Rule 74. Bail Pending Final Disposition of the Petition

(a) Application to the Court. A petitioner may apply to the court for bail pending final disposition.

(b) Standards Governing Bail. The court may order the release of the petitioner on bail if:

(1) the court is satisfied, on the basis of the pleadings, or the pleadings supplemented by any evidence received at a hearing on the petition pursuant to Rule 73, that the petitioner has a reasonable likelihood of prevailing on the petition;

(2) release on bail is appropriate given the crime and the nature of the ultimate relief contemplated by the court if the petitioner were to prevail; and

(3) the standards and conditions governing bail contained in 15 M.R.S. § 1051(2) and (3) are satisfied.

(c) Revocation of Bail Pending Final Disposition of Petition. The court may revoke an order of bail granted pending final disposition of the petition upon determination made after notice and opportunity for hearing that

(1) The petitioner has violated a condition of bail or

(2) The petitioner has been charged with a crime allegedly committed while the petitioner was on release pending final disposition of the petition.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 74 of the Maine Rules of Criminal Procedure but differs in the following respects. First, the heading to subdivision (a) is changed from " Application to Assigned Justice " to " Application to the Court. " Second, in all of its subdivisions the word "court" replaces "assigned justice." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 70.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1981 [M.R. Crim. P. 74.] 15 M.R.S. section 2129, subsection 4 presently provides that "[p]ending final disposition, the assigned justice may order the release of the petitioner on bail at such time and under such circumstances and conditions as the Supreme Judicial Court shall by rule provide." Rule 74 is added to prescribe the time, circumstances and conditions pursuant to which the assigned justice may order the release of a petitioner on bail pending final disposition. Rule 74, like 15 M.R.S. section 2129, subsection 4, starts from the perspective that petitions are in an "after conviction" posture rather than in the "pre-conviction" posture to which Article 1, Section 10 of the Maine Constitution has application. See Fredette v. State , Me., 428 A.2d 395 (1981). In addition, both start from the perspective that no statute of this State affords petitioners the right to have bail set pending final disposition. Finally, both do not ignore the "bailable"/"nonbailable" dichotomy respecting Maine crimes created by Article 1, Section 10 nor its legislative application. See again Fredette v. State, supra. Subdivision (a) Subdivision (a) allows all petitioners—irrespective of the nature of the underlying criminal judgment—to make application for bail pending final disposition. Subdivision (b) Subdivision (b) sets out three standards which circumscribe the exercise of the assigned justice's discretionary authority to set bail prior to final disposition of the petition. Subdivision (b), paragraph (1) Subdivision (b), paragraph (1) is similar in substance to that found in the now-repealed 15 M.R.S. section 2129, subsection 11 (repealed by P.L.1981, ch. 238, § 5) except that, unlike subsection 11, it makes unmistakably clear that the assigned justice's assessment, made prior to the evidentiary hearing, if any, as to whether the "petitioner has a reasonable likelihood of prevailing on the petition" must be made solely from an examination of both the petition and the response, including any accompanying documentation annexed or filed therewith. Or stated slightly differently, paragraph (1), unlike its statutory precursor, plainly bars the petitioner, prior to the evidentiary hearing, if any, from attempting to demonstrate "a reasonable likelihood of prevailing on the petition" by means of an evidentiary hearing. Finally, although not expressly articulated in paragraph (1), it is not designed to preclude an assigned justice from setting bail prior to the filing of a response by the respondent, to prevent unconscionable results—e.g., to afford bail to a petitioner who is about to commence the execution of, or who has commenced the execution of, a sentence so short in length that such sentence will be fully served before the filing of a response by the respondent can be had. Subdivision (b), paragraph (2) Subdivision (b), paragraph (2) provides, as does present 15 M.R.S. section 2130 relative to bail pending appeal, that bail be set only if realistic in view of the appropriate relief. Lewisohn v. State , Me., 431 A.2d 53 (1981). Additionally, even if bail were realistic in view of the relief contemplated, paragraph (2) would nonetheless preclude bail if by law the offenses were determined to be "nonbailable" under the circumstances. Subdivision (b), paragraph (3) Subdivision (b), paragraph (3) simply makes applicable the postconviction standards and conditions governing bail pending appeal contained in Rule 46A(c)-(d).

Advisory Committee Note—1983 [M.R. Crim. P. 74(b)(3).] The amendment corrects a now-erroneous cross reference.

Advisory Committee Note—1987 [M.R. Crim. P. 74(b)(3).] See Advisory Committee Note to amendment to Rule 46A. [M.R. Crim. P. 46A. As the Legislature has enacted a comprehensive statute governing post-conviction bail (15 M.R.S. § 1701-B) which differs substantially from the procedure and standards of Rules 46A, 46B, and 46C, Rule 46A is amended to provide a reference to the statute and Rules 46B and 46C are deleted. Rule 46A also explains where a petition for review of postconviction bail should be filed and provides for prompt delivery by the clerk of a copy of the petition to an appropriate Justice of the Supreme Judicial Court.]