
    George Herman NEWBERRY, Appellant, v. STATE of Florida, Appellee.
    No. V-279.
    District Court of Appeal of Florida, First District.
    July 2, 1974.
    
      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   ON MOTION FOR POST-TRIAL RELEASE

PER CURIAM.

Appellant’s motion for post-trial release filed herein pursuant to Florida Rules of Criminal Procedure, 3.691, 33 F. S.A., is denied on authority of State ex rel. Loper v. Stack, 291 So.2d 207 (Fla.App.1974), holding that representations made by counsel are not evidence which can be considered by a court on application for bail pending appeal. We recognize that the rule of procedure cited by appellant contains language to the effect that either the trial court or appellate court may set bail pending appeal in appropriate cases. However, that provision of the rule does not conform with the general rule that an appellate court will not act as a nisi prius tribunal in cases where factual determinations must be made in order to arrive at a decision.

Moreover, the record on appeal herein reveals that appellant has already sought the setting of bail pending his appeal by motion filed in the trial court, which said motion was denied by the trial court on March 21, 1974. Appellant, having sought bail on appeal below and having elected not to seek review of the order entered in the trial court denying same, is now faced with the proposition that his entitlement to bail has been decided adversely to him and he having elected not to seek review thereof, that decision is now the law of the case. Rule 3.691, 33 F.S.A. relied upon by appellant in his second quest for bail pending appeal does not provide that such bail may be sought in the trial court and in the appellate court.

Accordingly, appellant’s motion for bail pending appeal is denied.

SPECTOR, Acting C. J., and BOYER and McCORD, JJ., concur.  