dissenting. Although the record is not as complete as it should be, petitioner, Levonia T. Grey, is apparently charged in Pulaski County Circuit Court, Fourth Division, with arson, two first-degree batteries, and various conspiracies relating to the main charges, for which bond was set at $100,000. One of these charges was filed subsequent to the filing of the petition in this Court.
In setting bail the trial court completely ignored the United States and Arkansas Constitutions; the Arkansas Rules of Criminal Procedure which were enacted by our legislature and adopted by this Court; and a recent decision of this Court, Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976).
The purpose of bail is to ensure the accused’s presence at trial. Therefore, bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment of the United States Constitution and under Article 2, § 8 and § 9 of the Arkansas Constitution. Stack v. Boyle, 342 U.S. 1 (1951). In considering the purpose for which bail is set, we emphasized in Thomas, supra, that “Money bail in any form ought to be a last resort and should be used only to assure the defendant’s appearance.”
Mr. Dub Bentley, Prosecuting Attorney for the Sixth Judicial District, argued this case orally before the Arkansas Supreme Court and stated:
The purpose in setting the bail at this amount is not to deny him bail but rather to assure his presence not only for his trial but 14 other trials in which he will be a witness.
Rule 8.5 (c) (ii) requires the prosecuting attorney to recommend bail. Such a recommendation could partially account for the circuit court’s apparent confusion as to the purpose of bail. Here, it is unknown how much of the $100,000 is to assure the petitioner’s appearance in court for his own trial and how much is for the illegal purpose of assuring his presence in court as a witness at someone else’s trial.
Furthermore, in fixing bail in this case, the trial court failed to comply with the provisions of A. R. Cr. P. Rule 9. For example, Rule 9.2 (a) provides that “The judicial officer shall set money bail only after he determines that no other conditions will reasonably ensure the appearance of the defendant in court.” This Court addressed this requirement in Thomas, supra, and specifically held at page 522 of that opinion that a “determination that no other condition would ensure petitioner’s appearance in court” be made before setting money bail. Here, the trial court made no such determination.
Another example of the trial court’s failure to comply with the rules is the fact that the trial judge made no findings as to the “facts relevant to the risk of wilful nonappearance” as required by Rule 9.2 (c). This rule provides:
(c) In setting the amount of bail the judicial officer should take into account all facts relevant to the risk of wilful nonappearance including:
(i) the length and character of the defendant’s residence in the community;
(ii) his employment status, history and financial condition;
(iii) his family ties and relationship;
(iv) his reputation, character and mental condition;
(v) his past history of response to legal process;
(vi) his prior criminal record;
(vii) the identity of responsible members of the community who vouch for the defendant’s reliability;
(viii) the nature of the current charge, the apparent probability of conviction and the likely sentence, in so far as these factors are relevant to the risk of nonappearance; and
(ix) any other factors indicating the defendant’s roots in the community.
There are no findings by the trial court indicating that any of the above factors were considered in setting the bail.
The trial court also ignored Rule 9.2 (e) which states that an appearance bond and any security deposit already required shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct. Here, at least two of the charges against petitioner arose out of the same conduct as the other charges, but whether the trial court took this into consideration in setting the bond is unknown.
Lastly, it should be noted that in Thomas, supra, we held that Rule 9.2 contemplates the use of the least restrictive of the three types of money bail set out in Rule 9.2. This holding was apparently ignored by the trial judge, who obviously used the most restrictive type of money bail arrangement in order to keep the petitioner in jail until his trial and possibly in jail until the 14 other cases in which he is to be a witness come to trial. This could be an indefinite length of time.
On a better day this Court in Thomas, supra, recognized that the fixing of bail requires the payment of a considerable sum to a professional bail bondsman and that this constitutes a substantial penalty before trial. This Court went on to conclude in that case, a conclusion equally applicable to this case, that “The spirit of the fixing of bail by the trial court contravened the drafting committee’s view that ‘money bail in any form ought to be a last resort and should be used only to assure the defendant’s appearance.’ ”
For the reasons stated I would reverse this case and remand to the trial court and require that reasonable bail be set under the procedures set out by this Court and the legislature as reflected by the Arkansas Rules of Criminal Procedure.