R.I. Super. Ct. R. Crim. P. 38

As amended through June 7, 2024
Rule 38 - Stay of Execution and Relief pending Review.
(a)Stay of Execution.
(1)Imprisonment. A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is admitted to bail.
(2)Fine. A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the court upon such terms as the court deems proper. The court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk of the Superior Court, or to give bond for the payment thereof, or to submit to an examination of assets, and the court may make any appropriate order to restrain the defendant from dissipating the defendant's assets.
(3)Probation. An order which defers sentencing or places the defendant on probation shall be stayed if an appeal is taken.
(b)Bail. Admission to bail upon appeal shall be as provided in these rules or the appellate rules of the Supreme Court of Rhode Island.

R.I. Super. Ct. R. Crim. P. 38

Last amended by Order dated June 22, 2017, effective 9/5/2017.

1972 Notes

This rule is based upon Federal Rule 38 with some alterations to conform to Rhode Island practice. The major difference is the deletion of the provision contained in subdivision (a)(2) of the federal rule which authorizes the court to recommend to the Attorney General that a defendant be confined near the place of trial or appeal to permit him to assist in preparation of his appeal. The geographical considerations underlying this provision do not exist in Rhode Island and therefore it has been deleted from the rule. Cf. G.L. 1956 (1969 Reenactment), § 12-19-23 (sentences to be served in adult correctional institutes).

Subdivision (a)(1), staying a death sentence on appeal, has no specific counterpart in Rhode Island statutes but reflects established practice.

Subdivision (a)(2) is in accord with existing practice under which the Superior Court may release a convicted defendant on bail during the pendency of his appeal. G.L.1956 (1969 Reenactment), § 12-19-1. The Rhode Island Supreme Court has held that a defendant does not have a constitutional right to release on bail during appeal and that under the statute the matter is in the discretion of the trial court. Quattrocchi v. Langlois, 100 R.I. 741, 744-47, 219 A.2d 570, 572-74(1966). Upon adoption of these rules and the Rules of Appellate Procedure, review in a criminal case by bill of exceptions (G.L.1956 (1969 Reenactment), §§ 9-24-13 through 9-24-17 ) will have been abolished and replaced by ordinary appeal procedures, thus permitting repeal of G.L.1956 (1969 Reenactment), § 9-24-18 which provides for a stay of judgment where a bill of exceptions is prosecuted to the Supreme Court.

Subdivisions (b)(3) and (b)(4) have no specific counterpart in the General Laws; however, the authority contained in G.L.1956 (1969 Reenactment), § 12-19-1 may be broad enough to include a stay during appeal of a sentence to pay a fine or placing defendant on probation. Subdivision (b)(3) is not intended to preclude a defendant from appealing his sentence if he fails to post security or otherwise to comply with an order entered by the court under this provision.

Subdivision (b) was originally contained in the federal rule but was abrogated by the adoption of Rules 8 and 9 of the Federal Rules of Appellate Procedure. The Appellate Rules of the Supreme Court of Rhode Island do not contain corresponding provisions superseding or otherwise making subdivision (b) unnecessary.

Finally, this rule does not in any manner alter the established rule that a defendant who pleads guilty or nolo contendere has no right to appeal the judgment entered, except for mistakes in sentencing. State v. D'Amico, 92 R.I. 194, 196-97, 167 A.2d 542, 542-44(1961); State v. Jones, 69 R.I. 107, 31 A.2d 6 (1943).