Commonwealth v. Peacock , 1985 Ky. LEXIS 252 ( 1985 )

LEIBSON, Justice,

dissenting.

Respectfully, I dissent.

The problem in this case, if there is one, lies not with the procedure followed by the Court of Appeals in granting bail pending appeal, but with the rules of criminal procedure which, as written, authorize the Court of Appeals’ action. RCr 12.82 is titled “Application for relief pending review.” It provides for application “to the appropriate appellate court for bail pending appeal,” and further provides that the appellate court may grant bail in any of the following situations:

“... that application to the trial court is not practicable or that application has been made and denied, with the reasons given for the denial, or that the action on the application did not afford the relief to which the applicant considers himself to be entitled.”

In this case the trial court denied the application for bail without giving reasons. In these circumstances, the Court of Appeals proceeded to carry out the mandate of RCr 12.82 in a reasonable manner. The circumstances of the trial court’s refusal to grant bail pending appeal were such that the right to bail could not be reviewed on the record in the usual manner by which appellate courts conduct review.

Instead, the Court of Appeals proceeded in a manner consistent with any court when called upon to decide a question of bail. If there is need for change, that change should come through amending the rules. RCr 12.82 should be amended to withdraw from the appellate court the responsibility to consider “bail pending appeal,” except on review of the record. Further, there must be mechanism for creating a record.

The Court of Appeals, charged with the responsibility to consider “bail pending appeal,” neither abused its discretion nor proceeded unlawfully.

VANCE, J., joins this dissent.