dissenting.
[¶ 23.] I agree that the same criteria should be used to determine whether this defendant should be released pending appeal as would be applied to any other defendant. The South Dakota legislature has specifically enacted a statute authorizing bail pending appeal. SDCL 23A-43-16 provides:
On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment,' pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the ease of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with §§ 23A-43-2 and 23A-43-3. If, however, the judgment imposes only a fine, conditional release under this section is a matter of right. The provisions of §§ 23A-43-14 and 23A-43-15 do not apply to persons described in this section; however, other rights to judicial review of conditions of release or orders of detention are not affected, (emphasis supplied).
When “a state makes provisions for bail pending appeal, the Eighth and Fourteenth Amendments provide that it may not be denied arbitrarily or unreasonably.” Grooms v. Solem, 562 F.Supp. 512, 513 (D.S.D.1983) (citations omitted). In U.S. ex rel. Bad Heart Bull v. Parkinson, 381 *195F.Supp. 985, 987 (D.S.D.1974), the federal district court stated:
In the opinion of this court, the failure of the trial judge to indicate on the record, at the time of his ruling, the factors he considered and facts upon which he relied, constitutes a violation in itself of the Fourteenth Amendment’s due process clause. As is stated in United States ex rel. Keating v. Bensinger, 322 F.Supp. 784, 787 (N.D.Ill):
When a state court denies bail authorized by the state legislature without providing any supporting reasons, the failure to indicate the motivating reasons for the denial of bail is in and of itself an arbitrary action that violates the Eighth and Fourteen Amendments. Any other rule would effectively nullify the protection of those Amendments.
[¶ 24.] In State v. Hickey,6 269 N.W.2d 816, 818 (S.D.1978), the South Dakota Supreme Court referred to the Bad Heart Bull decision as establishing the necessary constitutional requirements for handling applications for bail pending appeal and that the Supreme Court would determine “from the record made whether a reasonable bail has been set, [and] whether the denial of bail is constitutionally permissible....”
[¶ 25.] In enacting SDCL 23A-43-16, the legislature required that, in determining whether to release a defendant while he is appealing, the court “shall” consider various factors. Since the legislature used the term “shall” rather than “may,” this is mandatory not optional. The criteria set forth in §§ 23A-43-16 and 23A-43-4 include the following:
1)The nature and circumstances of the offense charged;
2) The weight of the evidence against the defendant;
3) The defendant’s family ties, employment, financial resources, character and mental condition;
4) The length of his residence in the community;
5) His record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings; and
6) The risk that the defendant will flee or pose a danger to any person or to the community.
7) Whether the appeal is frivolous or taken for purposes of delay.
[¶ 26.] At the hearing on the motion for stay pending appeal on March 2, 2004, the trial judge considered factors 1) and 2), although his finding that the death was caused by recklessness, rather than a more culpable mental state, would be more in favor of release than against it. It is also clear that the nature and circumstances of the offense had not changed from the earlier time when he released the defendant on a personal recognizance bond. The judge also considered factor 7) in finding that the purpose of the appeal was delay but never made any finding that it was frivolous. He did not consider factors 3), 4), 5) and 6) at all. Most significantly, he made no findings, and there is no finding anywhere in the record, that the defendant presented any risk of flight or danger to the community. As a result, this case is distinguishable from State v. Burgers, 1999 SD 140 at ¶ 15, 602 N.W.2d at 281, wherein the magistrate had made *196specific findings that the defendant posed a danger to others and was a flight risk.
[¶ 27.] In addition to his failure to consider at least four of the mandatory factors, the trial judge considered the following factors which are not proper factors for determining whether bond should be allowed pending appeal: 1) that this petition for bond was post conviction (however there was no discussion of this factor); 2) that a suspended imposition was given (there was no discussion of this); 3) that this may be affected by SDCL 23A-33-5 (again there was no discussion of how this affected the court’s decision); 4) that the issues on appeal were insubstantial and the chance of a successful appeal was unlikely; 5) that the interests of the family of the victim in closure and retribution would be affected; 6) that the interests of the public in retribution would be affected; and 7) that retribution needs to be swift and complete.
[¶ 28.] It is clear from the transcript of the motion hearing that the trial judge did not consider many of the factors which he was required to consider in setting bond and most importantly failed to consider at all whether the defendant posed a danger to others or was a flight risk. In addition, he considered, and appeared to give heavy weight to factors which were not included in the criteria which the legislature established in SDCL 23A-43-16 or 23A-43-4. Of these, the most troubling is his reliance upon the element of retribution. This is not a factor which the legislature has determined to be appropriate in determining whether a defendant should be released on bond. There is no importance in imposing retribution or, in other words punishment, before a conviction is even final.
[¶ 29.] A decision based upon an error of law is an abuse of discretion. State v. Ashbrook, 1998 SD 115, ¶6, 586 N.W.2d 503, 506. The decision of the trial judge denying bond was an abuse of discretion because he failed to consider factors which he is required to consider by SDCL 23A-43-16 and because he based his decision on other improper factors outside of the statute. This case should be remanded to the trial court to determine whether bond should be allowed pending appeal considering the criteria which the legislature established in SDCL 23A-43-16 and 23A-43-4.
[¶ 30.] YON WALD, Circuit Judge, joins this dissent.
. Although State v. Hickey was decided under the prior statute which granted both the trial judge .and a justice of the Supreme Court the power to grant bail pending appeal, its analysis of the procedure to be used is still good law. See Grooms, 562 F.Supp. at 514.