Opinion
ID No.: 0204016261
Date Submitted: October 30, 2002
Date Decided: November 4, 2002
Cr.A. No. IN02050028-0030 IN02050032, 0033 IN02051559
Rule to Show Cause why bail should not be Forfeited: RULE DISCHARGED.
ORDER
After hearing and briefing on a Rule to Show Cause why bail should not be forfeit, it appears to the Court:
1. Defendant was arrested on April 22, 2002 for weapons and drug-related violent felonies as defined by 11 Del. C. Section 4201.
2. A secured bail was posted on these charges prior to July 1, 2002. Defendant was arrested on July 30, 2002, for three additional drug-related violent felonies as defined by 11 Del. C. Section 4201, while pending trial on the original violent offenses.
3. The State moved to revoke bail under the newly enacted 11 Del. C. Section 2116 and to hold the Defendant without bail. These motions were granted and the court issued a Rule to Show Cause to forfeit the bail previously posted.
4. Defendant moved to reconsider the court's decision, and a hearing was scheduled on September 13, 2002 on the Rule to Show Cause. Briefing was permitted on the issues.
5. On October 30, 2002, Defendant resolved both sets of pending charges by entering guilty pleas.
6. The issue remaining before the court is whether the bail posted on his original offenses should be forfeited pursuant to 11 Del. C. Section 2116(b).
7. Defendant, in this case, posted bail on his original alleged violent offenses prior to the enactment of House Bill No. 438 amending 11 Del. C. Section 2116. He is, therefore, not subject to the mandatory forfeiture provision as such would be an ex post facto modification of the bail conditions and bail contract existing at the time the bail was posted.
8. It is the court's observation that in cases where Defendants are rearrested on violent felonies, as defined by 11 Del. C. Section 4201, having posted bail on prior alleged violent felonies subsequent to the effective date of the amendment to 11 Del. C. Section 2116, that bail would be subject to the provision mandating that any cash bond or other form of cash surety be forfeited. Such a forfeiture would occur only upon motion of the State after a court hearing pursuant to the statute.
The issue as to Defendant's constitutional right to bail is made moot b y his plea of guilty in the se cases. The court notes however that Article 1 § 12 of the Delaware Constitution states that "All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is positive or the presumption great. . ." (emphasis added). Since Defendant is not being held for trial on a capital offense, he has a State constitutional right to have bail set. The Legislature by statute cannot supercede the plain language of the Constitution of this State, granting the right to bail pretrial. The Delaware Constitution is far more explicit in granting this right than the United States Constitution merely prohibiting excessive bail.
State v. Flowers, Del. Supr. 330 A.2d 146 (1974). The court does have concern that the "automatic" nature of the finding of probable cause to forfeit bail solely upon a police officer warrant could violate due process.
For the above stated reasons, the Rule to Show Cause why bail should be forfeited is DISCHARGED.
IT IS SO ORDERED.