TITLE FOUR — SENTENCING
Rule 31. Stay of Execution; Relief Pending Review; Automatic Expiration of Stay
Imprisonment; No Automatic Stay. If a sentence of imprisonment is imposed upon conviction of a crime, the entry of an appeal shall not stay the execution of the sentence unless the judge imposing it, or a single justice of the court that will hear the appeal, determines in the exercise of discretion that execution of the sentence shall be stayed pending the determination of the appeal.
Application for a Stay. An application for a stay under this rule shall be in writing, shall be filed and served as Rule 32 provides, and shall state:
The judgment, sentence, or order sought to be stayed, and the Bates number of the filing in which it was entered;
Whether an appeal has been entered, and the date of its entry;
The questions to be presented upon appeal;
The grounds relied upon for the stay; and
Whether the defendant is then in custody.
Considerations. In determining an application for a stay the judge or justice shall consider whether the appeal presents a substantial question, whether the appeal is taken in good faith and not merely for delay, the length of the sentence relative to the time the appeal will require, and the risk that the defendant will not appear or will endanger any person.
Custody Upon a Stay. If execution of a sentence of imprisonment is stayed, the judge or justice may at that time make an order relative to the custody of the defendant and may impose conditions of release under Rule 7.1. No bail and no bond shall be required, accepted, or set, and no bond hearing or bail hearing shall be held, as 6 R. Stat. § 131.205 forbids.
Terms of the Order Allowing a Stay. If the application for a stay of execution of sentence is allowed, the order allowing the stay may state the grounds upon which the stay may be revoked and, in any event, shall state that upon the release by the Supreme Court of the rescript affirming the conviction, the stay of execution automatically expires unless extended by the Supreme Court.
Notice to the Supreme Court. The clerk shall notify the court that will hear the appeal that a stay of execution of sentence has been allowed, and shall transmit a copy of the order allowing the stay.
Revocation of a Stay. Upon motion of the State, or upon the court’s own initiative, the judge who allowed the stay may revoke it upon a finding that a ground stated in the order has occurred, that a condition of release has been violated, or that the appeal has been abandoned. The court shall afford the defendant notice and an opportunity to be heard before revoking a stay, except where the prosecutor shows good cause for the immediate issuance of a warrant.
Execution After Expiration. At any time after the stay expires, the State may move in the trial court to execute the sentence. The court shall schedule a prompt hearing and issue notice thereof to the defendant, unless the prosecutor requests, for good cause shown, that a warrant shall issue. A warrant issued under this subdivision shall be placed within the in-game warrants system in the form prescribed by Rule 6(1)(c).
Effect of a Stay Upon the In-Game Record. Where the court stays the execution of a sentence of imprisonment, the court shall cause the order to be transmitted to the Department of Corrections, which has custody of the defendant under 6 R. Stat. § 132.002, and shall cause any outstanding entry in the in-game warrants system arising from that sentence to be removed for the duration of the stay.
Fine. If a reservation, filing, or entry of an appeal is made following a sentence to pay a fine or a fine and costs, the sentence shall be stayed by the judge imposing it or by a single justice of the court that will hear the appeal if there is a diligent perfection of the appeal.
Probation or Suspended Sentence. An order placing a defendant on probation or suspending a sentence may be stayed if an appeal is taken. An order staying an order of probation shall state which conditions, if any, remain in effect during the stay, and the court shall cause notice of those terms to be provided to the sheriff’s office as 6 R. Stat. § 131.614 requires.
Order Revoking Probation. An order revoking probation entered under Rule 29.1 may be stayed upon the same terms and by the same officers as a sentence of imprisonment.
Restitution. An order of restitution may be stayed upon the same terms. The stay of an order of restitution does not extinguish the obligation and does not affect the running of any period the order prescribes, unless the order allowing the stay so provides.
Sentence of Death. No court shall stay the execution of a sentence of death. That power resides in the Governor alone, as 6 R. Stat. § 131.404 provides. The clerk shall inform the Governor that a person has been sentenced to death and shall allow thirty (30) days for the Governor to issue a warrant of execution, as 6 R. Stat. § 131.403 requires, and the entry of an appeal does not suspend that duty.
Periods Are Enforced by Motion. The electronic filing system computes no period and takes no action upon the expiration of a stay. The expiration of a stay is self-executing as a matter of law, and its consequences are obtained upon the motion of a party or upon the court’s own initiative.