
    State of Connecticut v. Guillermo Aillon
   ORDER

Per Curiam.

The defendant is presently confined as the result of an arrest on three separate bench warrants, each issued on a charge of murder in violation of § 53a-54 of the General Statutes. The Superior Court denied his motions for release on bail and he has petitioned this court for a review of those orders denying bail. See Practice Book § 694.

Article first, § 8, of the constitution of Connecticut provides that “[ijn all criminal prosecutions, the accused shall have a right ... to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great.” Section 54-53 of the Connecticut General Statutes provides that “[ejach person detained . . . pursuant to the issuance of a bench warrant or for . . . trial for an offense not punishable by death shall be entitled to bail and shall be released . . . upon entering into a recognizance, with sufficient surety . . . for his appearance before the court having cognizance of the offense.”

As we understand the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, rehearing denied, 409 U.S. 902, 93 S. Ct. 89, 90, 34 L. Ed. 2d 163, 164, and interpret the nine opinions of the justices of that court in that case and the mandates of that court in the cases of Davis v. Connecticut, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750, and Delgado v. Connecticut, 408 U.S. 940, 92 S. Ct. 2879, 33 L. Ed. 2d 764, the existing Connecticut statutes which provide for imposition of the death penalty are in their present form in violation of the provisions of the United States Constitution. Accordingly, although the accused is held on three charges of murder he is, nevertheless, in the light of the Furman decision, not being detained for an offense which is now punishable by death. He is, therefore, pursuant to the express provisions of § 54-53 of the General Statutes, entitled to bail and to release on entering into a recognizance, with sufficient surety, for his appearance before the court having cognizance of the three offenses with which he is charged. As a guide to the purposes and amount of bail in such circumstances, see State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667.

We are cognizant of the fact that there is pending before the United States Supreme Court a petition for rehearing in the case of Furman v. Georgia, supra. The procedural rules in that court applying to the Furman decision provide that the filing of the petition for rehearing does not affect the finality of that decision. This situation, however, prompts us to state the same caveat noted in the concurring opinion in Donaldson v. Sack, 265 So. 2d 499, 507 (Fla.): “[I]n the event a different rule should emerge on rehearing in the Supreme Court of the United States, it would then be necessary to reexamine the question here.”

We have granted the defendant’s three motions to review the orders of the Superior Court denying bail. There is error, each order is set aside and the Superior Court is directed to grant a new hearing on the defendant’s motions for bail to be conducted in conformity with this opinion.

Howard A. Jacobs, in support of the petition.

J err old H. Barnett, assistant state’s attorney, in opposition.

Submitted September 25

decided October 6, 1972  