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First Substitute H.B. 336

1    

BAIL REFORM

2    
1997 GENERAL SESSION

3    
STATE OF UTAH

4    
Sponsor: Greg J. Curtis

5    AN ACT RELATING TO CRIMINAL PROCEDURE; IDENTIFYING CONDITIONS FOR
6    PRETRIAL RELEASE; REVISING BAIL FORFEITURE PROCEDURES; DEFINING
7    TERMS; MAKING TECHNICAL AMENDMENTS; ENACTING UNCODIFIED
8    MATERIAL; AND REPEALING PROVISIONS ON BAIL FORFEITURE PROCEEDINGS.
9    This act affects sections of Utah Code Annotated 1953 as follows:
10    AMENDS:
11         77-20-1, as last amended by Chapter 252, Laws of Utah 1996
12         77-20-3, as enacted by Chapter 15, Laws of Utah 1980
13         77-20-4, as enacted by Chapter 15, Laws of Utah 1980
14         77-20-7, as enacted by Chapter 15, Laws of Utah 1980
15    ENACTS:
16         77-20a-101, Utah Code Annotated 1953
17         77-20a-102, Utah Code Annotated 1953
18         77-20a-103, Utah Code Annotated 1953
19         77-20a-104, Utah Code Annotated 1953
20    REPEALS:
21         77-20a-1, as last amended by Chapter 79, Laws of Utah 1996
22         77-20a-2, as enacted by Chapter 54, Laws of Utah 1983
23         77-20a-3, as enacted by Chapter 54, Laws of Utah 1983
24         77-20a-4, as enacted by Chapter 54, Laws of Utah 1983
25         77-20a-5, as enacted by Chapter 54, Laws of Utah 1983
26         77-20a-6, as enacted by Chapter 54, Laws of Utah 1983
27    This act enacts uncodified material.


1    Be it enacted by the Legislature of the state of Utah:
2        Section 1. Section 77-20-1 is amended to read:
3         77-20-1. Right to bail -- Denial of bail -- Conditions of release -- Hearing.
4        (1) A person charged with or arrested for a criminal offense shall be admitted to bail as
5    a matter of right, except if the person is charged with a:
6        (a) capital offense, when the court finds there is substantial evidence to support the charge;
7        (b) felony committed while on probation or parole, or while free on bail awaiting trial on
8    a previous felony charge, when there is substantial evidence to support the current felony charge;
9    or
10        (c) felony when the court finds there is substantial evidence to support the charge and the
11    court finds by clear and convincing evidence that the person:
12        (i) would constitute a substantial danger to any other person or to the community[, or];
13        (ii) is likely to flee the jurisdiction of the court, if released on bail[.]; or
14        (iii) committed a material violation of a condition of release while on bail.
15        (2) Any person who may be admitted to bail may [likewise] be released on his own
16    recognizance or [without] upon posting a bond:
17        (a) on condition that he appear in court for future proceedings in the case; and
18        (b) on conditions imposed in the discretion of the magistrate or court to reasonably:
19        (i) ensure the appearance of the accused;
20        (ii) ensure the integrity of the court process;
21        (iii) prevent direct or indirect contact with witnesses or victims by the accused, if
22    appropriate; and
23        (iv) ensure the safety of the public.
24        (3) The initial order denying or fixing the amount of bail shall be issued by the magistrate
25    or court issuing the warrant of arrest or by the magistrate or court presiding over the accused's first
26    judicial appearance. The magistrate or court may rely upon information contained in:
27        (a) the indictment or information;
28        (b) any sworn probable cause statement;
29        (c) information provided by any pretrial services agency; or
30        (d) any other reliable record or source.
31        (4) A motion to modify the initial order may be made by a party at any time upon notice

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1    to the opposing party sufficient to permit the opposing party to prepare for hearing and to permit
2    any victim to be notified and be present. Hearing on a motion to modify may be held in
3    conjunction with a preliminary hearing or any other pretrial hearing. The magistrate or court may
4    rely on information as provided in Subsections (3)(a) through (d) and may base its ruling on
5    evidence provided at the hearing so long as each party is provided an opportunity to present
6    additional evidence or information relevant to bail.
7        (5) Subsequent motions to modify bail orders may be made only upon a showing that there
8    has been a material change in circumstances.
9        (6) An appeal may be taken from an order of any court denying bail to the Supreme Court,
10    which shall review the determination under Subsection (1).
11        Section 2. Section 77-20-3 is amended to read:
12         77-20-3. Release on own recognizance -- Changing amount of bail or conditions of
13     release.
14        (1) Any person who may be admitted to bail may likewise be released on his own
15    recognizance in the discretion of the magistrate.
16        (2) After releasing a defendant on his own recognizance or admitting the defendant to bail,
17    the magistrate or court may[, in his discretion,]:
18        (a) impose bail;
19        (b) increase or decrease the amount of the bail; or
20        (c) modify the conditions of release imposed under Subsection 77-20-1(2).
21        Section 3. Section 77-20-4 is amended to read:
22         77-20-4. Bail posted in cash or written undertaking.
23        Bail may be posted in cash or written undertaking with or without sureties at the discretion
24    of the magistrate or court. Written undertaking shall substantially conform to any form approved
25    by the supreme court. No bail shall be accepted without the current mailing address of the surety
26    provided in writing at the time the bail is posted.
27        Section 4. Section 77-20-7 is amended to read:
28         77-20-7. Duration of liability on undertaking -- Notices to sureties -- Exoneration if
29     charges not filed.
30        (1) The principal and the sureties on the written undertaking are liable thereon during all
31    proceedings and for all appearances required of the defendant up to and including the surrender

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1    of the defendant in execution of any sentence imposed irrespective of any contrary provision in
2    the undertaking.
3        (2) Notice of any required appearance by the defendant may be given by the court to the
4    sureties who shall thereupon cause the defendant's appearance as required. Any failure of the
5    defendant to appear when required is a breach of the conditions of the undertaking or bail and
6    subjects it to forfeiture irrespective of whether or not notice was given to the sureties.
7        (3) (a) If no information or indictment charging a person with an offense is filed in court
8    within 120 days of the date of the bail undertaking or cash receipt, the court may relieve a person
9    from the conditions of release upon request, and the bond or undertaking shall be exonerated
10    without further order of the court unless the prosecutor requests an extension of time before the
11    end of the 120-day period by:
12        (i) filing a notice for extension with the court; and
13        (ii) serving the notice for extension upon the sureties and the person or his attorney.
14        (b) A court may extend bail and conditions of release for good cause.
15        (c) Notwithstanding Subsection (3)(a), charges may be filed against a person at any time.
16        Section 5. Section 77-20a-101 is enacted to read:
17         77-20a-101. Notice of defendant's nonappearance.
18        (1) If a defendant who has posted bail fails to appear before the appropriate court when
19    required and the court enters the failure to appear upon its minutes, the clerk of the court shall:
20        (a) mail notice of nonappearance by certified mail, return receipt requested, within 30 days
21    to the address of the surety who posted the bond; and
22        (b) deliver a copy of the notice sent under Subsection (1)(a) to the prosecutor's office when
23    the notice is sent.
24        (2) If notice is not provided in accordance with Subsection (1)(a), the prosecutor may mail
25    notice of nonappearance by certified mail, return receipt requested, to the address of the surety
26    within five days of the 30-day period provided under Subsection (1)(a).
27        (3) If notice of nonappearance is not mailed in accordance with Subsection (1) or (2), the
28    bail shall be exonerated without further notice.
29        Section 6. Section 77-20a-102 is enacted to read:
30         77-20a-102. Time for bringing defendant to court.
31        (1) If notice of nonappearance has been mailed to a surety under Section 77-20a-101, the

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1    surety may bring the defendant before the court within six months of the date of nonappearance
2    during which time a forfeiture action on the bond may not be brought.
3        (2) A surety may request an extension of the six-month time period in Subsection (1), if
4    the surety, within the six-month time period:
5        (a) files a motion for time extension with the court; and
6        (b) mails the motion for time extension and a notice of hearing on the motion to the
7    prosecutor.
8        (3) The court may extend the six-month time period in Subsection (1) for up to 60 days
9    if:
10        (a) the surety complies with Subsection (2); and
11        (b) good cause is shown.
12        Section 7. Section 77-20a-103 is enacted to read:
13         77-20a-103. Defendant in custody of other authorities.
14        (1) If a surety is unable to bring a defendant to the court because the defendant is and will
15    be in the custody of authorities of another jurisdiction for the duration of the six-month period
16    provided in Section 77-20a-102, the surety shall notify the court and the prosecutor of that fact and
17    the name, address, and telephone number, if available, of the custodial authority.
18        (2) A bond shall be exonerated if notice is given pursuant to Subsection (1) upon the
19    earlier of:
20        (a) the prosecuting attorney lodging a detainer on the defendant; or
21        (b) 60 days after notice is given to the prosecutor under Subsection (1).
22        Section 8. Section 77-20a-104 is enacted to read:
23         77-20a-104. Forfeiture of bail bond.
24        (1) If a surety fails to bring a defendant before the court within the time provided in
25    Section 77-20a-102, the prosecuting attorney may request the forfeiture of the bond by:
26        (a) filing a motion for bond forfeiture with the court and attaching the certified mail receipt
27    for the notice of nonappearance sent to the surety; and
28        (b) mailing a copy of the motion and certified mail receipt to the surety.
29        (2) A surety may contest a motion for bond forfeiture by filing an objection within ten
30    days of the prosecutor's mailing of the motion to the surety.
31        (3) A court shall enter judgment of bond forfeiture, without further notice, if it finds by

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1    a preponderance of the evidence that:
2        (a) the defendant failed to appear as required;
3        (b) the surety was given notice of the defendant's nonappearance in accordance with
4    Section 77-20a-101;
5        (c) the surety failed to bring the defendant to the court within the six-month period
6    provided in Section 77-20a-102;
7        (d) there is no evidence that the defendant is deceased or in the custody of authorities of
8    another jurisdiction; and
9        (e) more than ten days have passed since the motion for bond forfeiture was mailed to the
10    surety.
11        (4) A judgment entered pursuant to Subsection (3) shall:
12        (a) name the surety against whom the judgment is granted;
13        (b) specify the amount of bail forfeited;
14        (c) grant the forfeited bail to the prosecuting entity; and
15        (d) be docketed by the clerk of the court in the civil judgment docket.
16        (5) A prosecutor may immediately commence collection proceedings to execute a
17    judgment of bond forfeiture against the property of the surety.
18        Section 9. Transfer of licensing responsibility.
19        It is the intent of the Legislature that the Judicial Council and the Department of Insurance
20    cooperate to facilitate the transfer of responsibility for licensing Bail Bond Sureties from the
21    Judicial Council to the Department of Insurance by July 1, 1998.
22        Section 10. Repealer.
23        This act repeals:
24        Section 77-20a-1, Entry in minutes as forfeiture -- Notice -- Release of surety on
25     failure of notice.
26        Section 77-20a-2, Judgment on bail -- Execution.
27        Section 77-20a-3, Setting aside forfeiture or judgment -- Grounds -- Time for
28     application.
29        Section 77-20a-4, Defendant detained by other authority -- Procedure -- Costs of
30     returning defendant.
31        Section 77-20a-5, Liquidated costs of returning defendant -- Judgment against surety

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1     -- Execution.
2        Section 77-20a-6, Execution of judgment.

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