Text: HF02096 Text: HF02098 Text: HF02000 - HF02099 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. NEW SECTION. 811A.1 DEFINITIONS.
1 2 As used in this chapter:
1 3 1. "Breach" means a violation of any condition, other than
1 4 program noncompliance, imposed upon the defendant by court
1 5 order as a prerequisite to conditional release on
1 6 postconviction bond.
1 7 2. "Conditional release" means a release under a deferred
1 8 judgment, deferred sentence, or suspended sentence entered
1 9 pursuant to chapter 907.
1 10 3. "Demand for payment" means a written demand made to the
1 11 surety by the court upon the revocation by the court of the
1 12 postconviction bond based upon a breach of a condition of the
1 13 bond, other than program noncompliance. The amount of the
1 14 demand shall conform to the formula specified in section
1 15 811A.8.
1 16 4. "Notice of forfeiture" means a written notice to the
1 17 surety by the court of the total of the penal amount of the
1 18 postconviction bond upon the surety's failure to timely file a
1 19 report on the defendant's program noncompliance.
1 20 5. "Penal amount" means the amount determined by the court
1 21 to be the undertaking for the conditional release on
1 22 postconviction bond.
1 23 6. "Postconviction bond" means a written undertaking by a
1 24 surety to the court that describes the terms and conditions of
1 25 the surety's duties and includes a guarantee of the
1 26 defendant's compliance with the conditions imposed upon the
1 27 defendant by court order. The conditions of the defendant's
1 28 release shall be specified in the postconviction bond.
1 29 7. "Program noncompliance" means a failure of the
1 30 defendant to comply with a condition of drug testing or
1 31 electronic home detention.
1 32 8. "Surety" means a person qualified to take bail in
1 33 accordance with section 811.3.
1 34 Sec. 2. NEW SECTION. 811A.2 POSTCONVICTION BOND ORDERED.
1 35 1. The court may, as part of its order under section
2 1 907.3, require a defendant to post a postconviction bond to
2 2 secure the defendant's compliance with the conditions of a
2 3 conditional release pursuant to chapter 907.
2 4 2. A postconviction bond may be ordered by the court in
2 5 conjunction with other terms and conditions under section
2 6 907.3 or may stand alone as a probation requirement.
2 7 3. At the time of entry of an order under section 907.3
2 8 requiring a postconviction bond, the court shall impose an
2 9 alternative term of incarceration to be served in the event
2 10 the postconviction bond is revoked for failure to be posted or
2 11 other breach, notwithstanding section 908.11.
2 12 4. A person incarcerated under subsection 3 may petition
2 13 the court for an early release from custody. The court may
2 14 grant the petition if it finds that the defendant is able to
2 15 post a postconviction bond. The order may contain other
2 16 conditions in accordance with chapter 907 and this chapter.
2 17 5. The conditions of a postconviction bond may include a
2 18 requirement that the defendant participate in a drug testing
2 19 program, electronic home detention monitoring, or both.
2 20 6. A surety shall utilize a drug testing laboratory and
2 21 electronic home detention monitoring provider approved by the
2 22 court. The surety shall maintain in force at all times a
2 23 master agreement with the drug testing laboratory and home
2 24 detention monitoring provider providing that the laboratory or
2 25 provider shall notify the court within one day of program
2 26 noncompliance by the defendant.
2 27 Sec. 3. NEW SECTION. 811A.3 POSTCONVICTION BOND
2 28 REQUIREMENTS.
2 29 1. The postconviction bond shall be a written undertaking
2 30 in an amount to be determined by the court. The bond shall be
2 31 not less than five thousand dollars and not more than fifty
2 32 thousand dollars. The postconviction bond shall be delivered
2 33 by the surety to the court and shall describe the terms and
2 34 conditions of the surety's obligations as provided in section
2 35 811A.2.
3 1 2. The postconviction bond instrument shall have a term of
3 2 one year and may be renewed annually. The annual premium for
3 3 the postconviction bond shall be fully earned on execution or
3 4 renewal.
3 5 Sec. 4. NEW SECTION. 811A.4 RELEASE OF POSTCONVICTION
3 6 BOND REQUIREMENT.
3 7 A postconviction bond requirement shall be released by the
3 8 court at the conclusion of the conditional release period set
3 9 by the court if the defendant has complied with all conditions
3 10 of the conditional release or five years from the date the
3 11 postconviction bond instrument was posted, whichever is later.
3 12 Sec. 5. NEW SECTION. 811A.5 PENALTIES FOR NONCOMPLIANCE.
3 13 The court may do either of the following if it finds that a
3 14 defendant on conditional release has breached the requirements
3 15 of the conditional release order:
3 16 1. Revoke and immediately reinstate the postconviction
3 17 bond on the same or different terms with no penalty to the
3 18 surety. If the court elects to reinstate the postconviction
3 19 bond, the court shall mail notice of the reinstatement to the
3 20 surety within forty-eight hours of issuing the order to
3 21 reinstate the postconviction bond.
3 22 2. Revoke the postconviction bond and order the defendant
3 23 to be taken into custody to serve the alternative term of
3 24 incarceration under section 811A.2. The period of time during
3 25 which the defendant was on conditional release shall not be
3 26 credited against the defendant's term of incarceration.
3 27 Sec. 6. NEW SECTION. 811A.6 SURETY'S REQUIREMENTS.
3 28 1. During the term of the postconviction bond, the surety
3 29 shall be required to report in writing any instance of program
3 30 noncompliance to the court within ten days of the program
3 31 noncompliance. A written report of program noncompliance
3 32 shall be considered timely if it is either postmarked or
3 33 transmitted by facsimile to the court within ten days of an
3 34 instance of program noncompliance.
3 35 2. If the surety fails to report any program noncompliance
4 1 to the court as required in subsection 1, the penal amount of
4 2 the postconviction bond shall be forfeited to the court as
4 3 provided in section 811A.7, subsection 2.
4 4 3. A surety shall not be liable for more than the penal
4 5 amount of the postconviction bond.
4 6 Sec. 7. NEW SECTION. 811A.7 BREACH AND PROGRAM
4 7 NONCOMPLIANCE &endash; NOTICE TO SURETY.
4 8 1. a. Upon receiving a report of breach of the terms of
4 9 the conditional release, the court, if it elects to revoke the
4 10 conditional release, shall mail within thirty days of
4 11 receiving the report a demand for payment to the surety.
4 12 b. The surety shall pay a prorated percentage of the face
4 13 amount of the postconviction bond, as calculated pursuant to
4 14 section 811A.8 within thirty days of the mailing of the demand
4 15 for payment.
4 16 c. The failure of the court to timely mail the demand for
4 17 payment shall relieve the surety of all liability under the
4 18 postconviction bond.
4 19 2. a. Upon receiving independent knowledge of the
4 20 defendant's program noncompliance where the surety failed to
4 21 file the report required in section 811A.6, the court, if it
4 22 elects to revoke the conditional release, shall mail within
4 23 thirty days of receiving notice of the program noncompliance a
4 24 notice of forfeiture of the penal amount of the postconviction
4 25 bond to the surety.
4 26 b. The surety shall remit to the court the full penal
4 27 amount of the postconviction bond within thirty days of the
4 28 mailing of the notice of forfeiture.
4 29 c. The failure of the court to timely mail the notice of
4 30 forfeiture shall relieve the surety of all liability under the
4 31 postconviction bond.
4 32 Sec. 8. NEW SECTION. 811A.8 AMOUNTS PAYABLE BY SURETY &endash;
4 33 DISTRIBUTION OF PROCEEDS.
4 34 1. The surety shall remit the amount due and payable to
4 35 the court pursuant to a valid issuance of a demand for payment
5 1 as follows:
5 2 a. Ten percent of the penal amount of the bond if the
5 3 breach giving rise to the demand for payment occurs in the
5 4 first quarter of any premium year on the postconviction bond.
5 5 b. Seven and one-half percent of the penal amount of the
5 6 bond if the breach giving rise to the demand for payment
5 7 occurs in the second quarter of any premium year on the
5 8 postconviction bond.
5 9 c. Five percent of the penal amount of the bond if the
5 10 breach giving rise to the demand for payment occurs in the
5 11 third quarter of any premium year on the postconviction bond.
5 12 d. Two and one-half percent of the penal amount of the
5 13 bond if the breach giving rise to the demand for payment
5 14 occurs in the fourth quarter of any premium year on the
5 15 postconviction bond.
5 16 2. Upon payment of the surety of a demand for payment
5 17 pursuant to this section, all further obligations of the
5 18 surety under the postconviction bond are immediately
5 19 discharged.
5 20 3. If the defendant is returned to the court within thirty
5 21 days of the mailing of a notice of forfeiture, the surety
5 22 shall be remitted or credited with seventy-five percent of the
5 23 penal amount of the postconviction bond.
5 24 4. If the defendant is returned to the court within one
5 25 hundred twenty days of the mailing of a notice of forfeiture,
5 26 the surety shall be remitted or credited with fifty percent of
5 27 the penal amount of the postconviction bond.
5 28 5. The proceeds from payments under this section shall be
5 29 distributed equally to the clerk of the district court, the
5 30 sheriff, the county attorney, and the victim compensation fund
5 31 established in section 912.14.
5 32 Sec. 9. NEW SECTION. 811A.9 DEFENDANT SURRENDERED TO
5 33 COURT.
5 34 A surety is authorized to surrender the defendant to the
5 35 court if the premium due on the bond is not paid in full. The
6 1 bond shall be released effective on the date of the surrender.
6 2 If the defendant is surrendered within thirty days of the
6 3 failure to pay the premium for the postconviction bond, the
6 4 bond shall be released retroactively to the date the premium
6 5 was initially earned by the surety.
6 6 Sec. 10. NEW SECTION. 811A.10 JUDGMENT AGAINST SURETY &endash;
6 7 LIEN.
6 8 1. The court may enter a judgment against a surety who
6 9 fails to timely respond to a demand for payment or notice of
6 10 forfeiture. The judgment shall be for the amount payable to
6 11 the court and shall become a lien against the assets of the
6 12 surety.
6 13 2. The court shall not accept a postconviction bond of a
6 14 surety if a judgment under subsection 1 against the surety
6 15 remains unpaid twenty days after entry of the judgment.
6 16 However, if the surety challenges the validity of the judgment
6 17 within twenty days after the entry of the judgment, this
6 18 subsection shall not apply to the surety until the validity of
6 19 the judgment is finally determined.
6 20 3. If the court fails to enter a judgment within ninety
6 21 days from the date upon which it first may enter the judgment,
6 22 the postconviction bond shall be released.
6 23 Sec. 11. Section 907.3, Code Supplement 1995, is amended
6 24 by adding the following new subsection:
6 25 NEW SUBSECTION. 4. An order committing a defendant to
6 26 probation under this section may contain a requirement for a
6 27 postconviction bond under chapter 811A.
6 28 EXPLANATION
6 29 This bill provides that a court, when ordering a defendant
6 30 to probation for a deferred judgment, deferred sentence, or
6 31 suspended sentence, may order that the defendant post a
6 32 postconviction bond of between $5,000 and $50,000. The bond
6 33 process would be administered by private sureties who are
6 34 qualified to take bail bonds under chapter 811.
6 35 The bill also provides that the court, when ordering a
7 1 postconviction bond, is to impose an alternative term of
7 2 incarceration for the defendant in the event the bond is not
7 3 posted. Postconviction bond orders may include the
7 4 requirement that the defendant participate in drug testing and
7 5 electronic in-home detention. Postconviction bonds shall be
7 6 in effect for not more than five years.
7 7 A defendant who violates the terms of the probation order
7 8 or postconviction bond conditions is subject to being
7 9 imprisoned and having the bond revoked by the court. A surety
7 10 is also required to pay to the court certain percentages of
7 11 the bond for the defendant's breach or program noncompliance
7 12 with any terms of the probation order or bond conditions.
7 13 A surety who does not comply with payments to the court
7 14 required due to the defendant's breach or program
7 15 noncompliance or the surety's failure to report the program
7 16 noncompliance is subject to a judgment lien in the amount owed
7 17 the court.
7 18 LSB 3075HH 76
7 19 mk/jw/5
Text: HF02096 Text: HF02098 Text: HF02000 - HF02099 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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