or may be enlarged upon
his recognizance, with or without surety, as may appear
fitting to the court or justice or judge rendering the
decision, or to the court of appeals or the Supreme Court,
or to a judge or justice of either court.Pending review of a decision ordering the release of a
prisoner in such a proceeding, the prisoner shall be
enlarged upon his recognizance, with or without surety,
unless the court or justice or judge rendering the
decision, or the court of appeals or the Supreme Court, or
judge or justice of either court shall otherwise order. See
United States v. Dansker, 561 F.2d 485 (3d Cir. 1977).B. Authority of Federal Courts to Grant
- Although federal district courts have authority, as
part of their general habeas corpus jurisdiction, to release
state prisoners at any time before a habeas corpus
becomes final, United States ex rel. Thomas v. New Jersey,
472 F.2d 735, 743 (3d Cir.), cert. denied. 414 U.S. 878,
94 S.Ct. 121 (1973); United States ex rel. Slough v. Yeager,
449 F.2d 755, 756 (3d Cir. 1971), the power is exercised
sparingly. - Standards Governing
a. While addressing the motion of a federal prisoner
seeking release on bail, Justice Douglas, provided the
standard which should also govern bail applications by
state prisoners in Habeas Corpus actions:This applicant is incarcerated because he has been tried,
convicted, and sentenced by a court of law. He now
attacks his conviction in a collateral proceeding. It is
obvious that a greater showing of special reasons for
admission to bail pending review should be required in
this kind of case than would be required in a case where
applicant has sought to attack by writ of habeas corpus an
incarceration not resulting from a judicial determination
of guilt.... In this kind of case it is therefore necessary
to inquire whether, in addition to there being substantial
questions presented by the appeal, there is some
circumstance making this application exceptional and
deserving of special treatment in the interests of justice.
Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (1964).See Landano v. Rafferty, 970 F.2d 1230 (3d Cir.),
cert. denied, 506 U.S. 955, 113 S.Ct. 412, 121 L.Ed.2d
336 (1992); United States v. Smith, 835 F.2d 1048 (3d
Cir. 1987); United States v. Messerlian, 793 F.2d 94 (3d
Cir. 1986).b. The strictness of this standard reflects the notion
that “bail incident to a filing of a petition for habeas