Opinion
Opinion delivered December 4, 1997
The Arkansas Supreme Court Committee on Criminal Practice has recommended the adoption of a new Rule of Criminal Procedure to govern the procedure to revoke a bond at the trial stage. Presently, there is no rule on this subject in the Rules of Criminal Procedure. Compare, Ark. Code Ann. § 16-84-201.
We are publishing the Committee's proposal for comment from the bench and bar. Comments and suggestions on this proposed rule may be made in writing prior to January 10, 1998. They should be addressed to:
Leslie Steen, Clerk Arkansas Supreme Court Attn: Criminal Procedure Rules Justice Building 625 Marshall Street Little Rock, AR 72201
We express our gratitude to the members of the Criminal Practice Committee for their work on this matter.
9.7 ACTION ON BOND.
(a) When a bond is granted by the trial court, it shall be conditioned on the defendant appearing for trial, surrendering himself in execution of the judgment, or at any other time when his presence in court may be lawfully required pursuant to Ark. R. Cr. P. 9.5, 9.6, or otherwise.
(b) If the defendant fails to appear at any time when his presence is required under subsection (a), the court shall enter this fact by written order or docket entry, adjudge the bail bond of the defendant, or the money deposited in lieu thereof, to be forfeited, and issue a warrant for the arrest of the defendant. The clerk shall notify the sheriff and the bail bondsman (or, in appropriate cases, other sureties on the bail bond) that the defendant should be surrendered to the sheriff as required by the terms of the bail bond, and the clerk shall immediately issue a summons against the surety on the bail bond requiring it to personally appear at the date and time stated in the summons, and show cause why judgment should not be rendered for the sum specified in the bail bond on account of the forfeiture thereof.
(c) If prior to the date of the show cause hearing ordered in subsection (b) above, the defendant surrenders, is arrested, or good cause is shown for his failure to appear, the trial court may exonerate such amount of the surety's liability under the bail bond as it determines in its discretion, and, if the surety does not object, enter judgment accordingly against the surety. In determining the extent of liability of the surety on a bond forfeiture, the court may take into consideration the actions taken by the surety to locate the defendant and the expenses therein incurred, the expenses incurred by law enforcement to locate and return the defendant, and such other factors as the court finds relevant.
(d) If the surety does not consent to the entry of judgment in the amount determined pursuant to subsection (c) above, or if the defendant has not surrendered or otherwise been brought into custody, then at the time of the show cause hearing (unless continued to a subsequent time), the court shall determine the surety's liability and enter judgment on the forfeited bond. The court may exercise its discretion in determining the amount of such judgment, and may consider the factors listed in subsection (c) above.
(e) No pleadings on the part of the state shall be required in order to enforce a bond hereunder. The summons required under subsection (b) shall be made returnable and shall be executed as in civil actions, and the action shall be docketed and shall proceed as an ordinary civil action. The summons may be directed to and served on an agent of the bail bondsman or surety, and the surety's appearance pursuant to the summons shall be in person and not by filing an answer or other pleading.
REPORTER'S NOTES: Rule 9.7 has been added to the rules governing pretrial release to set out the procedures to forfeit and enter judgment on a bail bond when the defendant fails to appear. Rule 6 of the Rules of Appellate Procedure — Criminal addresses this issue in the context of appeal bonds. See generally Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994).