Bill Text: MS SB2177 | 2024 | Regular Session | Engrossed
Bill Title: Bail; make certain amendments to provisions related to.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2024-04-10 - Died On Calendar [SB2177 Detail]
Download: Mississippi-2024-SB2177-Engrossed.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary, Division B
By: Senator(s) Fillingane
Senate Bill 2177
(As Passed the Senate)
AN ACT TO CREATE NEW SECTION 99-5-41, MISSISSIPPI CODE OF 1972, TO CLARIFY WHEN A BAIL BOND OR OBLIGATION THEREUNDER IS DISCHARGED AND BECOMES NULL AND VOID; TO AMEND SECTIONS 21-23-8, 83-39-7 AND 99-5-25, MISSISSIPPI CODE OF 1972, TO EXTEND THE NUMBER OF DAYS BETWEEN THE NOTIFICATION OF REVOCATION OF LICENSE TO A SURETY BY THE DEPARTMENT OF INSURANCE AND THE DAY THE REVOCATION WILL BECOME EFFECTIVE; TO AUTHORIZE A SURETY TO SUBMIT PROOF TO THE DEPARTMENT OF INSURANCE THAT THE DEFENDANT HAS BEEN SURRENDERED TO THE APPROPRIATE AUTHORITIES OR THAT THE BOND HAS BEEN PAID DIRECTLY TO THE COURT OR OTHER PROPER AUTHORITIES BEFORE REVOCATION OF THE SURETY'S LICENSE; TO BRING FORWARD SECTION 99-5-27, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 99-5-41, Mississippi Code of 1972:
99-5-41. A bail bond and the obligation thereunder is discharged and becomes null and void when:
(a) The defendant is found guilty and sentence is pronounced;
(b) The charge is dismissed or nolle prosequi;
(c) The charge is retired or remanded to the files;
(d) The defendant is surrendered by a bail agent in open court or to the sheriff or chief of police or respective jailer of the proper jurisdiction or a verbal or written, including electronic detention, notice of surrender is delivered thereto as required in Section 99-5-27; or
(e) The defendant is sentenced to nonadjudication, an alternative sentence, or an intervention court program.
SECTION 2. Section 21-23-8, Mississippi Code of 1972, is amended as follows:
21-23-8. (1) (a) The purpose of bail is to guarantee appearance and a bail bond shall not be forfeited for any other reason.
(b) (i) If a defendant in any criminal case, proceeding or matter fails to appear for any proceeding as ordered by the municipal court, then the court shall order the bail forfeited and a judgment nisi and a bench warrant issued at the time of nonappearance. The clerk of the municipal court shall notify the surety of the forfeiture by writ of scire facias, with a copy of the judgment nisi and bench warrant attached thereto, within ten (10) working days of such order of judgment nisi either by personal service or by certified mail. Failure of the clerk to provide the required notice within ten (10) working days shall constitute prima facie evidence that the order should be set aside.
(ii) 1. The judgment nisi shall be returnable for ninety (90) days from the date of issuance. If during that period the defendant appears before the municipal court, or is arrested and surrendered, then the judgment nisi shall be set aside. If the surety produces the defendant or provides to the municipal court reasonable mitigating circumstances upon such showing, then the forfeiture shall not be made final. If the forfeiture is made final, a copy of the final judgment shall be served on the surety within ten (10) working days by either personal service or certified mail.
2. Reasonable mitigating circumstances shall be that the defendant is incarcerated in another jurisdiction; that the defendant is hospitalized under a doctor's care; that the defendant is in a recognized drug rehabilitation program; that the defendant has been placed in a witness protection program, in which case it shall be the duty of any agency placing the defendant into a witness protection program to notify the municipal court and the municipal court to notify the surety; or any other reason justifiable to the municipal court.
(2) (a) If a final judgment
is entered against a surety licensed by the Department of Insurance and has not
been set aside after ninety (90) days, or later if such time is extended by the
municipal court issuing the judgment nisi, then the municipal court shall order
the department to revoke the authority of the surety to write bail bonds. The Commissioner
of Insurance shall, upon notice of the municipal court, notify the surety within
five (5) working days of receipt of the order of revocation. If after * * * twenty (20) working days of the
notification the revocation order has not been set aside by the municipal court,
then the commissioner shall revoke the authority of the surety and all agents of
the surety and shall notify the sheriff of every county of such revocation.
(b) Before the revocation authorized in paragraph (a) of this subsection, the surety may submit proof to the department that the defendant has been surrendered to the appropriate authorities or that the bond has been paid directly to the Court or other proper authorities, such proof to include, but not be limited to:
(i) A receipt of payment to the bond;
(ii) A surrender certificate; or
(iii) A notice of surrender from the proper authorities, including foreign jurisdictions.
(3) If within eighteen (18) months of the date of the final forfeiture the defendant appears for municipal court, is arrested or surrendered to the municipal court, or if the defendant is found to be incarcerated in another jurisdiction and a hold order placed on the defendant, then the amount of bail, less reasonable extradition cost, excluding attorney fees, shall be refunded by the municipal court upon application by the surety.
(4) (a) The municipal judge shall set the amount of bail for persons charged with offenses in municipal court and may approve the bond or recognizance therefor.
(b) The court shall not set the financial conditions of bail solely for the purpose of detaining the defendant. When bail is set, it is presumed that the amount of bail is both necessary to reasonably assure the safety of a victim, witness or the general public and to guarantee the appearance of a defendant as required by the court. The amount of bail is also presumed to be attainable by the defendant. The presumption that bail is attainable by the defendant may be rebutted by the defendant who may file a motion to reduce or set aside the bail requirement with the court due to lack of financial means, which shall also consider the availability of a third-party support system to obtain the defendant's release. The court shall rule on any such motion within forty-eight (48) hours of the filing.
(c) If the defendant or his counsel asserts that the defendant is indigent and cannot afford the amount of bail, the municipal judge shall make a determination of whether the defendant can be released on recognizance, based on the standards enumerated in the Mississippi Rules of Criminal Procedure and any other factors considered relevant by the municipal judge. No misdemeanor defendant shall be incarcerated solely because the defendant cannot afford to post bail; nor shall a misdemeanor defendant be released solely because the defendant cannot afford bail. It is the duty of the municipal judge to ensure that release of the defendant does not jeopardize the community.
(d) The accused may waive an appearance before the judge and execute an appearance bond in an amount determined by the court from the bond guidelines set out in the Mississippi Rules of Criminal Procedure and agree to appear at a specified time and place.
(e) If the municipal judge is unavailable and has not provided a bail schedule or otherwise provided for the setting of bail, it is lawful for any officer or officers designated by order of the municipal judge to take bond, cash, property or recognizance, with or without sureties, in the amount of the minimum bail specified in the bond guidelines set out in the Mississippi Rules of Criminal Procedure, payable to the municipality and conditioned for the appearance of the person on the return day and time of the writ before the court to which the warrant is returnable, or in cases of arrest without a warrant, on the day and time set by the court or officer for arraignment, and there remain from day to day and term to term until discharged.
(f) In circumstances involving an offense against any of the following: (i) a current or former spouse of the accused or child of that person; (ii) a person living as a spouse or who formerly lived as a spouse with the accused or a child of that person; (iii) a parent, grandparent, child, grandchild or someone similarly situated to the accused; (iv) a person who has a current or former dating relationship with the accused; or (v) a person with whom the accused has had a biological or legally adopted child, the municipal judge shall check, or cause to be made a check of the status of the person for whom recognizance or bond is taken before ordering bail in the Mississippi Protection Order Registry authorized under Section 93-21-25, and the existence of a domestic abuse protection order against the accused shall be considered when determining appropriate bail.
(g) All bonds shall be promptly returned to the court, together with any cash deposited, and be filed and proceeded on by the court in a case of forfeiture. The chief of the municipal police or a police officer or officers designated by order of the municipal judge may approve bonds or recognizances.
(h) All bonds and recognizances in municipal court where the municipal court shall have the jurisdiction to hear and determine the case may be made payable to the municipality and shall have the effect to bind the principal and any sureties on the bond or recognizance until they shall be discharged by due course of law without renewal.
SECTION 3. Section 83-39-7, Mississippi Code of 1972, is amended as follows:
83-39-7. (1) (a) Each applicant for a professional bail agent license who acts as personal surety shall be required to post a qualification bond in the amount of Thirty Thousand Dollars ($30,000.00).
(b) The Insurance Department shall submit a report to the Senate and House of Representatives Committees on Accountability, Efficiency and Transparency that details the amount of all bonds or undertakings that each bail bondsman has written in this state on which the bail bondsman is absolutely or conditionally liable since the Bail Bond Database was established by the department. The report shall be submitted on or before December 1, 2017. The report shall also include the number of bail bondsmen who have failed to comply with the database reporting requirements, if any, the technical issues that may have occurred since the database was established and any suggested legislation to ensure each bail bondsman's continued compliance with the database reporting requirements.
(2) The qualification bond shall be made by depositing with the commissioner the aforesaid amount of bonds of the United States, the State of Mississippi or any agency or subdivision thereof, or a certificate of deposit issued by an institution whose deposits are insured by the Federal Deposit Insurance Corporation and made payable jointly to the owner and the Department of Insurance, or shall be written by an insurer as defined in this chapter, shall meet the specifications as may be required and defined in this chapter, and shall meet such specifications as may be required and approved by the department. The bond shall be conditioned upon the full and prompt payment of any bail bond issued by such professional bail agent into the court ordering the bond forfeited. The bond shall be to the people of the State of Mississippi in favor of any court of this state, whether municipal, justice, county, circuit, Supreme or other court.
(3) (a) If any bond
issued by a professional bail agent is declared forfeited and judgment entered
thereon by a court of proper jurisdiction as authorized in Section 99-5-25, and
the amount of the bond is not paid within ninety (90) days, that court shall
order the department to declare the qualification bond of the professional bail
agent to be forfeited and the license revoked. If the bond was not forfeited
correctly under Section 99-5-25, it shall be returned to the court as uncollectible.
The department shall then order the surety on the qualification bond to deposit
with the court an amount equal to the amount of the bond issued by the
professional bail agent and declared forfeited by the court, or the amount of
the qualification bond, whichever is the smaller amount. The department shall,
after a hearing held upon not less than * * * twenty (20) days' written
notice, suspend the license of the professional bail agent until such time as
another qualification bond in the required amount is posted with the department.
The revocation of the license of the professional bail agent shall also serve
to revoke the license of each soliciting bail agent and bail enforcement agent
employed or used by such professional bail agent. In the event of a final
judgment of forfeiture of any bail bond written under the provisions of this
chapter, the amount of money so forfeited by the final judgment of the proper
court, less all accrued court costs and excluding any interest charges or
attorney's fees, shall be refunded to the bail agent or his insurance company
upon proper showing to the court as to which is entitled to same, provided the
defendant in such cases is returned to the sheriff of the county to which the
original bail bond was returnable within eighteen (18) months of the date of such
final judgment, or proof made of incarceration of the defendant in another
jurisdiction, and that a "Hold Order" has been placed upon the
defendant for return of the defendant to the sheriff upon release from the other
jurisdiction, the return to the sheriff to be the responsibility of the
professional bail agent, then the bond forfeiture shall be stayed and remission
made upon petition to the court, in the amount found in the court's discretion
to be just and proper. A bail agent licensed under this chapter shall have a
right to apply for and obtain from the proper court an extension of time delaying
a final judgment of forfeiture if such bail agent can satisfactorily establish
to the court wherein such forfeiture is pending that the defendant named in the
bail bond is lawfully in custody outside of the State of Mississippi.
(b) Before the revocation authorized in paragraph (a) of this subsection, the surety may submit proof to the department that the defendant has been surrendered to the appropriate authorities or that the bond has been paid directly to the Court or other proper authorities, such proof to include, but not be limited to:
(i) A receipt of payment to the bond;
(ii) A surrender certificate; or
(iii) A notice of surrender from the proper authorities, including foreign jurisdictions.
(4) The qualification bond may be released by the department to the professional bail personal surety agent upon an order to release the qualification bond issued by a court of competent jurisdiction, or upon written request to the department by the professional bail personal surety agent no earlier than five (5) years after the expiration date of his last license.
SECTION 4. Section 99-5-25, Mississippi Code of 1972, is amended as follows:
99-5-25. (1) (a) The purpose of bail is to guarantee appearance and a bail bond shall not be forfeited for any other reason.
(b) If a defendant in any criminal case, proceeding or matter fails to appear for any proceeding as ordered by the court, then the court shall order the bail forfeited and a judgment nisi and a bench warrant issued at the time of nonappearance. The clerk of the court shall notify the surety of the forfeiture by writ of scire facias, with a copy of the judgment nisi and bench warrant attached thereto, within ten (10) working days of such order of judgment nisi either by personal service or by certified mail. Failure of the clerk to provide the required notice within ten (10) working days shall constitute prima facie evidence that the order should be set aside. Any felony warrant issued by a court for nonappearance shall be put on the National Crime Information Center (NCIC) until the defendant is returned to custody.
(c) The judgment nisi shall be returnable for ninety (90) days from the date of issuance. If during such period the defendant appears before the court, or is arrested and surrendered, then the judgment nisi shall be set aside and a copy of the judgment that is set aside shall be served on the surety by personal service or certified mail. If the surety produces the defendant or provides to the court reasonable mitigating circumstances upon such showing, then the forfeiture shall not be made final. If the forfeiture is made final, a copy of the final judgment shall be served on the surety within ten (10) working days by either personal service or certified mail. Reasonable mitigating circumstances shall be that the defendant is incarcerated in another jurisdiction, that the defendant is hospitalized under a doctor's care, that the defendant is in a recognized drug rehabilitation program, that the defendant has been placed in a witness protection program and it shall be the duty of any such agency placing such defendant into a witness protection program to notify the court and the court to notify the surety, or any other reason justifiable to the court.
(d) Execution upon the final judgment shall be automatically stayed for ninety (90) days from the date of entry of the final judgment. If, at any time before execution of the final judgment, the defendant appears in court either voluntarily or in custody after surrender or arrest, the court shall on its own motion direct that the forfeiture be set aside and the bond exonerated as of the date the defendant first appeared in court.
(2) (a) If a final
judgment is entered against a surety licensed by the Department of Insurance
and has not been set aside after ninety (90) days, or later if such time is
extended by the court issuing the judgment nisi, then the court shall order the
department to revoke the authority of the surety to write bail bonds. The commissioner
shall, upon notice of the court, notify the surety within five (5) working days
of receipt of revocation. If after * * * twenty (20) working days of
such notification the revocation order has not been set aside by the court,
then the commissioner shall revoke the authority of the surety and all agents
of the surety and shall notify the sheriff of every county of such revocation.
(b) Before the revocation authorized in paragraph (a) of this subsection, the surety may submit proof to the department that the defendant has been surrendered to the appropriate authorities or that the bond has been paid directly to the Court or other proper authorities, such proof to include, but not be limited to:
(i) A receipt of payment to the bond;
(ii) A surrender certificate; or
(iii) A notice of surrender from the proper authorities, including foreign jurisdictions.
(3) If within eighteen (18) months of the date of the final forfeiture the defendant appears for court, is arrested or surrendered to the court, or if the defendant is found to be incarcerated in another jurisdiction and a hold order placed on the defendant, then the amount of bail, less reasonable extradition cost, excluding attorney fees, shall be refunded by the court upon application by the surety.
SECTION 5. Section 99-5-27, Mississippi Code of 1972, is brought forward as follows:
99-5-27. (1) (a) "Surrender" means the delivery of the defendant, principal on bond, physically to the sheriff or chief of police or in his absence, his jailer, and it is the duty of the sheriff or chief of police, or his jailer, to accept the surrender of the principal when presented and such act is complete upon the execution of verbal or written surrender notice presented by a bail agent and shall relieve the bail agent of liability on the principal's bond.
(b) A bail agent may surrender the principal if the principal is found to be detained on another charge. If the principal is found incarcerated in another jurisdiction, the bail agent may surrender him by verbal or written notice of surrender to the sheriff or chief of police, or his jailer, of that jurisdiction and the notice of surrender shall act as a "Hold Order" and upon presentation of written surrender notice to the court of proper jurisdiction, the court shall order a "Hold Order" placed on the principal for the court and shall relieve the bail agent of liability on the principal's bond, with the provision that, upon release from incarceration in the other jurisdiction, return of the principal to the sheriff shall be the responsibility of the bail agent. The bail agent shall satisfy the responsibility to return a principal held by a "Hold Order" in another jurisdiction upon release from the other jurisdiction either by personally returning the principal to the sheriff at no cost to the county or, where the other jurisdiction will not release the principal to any person other than a law enforcement officer, by reimbursing to the county the reasonable cost of the return of the principal, not to exceed the cost that would be entailed if the first option were available.
(c) The surrender of the principal by the bail agent, within the time period provided in Section 99-5-25, shall serve to discharge the bail agent's liability to the State of Mississippi and any of its courts; but if this is done after forfeiture of the bond or recognizance, the court shall set aside the judgment nisi or final judgment upon filing of surrender notice by the bail agent.
(2) (a) A bail agent, at any time, may surrender the principal to any law enforcement agency or in open court in discharge of the bail agent's liability on the principal's bond if the law enforcement agency that was involved in setting the original bond approves of such surrender, to the State of Mississippi and any of its courts and at any time may arrest and transport its principal anywhere or may authorize another to do so, may be assisted by any law enforcement agency or its agents anywhere upon request of bail and may receive any information available to law enforcement or the courts pertaining to the principal for the purpose of safe surrender or for any reasonable cause in order to safely return the principal to the custody of law enforcement and the court.
(b) A bail agent, at any time, may arrest its principal anywhere or authorize another to do so for the purpose of surrender of the principal on a bail bond. Failure of the sheriff or chief of police or his jailer, any law enforcement agency or its agents or the court to accept surrender by a bail agent shall relieve the bail agent of any liability on the principal's bond, and the bond shall be void.
(3) A bail agent, at any time, upon request by the defendant or others on behalf of the defendant, may privately interview the defendant to obtain information to help with surrender before posting any bail bond on behalf of the defendant. All licensed bail agents shall have equal access to jails or detention facilities for the purpose of such interviews, the posting of bail bonds and the surrender of the principal.
(4) Upon surrender, the court, after full review of the defendant and the pending charges, in open court, may discharge the prisoner on his giving new bail, but if he does not give new bail, he shall be detained in jail.
SECTION 6. This act shall take effect and be in force from and after July 1, 2024, and shall stand repealed on June 30, 2024.
