Introduced Version






SENATE BILL No. 518

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 27-10-2; IC 35-33-8-3.2.

Synopsis: Bail. Provides that every surety for the release on bail of a person who executes a bail bond by depositing cash or securities in an amount not less than 10% of the bail must be: (1) an insurer represented by a bail agent; or (2) a person who is at least 18 years of age, a United States citizen, a resident of Indiana, related to the person for whom release on bail is sought within the third degree of affinity, and the owner of real or tangible personal property in Indiana with a net asset value that is acceptable to the authority approving the bond. Provides that, for purposes of the Indiana bail law, a cause is determined when: (1) a judgment of conviction or acquittal is entered; (2) judgment is withheld; or (3) the defendant has been ordered or admitted to a diversion program. Requires a court to waive a late surrender fee assessed against a bail agent or surety, or extend the period for payment beyond the statutorily permitted period, or both, if: (1) a written request is filed with the court and the prosecutor; and (2) the surety or bail agent provides evidence satisfactory to the court that diligent efforts were made to locate the defendant. Specifies that 40% of the late surrender fees collected under the Indiana bail law must be deposited in the police pension trust fund, 40% must be deposited in the county extradition fund, and the remaining 20% must be deposited in the county supplemental public defender services fund. Provides that if the combination of requirements a court imposes on a defendant to admit the defendant to bail includes the requirement that the defendant
(Continued next page)

Effective: July 1, 2011.





Waterman




    January 18, 2011, read first time and referred to Committee on Corrections, Criminal, and Civil Matters.





Digest Continued

execute a bail bond with sufficient solvent sureties, the amount of the bail bond must be at least 50% of the total amount of the bail. Provides that if a person charged with a felony under IC 35-42 (offenses against the person) is admitted to bail, the person: (1) shall be admitted to bail by executing a bail bond with sufficient solvent sureties, depositing cash or securities in an amount equal to the bail, executing a bond secured by certain real estate, or posting a real estate bond; and (2) may not be admitted to bail under the statute that allows admission to bail by executing a bail bond by depositing cash or securities in an amount not less than 10% of the bail.




Introduced

First Regular Session 117th General Assembly (2011)


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.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2010 Regular Session of the General Assembly.

SENATE BILL No. 518



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

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

SOURCE: IC 27-10-2-4; (11)IN0518.1.1. -->     SECTION 1. IC 27-10-2-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 4. Every surety for the release of a person on bail under this chapter or IC 35-33-8-3.2(a)(2) shall be qualified as:
        (1) an insurer as defined and meeting the qualifications prescribed in IC 27-1-5-1, and represented by a bail agent as defined in and meeting the qualifications prescribed in this article; or
        (2) a person who:
            (A) has reached the age of eighteen (18) years;
            (B) is a citizen of the United States;
            (C) has been a bona fide resident of Indiana for at least one (1) year immediately preceding the execution of the bond;
            (D) is related to the person for whom release on bail is sought within the third degree of affinity; and
            (E) owns real or tangible personal property in Indiana with a net asset value that is acceptable to the proper authority approving the bond.
SOURCE: IC 27-10-2-10; (11)IN0518.1.2. -->     SECTION 2. IC 27-10-2-10, AS AMENDED BY P.L.2-2005, SECTION 73, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 10. (a) Recognizances for the appearance of prisoners shall in all cases and in all courts be in writing, be taken with at least one (1) resident freehold surety or be secured by a surety company, and be substantially in the following form:
STATE OF INDIANA    )
    )    SS:
COUNTY OF _________________    )
State of Indiana.
    vs.
John Doe
We, A B and C D, jointly and severally acknowledge ourselves bound to the state of Indiana in ______ dollars. If A B (the prisoner) shall appear on the ____ day of ________, 20___, in the ___________ court, to answer a charge of (here state the offense) and from day to day and from term to term thereof, and abide the order of the court until the cause is determined and not depart therefrom without leave, then this recognizance shall be void, else to remain in full force.
If the above named defendant does not appear at any time fixed in this bond, the court shall order CD (the surety) to produce the defendant. The court shall mail notice of this order to CD, the surety at __________ and __________ in __________ county and state of Indiana. If the surety does not produce the defendant, and does not pay all costs and late surrender fees in compliance with IC 27-10-2-12, the court shall, three hundred sixty-five (365) days after the mailing of the above notice to the surety, declare the bond forfeited, enter judgment forthwith against the surety, and certify the judgment to the clerk for record. Such forfeiture shall be without pleadings and without change of judge or change of venue. The obligors on such bond may appeal to the ruling of the court and appeal to the court of appeals as in other civil cases, and on appeal the evidence may be reviewed. Execution shall issue forthwith to the sheriff against the properties of each of us to be levied as other executions are levied.
        Witness our hand and seals this ___ day of _________, 20___.
        A B __________ (SEAL)
        C D __________ (SEAL)
        taken and approved this ___ day of _________, 20___.
    _____________________________
        (Officer taking surety)
        Affidavits shall be taken from each personal surety substantially as follows:
        State of Indiana            )
        County of ______________)
I, C D, being duly sworn, on oath say, that I am worth in my personal rights and name, over and above all debts and liabilities of any and every kind, not less than _______ dollars, and that I possess real estate in my own name, located in the above-named county, which is worth over and above all encumbrances and liens, more than ______ dollars; that I am surety on the following recognizance bonds and none other, aggregating the total amount of ________ to-wit: (Here name bonds and amounts, if any) ________, And that I am not surety on any recognizance bond of any kind in any court which bond has been forfeited which judgment remains unpaid.
C D _______________ (SEAL)

        Subscribed and sworn to before me, this ___ day of __________, 20___.
    
_________________________________

        (Officer administering oath)
    (b) Printed forms of the above bonds shall be kept by all clerks of court that are authorized by law to admit prisoners to bail and shall be supplied by the clerks to sheriffs.
    (c) For the purposes of this article, a cause is determined when: a:
        (1) a judgment of conviction or acquittal is entered; for a misdemeanor;
        (2) a judgment is withheld; in a misdemeanor case;
        (3) judgment of acquittal is entered in a felony case;
        (4) sentence is imposed in a felony case; or
        (5) (3) the defendant has been ordered or admitted to a diversion program.
SOURCE: IC 27-10-2-12; (11)IN0518.1.3. -->     SECTION 3. IC 27-10-2-12, AS AMENDED BY P.L.105-2010, SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 12. (a) Only if a defendant does not appear as provided in the bond:
        (1) the court shall:
            (A) issue a warrant for the defendant's arrest; and
            (B) order the bail agent and the surety to surrender the defendant to the court immediately;
        (2) the clerk shall, less than thirty (30) days after the defendant's failure to appear, mail notice of the order to both:
            (A) the bail agent; and
            (B) the surety;
        at each of the addresses indicated in the bonds; and
        (3) if the defendant later is arrested or otherwise appears:
            (A) the court shall order that the surety be released from the bond; and
            (B) after the court issues an order under clause (A), the surety's original undertaking shall be reinstated if the surety files a written request for the reinstatement of the undertaking with the court.
This subsection may not be construed to prevent a court from revoking or resetting bail.
    (b) The bail agent or surety must:
        (1) produce the defendant; or
        (2) prove within three hundred sixty-five (365) days:
            (A) that the appearance of the defendant was prevented:
                (i) by the defendant's illness or death;
                (ii) because the defendant was at the scheduled time of appearance or currently is in the custody of the United States, a state, or a political subdivision of the United States or a state;
                (iii) because the required notice was not given; or
                (iv) because authorities have refused to extradite the defendant, by a preponderance of the evidence; and
            (B) the defendant's absence was not with the consent or connivance of the sureties.
    (c) If the bail agent or surety does not comply with the terms of subsection (b) within one hundred twenty (120) days after the mailing of the notice required under subsection (a)(2), a late surrender fee shall be assessed against the bail agent or surety as follows:
        (1) If compliance occurs more than one hundred twenty (120) days but not more than one hundred eighty (180) days after the mailing of notice, the late surrender fee is twenty percent (20%) of the face value of the bond.
        (2) If compliance occurs more than one hundred eighty (180) days but not more than two hundred ten (210) days after the mailing of notice, the late surrender fee is thirty percent (30%) of the face value of the bond.
        (3) If compliance occurs more than two hundred ten (210) days but not more than two hundred forty (240) days after the mailing of notice, the late surrender fee is fifty percent (50%) of the face value of the bond.
        (4) If compliance occurs more than two hundred forty (240) days but not more than three hundred sixty-five (365) days after the mailing of notice, the late surrender fee is eighty percent (80%) of the face value of the bond.
        (5) If the bail agent or surety does not comply with the terms of subsection (b) within three hundred sixty-five (365) days of the mailing of notice required under subsection (a)(2), the late surrender fee is eighty percent (80%) of the face value of the bond.
All late surrender fees are due as of the date of compliance with subsection (b) or three hundred sixty-five (365) days after the mailing of notice required under subsection (a)(2), whichever is earlier, and shall be paid by the surety when due. If the surety fails to pay, then the late surrender fees shall be paid by the commissioner as provided in subsection (f).
    (d) If the bail agent or surety does not comply with the terms of subsection (b) within three hundred sixty-five (365) days of the mailing of notice required by subsection (a)(2), the court shall declare forfeited an amount equal to twenty percent (20%) of the face value of the bond. The court shall immediately enter judgment on the forfeiture, without pleadings and without change of judge or change of venue, and assess against the bail agent or surety all actual costs resulting from the defendant's failure to appear. These costs include jury fees, witness fees, and any other documented costs incurred by the court.
    (e) Proceedings relative to the bond, forfeiture of a bond, judgment on the forfeiture, execution of judgment, or stay of proceedings shall be in the court in which the bond was posted. Costs and late surrender fee assessed against a bail agent or surety under subsection (c) shall be satisfied without further order of the court as provided in subsection (f). The court may shall waive the late surrender fee, or extend the period for payment beyond the statutorily permitted period, or both, if the following conditions are met:
        (1) A written request is filed with the court and the prosecutor.
        (2) The surety or bail agent provides evidence satisfactory to the court that diligent efforts were made to locate the defendant.
    (f) In the case of an insurer, if the fees, costs, or judgment is not paid, then the clerk shall mail the notice to the commissioner. The commissioner shall:
        (1) within ten (10) days of receipt of the notice forward a copy by certified mail to the insurer;
        (2) forty-five (45) days after receipt of the notice from the clerk, if the commissioner has not been notified by the clerk that the fees or judgment or both have been paid, pay the late surrender fee assessment, costs, and any judgment of forfeiture ordered by the court from funds the insurer has on deposit with the department of insurance;
        (3) upon paying the assessment, costs, and judgment, if any, from funds on deposit, immediately revoke the license of the insurer, if the satisfaction causes the deposit remaining to be less than the amount required by this article; and
        (4) within ten (10) days after revoking a license, notify the insurer and the insurer's agents and the clerk of each county in Indiana of the revocation and the insurer shall be prohibited from conducting a bail bond business in Indiana until the deposit has been replenished.
    (g) The notice mailed by the clerk to the commissioner pursuant to the terms of subsection (f) shall include:
        (1) the date on which the defendant originally failed to appear as provided in the bond;
        (2) the date of compliance with subsection (b), if compliance was achieved within three hundred sixty-five (365) days after the mailing of the notice required by subsection (a)(2);
        (3) the amount of the bond;
        (4) the dollar amount of the late surrender fee due;
        (5) the amount of costs resulting from the defendant's failure to appear; and
        (6) if applicable, the dollar amount of the judgment of forfeiture entered by the court.
    (h) Any surety on a bond may appeal to the court of appeals as in other civil cases without moving for a new trial, and on the appeal the evidence, if any, shall be reviewed.
    (i) Fifty Forty percent (50%) (40%) of the late surrender fees collected under this chapter shall be deposited in the police pension trust fund established under IC 36-8-10-12, and the remaining fifty forty percent (50%) (40%) shall be deposited in the county extradition fund established under IC 35-33-14, and the remaining twenty percent (20%) shall be deposited in the county supplemental public defender services fund established under IC 33-40-3-1.
SOURCE: IC 35-33-8-3.2; (11)IN0518.1.4. -->     SECTION 4. IC 35-33-8-3.2, AS AMENDED BY P.L.94-2010, SECTION 9, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 3.2. (a) Except as provided in subsection (b), 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;
            (D) post a real estate bond; or
            (E) perform any combination of the requirements described in clauses (A) through (D). However, if the combination of requirements a defendant is required to perform under this clause includes the requirement that the defendant must execute a bail bond with sufficient solvent sureties, the amount of the bail bond must be equal to at least fifty percent (50%) of the total amount of the bail.
        If the court requires the defendant to deposit cash or cash and another form of security as bail, the court may require the defendant and each person who makes the deposit on behalf of the defendant to execute an agreement that allows the court to retain all or a part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted. The defendant must also pay the fee required by subsection (d). (e).
        (2) Require the defendant or a surety qualified under IC 27-10-2-4 to execute:
            (A) 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; and
            (B) an agreement that allows the court to retain all or a part of the cash or securities to pay fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.
        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 fines, costs, fees, and restitution as ordered by the court, publicly paid costs of representation that shall be disposed of in accordance with subsection (b), (c), and the fee required by subsection (d). (e). 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). (c).
        (3) Impose reasonable restrictions on the activities, movements, associations, and residence of the defendant during the period of release.
        (4) Except as provided in section 3.6 of this chapter, require the defendant to refrain from any direct or indirect contact with an individual and, if the defendant has been charged with an offense under IC 35-46-3, any animal belonging to the individual, including if the defendant has not been released from lawful detention.
        (5) Place the defendant under the reasonable supervision of a probation officer, pretrial services agency, or other appropriate public official. If the court places the defendant under the supervision of a probation officer or pretrial services agency, the court shall determine whether 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) Require a defendant charged with an offense under IC 35-46-3 to refrain from owning, harboring, or training an animal.
        (9) 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) If a defendant is charged with a felony described in IC 35-42 and the court admits the defendant to bail, the court:
        (1) shall admit the defendant to bail under subsection (a)(1);
        (2) may not admit the defendant to bail under subsection (a)(2); and


        (3) may impose on the defendant any other appropriate condition set forth in subsection (a)(3) through (a)(9).
    (b) (c) 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) (d) For purposes of subsection (b), (c), "disposition" occurs when the indictment or information is dismissed or the defendant is acquitted or convicted of the charges.
    (d) (e) Except as provided in subsection (e), (f), the clerk of the court shall:
        (1) collect a fee of five dollars ($5) from each bond or deposit required under subsection (a)(1); and
        (2) retain a fee of five dollars ($5) from each deposit under subsection (a)(2).
The clerk of the court shall semiannually remit the fees collected under this subsection to the board of trustees of the public employees' retirement fund for deposit in the special death benefit fund. The fee required by subdivision (2) is in addition to the administrative fee retained under subsection (a)(2).
    (e) (f) 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 and remit monthly the five dollar ($5) special death benefit fee to the county auditor.
    (f) (g) 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.