Bail and Bond
How do Bail and Bonds work? After a case has been completed, a client will often ask, can I get my Bail back? The answer is, that depends.
When you appear before the Court, if the Court does not release you on your own recognizance, then bail will be imposed. This bail is set to insure your appearance at certain court dates and to insure other conditions, such as remaining law abiding. In Minnesota, you have the option of posting bail or bond. A Bail Bonds company is normally used to post the Bond. The Bail Bond company is insured and recognized by the State. You may also post the entire bail amount with the Court if you choose not to use a Bail Bond company.
So how does this work? Let’s assume the Court imposes bail in the amount of $10,000 to secure your appearance at future court appearances. You may either post the $10,000 with the Court, or use a bail bonds company to post the bail.
If you post the $10,000 with the Court and are later found not guilty, or the case is dismissed, the full $10,000 will be returned. If you are found guilty, or reach a plea agreement and are found guilty by the Judge pursuant to that Plea agreement, you will have the $10,000 returned to you, less any fees and costs.
If you choose to use a Bail Bond company, it is slightly different. First, remember that the Bail Bond Company is a private company and is not part of the Court system. Picture the Bail Bond Company as an insurance company. You are purchasing an insurance policy that the Court will accept to insure your appearance in Court and to insure you will abide by the Conditions of the Court. In this example, you are purchasing a $10,000 policy. The charge, or premium – just like a car insurance premium – is the cost to purchase that $10,000 policy. Let’s assume the cost, or premium, is 10%, or $1,000.00. You will pay the $1,000.00 to the bonding company – just like paying a premium to your car insurance company. The bonding company will then provide the bond – think of insurance coverage – to the Court. As long as you make all of your Court appearances and abide by conditions set, you will never have to pay the other $9,000.00. However, as you purchased a bond (insurance policy) from a private entity, the $1,000.00 paid as a premium will not be returned to you. The Court had nothing to do with that contractual agreement and can’t order those funds to be returned. You will also still be responsible for any fines, fees or costs associated with your Sentence.
If you fail to appear, or abide the conditions set, the Court may very well forfeit the bond. In other words, call the $10,000 policy due. The bonding company will then have to pay the Court the $10,000 promised if a violation occurred (the policy amount) plus any costs in securing your appearance. The bonding company will then begin collection proceedings against you and/or the co-signors and collateral used to secure the $10,000.00 policy, as well as any other costs the Court may impose. The Bail Bond company may attempt to have the Bond reinstated and then discharged so as to recover a portion of the amount the Court forfeited. If this does not work, you and your co-signors are responsible to pay the Bail Bond company the amount of the policy/bond.
Read below for a summary and full opinion on how a bail bond company not only had to pay for the bail amount, but also for all costs associated with extradition and penalties imposed by Court Rule.
Sate of Minnesota v. Mulcahy & Freedom Bail Bonds (CT APPS, A11-1136, 06-11-2012, Stearns Co)
MS 629.59, Reduction Bail Forfeiture, General Practice Rule 702
The bail company posted bonds of $55,000 for defendant. The Defendant then failed to appear for court. One month later the bonds were ordered forfeited by Court, but stayed the payment for three months.
During this three month period, the Defendant was arrested in California. The Bonding company then moved for reinstatement and discharge of the bonds. The court did reinstate the bonds and then discharged the bonding company, but also
ordered $5,000 to be withheld for Defendant’s extradition costs and also assessed a 10% penalty of $5,500 pursuant to Minn. R. Gen. Pract. 702(f).
The Bonding Company appealed the 10% penalty. The Court of Appeals noted that General Practice Rule 702(f) provides that if a motion to reinstate a bond is made between 90 – 180 days after forfeiture, the court may reinstate but must charge
a 10% penalty. This penalty is a requirement and cannot be waived or reduced by the Court.
STATE v. MULCAHY
STATE of Minnesota, Respondent, v. Jordan Charles MULCAHY, Defendant, Freedom Bail Bonds, et al., Appellants.
— June 11, 2012
Considered and decided by CONNOLLY, Presiding Judge; LARKIN, Judge; and COLLINS, Judge.*
Lori Swanson, Attorney General, St. Paul, MN; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, St. Cloud, MN, for respondent.Frank Arend Schulte, St. Paul, MN, for appellants.
Appellants, a bond company and its surety, challenge the ten percent penalty imposed by the district court on the reinstatement of their bonds under Minn. R. Gen. Pract. 702(f). Because district courts have no discretion to forgive or reduce this penalty, we affirm.
Between May 2010 and November 2010, appellant Freedom Bail Bonds and its surety, appellant Minnesota Surety and Trust Company, posted bonds totaling $55,000 for defendant Jordan Mulcahy in connection with four criminal complaints charging him with numerous offenses. He failed to appear for a court hearing in November 2010. In December 2010, the bonds were ordered forfeited and appellants were notified that March 19, 2011, would be the date of forfeiture.
In March 2011, shortly after the defendant was arrested in California, appellants moved for reinstatement and discharge of the bonds. Following a hearing on their motion, the district court issued an order reinstating and discharging the bonds, ordering $5,000 withheld for defendant’s extradition, and imposing a ten percent penalty of $5,500 under Minn. R. Gen. Pract. 702(f).
Did the district court err in imposing a ten percent penalty under Minn. R. Gen. Pract. 702(f)?
“The interpretation of a procedural rule is subject to de novo review.” Johnson v. State, 801 N.W.2d 173, 176 (Minn.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1748, 182 L.Ed.2d 537 (2012).
The language of Minn. R. Gen. Pract. 702(f) was interpreted and its relationship to Minn.Stat. § 629.59 was clarified in State v. Askland, 784 N.W.2d 60 (Minn.2010).
State statute and court rule address the question of reinstatement of a forfeited bail bond. Minnesota Statutes § 629.59 (2008) states that when a bail bond is forfeited, “the court may forgive or reduce the penalty according to the circumstances of the case and the situation of the party on any terms and conditions it considers just and reasonable.” Rule 702(f) of the Minnesota General Rules of Practice narrows a court’s discretion:
A petition for reinstatement [of a forfeited bond] filed between ninety (90) days and one hundred eighty (180) days from the date of forfeiture shall be heard and determined by the judge who ordered forfeiture or the judge’s successor and reinstatement may be ordered on such terms and conditions as the court may require, but only with the concurrence of the chief judge and upon the condition that a minimum penalty of not less than ten percent (10%) of the forfeited bail be imposed.
Id. at 62. Askland remanded to the district court “for reinstatement, discharge, and refund of the forfeited bond less the 10% penalty mandated by Minn. R. Gen. P. 702(f).” Id. at 64 (emphasis added).
Notwithstanding Askland, appellants raise four arguments opposing the imposition of the penalty. First, they argue that “it was well within the [district] court’s authority and discretion to waive the ten percent penalty provided for in Rule 702.” But, under Askland, the district court had no authority to waive the penalty when it reinstated the bonds.
Second, appellants argue that the penalty should not be imposed because the state has not shown prejudice resulting from the defendant’s absence and because appellants made a good-faith effort to locate the defendant. The state’s showing of prejudice and the good-faith effort of a bond company are two of the four factors for district courts to consider when exercising their discretion to decide whether to reinstate a forfeited bond. Id. at 62 (citing In re Shetsky, 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953)). But those factors are not relevant here, because the issue here is not the discretionary reinstatement of a forfeited bond; it is the mandatory penalty imposed by Rule 702 when a petition for reinstatement is filed between 90 and 180 days after the forfeiture.
Third, appellants argue that there is “some justification for at least a small variance from Rule 702” because of the district court’s delay in notifying them of the forfeiture and of the timeliness of their own petition for reinstatement once the defendant had been arrested in California. But appellants do not explain why either the district court’s delay in notifying them or the timing of their own petition for reinstatement would be relevant to the mandatory penalty imposed by Rule 702.
Finally, appellants argue that Minn. R. Gen. Pract. 1.02, permitting modification of the rules to prevent injustice, should be invoked here, but they do not explain why the penalty imposed by Minn. R. Gen. Pract. 702 is unjust.1
The district court did not err in interpreting Rule 702 to mandate the imposition of a ten percent penalty when appellants’ bonds were reinstated and concluding that it had no discretion to forgive or reduce that penalty.