BAIL BONDS Florida Association of Court Clerks & Comptrollers

Summer Conference 2014

PGA National, West Palm Beach, Fl

Bonds Defined

A bail bond is a contract between

the agent, the defendant and the

State allowing the defendant to be

released from jail pending trial.

Who Sets the Bond Amount?

Depends on method of arrest

•Warrant or Capias = Judge • Note: Not supposed to be changed at 1st appearance (903.02)… but

judges do it anyway.

•Warrantless Arrest = Cop • Reviewed by judge at 1st Appearance

NOTE: All bonds are per count. No blanket bonds allowed in

Florida since 2006 - 903.02(4)…(but judges do it anyway).

What’s the difference?

SURETY

AGENT AGENCY

Agent Registration

•Clerk required to register agents • § 648.42—agent may not become surety unless registered with

sheriff and clerk

•Register and file power

•Clerk and sheriff shall not permit

unless agent licensed

•Registration on April 1 of odd years

Only 2 Things Can Happen to a Bond

•Cancelled, aka “released”

•Forfeited

Cancelled/Released

•Count Disposed • Send cancellation to bondsman (via email?)

• Can you transfer a bond? (upmand/remand)

•“Off Bond” (exoneration) (903.21) • Defendant in Custody

• Surrender Form

• Agreement to pay transportation costs

• 3 days notice to SAO and court order.

• Clerk has no authority to off bond absent order

Forfeiture

•FTA = FORFEITURE.

• (903.26(2)(b)“COURT SHALL”)

• “SETTING ASIDE” FORFEITURE • ONLY SAME DAY

• 1.540 reasons, like insufficient notice

• Bond must be “reinstated” or new bond posted

Forfeiture Notice Issues

•Notice to Surety and Agent within

5 Days

•60 days starts with mailing

•No Set Form

•Record in Official Records??

•Electronic Service Permissible

Only 3 Things Can Happen to a Forfeiture

1. PAID within 60 days (preserves remission rights)

2. DISCHARGED within 60 days • CLERK DISCHARGE(903.26(8)

• COURT DISCHARGE(903.26(5) – is Clerk a party to this motion?

3. JUDGMENT - Nothing within 60(65, 5 days mail)

REMEMBER: With any of these, the original bond is gone!

Clerk Discharge

“CLERK… SHALL… DISCHARGE…..”

1. Custody in County

• Affirmation of Sheriff

2. Payment of Transport

Costs

Court Discharge

•Limited Reasons

• Impossible, Insane, Incarcerated

•Motion filed +HEARD w/i 60/65 days

•Does not stay judgment

• Is Clerk a party?

Judgments

• 60-65 days after forfeiture notice sent

• What if there is a pending motion?

• What if the defendant pled?

• What if case dismissed/closed?

• Open a new civil case?

More on Judgments

•Judgment Against Surety – lists agent

•Certified Copy to Surety, DFS and OIR • Courtesy Copy to Agent

•No Eligibility for Remission

•35 Days to Pay or file motion

• Payment = condition precedent to motion

• Issue Satisfaction if Paid

Judgments Not Paid

• If not paid within 35 days…

• 2 Copies to DFS, OIR and Sheriff

• No Bonds for Agent

• If not paid within 50 days…

• Surety may not underwrite bonds

• No notice requirements, but courtesy

Notice of Payment

•Payment tolls effect of judgment

•Before certificate of nonpayment • Notify DFS and OIR

•After certificate of nonpayment • Notify DFS, OIR and sheriff

• Notify any other clerk or sheriff who received notice of nonpayment

Setting Aside Judgment

•Surrender not basis to set aside

•After 35 days, judgment must be

jurisdictionally void

•Relief under Fl.R.Civ.Proc 1.540 –

excusable neglect

•Remission available, if set aside

•Order granting must be recorded

REMISSION

• Forfeiture Must be Paid Pre-Judgment

• Agent/Surety buying 2 yr extension of time

• Motion filed w/i 2 yrs but can be heard later

• Reimbursement % based on re-arrest date

• Clerk Necessary Party

DFS AUDIT

•GOAL

• Increased Enforcement Measures and

Collections

•Multiple Findings in each county

•Don’s Opinion =

DFS TRACKING

• Started May of 2012

• Less than 20 counties – now 40 counties sending notices

• Sheriff (and/or Clerk) to Enforce 35/50 day rules

DFS Tracking Continued • DFS – civil action against agent

• In 2 years – 105 cases initiated under 648.44(1)(m)

• Hefty fines plus have to pay off the judgment(s)

# Penalty / Outcome

2 Permanently barred from the insurance business

3 License suspended for at least 3 months

31 Licensees fined a total of $58,250

25 Placed on probation of 1 year or longer

1 Licensee allowed to surrender

7 Licensees issued a letter of guidance (warning)

43 Cases closed without action:

Money deposited with the clerk of the court

Judgment entered in error

Judgment satisfied timely, but not recorded

Court vacated judgment prior to our case

Defendant in jail at the time judgment was entered

5 Cases submitted for legal review & awaiting penalty

3 Open cases being worked now

Cash Bond Issues

•We Get Paid First • 903.286 - withhold any owed court money before returning

• What about depositor? Can you check them?

•Ensure Proper Notice to Depositor

•Can a forfeiture of a cash bond be

discharged?

• Is remission available?

• Who is proper party to file for remission?

Contact Info for Your Presenters

• Don Barbee, Esq. Clerk of Circuit Court, Hernando Co.,

dbarbee@hernandocounty.us, 352-540-6246

• Jean Sperbeck, Esq. General Counsel, Alachua Clerk of

Circuit Court, jas@alachuaclerk.org, 352-337-6142

• Ray Wenger, Financial Administrator, Department of Financial

Services, ray.wenger@myfloridacfo.com, 850-413-5605