Short answer: is eligible for an appeal bond if convicted.
Warning: Just because he is eligible does not mean that he is entitled to an appeal bond as a
matter of right and it does not follow that he is likely to receive one from the Court.
Right to bail after conviction not absolute and is a matter within the discretion of
the trial court. People v. Roca, 17 P.3d 835 (Colo. App. 2000); Romeo v. Downer, 69
Colo. 281, 193 P. 559 (1920); Trujillo v. District Court of Weld County, 282 P.2d 703,
131 Colo. 428 (Colo. 04/26/1955) (trial court reversed for refusing appeal bond based
on court policy to refuse appeal bonds in all cases). Accused persons, bailable before
trial but having no absolute right to be admitted to bail after conviction, should be
admitted to bail with great caution after conviction, only where the extraordinary or
peculiar circumstances of the case render it right and proper. The burden of showing
such circumstances is, of course, on the accused. Romeo v. Downer, 69 Colo. 281, 193
P. 559 (1920).
Procedure: Request for an appeal bond should occur in the trial court, even if the direct appeal
has been perfected and the case is now with the COA. See People v. Stewart, 55 P.3d 107 (Colo.
09/09/2002) (A trial court retains jurisdiction to act on matters that are not relative to and do
not affect the judgment on appeal. People v. Dillon, 655 P.2d 841, 844 (Colo. 1982); Molitor v.
Anderson, 795 P.2d 266 (Colo. 1991). Accordingly, we hold that no limited remand was
necessary for the trial court to consider Stewart's application for an appeal bond after he filed a
direct appeal.)
Section 16–4–201, 6 C.R.S. (1999), authorizes an appeal bond, except in capital
cases. The statute contemplates that, at least initially, a request for an appeal bond
will be made in the trial court; C.A.R. 9(b) contains a similar provision. Thus, as
the court of appeals noted in this case, “[i]t is apparent from both the rule and
statute that a motion for an appeal bond may be filed and acted upon prior to the
commencement of the appeal.” An ambiguity arises, it observed, as to the effect
that filing an appeal bond has on the status of a trial court's jurisdiction over
appeal bonds.
53 We agree with the court of appeals' analysis and disposition of the issue. A
trial court retains jurisdiction to act on matters that are not relative to and do not
affect the judgment on appeal. Dillon, 655 P.2d at 844; Molitor v. Anderson, 795
P.2d 266 (Colo.1990). Accordingly, we hold that no limited remand was
necessary for the trial court to consider Stewart's application for an appeal bond
after he filed a direct appeal. Therefore, we affirm the court of appeals' judgment
with respect to this issue.
People v. Stewart, 55 P.3d 107, 126 (Colo. 2002), as modified on denial of reh'g (Sept. 23,
2002), as modified on denial of reh'g (Oct. 15, 2002)
ANALYSIS: Because is not accused of a) murder; b) a felony sexual assault involving the
use a weapon or against a child 14 or younger; c) a crime of violence; d) a felony during the
commission of which the person used a firearm; or e) felon with a weapon, he is eligible for an
appeal bond so long as the court finds that he is unlikely to flee and does not pose a danger to the
safety of any person or the community; and the appeal is not frivolous or is not pursued for the
purpose of delay.
Note on crime of violence: C.R.S. §18-1.3-406(2)(a) not applicable because no SBI or use of
weapon and not specified in indictment (I assume). C.R.S. §18-1.3-406(2)(b) not applicable
because Xxxx’s charge is not an "unlawful sexual offense" as set forth in section 18-3-411(see
below for laundry list).
Both C.R.S. §16-4-201.5 and Article 2, Section 19 of the Colorado Constitution govern the
issuance of an appeal bond.
16-4-201.5. Right to bail after a conviction - exceptions.
(1) The court may grant bail after a person is convicted, pending sentencing or appeal, only
as provided by this part 2; except that no bail is allowed for persons convicted of:
(a) Murder;
(b) Any felony sexual assault involving the use of a deadly weapon;
(c) Any felony sexual assault committed against a child who is under fifteen years of age;
(d) A crime of violence, as defined in section 18-1.3-406, C.R.S.;
(e) Any felony during the commission of which the person used a firearm; or
(f) A crime of possession of a weapon by a previous offender, as described in section 18-12108 (2) (b), (2) (c), (4) (b), (4) (c), or (5), C.R.S.
(2) The court shall not set bail that is otherwise allowed pursuant to subsection (1) of this
section unless the court finds that:
(a) The person is unlikely to flee and does not pose a danger to the safety of any person or the
community; and
(b) The appeal is not frivolous or is not pursued for the purpose of delay.
(3) The provisions of this section shall apply to offenses committed on or after January 1,
1995.
Article II, Section 19. Right to bail - exceptions.
(1) CONCERNS PRE-TRIAL BONDS
(2.5) (a) The court may grant bail after a person is convicted, pending sentencing or appeal,
only as provided by statute as enacted by the general assembly; except that no bail is
allowed for persons convicted of:
(I) Murder;
(II) Any felony sexual assault involving the use of a deadly weapon;
(III) Any felony sexual assault committed against a child who is under fifteen years of age;
(IV) A crime of violence, as defined by statute enacted by the general assembly; or
(V) Any felony during the commission of which the person used a firearm.
(b) The court shall not set bail that is otherwise allowed pursuant to this subsection (2.5)
unless the court finds that:
(I) The person is unlikely to flee and does not pose a danger to the safety of any person or the
community; and
(II) The appeal is not frivolous or is not pursued for the purpose of delay.
Crime of violence is defined in C.R.S. §18-1.3-406(2)
(a)(I) as any of the crimes specified in subparagraph (II) of this paragraph (a) committed,
conspired to be committed, or attempted to be committed by a person during which, or in the
immediate flight therefrom, the person:
(A) Used, or possessed and threatened the use of, a deadly weapon; or
(B) Caused serious bodily injury or death to any other person except another participant.
(II) Subparagraph (I) of this paragraph (a) applies to the following crimes:
(A) Any crime against an at-risk adult or at-risk juvenile;
(B) Murder;
(C) First or second degree assault;
(D) Kidnapping;
(E) A sexual offense pursuant to part 4 of article 3 of this title;
(F) Aggravated robbery;
(G) First degree arson;
(H) First degree burglary;
(I) Escape; or
(J) Criminal extortion.
or
(b) (I) "Crime of violence" also means any unlawful sexual offense in which the defendant
caused bodily injury to the victim or in which the defendant used threat, intimidation, or force
against the victim. For purposes of this subparagraph (I), "unlawful sexual offense" shall have
the same meaning as set forth in section 18-3-411 (1), and "bodily injury" shall have the same
meaning as set forth in section 18-1-901 (3) (c).
(II) The provisions of subparagraph (I) of this paragraph (b) shall apply only to felony
unlawful sexual offenses.
Unlawful sexual offense pursuant to 18-3-411(1) means:
enticement of a child, as described in section 18-3-305,
sexual assault, as described in section 18-3-402, when the victim at the time of the
commission of the act is a child less than fifteen years of age,
sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July
1, 2000, when the victim at the time of the commission of the act is a child less than
fifteen years of age;
sexual assault in the second degree, as described in section 18-3-403 (1) (a), (1) (b), (1) (c),
(1) (d), (1) (g), or (1) (h), as it existed prior to July 1, 2000, when the victim at the time of
the commission of the act is a child less than fifteen years of age,
or [sexual assault in the second degree] as described in section 18-3-403 (1) (e), as it existed
prior to July 1, 2000, when the victim is less than fifteen years of age and the actor is at
least four years older than the victim;
unlawful sexual contact, as described in section 18-3-404 (1) (a), (1) (b), (1) (c), (1) (d), (1)
(f), or (1) (g), when the victim at the time of the commission of the act is a child less than
fifteen years of age;
sexual assault in the third degree, as described in section 18-3-404 (1) (a), (1) (b), (1) (c), (1)
(d), (1) (f), or (1) (g), as it existed prior to July 1, 2000, when the victim at the time of the
commission of the act is a child less than fifteen years of age;
sexual assault on a child, as described in section 18-3-405;
sexual assault on a child by one in a position of trust, as described in section 18-3-405.3;
aggravated incest, as described in section 18-6-302;
trafficking in children, as described in section 18-6-402;
sexual exploitation of a child, as described in section 18-6-403;
procurement of a child for sexual exploitation, as described in section 18-6-404;
indecent exposure, as described in section 18-7-302,
soliciting for child prostitution, as described in section 18-7-402;
pandering of a child, as described in section 18-7-403;
procurement of a child, as described in section 18-7-403.5;
keeping a place of child prostitution, as described in section 18-7-404;
pimping of a child, as described in section 18-7-405;
inducement of child prostitution, as described in section 18-7-405.5;
patronizing a prostituted child, as described in section 18-7-406;
or criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this
subsection (1).