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6 AN ACT RELATING TO BAIL BONDS; AMENDING DEFINITIONS; ADDRESSING
7 REQUIREMENTS FOR LICENSURE OR OBTAINING A CERTIFICATE OF AUTHORITY;
8 ADDRESSING AUTHORITY RELATED TO BAIL BONDS; ADDRESSING FINANCIAL
9 REQUIREMENTS FOR BAIL BOND SURETY COMPANIES; ADDRESSING PROCEDURES
10 FOR ISSUING, DENYING, RENEWING, AND REINSTATING A BAIL BOND SURETY
11 COMPANY'S LICENSE; ADDRESSING ENFORCEMENT; ADDRESSING REQUIREMENTS
12 FOR AND RESTRICTION ON OPERATIONS; ADDRESSING SUBMISSION TO THE
13 JURISDICTION OF THE COURT; ADDRESSING PROCEDURES UNDER THE BAIL BOND
14 SURETY ACT; AMENDING BAIL BOND PROVISIONS; AND MAKING TECHNICAL
16 This act affects sections of Utah Code Annotated 1953 as follows:
18 31A-35-101, as enacted by Chapter 293, Laws of Utah 1998
19 31A-35-102, as enacted by Chapter 293, Laws of Utah 1998
20 31A-35-104, as enacted by Chapter 293, Laws of Utah 1998
21 31A-35-202, as last amended by Chapter 131, Laws of Utah 1999
22 31A-35-301, as last amended by Chapter 131, Laws of Utah 1999
23 31A-35-401, as enacted by Chapter 293, Laws of Utah 1998
24 31A-35-402, as enacted by Chapter 293, Laws of Utah 1998
25 31A-35-404, as enacted by Chapter 293, Laws of Utah 1998
26 31A-35-405, as enacted by Chapter 293, Laws of Utah 1998
27 31A-35-406, as enacted by Chapter 293, Laws of Utah 1998
28 31A-35-501, as enacted by Chapter 293, Laws of Utah 1998
29 31A-35-502, as enacted by Chapter 293, Laws of Utah 1998
30 31A-35-503, as enacted by Chapter 293, Laws of Utah 1998
31 31A-35-602, as enacted by Chapter 293, Laws of Utah 1998
32 31A-35-603, as enacted by Chapter 293, Laws of Utah 1998
33 31A-35-604, as enacted by Chapter 293, Laws of Utah 1998
34 31A-35-607, as enacted by Chapter 293, Laws of Utah 1998
35 31A-35-608, as enacted by Chapter 293, Laws of Utah 1998
36 31A-35-701, as last amended by Chapter 131, Laws of Utah 1999
37 31A-35-702, as enacted by Chapter 293, Laws of Utah 1998
38 31A-35-703, as enacted by Chapter 293, Laws of Utah 1998
39 31A-35-704, as enacted by Chapter 293, Laws of Utah 1998
40 77-20-8.5, as last amended by Chapter 257, Laws of Utah 1998
41 77-20-10, as enacted by Chapter 160, Laws of Utah 1988
42 77-20b-101, as enacted by Chapter 293, Laws of Utah 1998
43 77-20b-102, as enacted by Chapter 293, Laws of Utah 1998
44 77-20b-103, as enacted by Chapter 293, Laws of Utah 1998
45 77-20b-104, as enacted by Chapter 293, Laws of Utah 1998
47 77-20-6, as enacted by Chapter 15, Laws of Utah 1980
48 Be it enacted by the Legislature of the state of Utah:
49 Section 1. Section 31A-35-101 is amended to read:
51 31A-35-101. Title.
52 This chapter is known as the "Bail Bond [
53 Section 2. Section 31A-35-102 is amended to read:
54 31A-35-102. Definitions.
55 As used in this chapter:
56 (1) "Bail bond" means a bond for a specified monetary amount [
57 (a) executed by a [
58 in accordance with Section 31A-35-401 ; and
59 (b) issued to a court, magistrate, or authorized officer as security for the subsequent court
60 appearance of the defendant upon [
62 (2) "Bail bond agent" means [
63 (a) is appointed by [
64 (i) a surety insurer [
65 (ii) a bail bond surety company licensed under this chapter;
66 (b) is appointed to execute or countersign undertakings of bail in connection with judicial
67 proceedings; and [
68 (c) receives or is promised money or other things of value for [
69 an act described in Subsection (2)(b).
70 (3) "Bail bond surety" means a person that:
71 (a) (i) is a bail bond surety company [
73 (ii) a surety insurer; and
74 (b) issues bonds to secure:
77 (4) "Bail bond surety company" means any sole proprietor or entity who:
78 (a) (i) is the agent of a surety insurer that issues a bail bond in connection with judicial
80 (ii) pledges the assets of a letter of credit from a Utah depository institution for a bail bond
81 in connection with judicial proceedings; or
82 (iii) pledges personal or real property, or both, as security for a bail bond in connection
83 with judicial proceedings; and
84 (b) receives or is promised money or other things of value for a service described in
85 Subsection (4)(a).
87 (a) [
88 (i) enforce the terms and conditions of a defendant's release on bail in a civil or criminal
90 (ii) apprehend a defendant or surrender a defendant to custody[
91 (iii) both[
92 (b) [
93 described in Subsection (5)(a).
95 31A-35-201 .
100 (8) "Indemnitor" means an entity or natural person who enters into an agreement with a
101 bail bond surety to hold the bail bond surety harmless from loss incurred as a result of executing
102 a bail bond.
111 (9) "Liquid assets" means financial holdings that can be converted into cash in a timely
112 manner without the loss of principal.
114 guaranteed by bond.
119 (11) "Surety insurer" means an insurer that:
120 (a) is licensed under Chapter 4, 5, or 14;
121 (b) receives a certificate under this title; and
122 (c) issues bail bonds.
123 (12) "Utah depository institution" is a depository institution, as defined in Section 7-1-103 ,
125 (a) has Utah as its home state; or
126 (b) operates a branch in Utah.
127 Section 3. Section 31A-35-104 is amended to read:
128 31A-35-104. Rulemaking authority.
129 The [
130 guidelines and standards of conduct for the business of bail bond surety insurance under this
132 Section 4. Section 31A-35-202 is amended to read:
133 31A-35-202. Board responsibilities.
134 The board shall:
135 (1) meet:
136 (a) at least quarterly; and
137 (b) at the call of the chair;
138 (2) make written recommendations to the commissioner for rules governing the following
139 aspects of the bail bond surety insurance business:
140 (a) [
141 (i) a license required by this Section 31A-35-401 ; or
142 (ii) a certificate;
143 (b) [
144 (c) unprofessional conduct;
145 (d) procedures for hearing and resolving allegations of unprofessional conduct; and
146 (e) sanctions for unprofessional conduct;
147 (3) screen:
148 (a) bail bond surety company [
150 (b) persons applying for a bail bond surety company license;
151 (4) recommend to the [
152 suspending, revoking, and reinstating of bail bond surety company [
153 (5) (a) conduct investigations of allegations of unprofessional conduct on the part of
154 persons or bail bond sureties involved in the business of bail bond surety insurance; and
155 (b) provide the results of the investigations described in Subsection (5)(a) to the
157 (i) action; and
158 (ii) any appropriate sanctions.
159 Section 5. Section 31A-35-301 is amended to read:
160 31A-35-301. The commissioner's authority.
161 (1) The commissioner shall:
162 (a) make rules as necessary for the administration of this chapter;
163 (b) with information as provided by the board, issue or deny [
164 this chapter;
165 (c) take action regarding a [
166 (d) maintain and publish a current list of licensed bail bond surety companies and agents.
167 (2) The commissioner may establish fees for the issuance, renewal, and reinstatement of
168 a bail bond surety company [
169 63-38-3.2 .
170 Section 6. Section 31A-35-401 is amended to read:
171 31A-35-401. Requirement for license or certificate of authority -- Process -- Fees --
173 (1) (a) A person may not engage in the bail bond surety insurance business [
175 (i) is a bail bond surety company licensed under this chapter[
176 (ii) is a surety [
177 section in the same manner as other insurers doing business in this state are granted certificates of
178 authority under this title[
179 (iii) is a bail bond agent licensed in accordance with this section.
182 this chapter as an agency.
183 (c) A bail bond agent shall be licensed under Chapter 23 as an agent.
184 (2) [
185 license under this chapter shall submit to the [
186 (a) a completed application form as prescribed by the [
187 (b) a fee as determined by the [
188 Section 63-38-3.2 ; and
189 (c) any additional information required by rule.
190 (3) Fees required under this section are not refundable.
191 (4) Fees collected [
192 in a restricted account created in Section 31A-35-407 .
193 (5) (a) A bail bond surety company shall be domiciled in Utah.
194 (b) A bail bond agent shall be a resident of Utah.
195 (c) A foreign surety insurer that is granted a certificate to issue bail bonds may only issue
196 bail bonds through a bail bond surety company licensed under this chapter.
197 Section 7. Section 31A-35-402 is amended to read:
198 31A-35-402. Authority related to bail bonds.
199 (1) A bail bond surety [
208 holding a current appointment from a bail bond surety.
211 bond surety business on the [
212 (a) employed solely for the performance of clerical, stenographic, investigative, or other
213 administrative duties [
214 (i) a bail bond surety company; or
215 (ii) a bail bond agent; and
216 (b) whose compensation is not related to or contingent upon the number of bonds written.
217 Section 8. Section 31A-35-404 is amended to read:
218 31A-35-404. Minimum financial requirements for bail bond surety company license.
219 (1) (a) A [
220 credit from a Utah depository institution in connection with a judicial proceeding shall maintain
221 an irrevocable letter of credit with a minimum face value of [
222 state from a Utah [
223 (b) Notwithstanding Subsection (1)(a), a bail bond surety company described in Subsection
224 (1)(a) that is licensed under this chapter as of December 31, 1999, shall maintain an irrevocable
225 letter of credit with a minimum face value of $250,000 assigned to the state from a Utah depository
227 (2) (a) A [
228 both, as security for a bail bond in connection with a judicial proceeding shall maintain:
230 (I) reviewed by a certified public accountant[
231 (II) showing a net worth of at least [
232 which is in liquid assets; or
233 (B) notwithstanding Subsection (2)(a)(i), if the bail bond surety company is licensed under
234 this chapter as of December 31, 1999, a current financial statement:
235 (I) reviewed by a certified public accountant; and
236 (II) showing a net worth of at least $250,000, at least $50,000 of which is in liquid assets;
240 worth calculations:
241 (A) a title letter; and
242 (B) an appraisal dated not more than two years prior to the date of application.
243 (b) For purposes of this Subsection (2), only real or personal property located in Utah may
244 be included in the net worth of the bail bond surety company.
245 (3) [
246 attorney issued by [
247 (a) if the bail bond surety company is the agent of the surety insurer; and
248 (b) the surety insurer:
249 (i) issues bail bonds;
252 (4) The commissioner may revoke the license of a bail bond surety company that fails to
253 maintain the minimum financial requirements required under this section.
254 (5) The commissioner may set by rule the limits on the aggregate amounts of bail bonds
255 issued by a bail bond surety company.
256 Section 9. Section 31A-35-405 is amended to read:
257 31A-35-405. Issuance of license -- Denial -- Right of appeal.
258 (1) Upon a determination by the board that [
259 a bail bond surety company license meets the requirements for issuance of a [
261 that person a bail bond surety company license [
262 (2) (a) If the [
263 surety company license under this chapter, [
264 notification to the [
265 (i) stating the grounds for denial[
267 (ii) notifying the person applying for licensure as a bail bond company that:
268 (A) the person is entitled to a hearing if [
270 (B) if the person wants a hearing, the person shall submit the request in writing to the
271 commissioner within 30 days after the issuance of the denial.
272 (b) The hearing described in Subsection (2)(a) shall be scheduled not later than 60 days
273 after the commissioner's receipt of the request.
274 (c) The department shall hear the appeal, and may:
275 (i) return the case to the [
276 (ii) modify the commissioner's decision; or
277 (iii) reverse the commissioner's decision.
279 Chapter 46b, Administrative Procedures Act.
280 Section 10. Section 31A-35-406 is amended to read:
281 31A-35-406. Renewal and reinstatement.
282 (1) (a) [
285 in which the [
286 (i) complete and submit a renewal application to the department; and
287 (ii) pay the department the applicable renewal fee established in accordance with Section
288 63-38-3.2 .
289 (b) [
290 under this chapter annually as established by department rule, regardless of when the [
291 license is issued.
292 (2) A [
293 company license not renewed under Subsection (1) [
294 expiration date[
295 (a) submitting a renewal application required by Subsection (1); and
296 (b) paying a late renewal fee established [
297 (3) A [
298 apply for reinstatement of an expired bail bond surety company license between 31 days and six
299 months following the expiration of the [
300 (a) [
302 (b) [
303 accordance with Section 63-38-3.2 .
304 (4) If a [
305 months [
307 (a) submit an application form to the commissioner; and
308 (b) pay the application fee established [
309 (5) If a [
310 not submit an application for a [
311 end of the period of suspension.
312 (6) Fees collected under this section shall be deposited in the restricted account created in
313 Section 31A-35-407 .
314 Section 11. Section 31A-35-501 is amended to read:
315 31A-35-501. Emergency action regarding a license.
316 (1) If the [
317 health, safety, or welfare requires emergency action, the commissioner may order a summary
318 suspension of a [
319 or other action.
320 (2) The order described in Subsection (1) shall [
321 (a) state the grounds upon which the summary suspension is issued, including the charges
322 made against the [
323 (b) [
324 before the commissioner within 60 days after the summary suspension is ordered.
325 Section 12. Section 31A-35-502 is amended to read:
326 31A-35-502. Notification of violation of chapter.
327 If the commissioner has reason to believe a [
328 bond surety company or a bail bond agent has violated this chapter, written notice shall be sent to
330 (1) the alleged violation;
331 (2) the commissioner's authority to take action against [
333 (3) the [
334 Chapter 46b, Administrative Procedures Act[
335 (4) the period of time within which the hearing [
336 be requested if the person requests a hearing.
337 Section 13. Section 31A-35-503 is amended to read:
338 31A-35-503. Disciplinary action -- Hearing -- Appeal.
339 (1) Based on information the commissioner receives during a hearing described in Section
340 31A-35-502 regarding a [
341 agent, the commissioner may:
342 (a) dismiss the complaint if the commissioner finds it is without merit;
343 (b) fix a period and terms of probation best adopted to educate the [
345 (c) place the [
347 (d) revoke the [
348 (2) The commissioner shall advise the [
349 (1) in writing of:
350 (a) [
352 (b) [
353 (3) [
354 company license is suspended or revoked under this chapter, [
357 (i) be licensed as a bail bond surety company or bail bond agent; or
358 (ii) be designated in any [
359 the period of the suspension or revocation[
360 (b) Subsection (3)(a) does not apply if the [
361 substantial evidence that the member, employee, officer, or director:
362 (i) was not personally at fault; and
363 (ii) did not acquiesce in the matter on account of which the [
364 suspended or revoked.
365 Section 14. Section 31A-35-602 is amended to read:
366 31A-35-602. Place of business -- Records to be kept there.
367 (1) (a) Every bail bond surety company shall have and maintain in this state a place of
369 (i) accessible to the public[
370 (ii) where the [
371 transactions authorized by [
372 (b) The address of [
373 appear upon:
374 (i) the application for a [
376 (ii) the bail bond surety company license issued under this chapter[
378 (c) A bail bond surety company shall notify the [
379 in [
381 from maintaining the place of business required under this section in the [
382 licensee's residence, if [
383 (2) The bail bond surety company shall keep at [
384 Subsection (1)(a) the records required under Section 31A-35-604 .
385 Section 15. Section 31A-35-603 is amended to read:
386 31A-35-603. Collateral security.
387 (1) A bail bond agent may accept collateral security in connection with a bail transaction,
388 if the collateral security is reasonable in relation to the face amount of the bail bond.
389 (2) (a) The collateral security [
390 bail bond agent in [
391 (b) Before any judgment of forfeiture of bail, the bail bond agent shall keep the collateral
392 separate and apart from any other funds or assets of the licensee.
393 (3) (a) Any collateral that is deposited with a bail bond agent or bail bond surety
395 requested by the person who deposited it[
396 (i) the bail bond has been exonerated; and
397 (ii) all fees owed to the bail bond agent or bail bond surety have been paid.
398 (b) A certified copy of the minute order from the court[
399 was ordered exonerated is prima facie evidence of exoneration or termination of liability.
400 (4) (a) If a bail bond agent accepts collateral, [
401 receipt for the collateral. [
402 (b) The receipt [
403 of the collateral received.
404 (5) Upon return of collateral to the person who posted it, if any amount has been deducted
405 by the bail bond surety or bail bond agent as expense, the bail bond surety or bail bond agent shall:
406 (a) include with the returned collateral an itemized statement of all expenses deducted
407 from the collateral[
408 (b) maintain a copy of the statement required by Subsection (5)(a) in [
409 the bail bond surety or bail bond agent.
410 (6) If the bail bond secured by the collateral is forfeited and the bail bond agent or bail
411 bond surety [
412 disposes of the collateral, the [
413 maintain a written record of the collateral, including any disposition.
414 (7) (a) If a document [
415 bail bond transaction, the document shall state on its face that it is executed as part of a security
417 (b) If the document described in Subsection (7)(a) is recorded, the bail bond agent or the
418 bail bond surety [
419 (i) execute a reconveyance of the property, executed so that the reconveyance can be
420 recorded; and
421 (ii) promptly deliver the reconveyance document to:
422 (A) the person executing the original conveyance[
423 (B) the heirs, legal representative, or successor in interest of the person described in
424 Subsection (7)(b)(ii)(A).
425 Section 16. Section 31A-35-604 is amended to read:
426 31A-35-604. Records.
427 (1) [
429 (a) records of all bail bonds [
430 executes or countersigns, so the public may obtain all necessary information concerning those bail
431 bonds for at least one year after the liability of the bail bond surety has been terminated; and
432 (b) any additional information the [
434 (2) Records required to be maintained under Subsection (1) shall be available for
435 examination by the commissioner or [
436 business hours.
437 (3) The bail bond surety company shall maintain for three years after receipt all records
439 agent appointed by the bail bond surety company.
440 Section 17. Section 31A-35-607 is amended to read:
441 31A-35-607. Filing of forms -- Department maintains files.
442 (1) In accordance with Section 31A-21-201 , each [
443 file with the [
444 bond surety uses in [
445 (2) [
448 (a) before the form is first used by the bail bond surety; and
449 (b) if the form is changed after it is filed under Subsection (2)(a).
450 (3) (a) The department shall maintain and make available for public inspection a file
451 regarding each bail bond surety.
452 (b) The forms required to be filed under this section shall be maintained in the submitting
453 bail bond surety's file.
454 Section 18. Section 31A-35-608 is amended to read:
455 31A-35-608. Premiums and authorized charges.
456 (1) A bail bond surety or bail bond agent may not, in any bail transaction or in connection
457 with that transaction, directly or indirectly, charge or collect money or other valuable consideration
458 from any person except to:
459 (a) pay the premium on the bail at the rates established by the bail bond surety [
460 (b) provide collateral;
461 (c) reimburse himself for actual expenses, as described in Subsection (2), incurred in
462 connection with the bail bond transaction; or
463 (d) to reimburse himself, or to establish a right of action against the principal or any
464 indemnitor, for actual expenses the bail bond surety or bail bond agent incurred:
465 (i) in good faith; and
466 (ii) which were by reason of breach by the defendant of any of the terms of the written
467 agreement under which the undertaking of bail or bail bond was written.
468 (2) (a) [
470 equitable rights against the principal and [
471 (i) a bail bond agent did not establish a written agreement; or
472 (ii) there is only an incomplete writing.
473 (b) Reimbursement claimed under this Subsection (2) may not exceed the sum of:
474 (i) the principal sum of the bail bond or undertaking[
475 (ii) any reasonable expenses that:
476 (A) are verified by receipt [
477 (B) in total do not amount to more than the principal sum of the bail bond or
479 (C) incurred in good faith by the bail bond surety, its agents, and employees by reason of
480 the principal's breach.
481 (3) This section does not affect or impede the right of a bail bond agent to execute
482 undertaking of bail on behalf of a nonresident agent of the bail bond surety [
484 Section 19. Section 31A-35-701 is amended to read:
485 31A-35-701. Prohibited acts.
486 (1) A bail bond agent or bail bond surety may not:
487 (a) solicit business in or about:
488 (i) any place where persons in the custody of the state or any local law enforcement or
489 correctional agency are confined[
490 (ii) any court;
491 (b) pay a fee or rebate or give or promise anything of value to any person in order to secure
492 a settlement, compromise, remission, or reduction of the amount of any undertaking or bail bond;
493 (c) pay a fee or rebate or give anything of value to an attorney in regard to any bail bond
494 matter, except payment for legal services actually rendered for the bail bond agent or bail bond
496 (d) pay a fee or rebate or give or promise anything of value to the principal or anyone in
498 (e) engage in any other act prohibited by the commissioner by rule.
499 (2) The following persons may not act as bail bond agents and may not, directly or
500 indirectly, receive any benefits from the execution of any bail bond:
501 (a) a person employed at any jail, correctional facility, or other facility used for the
502 incarceration of persons;
503 (b) a [
504 (c) a judge; and
507 used for the incarceration of persons.
508 (3) A bail bond agent may not:
509 (a) sign or countersign in blank any bail bond[
510 (b) give the power of attorney to, or otherwise authorize[
511 bail bond agent's name to [
512 (4) A bail bond agent may not advertise or hold himself out to be a bail bond surety.
513 (5) The following persons or members of their immediate families may not solicit business
514 on behalf of a bail bond surety or bail bond agent:
515 (a) a person employed at any jail, correctional facility, or other facility used for the
516 incarceration of persons;
517 (b) a [
518 (c) a judge; and
521 used for the incarceration of persons.
522 Section 20. Section 31A-35-702 is amended to read:
523 31A-35-702. Early surrender without cause.
524 (1) [
525 good cause surrenders a defendant to custody before:
526 (a) the time specified in the undertaking of bail or the bail bond for the appearance of the
528 (b) any other occasion where the presence of the defendant in court is lawfully required[
530 (2) As used in this section, "good cause" includes:
534 or a bail bond;
536 employed by:
537 (i) the bail bond agent; or
538 (ii) the bail bond surety;
540 (i) the defendant; or [
541 (ii) a person acting on [
543 giving reasonable notice to:
544 (i) the bail bond agent; or
545 (ii) the bail bond surety;
547 defined by department rule, while on bail;
550 Section 21. Section 31A-35-703 is amended to read:
551 31A-35-703. Disciplinary action.
552 (1) [
553 governing the conduct of bail bond agents and bail bond sureties under this chapter [
555 (a) disciplinary action by the [
556 (i) license, if the person is a bail bond surety company or bail bond agent; or
557 (ii) certificate, if the person is a surety insurer; and
558 (b) imposition of civil penalties, as authorized under Title 31A, Chapter 2, Administration
559 of the Insurance Laws.
560 (2) Penalties collected under this section shall be deposited in the restricted account
561 created in Section 31A-35-407 .
562 Section 22. Section 31A-35-704 is amended to read:
563 31A-35-704. Submission of bail bond sureties and agents to jurisdiction of court.
564 By applying for and receiving [
565 bail bond surety insurance business in accordance with this chapter, a bail bond surety [
567 (1) [
568 (2) irrevocably [
569 affecting the bail bond [
570 undertaking may be served; and
571 (3) [
572 as the court may require, without the necessity of an independent action.
573 Section 23. Section 77-20-8.5 is amended to read:
574 77-20-8.5. Sureties -- Surrender of defendant -- Arrest of defendant.
575 (1) (a) [
576 the defendant and obtain exoneration of [
578 surrender h AND REQUESTING EXONERATION h . Notification will be done immediately following
578a the surrender by surface mail,
579 electronic mail, or fax.
580 (b) To effect surrender, [
581 of the surety's undertaking from the court in which it was posted, or, a copy of the bail agreement
582 with the defendant shall be delivered to [
583 the defendant in [
584 acknowledge the surrender upon [
585 certified copy of the undertaking or copy of the bail agreement upon which the acknowledgment
586 of surrender is endorsed shall be filed with the court. The court may then, upon proper application,
587 order the undertaking exonerated and may order a refund of any paid premium, or part of a
588 premium, as it finds just.
589 (2) For the purpose of surrendering the defendant, the sureties may:
590 (a) arrest [
591 (i) at any time before [
592 (ii) at any place within the state; and
593 (b) surrender the defendant to any correctional facility in Utah.
594 (3) A surety acting under this section is subject to [
595 11, Bail Bond Recovery Act.
596 Section 24. Section 77-20-10 is amended to read:
597 77-20-10. Grounds for detaining defendant while appealing his conviction --
598 Conditions for release while on appeal.
599 (1) The court shall order that a defendant who has been found guilty of an offense and
600 sentenced to a term of imprisonment in jail or prison, and who has filed an appeal or a petition for
601 a writ of certiorari, be detained, unless the court finds:
602 (a) the appeal raises a substantial question of law or fact likely to result in:
603 (i) reversal;
604 (ii) an order for a new trial; or
605 (iii) a sentence that does not include a term of imprisonment in jail or prison;
606 (b) the appeal is not for the purpose of delay; and
607 (c) by clear and convincing evidence presented by the defendant that [
608 is not likely to flee the jurisdiction of the court, and will not pose a danger to the physical,
609 psychological, or financial and economic safety or well-being of any other person or the
610 community if released.
611 (2) If the court makes a finding under Subsection (1) [
612 the defendant, the court shall order the release of the defendant, subject to conditions that result
613 in the least restrictive condition or combination of conditions that the court determines will
614 reasonably assure the appearance of the person as required and the safety of any other person and
615 the community. The conditions may include that the defendant:
616 (a) post appropriate bail;
617 (b) execute a bail bond with a bail bond surety under Title 31A, Chapter 35, Bail Bond
618 Sureties and Agents Act, in an amount necessary to assure the appearance of the defendant as
620 (c) (i) execute a written agreement to forfeit, upon failing to appear as required, designated
621 property, including money, as is reasonably necessary to assure the appearance of the defendant;
623 (ii) post with the court indicia of ownership of the property or a percentage of the money
624 as the court may specify;
627 of the defendant and who agrees to report any violation of a release condition to the court, if the
628 designated person is reasonably able to assure the court that the defendant will appear as required
629 and will not pose a danger to the safety of any other person or the community;
634 testified against the defendant or potential witnesses who may testify concerning the offense if the
635 appeal results in a reversal or an order for a new trial;
637 agency, or other designated agency;
641 prescribed by a licensed medical practitioner;
643 treatment for drug or alcohol dependency, and remain under the supervision of or in a specified
644 institution if required for that purpose;
651 (o) return to custody for specified hours following release for employment, schooling, or
652 other limited purposes;
653 (p) satisfy any other condition that is reasonably necessary to assure the appearance of the
654 defendant as required and to assure the safety of any other person and the community; and
655 (q) if convicted of committing a sexual offense or an assault or other offense involving
656 violence against a child 17 years of age or younger, is limited or denied access to any location or
657 occupation where children are, including but not limited to:
658 (i) any residence where children are on the premises;
659 (ii) activities, including organized activities, in which children are involved; and
660 (iii) locations where children congregate, or where a reasonable person should know that
661 children congregate.
662 (3) The court may, in its discretion, amend an order granting release to impose additional
663 or different conditions of release.
664 Section 25. Section 77-20b-101 is amended to read:
665 77-20b-101. Entry of nonappearance -- Notice to surety -- Release of surety on
666 failure of timely notice.
667 (1) If a defendant who has posted bail fails to appear before the appropriate court when
668 required and the court issues a bench warrant or directs that the surety be given notice of the
669 nonappearance, the clerk of the court shall:
670 (a) mail notice of nonappearance h [
671 certified mail, return receipt requested, within 30 days to the address of the surety who posted the
672 bond; and
673 (b) deliver a copy of the notice sent under Subsection (1)(a) to the prosecutor's office at
674 the same time notice is sent under Subsection (1)(a).
675 (2) If notice is not provided in accordance with Subsection (1)(a), the prosecutor may mail
676 notice of nonappearance by certified mail, return receipt requested, to the address of the surety
677 within seven days after the end of the 30-day period under Subsection (1)(a).
678 (3) If notice of nonappearance is not mailed to a surety, other than the defendant, in
679 accordance with Subsection (1) or (2), the surety is relieved of further obligation under the bond
682 (4) (a) A bond ordered forfeited by h [
683 the mutual agreement of the surety and the court.
684 (b) If the defendant is arrested pursuant to a failure to appear on the original charges and
685 then released for any reason, the original bond shall be exonerated.
686 Section 26. Section 77-20b-102 is amended to read:
687 77-20b-102. Time for bringing defendant to court.
688 (1) If notice of nonappearance has been mailed to a surety under Section 77-20b-101 , the
689 surety may bring the defendant before the court or surrender the defendant into the custody of a
690 county sheriff within the state within six months of the date of nonappearance, during which time
691 a forfeiture action on the bond may not be brought.
692 (2) A surety may request an extension of the six-month time period in Subsection (1), if
693 the surety within that time:
694 (a) files a motion for extension with the court; and
695 (b) mails the motion for extension and a notice of hearing on the motion to the prosecutor.
696 (3) The court may extend the six-month time in Subsection (1) for not more than 60 days,
697 if the surety has complied with Subsection (2) and the court finds good cause.
698 Section 27. Section 77-20b-103 is amended to read:
699 77-20b-103. Defendant in custody -- Notice to prosecutor.
700 (1) If a surety is unable to bring a defendant to the court because the defendant is and will
701 be in the custody of authorities of another jurisdiction [
703 name, address, and telephone number of the custodial authority.
704 (2) If the defendant is subject to extradition or other means by which the state can return
705 the defendant to the court's custody, and the surety gives notice under Subsection (1), the surety's
706 bond shall be exonerated:
707 (a) if the prosecutor elects in writing not to extradite the defendant immediately; and
708 (b) if the prosecutor elects in writing to extradite the defendant, to the extent the bond
709 exceeds the reasonable, actual, or estimated costs to extradite and return the defendant to the
710 court's custody, upon the occurrence of the earlier of:
713 defendant remains in custody of the same authority during that 60-day period.
714 Section 28. Section 77-20b-104 is amended to read:
715 77-20b-104. Forfeiture of bail.
716 (1) If a surety fails to bring the defendant before the court within the time provided in
717 Section 77-20b-102 , the prosecuting attorney may request the forfeiture of the bail by:
718 (a) filing a motion for bail forfeiture with the court, supported by proof of notice to the
719 surety of the defendant's nonappearance; and
720 (b) mailing a copy of the motion to the surety.
721 (2) A court shall enter judgment of bail forfeiture without further notice if it finds by a
722 preponderance of the evidence:
723 (a) the defendant failed to appear as required;
724 (b) the surety was given notice of the defendant's nonappearance in accordance with
725 Section 77-20b-101 ;
726 (c) the surety failed to bring the defendant to the court within the six-month period under
727 Section 77-20b-102 ; and
728 (d) the prosecutor has complied with the notice requirements under Subsection (1).
729 (3) If the surety shows by a preponderance of the evidence that it has failed to bring the
730 defendant before the court because the defendant is deceased through no act of the surety, the court
731 may not enter judgment of bail forfeiture.
732 (4) The amount of bail forfeited is the face amount of the bail bond, but if the defendant
733 is in the custody of another jurisdiction and the state extradites or intends to extradite the
734 defendant, the court h [
734a costs of
735 returning the defendant to the court's jurisdiction. A judgment under this Subsection (4) shall:
736 (a) identify the surety against whom judgment is granted;
737 (b) specify the amount of bail forfeited;
738 (c) grant the forfeited bail to the prosecuting entity; and
739 (d) be docketed by the clerk of the court in the civil judgment docket.
740 (5) A prosecutor may immediately commence collection proceedings to execute a
741 judgment of bond forfeiture against the [
742 Section 29. Repealer.
743 This act repeals:
744 Section 77-20-6, Release on approval of undertaking.
Legislative Review Note
as of 2-9-00 11:39 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.