concurring in part and dissenting in part:
I agree with the majority that this issue is capable of repetition, yet evading review. For that reason, I, too, would reach *437the merits of the case and reverse the judgment of the Court of Appeals. I disagree, however, with the majority’s opinion that RCr 3.14(1) permits a district court to increase a defendant’s bail based solely upon a subsequent finding of probable cause. In fact, I do not believe that RCr 3.14(1) was ever intended to authorize a district court to increase a defendant’s bail once it has been set absent a change in circumstances, or information indicating a mistake was made in setting the original bail. RCr 4.404 and RCr 4.425,6 are the formal vehicles by which a defendant’s bail may be increased, although I acknowledge that they cannot be used to deprive a trial court of its continued jurisdiction and discretion over a defendant’s bail.
Here, however, the bail was increased tenfold without any evidence indicating that the defendant, for example, posed a greater risk of flight or failure to abide by the non-financial conditions of his bail than he did at the time of his original bail assessment. In fact, the defendant had yet to make the original bail. And, the fact that the Commonwealth presented some evidence that the defendant committed the crime charged adds nothing to the original picture of the defendant created by the charge itself. I say this because a court looks at the arrest charge along with the pretrial officer’s assessments and recommendations, if available, prior to setting the initial bail. In a sense, for bail purposes, it assumes the charge(s) may be true. Thus, what, if anything, does a finding that the Commonwealth has evidence which may support a finding of guilt on the offense charged add to the equation? In my opinion, it adds nothing because this assumption had already been factored into the original bail. Thus, such an increase, absent other additional evidence supporting a need to exercise further discretion, simply adds an intolerable element of arbitrariness to the setting of bail that is essentially unreviewable.
KRS 24A.110(3) authorizes a district court to set bail at a criminal defendant’s initial appearance. However, bail cannot be set at an arbitrary amount as KRS 431.525(1) provides the criteria upon which the district court must fix the bail amount. It states that “the bail shall be”:
(a) Sufficient to insure compliance with the conditions of release set by the court;
(b) Not oppressive;
*438(c) Commensurate with the nature of the offense charged;
(d) Considerate of the past criminal acts and the reasonably anticipated conduct of the defendant if released; and
(e) Considerate of the financial ability of the defendant.
KRS 431.525(1). These criteria have been incorporated into our criminal rules at RCr 4.16(1). Given that the district court is required to exercise its bail-setting discretion in light of these criteria, and that the facts underlying these criteria were unaffected by the court’s probable cause finding, I do not believe a bail increase was proper.
I therefore must respectfully dissent from that part of the majority’s opinion that concludes that a finding of probable cause after bail has already been set is sufficient to increase bail absent other facts justifying such an increase.
NOBLE, J., joins.
. RCr 4.40(1) provides:
The defendant or the Commonwealth may by written motion apply for a change of conditions of release at any time before the defendant's trial. The motion shall state the grounds on which the change is sought. The moving party may request an adversary hearing on the motion, and is entitled to such hearing the first time the moving party requests it. Requests for adversary hearings made in subsequent motions for review of conditions of release shall lie within the discretion of the court.
. RCr 4.42(1) provides:
If at any time following the release of the defendant and before the defendant is required to appear for trial the court is advised of a material change in the defendant's circumstances or that the defendant has not complied with all conditions imposed upon his or her release, the court having jurisdiction may order the defendant’s arrest and require the defendant or the defendant's surety or sureties to appear and show cause why the bail bond should not be forfeited or the conditions of release be changed, or both.
.Although RCr 4.42 does not apply to this case because Appellant had not been released, it should be clear that in all cases where the Commonwealth moves a district court to increase the amount of bail, it is incumbent on the Commonwealth to prove why such an increase is necessary, given that the bail amount has already been fixed. A criminal defendant should not have to prove why a further deprivation of his liberty is unwarranted.