OPINION
Judge MANNHEIMER.
Mikos C. Simmons asks this Court to review the superior courts refusal to set conditions of bail pending appeal. The State has announced that it does not oppose Simmonss bail release, so long as appropriate conditions of release are [imposed]. In other words, the parties agree that we should remand this case to the superior court for the setting of bail.
We have concluded that, rather than simply issuing an unpublished order resolving this bail appeal, we should instead employ a published opinion to explain our decision in this case-because our review of the record shows that the superior courts handling of the bail issue departed substantially from the procedures and substantive law that govern post-conviction bail.
Following a jury trial, Simmons was con-viected of fourth-degree controlled substance misconduct, and the superior court sentenced him to 42 months imprisonment with 12 months suspended (4.e., 30 months to serve).
Right after the superior court imposed this sentence, Simmonss attorney asked the court to stay the sentence for 30 days, to give Simmons time to perfect an appeal. The defense attorney pointed out that Simmons had been on bail release (apparently, without incident) for approximately 2 1/2 years before sentencing, and the defense attorney also pointed out that Simmons had 30 days to file an appeal.
When the sentencing judge asked the prosecutor for the States position on Simmonss request, the prosecutor told the judge that he did not oppose the stay.
In response, the sentencing judge declared that [his] policy has always been that, onee a person is sentenced, ... they should be remanded [to custody] and start serving their time. The judge added that if [a defendant is] entitled to [a] stay of the sentence for whatever reason, then that [stay] should be obtained from the Court of Appeals.
The judge then told the parties that he would grant the requested stay if-and only if-the prosecutor stipulated that Simmons was entitled to bail release under the provisions of AS 12.30.040(a) (the statute . that governs post-conviction bail). The prosecutor replied, I wouldnt say Im stipulating to it. Im saying [that] Im not going to argue [against it].
The prosecutors answer did not satisfy the sentencing judge, and the judge pressed the prosecutor to declare whether he affirmatively stipulated to Simmonss bail release:
The Court: [to the prosecutor] I want a clear position from you, Counsel. If youve made that agreement with [the defense attorney], and thats what hes depending upon, [then] Im going with it. Otherwise, [Simmons] is going to be remanded [to custody]. I leave that up to you, and your relationship with [the defense attorney], and what youve agreed.
[A whispered conversation occurs between the attorneys.]
Prosecutor: The State does not stipulate to the release.
The Court: Then Im going to have him remanded. ©
The judges handling of this matter violated AS 12.30.040(a). Under the provisions of this statute, Simmons is entitled to be released on bail pending appeal if he establishes, by clear and convincing evidence, that [he] can be released under conditions that will reasonably assure [his] appearance ... and the safety of ... other persons ... and the community.
But rather than listening to Simmonss arguments regarding bail release, the judge declared that he would remand Simmons to custody unless the prosecutor stipulated that Simmons should be released on bail. In other words, the judge effectively granted the prosecutor unilateral power to decide whether Simmons should be released or jailed-regardless of the merits of Simmonss arguments in favor of bail release. This was unlawful.
Conclusion
The superior courts decision to deny post-conviction bail to Simmons is REVERSED. We direct the superior court to consider, pursuant to the provisions of AS 12.30.040(a), whether one or more conditions of release will assure Simmonss continued appearance and the safety of the public We further direct the superior court to take into consideration the States position that bail release is appropriate in this case.
. See Alaska Appellate Rule 204(a)(1).