The opinion
BODE, J.
(Dissenting). I dissent from the decision and order of this court for the following reasons.
The majority has construed the defendant’s petition to be a petition for bail pending a new trial. I believe this construction is erroneous and view the petition as one seeking bail pending an appeal. In Rohl v. State, No. 78-121-CR (Ct. of Appeals, decided April 6, 1979), this court unanimously determined that the conviction for which the defendant is presently incarcerated was obtained in violation of his constitutional rights. Accordingly, the mandate in the decision remanded the cause to the trial court with directions to grant the defendant’s motion for a new trial, vacate the conviction, and order that a new trial be held within a reasonable time or the defendant be released from custody. The court’s mandate did not itself vacate the judgment. Such action was directed to be taken by the trial court when it again obtains jurisdiction upon receipt of the remittitur. State v. Neutz, 73 Wis.2d 520, 522 , 243 N.W.2d 506, 507 (1976).
Under Rule 809.26, the remittitur is transferred to the trial court thirty-one days after the decision of the court of appeals is filed unless a petition to review is filed in the supreme court within the thirty days permitted un *49 der Rule 809.62(1). If a petition to review is filed within the thirty days, further proceedings in the court of appeals are stayed as is the transmittal of the remittitur. Rules 809.62(3) and 809.26.
In the instant case, the thirty days in which to file a petition for review have not passed, and the remittitur has not been transmitted to the trial court. Therefore, being without jurisdiction, the trial court has taken no action on the directions in this court’s opinion, and the judgment of conviction has not been vacated. Because the conviction has not been vacated, I submit the majority errs in determining that the defendant is in the same position he was prior to trial and is entitled to pretrial bail under sec. 969.01, Stats.
It is my position that the appeal from the defendant’s conviction and post-conviction motions is still pending and will remain pending until the happening of one of the following events:
(1) The State fails to file a petition for review in the supreme court within the thirty days provided by Rule 809.62;
(2) The State files a petition to review within the required time and the supreme court denies the petition;
(3) The State’s petition for review is granted and the supreme court renders its decision in the matter.
Since I view the appeal as still pending and construe the defendant’s petition as one seeking bail pending appeal, I would deny the petition on the grounds that this court lacks the jurisdiction to grant the requested relief.
While it is true that an appeal divests the trial court of jurisdiction to act on the subject matter of the appeal, Austin v. Ford Motor Co., 73 Wis.2d 96, 103 , 242 N.W.2d 251, 254 (1976), the trial court nevertheless retains jurisdiction in matters not directly concerned with the ap *50 peal, particularly when provided by statute. State ex rel. Freeman Printing Co. v. Luebke, 36 Wis.2d 298, 302-03 , 152 N.W.2d 861, 863 (1967).
Rule 809.31(1) deals with bail pending appeal and specifically requires the motion to be filed in the trial court. Inasmuch as the present appeal is still pending, the proper place to have brought the instant petition is the circuit court for Manitowoc County. This view is reinforced by the recent supreme court opinion of State v. Whitty, 86 Wis.2d 380, 388-89 , 272 N.W.2d 842, 846 (1978), wherein the court described the procedure to be followed by a defendant seeking release on bond pending appeal.
(1) A defendant convicted of a felony who seeks release on bond pending appeal first files a motion seeking such relief with the trial court pursuant to Rule 809.31(1), Stats.
(2) The trial court’s order disposing of the motion is reviewable by the court of appeals upon that court granting permission to appeal pursuant to Rule 809.50 from an order which is not appealable as of right under sec.-808.03(l), Stats. Rather than considering the matter de novo, the court of appeals merely reviews the trial court’s discretionary determination.
(3) Further review is obtainable upon this court granting a petition to appeal filed pursuant to Rules 809.62 and 808.10, Stats., from an adverse decision of the court of appeals.
This procedure clearly contemplates petitions of this sort being initiated at the trial court level with the court of appeals reviewing that court’s decision in the exercise of its discretion. Neither the rule nor this format provide for bail petitions to be brought first in the court of appeals.
The majority notes there would be some problem in having a motion heard at the trial court level because various judges in Manitowoc County have either been in *51 volved in the case or have recused themselves. I do not view this problem as insurmountable and do not believe it furnishes sufficient justification for this court to take the action it has today. I believe an impartial judge could be assigned to hear the appropriate motion without undue delay.
The majority further asserts thát it takes the present action pursuant to sec. 752.37, Stats., which grants the court of appeals “power and authority to enforce its judgments and determinations and to exercise its jurisdiction.” I do not perceive the present issue as questioning the right of this court to enforce its judgments and determinations, nor do I think the present action is necessary to achieve that end. This court’s decision in Rohl v. State, supra, remanded the cause to the trial court with specific instructions on actions to be taken. The time for transmittal of the remittitur not having arrived, the trial court has not yet had an opportunity to act on those instructions. This is not a situation where the trial court has refused to carry out the mandate.
On the other hand, as previously stated, the trial court does have jurisdiction to entertain a motion for release on bond pending appeal. The release of the defendant is the result sought here, and one which I do not object to— provided the release is obtained in a proper manner. A proper manner, I submit, includes an evidentiary hearing concerning the advisability of releasing the defendant and the terms and conditions of such a release. Rule 809.31 (2)-(4). This hearing should be held in the trial court where the motion is to be brought. Nevertheless, even if this court was the proper forum, the hearing conducted on the petition before us did not address such considerations. As a result, the court lacked the information necessary to make a well-informed determination on the issue of the defendant’s release.
*52 In my judgment, the defendant’s petition should be denied.
(On petition for supervisory writ.)
On April 20, 1979, the State requested a supervisory writ from the supreme court and a stay of our order and decision granting bail. The stay was granted and a hearing on the supervisory writ was scheduled for April 27,1979 in the supreme court.
After being informed that this court’s order granting bail had been stayed, the defendant filed a petition for a writ of habeas corpus. The petition was granted, and we ordered the defendant released on ten thousand ($10,-000) dollars bail with ten (10%) percent cash pending a return on the writ which was scheduled for April 23, 1979. The State then filed a second request for a supervisory writ and a stay of the writ of habeas corpus releasing the defendant on bail pending the return. The stay was granted and an order was issued staying any court from releasing the defendant on bail pending further order of the supreme court.
On April 27, 1979, a hearing on both supervisory writs was held in the supreme court. After the hearing, the supreme court issued the following order remanding the matters back to this court for a bail hearing.
The application of petitioner for a supervisory writ having come on for hearing, and the petitioner having appeared by Assistant Attorney General Kirbie Knut-son, and the respondents by Attorney James Glover,
It is ordered that the order of the Court of Appeals admitting the respondent Marvin Rohl to bail, and the habeas corpus order of Hon. Clair Yoss to the same effect, are vacated in their entirety.
It is further ordered that this matter is remanded to the Court of Appeals for a bail hearing forthwith to determine the amount and conditions of bail while the decision on the merits remains subject to the jurisdiction of the Court of Appeals, provided in the alternative that *53 the Court of Appeals may refer the matter to the circuit court for Manitowoc County, for a bail hearing to be governed by the provisions of sec. (rule) 809.31, Stats.
(On remand from the supreme court for a bail hearing.)
Before Voss, P.J., Brown, J., and Moser, J.
BROWN, J.
The decision today is made pursuant to the order of the supreme court.
A person accused of a crime and awaiting trial has a constitutional right to reasonable bail. The amount should be determined solely in reference to the purpose of bail, namely, to assure the appearance of the accused when it is his duty to appear to answer the criminal prosecution. Whitty v. State, 34 Wis.2d 278, 286 , 149 N.W.2d 557, 560 (1967) ; sec. 969.01 (4), Stats. The defendant, in this case, is in the same position as any other defendant awaiting trial. His prior conviction was held invalid and he awaits a new trial. Therefore, he is entitled to bail under sec. 969.01(1), Stats.
The factors to be considered in determining bail were originally set out in Whitty v. State, 34 Wis.2d at 286 , 149 N.W.2d at 560 , and are now codified in sec. 969.01 (4), Stats. We must consider the following eight factors in determining the amount and conditions of bail.
1. The Ability of the Arrested Person to Give Bail
The defendant is presently in prison and has been in prison for seven years. He has not been part of the income producing public. Therefore, he has no means of giving bail himself. While a number of persons in the Green Bay community are willing to post bail, they are not wealthy people and do not have the financial means of meeting high bail.
*54 2. The Nature and Gravity of the Offense and Penalty
The defendant was originally charged with first-degree murder, sexual perversion, robbery and arson. His pretrial bail was set at $20,000 on first-degree murder, $5,000 on robbery, $5,000 on arson and $5,000 on sexual perversion. After the preliminary hearing, the sexual perversion count was dismissed. After trial, the robbery charge was dismissed. The defendant was found guilty of third-degree murder and arson. On retrial, he can only be charged with third-degree murder and arson. See, Green v. United States, 355 U.S. 184 (1957); State v. Hill, 30 Wis. 416, 423 (1872). Under the laws in force at the time the defendant was originally charged, the crime of third-degree murder was punishable by not more than fifteen years, and the crime of arson was also punishable by not more than fifteen years. After his first conviction, the defendant was sentenced to twenty-five years. If reconvicted, the defendant could be sentenced to a maximum of twenty-five years in the absence of identifiable conduct on the part of the defendant occurring after the original sentencing which justifies a harsher sentence. See, North Carolina v. Pearce, 395 U.S. 711, 726 (1969). Since the defendant has already served seven years in prison, if reconvicted and resentenced to a total of twenty-five years, the most the defendant would have to serve before his mandatory release date would be four years. This calculation takes into account credit for time served, statutory good time and industrial good time. Therefore, the defendant is in a significantly different position now than he was when first charged. He is also in a significantly different position than others charged with third-degree murder and arson.
3. The Defendant’s Criminal Record
No prior criminal record was presented.
*55 4. The Character, Residence and Health of the Defendant
We have considered the alleged threat made by the defendant that the first person he was going to get was Sue Nelson, the chief prosecution’s witness. We have considered the allegations of crank phone calls which have been made in the past to officers of the court and police officials and their possible source. We have considered the alleged pressure by the Rohl family upon witnesses, and we have also considered the alleged pressure placed on the State’s witnesses by a certain defense counsel not involved in this bail proceeding. On the other hand, we have considered the fact that Mr. Rohl does enjoy some community support and does have employment opportunities. We have considered the fact that the defendant has no intention of returning to the Mani-towoc community where the State’s witnesses reside. We have also considered the fact that when Mr. Rohl was informed that members of his family were threatening and pressuring the State’s witnesses, the threats and pressure stopped.
5. Strength of the State’s Evidence
In considering the strength of the State’s evidence, we note first of all that Sue Nelson’s testimony was considered credible at the first trial and may very well be considered credible at a second trial. We have also examined the claim that Mr. Rohl has written letters in which he allegedly confessed to the murder. We have contemplated the assertion that the prosecution, as a result, feels that this case may now be stronger than it was originally.
We have reviewed disclosure of a possible recantation by the former assistant district attorney regarding his *56 affidavit admitting knowledge concerning the ownership of the flashlight.
6.Whether Defendant is Already on Bail
Since the defendant has been in prison for seven years, we consider this criteria to be inapplicable to this case for obvious reasons.
7.Whether the Defendant has in the Past Forfeited Bail or is a Fugitive From Justice
There is no information that any incident of this nature has ever taken place.
8.Policy Against Unnecessary Detention of the Defendant Pending Trial
We have analyzed this policy and concluded that detention would not be necessary in this case to insure the defendant’s appearance at trial.
In view of the fact that the defendant is being held under a judgment of conviction which was obtained in violation of his constitutional rights and is, therefore, entitled to bail pending a new trial, and after considering all of the above discussed factors and information, this court orders the defendant, Marvin Rohl, released from custody on ten thousand ($10,000) dollars bail with permission to post ten (10%) percent of the amount of bail in cash with the Manitowoc County Clerk of Circuit Court. Release on bail will be on the following conditions:
(1) The defendant shall not leave the State of Wisconsin without permission of this court or the trial court; and if Mr. Rohl goes into Manitowoc County for any purpose whatsoever he must personally advise the • sheriff’s office when he enters the *57 county and must personally notify the sheriff’s office when he leaves the county;
(2) The Manitowoc County Clerk of Circuit Court shall hold the bail funds until further order of this court;
(3) The State shall have 90 days from the date of this decision to commence a new trial;
(4) If during the 90 days the State decides not to retry the defendant, it shall inform this court, the trial court and the Manitowoc County Clerk of Circuit Court, at which time upon petition to this court, the defendant shall be released from bail and the funds returned to the person posting the bail;
(5) If after the 90 day period the State has not commenced a new trial, upon petition to this court, the defendant shall be released from bail and the funds shall be returned to the persons posting the bail;
(6) If the State files a petition for review of this court’s original decision in Rohl v. State within the time period allowed for review, the 90 day period shall be stayed. The defendant shall, however, remain on bail pending a decision by the supreme court on the merits of the appeal or unless the supreme court directs otherwise. If the supreme court denies the petition for review, the State then has 90 days from the date of denial of petition to review to commence a new trial, and the defendant shall remain on bail during this 90 day period or until the State notifies this court, the trial court and the Manitowoc County Clerk of Circuit Court that it will not retry the defendant. If the State determines that it will not retry the defendant or the State has not commenced a new trial during the 90 day period, whichever comes first, upon petition to this court, the defendant shall be released from bail and the bail funds returned to the persons posting the bail;
(7) If the supreme court grants the petition for review in Rohl v. State, the defendant shall remain on bail pending a decision on the merits or unless the supreme court directs otherwise. If the supreme court affirms our decision that the defendant is entitled to a new trial, the State again has 90 *58 days from the date of decision to commence a new trial. If the State determines it will not retry the defendant or the State has not commenced a new trial within 90 days, upon petition to this court the defendant shall be released from bail and the bail funds returned to the person posting the bail;
(8) The defendant shall- refrain from any contact in any way, personal or otherwise, with any potential witness of the prosecution or any party involved be it a prosecutor, a court official, or a police officer. This provision shall not be read to inhibit his counsel from effective representation.
By the Court. — Motion for release on bail granted.