2004-110, STATE OF NH v. STEVEN GUBITOSI

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
No. 2004-110
THE STATE OF NEW HAMPSHIRE
v.
STEVEN GUBITOSI
Opinion Issued: December 30, 2005
MEMORANDUM OPINION
DUGGAN, J. The defendant, Steven Gubitosi, filed an emergency motion
to void a capias issued by the Superior Court (Smukler, J.). We issued several
orders, and write this opinion to explain them.
On October 28, 2005, we released an opinion affirming the defendant’s
conviction for one count of stalking. See RSA 633:3-a, I(a) (Supp. 2005). That
same day, the superior court sua sponte issued the following order: “The
supreme court this day having affirmed the defendant’s conviction, bail
pending appeal is no longer appropriate. Accordingly, a capias is to issue. The
defendant is to be apprehended and transported to the Belknap County House
of Corrections to commence his sentence.”
On October 31, 2005, the defendant filed a Motion to Stay Writ of Capias
in the superior court. He alleged that he was out of New Hampshire on
business and was scheduled to return on November 7, 2005. He argued that
the supreme court retains jurisdiction over his case until a mandate is issued
pursuant to Supreme Court Rule 24. That same day, the superior court denied
the motion.

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On November 2, 2005, the defendant filed an Emergency Motion to Void
Capias in this court. That same day, a single justice of this court (Duggan, J.)
issued an order, without opinion, staying the October 28, 2005 order of the
superior court, pending further order of this court. The single justice also
ordered the State to file a response to the defendant’s motion. The State filed
its objection to the defendant’s motion on November 4, 2005.
The defendant subsequently filed a motion for reconsideration of our
decision affirming his conviction. On December 7, 2005, we issued an order,
without opinion, denying the defendant’s motion for reconsideration and
vacating the November 2, 2005 stay. The mandate was also issued on
December 7, 2005. See Sup. Ct. R. 24(1). We now issue this opinion to clarify
the authority of the superior court to revoke a defendant’s bail during the
pendency of an appeal and after the issuance of an opinion affirming the
defendant’s conviction.
We begin by examining the statutes relevant to revocation of bail to
determine whether the superior court has authority to revoke a defendant’s bail
during the pendency of an appeal. In cases involving statutory construction,
“the starting point is the language of the statute. We construe each statute as
a whole, and if the statute’s language is clear and unambiguous, we do not
look beyond the statute to discern legislative intent.” Pennichuck Corp. v. City
of Nashua, 152 N.H. ___, ___ (decided November 16, 2005) (quotation and
citation omitted).
The procedure for revocation of bail is set forth in RSA 597:7-a (Supp.
2005), which provides, in pertinent part:
II. A person who has been released pursuant to the provisions of
this chapter and who has violated a condition of his release is
subject to a revocation of release, an order of detention, and a
prosecution for contempt of court.
III. The state may initiate a proceeding for revocation of an order of
release by filing a motion with the court which ordered the release
and the order of which is alleged to have been violated. The court
may issue a warrant for the arrest of a person charged with
violating a condition of release, and the person shall be brought
before the court for a proceeding in accordance with this section.
The plain language of RSA 597:7-a applies its procedures for bail revocation to
“[a] person who has been released pursuant to the provisions of [chapter 597].”
RSA 597:7-a, II. RSA chapter 597 (2001 & Supp. 2005) authorizes the release
of criminal defendants on bail pending appeal. RSA 597:1-a (2001). Thus, the

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bail revocation procedures of RSA 597:7-a apply to such defendants. See RSA
597:7-a, II, III.
With respect to defendants who have been released pending appeal, we
agree with the State that the pendency of the appeal does not divest the
superior court of jurisdiction to modify or revoke conditions of release pursuant
to RSA 597:7-a. “As a general rule the perfection of an appeal divests the Trial
Court of jurisdiction of the cause and transfers it to the appellate court.”
Rautenberg v. Munnis, 107 N.H. 446, 447 (1966). However, “the general rule
. . . does not prohibit the Trial Court from passing on collateral, subsidiary or
independent matters affecting the case.” Id. at 448. Bail pending appeal is an
independent matter and thus falls within this exception to the general rule.
In this case, however, the superior court’s decision ordering the arrest of
the defendant did not rely upon RSA 597:7-a. Indeed, because RSA 597:7-a
applies only when “[a] person . . . has violated a condition of release,” RSA
597:7-a, II, the superior court was not authorized to act under that statute.
Nor did the superior court find, for example, that the fact that the defendant
had lost his appeal, coupled with other facts and circumstances, supported a
finding that the defendant was likely to flee, thus justifying a modification or
revocation of the conditions of his release. See RSA 597:1-a. Instead, the
superior court here determined that bail pending appeal was no longer
appropriate merely because the defendant’s conviction had been affirmed.
When this court issues an opinion affirming a criminal conviction, the
defendant has ten days from the date of the opinion to file a motion for
reconsideration. Sup. Ct. R. 22(2). If a motion for reconsideration is filed, and
subsequently denied, the clerk of the supreme court will forward to the clerk of
the superior court a “mandate” within seven days of the order denying the
motion. Sup. Ct. R. 24(1). However, even if no motion for reconsideration is
filed, the supreme court clerk will not forward the mandate to the superior
court clerk until after the time for filing a motion for reconsideration has
expired, see id., unless this court orders otherwise. Although the supreme
court may direct that a “formal mandate” be issued, the mandate will usually
consist of a certified copy of the court’s opinion or final order. See Sup. Ct. R.
24(2).
The mandate is the order that gives authoritative notice to the trial court
that the judgment appealed from has been reversed or affirmed, as the case
may be. Chesapeake & O. Ry. Co. v. Kelly’s Adm’x, 171 S.W. 182, 183 (Ky.
1914). “The general rule is that the date of the mandate, not the date of the
issuance of the decision, is the effective date of an appellate court’s decision,
that the mandate is the order and that the court’s opinion merely gives the
reason supporting the order.” Matter of Compensation of Castro, 652 P.2d

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1286, 1287 (Or. App. 1982); accord Sup. Ct. R. 24(3) (providing that a mandate
is effective when issued).
In this case, the effective date of our decision was the date the mandate
was issued, which in this case was immediately after the defendant’s motion
for reconsideration was denied. For this reason, we stayed the superior court’s
initial order issuing the capias, as the time for filing a motion for
reconsideration had not yet expired and no mandate had yet issued. It was not
until we denied the defendant’s motion for reconsideration, and the supreme
court clerk issued the mandate, that the superior court was authorized to take
appropriate action with regard to the conditions of release based solely upon
the fact that the defendant’s conviction had been affirmed.
BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,
concurred.
Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant
attorney general, on the objection to defendant’s motion to void capias), for the
State; Law Office of Joshua Gordon, of Concord (Joshua L. Gordon on the
emergency motion to void capias), for the defendant.