2004-110, STATE OF NH v. STEVEN GUBITOSI

the motion. pursuant to Supreme Court Rule 24. That same day, the superior court denied the supreme court retains jurisdiction over his case until a mandate is issued business and was scheduled to return on November 7, 2005. He argued t hat in the superior court. He alleged that he was out of New Hampshire on On October 31, 2005, the defendant filed a Motion to Stay Writ of Capias

of Corrections to commence his sentence.” defendant is to be apprehended and transported to the Belknap County House pending appeal is no longer appropriate. Accordingly, a capias is to issue. The supreme court this day having affirmed the defendant’s conviction, bail same day, the superior court sua sponte issued th e following order: “The conviction for one count of stalking. See RSA 633:3 - a, I(a) (Supp. 2005). That On October 28, 2005, we released an opinion affirming the defendant’s

orders, and write this opinion to explain them. to void a capias issued by the Superior Court (Smukler, J.). We issued se veral DUGGAN, J. The defendant, Steven Gubitosi, filed an emergency motion

No. 2004 - 110 Belknap

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

of criminal defendants on bail pending appeal. RSA 597:1 - a ( p. 2 2001). Thus, the RSA 597:7 - a, II. RSA chapter 597 (2001 & Supp. 2005) authorizes the release “[a] perso n who has been released pursuant to the provisions of [chapter 597].” The plain language of RSA 597:7 - a applies its procedures for bail revocation to

before the court for a proceeding in accordance with this section. violating a condition of release, and the person shall be brought may issue a warrant for the arrest of a person charged with and the order of which is alleged to have been violated. The court release by filing a motion with the court which ordered the release III. The state may initiate a proceeding for revocation of an order of

prosecution for contempt of court. subject to a revocation of release, an order of detention, and a this chapter and who has violated a condition of his release is II. A person who has been released pursuant to the provisions of

p. 2 2005), which provides, in pertinent part: The procedure for revocation of bail is set forth in RSA 597:7 - a (Supp.

citation omitted). of Nashua, 15 p. 2 2 N.H. ___, ___ (decided November 16, 2005) (quotation and look beyond the statute to discern legislative intent.” Pennichuck Corp. v. City a whole, and if the statute’s language is clear and unambiguous, we do not “the starting point is the language of the statute. We construe each statute as during the pendency of an appeal. In cases involving statutory construction, determine whether the superior court has author ity to revoke a defendant’s bail We begin by examining the statutes relevant to revocation of bail to

defendant’s conviction. pendency of an appeal and after the issuance of an opinion affirming the the authority of the superior court to revoke a defendant’s bail during the December 7, p. 2 2005. See Sup. Ct. R. 24(1). We now issue this opinion to clarify vacating the November 2, 2005 stay. The mandate was also issued on without opinion, denying the defendant’s motion for reconsideration and decision affirming his conviction. On December 7, 2005, we issued an order, The defendant subsequently filed a motion for reconsideration of our

its objection to the defendant’s motion on November 4, p. 2 2005. ordered the State to file a respo nse to the defendant’s motion. The State filed superior court, pending further order of this court. The single justice also issued an order, without opinion, staying the October 28, 2005 order of the Capias in thi s court. That same day, a single justice of this court (Duggan, J.) On November 2, 2005, the defendant filed an Emergency Motion to Void p. 3 3

reason supporting the order.” Matter of Compensation of Castro, 652 P.2d that the mandate is the orde r and that the court’s opinion merely gives the issuance of the decision, is the effective date of an appellate court’s decision, 1914). “The general rule is that the date of the mandate, not the date of the may be. Chesapeake & O. Ry. Co. v. Kelly’s Adm’x, 171 S.W. 182, 18 p. 3 3 (Ky. that the judgment appealed from has been reversed or affirmed, as the case The mandate is the order that gives authoritative notice to the trial court

24(2). consist of a certified copy of the court’s opinion or final order. See Sup. Ct. R. court may direct that a “formal mandate” be issued, the mandate will usu ally expired, see id., unless this court orders otherwise. Although the supreme court clerk until after the time for filing a motion for reconsideration has filed, the supreme court clerk will not forwa rd the mandate to the superior motion. Sup. Ct. R. 24(1). However, even if no motion for reconsideration is the superior court a “mandate” within seven days of the order denying the subsequently denied, th e clerk of the supreme court will forward to the clerk of reconsideration. Sup. Ct. R. 22(2). If a motion for reconsideration is filed, and defendant has ten days from the date of the opinion to file a motion for When this court issues an opinion affirming a criminal conviction, the

appropriate merely because the defendant’s conviction had been affirmed. superior court here determined that bail pending appeal was no longer revocation of the conditions of his release. See RSA 597:1 - a. Instead, the finding that the defendant was likely to fle e, thus justifying a modification or had lost his appeal, coupled with other facts and circumstances, supported a Nor did the superior court find, for example, that the fact that the defendant 597:7 - a, II, the superi or court was not authorized to act under that statute. applies only when “[a] person ... has violated a condition of release,” RSA the defendant did not rely upon RSA 597:7 - a. Indeed, because RSA 597:7 - a In this case, however, the superior court’s decision ordering the arrest of

independent matter and thus falls within this exception to the general rul e. independent matters affecting the case.” Id. at 448. Bail pending appeal is an . . . does not prohibit the Trial Court from passing on collateral, subsidiary or Rautenberg v. Munnis, 107 N.H. 446, 447 (1966). However, “the general rule Court of jurisdiction of the cause and transfers it to the appellate court.” to RSA 597:7 - a. “As a general rule the perfection of an appeal divests the Trial superior court of jurisdiction to modify or revoke conditions of release pursuant agree with the State that the pendency of the appeal does not divest the With respect to defendants who have been released pending appeal, we

597:7 - a, II, III. bail revocation procedures of RSA 597:7 - a apply to such defendants. See RSA p. 4 4

emergency motion to void capias), for the defendant. State; Law Office of Joshua Gordon, of Concord (Joshua L. Gordon on the attorney general, on the objection to defendant’s motion to void capias), for the Kelly A. Ayotte, attorney general (Stephen D. F uller, senior assistant

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,

the fact that the defendant’s conviction had been affirmed. appropriate action with regard to the conditions of release based solely upon court clerk issued the mandate, that the superior court was authorized to take until we denied the defendant’s motion for reconsideration, and the supreme reconsideration had not yet expired and no mandate had yet issued. It was not initial order issuing the capias, as the time f or filing a motion for for reconsideration was denied. For this reason, we stayed the superior court’s was issued, which in this case was immediately after the defendant’s motion In this case, the effe ctive date of our decision was the date the mandate

is effective when issued). 1286, 1287 (Or. App. 1982); accord Sup. Ct. R. 2 p. 4 4(3) (providing that a mandate