MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary B

By: Representative Rogers

AN ACT TO AMEND SECTION 21-23-8 AND 99-5-25, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT JUDGMENT NISI FORFEITING BOND MAY BE SET ASIDE IF THE CLERK OF THE COURT DOES NOT PROVIDE NOTICE OF FORFEITURE WITHIN THE PRESCRIBED NOTICE PERIOD; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 21-23-8, Mississippi Code of 1972, is amended as follows:

21-23-8. (1) 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. In instances where 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 a sum to be determined by such officer, of not less than Fifty Dollars ($50.00) nor more than One Thousand Dollars ($1,000.00), payable to the municipality and conditioned for the appearance of such person on the return day and time of the writ before the court before whom 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. 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.

(2) 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.

(3) (a) 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 bench warrant issued at the time of nonappearance. The purpose of bail is to guarantee appearance and bail shall not be forfeited for any other reason. Upon declaration of such forfeiture, the court shall issue a judgment nisi. 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 a 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 conclusive and irrebuttable evidence that the order should be set aside.

(b) 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 judgement nisi shall be set aside. If the surety fails to produce the defendant and does not provide to the court reasonable mitigating circumstances upon such showing, then the forfeiture shall be made final and a copy of the final judgment shall be served on the surety. 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.

(4) 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 such surety to write bail bonds. The commissioner shall, upon notice of the court, notify said surety within five (5) working days of receipt of revocation. If after ten (10) 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.

(5) If within twelve (12) 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 2. Section 99-5-25, Mississippi Code of 1972, is amended as follows:

99-5-25. (1) (a) 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 bench warrant issued at the time of nonappearance. The purpose of bail is to guarantee appearance and bail shall not be forfeited for any other reason. Upon declaration of such forfeiture, the court shall issue a judgment nisi. 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 a 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 conclusive and irrebuttable evidence that the order should be set aside.

(b) 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 judgement nisi shall be set aside. If the surety fails to produce the defendant and does not provide to the court reasonable mitigating circumstances upon such showing, then the forfeiture shall be made final and a copy of the final judgment shall be served on the surety. 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.

(2) 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 such surety to write bail bonds. The commissioner shall, upon notice of the court, notify said surety within five (5) working days of receipt of revocation. If after ten (10) 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.

(3) If within twelve (12) 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 3. This act shall take effect and be in force from and after July 1, 2001.