ARE JUDGES AND JAILER’S DEFRAUDING SURETIES?
By LawReader Senior Editor Stan Billingsley August 15, 2011
LawReader received a report from a businessman concerning his complaint that the bail bond he posted for a friend was accepted by the JAILER without acknowledgment that the case bond of $800 was posted by the businessman. The JAILER completed the form as if the defendant posted the bond. This was incorrect, the businessman traveled over a hundred miles to personally post the cash bond with the JAILER.
Afterwards, the businessman realized that his name was not on the bond receipt. He says when he called the clerk he was told that the local District Judge required that bonds be accepted in the name of the defendant so that the court could seize the bond to pay restitution to any victim of the defendant. The receipt for the bond reflects a deposit of $800 but the name of the actual surety was omitted.
If a defendant posts a bond, case law allows costs and fines to be deducted from the bond, but if a surety is posted by a third party, the bond must be returned to the surety unless the terms of the bond were violated. The criminal rules provide for a due process hearing before the court can seize a bond from a surety. The Commonwealth must prove that the defendant violated the terms of the bond.
But when the defendant posts the bond, the surety is cut out and has no rights.
This practice appears to violate the Criminal Rules.
RCr 4.26 Receipt for and record cash deposit and bond
(1) When an authorized officer receives a cash deposit the officer shall give a receipt to the person from whom the officer receives the money on a uniform receipt form provided by the Administrative Office of the Courts….
When the defendant posts the bond, the court may claim part of it:
RCr 4.46 Application of deposit to fine or costs
(1) Upon a final rendition of judgment against the defendant for a fine and costs, or either, in the prosecution of a cause in which money has been deposited as bail by the defendant himself or herself, if the money still remains on deposit and unforfeited, and such fine and costs, or either, have not been paid, such money, or so much thereof as may be necessary, shall be applied to the payment of such fine and costs, or either.
(2) Upon motion by the defendant, the court may order the amount repayable to the defendant to be paid to the defendant’s attorney.
A due process hearing is required before a surety can be deprived of his deposit.
One must wonder why the Judge why a District Judge would interpert the Criminal Rules to allow false receipts to be delivered to a surety.
RCr 4.42 Change of conditions of release; bond forfeiture
(1) If at any time following the release of the defendant and before the defendant is required to appear for trial the court is advised of a material change in the defendant’s circumstances or that the defendant has not complied with all conditions imposed upon his or her release, the court having jurisdiction may order the defendant’s arrest and require the defendant or the defendant’s surety or sureties to appear and show cause why the bail bond should not be forfeited or the conditions of release be changed, or both.
(5) Before the court may make the findings required for change of conditions or forfeiture of bail under this rule, the defendant and the defendant’s surety or sureties shall be granted an adversary hearing comporting with the requirements of due process. Whenever the court changes conditions of release (except upon motion of the defendant) or orders forfeiture of bail, it must furnish the defendant and the defendant’s surety or sureties with written reasons for so doing.