Committee Advisory Note [December 2014]
The Rule parallels the content of Rule 38 of the Maine Rules of Criminal Procedure but differs in the following respects.
First, in subdivision (a) “supervised release,” pursuant to 17-A M.R.S. §§ 1231-1233, is added to prohibit a court from placing the defendant in execution of the period of release while on bail pending appeal for purposes of clarity.
Second, in subdivision (b) “supervised release” is added both to its heading and its content in response to the change in subdivision (a).
Third, in subdivision (b) the words “of the Unified Criminal Docket” are added after the word “clerk” and before the word “shall” to enhance clarity.
Fourth, in subdivision (c) the words “Unified Criminal Docket” replace the words “criminal docket.”
Fifth, in subdivision (c) the words “Law Court” replace the words “appellate court” because the Superior Court is no longer serving as an intermediate appellate court under the unified criminal procedure. The Law Court is now the sole appellate court. See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 36.
[Advisory Notes to former Maine Rules of Criminal Procedure]
Advisory Committee Note—1975
[M.R. Crim. P. 38(a)(1).] The change in this rule is to eliminate any confusion resulting from 15 M.R.S. § 1701-A (Maine Laws 1973, chapter 144). The language deleted was originally included in the rule following the federal practice; its purpose in federal practice is to make certain that a defendant will be available to his counsel pending appeal, even though he is not admitted to bail, by having him confined during the pendency of the appeal close to his counsel. With federal institutions all over the country this is of great importance in federal procedure. It is of less importance in Maine practice and the amendment is necessary to eliminate claims presently being made by some defendants that they have an absolute right to serve a state prison sentence in the county jail by exercising an election under 38(a)(1) as it is presently worded.
Advisory Committee Note—1979
[M.R. Crim. P. 38.] Provisions of Rule 38 dealing with bail pending appeal are transferred to the Bail Rule, Rule 46. See amendment to Rule 46(a).
Advisory Committee Note—1989
[M.R. Crim. P. 38.] Several changes are made in Rule 38. Rule 38(a) consolidates the provisions of former Rules 38(a) and (c) relating to stay of sentences of imprisonment or probation if an appeal is taken and the defendant is admitted to bail pending appeal. The wording of Rule 38(b) is changed to reflect that sentences can be imposed involving monetary alternatives other than a fine or a fine and costs. Examples are sentences for costs or for restitution. The terms “sentence involving money” and “money alternative” are intended to include these additional sentences.
Advisory Committee Note—1994
[M.R. Crim. P. 38(a).] Some question has arisen as to the precise point in time a stay of execution of sentence automatically terminates once an appeal is denied. The amendment resolves any ambiguity by identifying that point in time as being the date the mandate of the appellate court (normally the Law Court but, in appeals from the district court by a defendant, the Superior Court sitting as an intermediate appellate court) is entered in the criminal docket of the trial court.
[M.R. Crim. P. 38(c).] New Rule 38(c) establishes for the first time in the Rules of Criminal Procedure a fair and orderly procedure for the surrender of a defendant whose appeal has been denied. This procedure places the onus on a defendant to arrange for his or her own surrender into custody. However, it does not prevent the attorney for the state from independently arranging for the defendant’s seizure by moving to revoke bail in unusual cases, e.g., where there is a risk of flight.
Advisory Committee Notes—1999
[M.R. Crim. P. 38(a).] This amendment addresses a latent ambiguity created in 1989 with the consolidation of former Rule 38(c) with that of former Rule 38(a) - namely, whether the 1989 amendment intended to substantively modify former Rule 38(c) by eliminating the opportunity for a defendant to elect to serve a period of probation while on bail pending appeal. See 2 Cluchey & Seitzinger, Maine Criminal Practice § 38.3, n.7 at VIII-113.0 (1994). The amendment makes clear that, in addition to barring a court from doing it on its own motion, Rule 38(a) does not authorize a defendant to elect to be in execution of a probationary term while on bail pending appeal. Bail conditions may be imposed to satisfy the intent served by conditions of probation during the pendency of the appeal.
Advisory Committee Note—2003
[M.R. Crim. P. 38.] This amendment does five things. First, it changes current subdivision (b) as it relates to a defendant who, on appeal, seeks a stay from the court of that part of a sentence involving money and is not in fact admitted to bail. Currently in this circumstance the subdivision requires that a defendant deposit the whole amount of the money alternative with the clerk of court as a necessary precondition for a court to order a stay. This prerequisite has proven unworkable in many cases and thus is not consistently applied by the court. As amended, the subdivision gives to the court broad discretion to stay the money alternative portion of the sentence on any terms it views as appropriate for that defendant. In this regard, among other things, it is contemplated that a court may require the defendant to deposit all or a part of the money alternative with the clerk of court, post a bond to pay the money alternative, or submit to an examination concerning the defendant’s assets and, if appropriate, order the defendant to refrain from dissipating assets. The amendment to subdivision (b) is modeled after its federal rule counterpart. See Fed. R. Crim. P. 48(c).
Second, the amendment eliminates the current requirement that the clerk wait 30 days following the affirmation of a judgment before applying the deposited funds in payment of the money alternative. The 30-day requirement was apparently added to subdivision (b), effective June 1, 1989, when the Maine Rules of Criminal Procedure and the then Maine District Court Criminal Rules were merged. No explanation was offered for the addition of a 30-day waiting period. See M.R. Crim. P. 38(b) Advisory Committee’s Note to 1989 amend., Me. Rptr., CXVII. It has no apparent purpose under current procedure.
Third, this amendment further amends subdivision (b) to also address a defendant who, on appeal, seeks a stay from the court of that part of the sentence not involving imprisonment, probation or money. Currently the rule does not address this form of sentence alternative that commonly involves forfeitures (e.g., 17-A M.R.S. §§ 1002-A(4) and 1158), revocation or suspension of a license or permit (e.g., 17-A M.R.S. § 1057(6) and 29-A M.R.S. § 2411(5)) or a disqualification (e.g., 17-A M.R.S. § 1153(2)).
Fourth, the amendment transfers the current second paragraph of subdivision (a) to a new subdivision (c) and broadens its application to include all court-ordered stays under the rule.
Fifth, and last, it redesignates current subdivision (c) to subdivision (d) and corrects an incorrect reference to Rule 46.
Advisory Note – June 2006
M.R. Crim. P. 38(a) and (b). The amendment treats sentencing alternatives that include a period of administrative release (17-A M.R.S. ch. 54- G) in the same manner as a sentence involving imprisonment or a period of probation. In addition to barring a court from doing it on its own motion, as amended, Rule 38(a) does not authorize a defendant to elect to be in execution of a period of administrative release while on bail pending appeal. As with a sentencing alternative involving probation, bail conditions may be imposed to satisfy the intent served by requirements of administrative release during the pendency of the appeal. See Me. Rptr., 716-724 A.2d LIII, LX and LXIV-LXV in the context of probation. Administrative release was added to the Maine Criminal Code in 2004 by the 121st Legislature. See P.L. 2004, ch. 711, § A-19.
