Introduced Version






HOUSE BILL No. 1055

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-33-8.

Synopsis: Pretrial services fee. Requires a person charged with a felony and placed on bail and supervised by a probation officer to pay a pretrial services fee (fee) to defray the cost of supervision by the probation department. Makes the fee discretionary for a person charged with a misdemeanor. Forbids the bureau of motor vehicles from issuing or reinstating the license of a person who has not paid the person's fee. Makes other changes relating to the collection and distribution of the fee.

Effective: July 1, 2005.





Ayres, Foley, Cheney, Thomas




    January 4, 2005, read first time and referred to Committee on Courts and Criminal Code.







Introduced

First Regular Session 114th General Assembly (2005)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
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HOUSE BILL No. 1055



    A BILL FOR AN ACT to amend the Indiana Code concerning courts and court officers.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-33-8-3.2; (05)IN1055.1.1. -->     SECTION 1. IC 35-33-8-3.2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 3.2. (a) A court may admit a defendant to bail and impose any of the following conditions to assure the defendant's appearance at any stage of the legal proceedings, or, upon a showing of clear and convincing evidence that the defendant poses a risk of physical danger to another person or the community, to assure the public's physical safety:
        (1) Require the defendant to:
            (A) execute a bail bond with sufficient solvent sureties;
            (B) deposit cash or securities in an amount equal to the bail;
            (C) execute a bond secured by real estate in the county, where thirty-three hundredths (0.33) of the true tax value less encumbrances is at least equal to the amount of the bail; or
            (D) post a real estate bond.
        (2) Require the defendant to execute a bail bond by depositing cash or securities with the clerk of the court in an amount not less than ten percent (10%) of the bail. If the defendant is convicted,

the court may retain all or a part of the cash or securities to pay fines, costs, fees, and restitution, if ordered by the court. A portion of the deposit, not to exceed ten percent (10%) of the monetary value of the deposit or fifty dollars ($50), whichever is the lesser amount, may be retained as an administrative fee. The clerk shall also retain from the deposit under this subdivision the following:
            (A) Fines, costs, fees, and restitution as ordered by the court.
            (B) Publicly paid costs of representation that shall be disposed of in accordance with subsection (b).
            (C) In the event of the posting of a real estate bond, the bond shall be used only to insure the presence of the defendant at any stage of the legal proceedings, but shall not be foreclosed for the payment of fines, costs, fees, or restitution.
        The individual posting bail for the defendant or the defendant admitted to bail under this subdivision must be notified by the sheriff, court, or clerk that the defendant's deposit may be forfeited under section 7 of this chapter or retained under subsection (b).
        (3) Impose reasonable restrictions on the activities, movements, associations, and residence of the defendant during the period of release.
        (4) Require the defendant to refrain from any direct or indirect contact with an individual.
        (5) Place the defendant under the reasonable supervision of a probation officer or other appropriate public official. If the court places the defendant under the supervision of a probation officer, the court shall determine if the defendant must pay the pretrial services fee under section 3.3 of this chapter.
        (6) Release the defendant into the care of a qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court. The supervisor shall maintain reasonable contact with the defendant in order to assist the defendant in making arrangements to appear in court and, where appropriate, shall accompany the defendant to court. The supervisor need not be financially responsible for the defendant.
        (7) Release the defendant on personal recognizance unless:
            (A) the state presents evidence relevant to a risk by the defendant:
                (i) of nonappearance; or
                (ii) to the physical safety of the public; and
            (B) the court finds by a preponderance of the evidence that the risk exists.


        (8) Impose any other reasonable restrictions designed to assure the defendant's presence in court or the physical safety of another person or the community.
    (b) Within thirty (30) days after disposition of the charges against the defendant, the court that admitted the defendant to bail shall order the clerk to remit the amount of the deposit remaining under subsection (a)(2) to the defendant. The portion of the deposit that is not remitted to the defendant shall be deposited by the clerk in the supplemental public defender services fund established under IC 33-40-3.
    (c) For purposes of subsection (b), "disposition" occurs when the indictment or information is dismissed, or the defendant is acquitted or convicted of the charges.
    (d) With the approval of the clerk of the court, the county sheriff may collect the bail posted under this section. The county sheriff shall remit the bail to the clerk of the court by the following business day.
    (e) When a court imposes a condition of bail described in subsection (a)(4):
        (1) the clerk of the court shall comply with IC 5-2-9; and
        (2) the prosecuting attorney shall file a confidential form prescribed or approved by the division of state court administration with the clerk.
SOURCE: IC 35-33-8-3.3; (05)IN1055.1.2. -->     SECTION 2. IC 35-33-8-3.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 3.3. (a) If a defendant is charged with a felony and is placed under the supervision of a probation officer, the court shall order the defendant to pay the pretrial services fee prescribed under subsection (d). If the defendant is charged with a misdemeanor and placed under the supervision of a probation officer, the court may order the person to pay the pretrial services fee prescribed under subsection (e).
    (b) If a clerk of a court collects a pretrial services fee, the clerk may retain not more than three percent (3%) of the fee to defray the administrative costs of collecting the fee and shall deposit amounts retained under this subsection in the clerk's record perpetuation fund established under IC 33-37-5-2.
    (c) If a clerk of a court collects a pretrial services fee and the defendant is:
        (1) charged in a city or town court, upon request of the city or town fiscal officer, the clerk shall transfer not more than three percent (3%) of the fee to the city or town general fund; or
        (2) not charged in a city or town court, upon request of the

county auditor, the clerk shall transfer not more than three percent (3%) of the fee to the county auditor for deposit in the county general fund.
    (d) The court shall order a defendant who is supervised by a probation officer and charged with a felony to pay:
        (1) an initial pretrial services fee of at least twenty-five dollars ($25) and not more than one hundred dollars ($100);
        (2) a monthly pretrial services fee of at least fifteen dollars ($15) and not more than thirty dollars ($30) for each month that the defendant remains on bail and under the supervision of a probation officer; and
        (3) an administrative fee of one hundred dollars ($100);
to either the probation department or the clerk of the court.

     (e) The court may order a defendant who is supervised by a probation officer and charged with a misdemeanor to pay:
        (1) an initial pretrial services fee of not more than fifty dollars ($50);
        (2) a monthly pretrial services fee of at least ten dollars ($10) and not more than twenty dollars ($20) for each month that the defendant remains on bail and under the supervision of a probation officer; and
        (3) an administrative fee of fifty dollars ($50);
to either the probation department or the clerk of the court.
    (f) This subsection does not apply to a defendant charged in a city or town court. The probation department or clerk of the court shall collect the administrative fees under subsections (d)(3) and (e)(3) before collecting any other fee under subsection (d) or (e). All money collected by the probation department or the clerk of the court under this section shall be transferred to the county treasurer who shall deposit the money into the county supplemental adult probation services fund. The fiscal body of the county shall appropriate money from the county supplemental adult probation services fund:
        (1) to the county, superior, or circuit court of the county that provides probation services to adults to supplement adult probation services; and
        (2) to supplement the salary of a probation officer in accordance with the schedule adopted by the county fiscal body under IC 36-2-16.5.
    (g) This subsection applies to a defendant charged in a city or town court. The probation department or clerk of the court shall collect the administrative fee under subsection (e)(3) before

collecting any other fee under subsection (e). All money collected by the probation department or the clerk of the court under this section shall be transferred to the fiscal officer of the city or town for deposit into the local supplemental adult probation services fund. The fiscal body of the city or town shall appropriate money from the local supplemental adult probation services fund to the city or town court for the court's use in providing supplementary probation services to adults and to supplement the salary of a probation officer. Money may be appropriated under this subsection only to a city or town court that has an adult probation services program. If a city or town court does not have an adult probation services program, the money collected by the probation department must be transferred and appropriated as provided under subsection (f).
     (h) The county or local supplemental adult probation services fund may be used only to supplement adult probation services and to supplement salaries for probation officers. A supplemental probation services fund may not be used to replace other probation services funding. Any money remaining in the fund at the end of the year does not revert to any other fund but continues in the county or local supplemental adult probation services fund.
     (i) A defendant who is charged with more than one (1) offense and who is supervised by the probation department as a condition of bail may not be required to pay more than one (1):
        (1) initial pretrial services fee; and
        (2) monthly pretrial services fee per month.

     (j) A probation department may petition a court to:
        (1) impose a pretrial services fee on a defendant; or
        (2) increase a defendant's pretrial services fee;
if the financial ability of the defendant to pay a pretrial services fee changes while the defendant is on bail and supervised by a probation officer.

     (k) An order to pay a pretrial services fee under this section:
        (1) is a judgment lien that:
            (A) attaches to the property of the defendant;
            (B) may be perfected;
            (C) may be enforced to satisfy any payment that is delinquent under this section; and
            (D) expires;
        in the same manner as a judgment lien created in a civil proceeding;
        (2) is not discharged by the disposition of charges against the

defendant or by the completion of a sentence imposed on the defendant, if any; and
        (3) is not discharged by the liquidation of a defendant's estate by a receiver under IC 32-30-5.

     (l) If a court orders a defendant to pay a pretrial services fee, the court may enforce the order by garnishing the wages, salary, and other income earned by the defendant.
     (m) If:
        (1) a defendant is delinquent in paying the defendant's pretrial services fee; and
        (2) the defendant's driver's license or permit has been suspended or revoked or the defendant has never been issued a driver's license or permit;
the court may order the bureau of motor vehicles to not issue or not reinstate a driver's license or permit to the defendant until the defendant has paid the defendant's delinquent pretrial services fee.

     (n) In addition to other methods of payment allowed by law, a probation department may accept payment of a pretrial services fee by credit card (as defined in IC 14-11-1-7(a)). The liability for payment is not discharged until the probation department receives payment or credit from the institution responsible for making the payment or credit.
     (o) The probation department may contract with a bank or credit card vendor for acceptance of a bank or credit card. However, if there is a vendor transaction charge or discount fee, whether billed to the probation department or charged directly to the probation department's account, the probation department may collect a credit card service fee from the person using the bank or credit card. The fee collected under this subsection is a permitted additional charge to the fee the probation department is required to collect under subsection (d) or (e).
     (p) The probation department shall forward a credit card service fee collected under subsection (o) to the county treasurer or city or town fiscal officer in accordance with subsection (f) or (g). These funds may be used without appropriation to pay the transaction charge or discount fee charged by the bank or credit card vendor.