House Bill 747

(COMMITTEE SUBSTITUTE)

AN ACT TO PROVIDE FOR CRIMES WITH BAIL RESTRICTIONS; TO DEFINE CERTAIN TERMS; TO CREATE A PRESUMPTION IN FAVOR OF FULL CASH BONDS FOR CERTAIN OFFENSES; TO REQUIRE AN AFFIDAVIT REGARDING PROPERTY BONDS; TO BRING FORWARD SECTIONS 99-5-5, 99-5-7, 99-5-9, 99-5-13, 99-5-23 AND 99-5-25, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.

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

SECTION 1. (1) As used in this section: "crime with bail restriction" means any of the following felony offenses:

(a) Capital murder;

(b) Murder;

(d) Kidnapping;

(e) Rape;

(f) Sexual battery;

(g) Armed robbery;

(h) Carjacking;

(i) Arson;

(j) Burglary;

(k) Obstruction of justice;

(l) Escape;

(m) Corrupting or influencing a jury; and

(n) Possession of weapons by a convicted felon.

"Crime with bail restrictions" also includes any drug-related felonies and any racketeering felonies.

(2) Subject to the provisions of subsection (3) of this section, a person charged with a crime with bail restrictions may post the required amount of bail only in the form of:

(a) Cash;

(b) A surety bond; or

(c) A bail bond secured by real property situated in this state with an unencumbered equity equal to the amount of bail undertaking plus Twenty Thousand Dollars ($20,000.00).

(3) There shall be a presumption in favor of the court designating the posting of full United States currency cash bail to the exclusion of other forms of bail when a defendant is charged with an offense as set forth in subsection (1) of this section and:

(a) Has two (2) other indictable cases pending at the time of the arrest;

(b) Has two (2) prior convictions for a felony;

(d) Was on parole at the time of the arrest, unless the court finds on the record that another form of bail authorized in subsection (2) of this section will ensure the defendant's presence in court when required.

(4) When bail is posted in the form of a bail bond secured by real property, the owner of the real property, whether the person is admitted to bail or a surety, shall file an affidavit containing:

(a) A legal description of the real property;

(b) A description of each encumbrance on the real property;

(c) The market value of the unencumbered equity owned by the affiant as determined in a full appraisal conducted by an appraiser licensed in the state; and

(d) A statement that the affiant is the sole owner of the unencumbered equity.

SECTION 2. Section 99-5-5, Mississippi Code of 1972, is brought forward as follows:

99-5-5. All bonds and recognizances taken for the appearance of any party, either as defendant, prosecutor, or witness in any criminal proceeding or matter, shall be made payable to the state, and shall have the effect to bind the accused and his sureties on the bond or recognizance until the principal shall be discharged by due course of law, and shall be in full force, from term to term, for a period of three (3) years, except that a bond returnable to the Supreme Court shall be in full force for a period of five (5) years. If it is necessary to renew a bond, it shall be renewed without additional premium. At the end of the applicable period, a bond or recognizance that is not renewed shall expire and shall be uncollectible unless the collection process was started on or before the expiration date of such bond or recognizance. Any bond or recognizance taken prior to July 1, 1996, shall expire on July 1, 1999. If a defendant is charged with multiple counts in one (1) warrant only one (1) bond shall be taken.

SECTION 3. Section 99-5-7, Mississippi Code of 1972, is brought forward as follows:

99-5-7. Bail may be given to the sheriff or officer holding the defendant in custody, by a fidelity or surety insurance company authorized to act as surety within the State of Mississippi. Any such company may execute the undertaking as surety by the hand of officer or attorney authorized thereto by a resolution of its board of directors, a certified copy of which, under its corporate seal, shall be on file with the clerk of the circuit court and the sheriff of the county, and such authority shall be deemed in full force and effect until revoked in writing by notice to said clerk and sheriff.

SECTION 4. Section 99-5-9, Mississippi Code of 1972, is brought forward as follows:

99-5-9. (1) In addition to any type of bail allowed by statute, any committing court, in its discretion, may allow any defendant, to whom bail is allowable, to deposit cash as bail bond in lieu of a surety or property bail bond, by depositing such cash sum as the court may direct with the sheriff or officer having custody of defendant, who shall receipt therefor and who shall forthwith deliver the said monies to the county treasurer, who shall receipt therefor in duplicate. The sheriff, or other officer, upon receipt of the county treasurer, shall forthwith deliver one (1) copy of such receipt to the committing court who shall then order the release of such defendant.

(2) The order of the court shall set forth the conditions upon which such cash bond is allowed and shall be determined to be the agreement upon which the bailee has agreed.

(3) The sums received by the county treasurer shall be deposited by him in a special fund to be known as "Cash Bail Fund," and shall be received by him subject to the terms and conditions of the order of the court.

(4) If the committing court authorizes bail by a cash deposit under subsection (1) of this section, but anyone authorized to release a criminal defendant allows the deposit of an amount less than the full amount of the bail ordered by the court, the defendant may post bail by a professional bail agent in an amount equal to one-fourth (1/4) of the full amount fixed under subsection (1) or the amount of the actual deposit whichever is greater.

SECTION 5. Section 99-5-13, Mississippi Code of 1972, is brought forward as follows:

99-5-13. When it shall appear to the court before which any person charged with a criminal offense has given bail to appear that such bail is insufficient in any respect, the court may order the issuance of process for the arrest of such person, and may require him to give bail as may be ordered, and, in default thereof, may commit him to jail as in other cases.

SECTION 6. Section 99-5-23, Mississippi Code of 1972, is brought forward as follows:

99-5-23. All bonds, recognizances, or acknowledgments of indebtedness, conditioned for the appearance of any party before any court or officer, in any state case or criminal proceeding, which shall have the effect to free such party from jail or legal custody of any sort, shall be valid and bind the party and sureties, according to the condition of such bond, recognizance, or acknowledgment, whether it was taken by the proper officer or under circumstances authorized by law or not, or whether the officer's return identify it or not.

It shall not be an objection to any bail-bond or recognizance that it is in the form of an acknowledgment before a court or officer and is without the signature of any person, or is without the indorsement of approval by any officer; but all persons who, by their acknowledgment before any officer of liability to pay a sum of money to the state if some person shall not appear before some court or officer in a criminal prosecution, procure the discharge from custody of such person, shall be bound accordingly upon the recognizance. An obligation signed by a person to obtain the discharge from custody of another shall not be invalid, if it have that effect, because it does not have indorsed on it the approval of any officer, or because the taking thereof be not recited in the return of the officer.

SECTION 7. Section 99-5-25, Mississippi Code of 1972, is brought forward 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.

(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. 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.

(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 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 8. This act shall take effect and be in force from and after July 1, 2013.