Appeal from the Superior Court of the District of Columbia (CF1-947-06).
The opinion of the court was delivered by: Fisher, Associate Judge
Before FISHER, Associate Judge, and KING and STEADMAN, Senior Judges.
Following a trial by jury, appellant Lofton was convicted of first degree child sexual abuse (D.C. Code § 22-3008 (2001)). After he was sentenced to fourteen years in prison, Lofton filed a motion for release pending appeal. The Superior Court denied the motion, concluding that it lacked jurisdiction because Lofton had already filed a notice of appeal from the conviction. Lofton asked us to review the decision denying release, and we recently entered an order remanding the matter. Because this can be a confusing area of the law, and this court has no decision directly on point, we issue this brief opinion to clarify that the Superior Court has the authority, and the duty, to rule upon motions for release pending appeal.
The "initial resolution of an application for release pending appeal is a function historically committed to trial judges." United States v. Stanley,152 U.S. App. D.C. 170, 175, 469 F.2d 576, 581 (1972). Accord, United States v. Provenzano, 605 F.2d 85, 91 (3d Cir. 1979). "The trial court is not only the traditional but also the superior tribunal for the kind of information-gathering which a sound foundation for a bail ruling almost inevitably requires." Stanley, 152 U.S. App. D.C. at 175-76, 469 F.2d at 581-82. See D.C. Code § 23-1325 (c) (2001) (establishing standards for release pending appeal).
This remains true even if the defendant has filed a notice of appeal from his conviction. In this respect, we follow the practice of the federal courts. "Although the filing of a notice of appeal usually divest[s] the [trial] court of further jurisdiction, the initial determination of whether a convicted defendant is to be released pending appeal is to be made by the [trial] court." United States v. Meyers, 95 F.3d 1475, 1488-89 n.6 (10th Cir. 1996). Accord, United States v. Snyder, 946 F.2d 1125, 1127 (5th Cir. 1991) ("[A] district court may decide whether to admit a defendant to bail while his appeal is pending before the court of appeals."); Provenzano, 605 F.2d at 91 (application for release pending appeal must "be made in the first instance to the district court, notwithstanding that the jurisdiction of the court of appeals has already attached by virtue of the appeal from the judgment of conviction"). Cf. Stebbins v. Stebbins, 673 A.2d 184, 190 (D.C. 1996) (giving examples of issues a trial court may address after a notice of appeal has been filed).
The rule of appellate procedure dealing with such matters speaks of this court's "review of an order regarding release or detention after a judgment of conviction . . . ." D.C. App. R. 9 (b) (emphasis added).*fn1 This language clearly assumes that the trial court previously has issued such an order. Construing the nearly identical provisions of Fed. R. App. P. 9 (b), and the history of that rule, the United States Court of Appeals for the Second Circuit concluded that the motion for release pending appeal which had been submitted to it should have been presented to the district court in the first instance. United States v. Hochevar, 214 F.3d 342, 343 (2d Cir. 2000).*fn2 Accordingly, it denied the defendant's motion "without prejudice to his making such a motion in the district court." Id. at 344.*fn3
In sum, the Superior Court retains jurisdiction to rule upon a motion for release pending appeal. If the defendant is dissatisfied with the trial court's ruling on that motion, the procedure for seeking our review varies depending on the procedural posture of the criminal case. If the defendant "has already filed a notice of appeal from the judgment of conviction," he must seek review by filing a motion addressed to this court in the pending appeal. D.C. App. R. 9 (b). If he has not yet appealed the conviction, he "must file a notice of appeal" from the Superior Court's "order regarding release or detention after a judgment of conviction . . . ." Id.
Because the Superior Court mistakenly thought that it lacked jurisdiction, we reversed its order and remanded for consideration of ...