Bail, Bond and Pretrial Release in FL - a fairly definitive Legal Guide by Michael A. Haber, Esq.:
This (#HaberPA's 12th AVVO Legal Guide) is a comprehensive discussion of Bail and Bond in FL Courts. We may have left out a few issues (if so then feel free to let us know and we'll update accordingly) but this puppy is pretty damn complete (and hopefully well-organized & self-explanatory)!
What's the difference between Bail and Bond?The words "bail" and "bond" are commonly interchanged but, technically they're not the same thing.
Bail is money that's posted on behalf of someone who's been booked into and so as to get out of jail, and bail can be posted by anyone. Bond is a three-party contract (between the bond agent - a/k/a a "surety", the arrestee and the Court) and can only be posted by a licensed surety (a "bondsman" or a "bail bondsman") in order to get that person out of jail. So, the difference is that anyone can post bail but only a "Resident Limited Surety" (who's properly licensed by the FL Division of Insurance and Insurance Agency Services, which falls under the FL Department of Financial Services as a "Bail Bond Agent") can post a bond in FL.
If you want to get technical then Florida Statutes 648.25 defines a "Limited Surety (Bail Bond) Agent" as "an individual appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings who receives or is promised money or other things of value therefore."
Either way, both bail and bond are basically a means to ensure that after someone has been released from jail s/he will appear in court as required, and also that s/he will abide by certain conditions (most are "standard conditions" - more on that below - but some may be custom tailored by the court to fit the individual and the case) while awaiting resolution of a criminal case.
What is the purpose of Bail / Bond?It would be impossible - physically, financially, practically, ethically - to detain every arrestee so, for a variety of reasons the vast majority of people who get arrested and booked into a jail will not be "pretrial detained" - kept in jail until their case is resolved. Unless the charges are non-bondable (more on that below) or the State successfully argues a motion seeking pretrial detention, the vast majority of folks will, in fact they must (see FL Rule of Criminal Procedure 3.131(b)) be released on some form of pretrial release.
According to F.S. 903.046(1) "The purpose of a bail determination in criminal proceedings is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant."
FL Rule of Criminal Procedure 3.131(b) reconfirms this saying that "The judicial officer shall impose the first of the following conditions of release that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process...".
So the bottom line is that the purpose of bail / bond is to allow folks who are presumed innocent and who neither present an unreasonable risk of harm to society nor an unreasonable risk of flight to continue to live their lives during the pendency of their case generally as they were beforehand.
Do I have a right to Bond / Bail in FL?Pursuant to Article I, Section 14 of the Florida Constitution (entitled "Pretrial release and detention"): "Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained."
FL Rule of Criminal Procedure 3.131(a) (entitled "Right to Pretrial Release") reconfirms this right stating that: "Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions."
Unless "charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great" (please see: FL Constitution, Art. I, Sect. 14) or "[i]f no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained" (please see: FL Rule of Criminal Procedure 3.131(a)) then yes, you have a right to bail / bond in FL.
Do I have to go to a Bond Hearing to Post Bond in FL?Maybe. The practical mechanics are such that you may or may not have to go to a bond hearing. Let me explain... Anyone who gets booked into a FL jail must, by rule (please see FL Rule of Criminal Procedure 3.130) be taken before a judicial officer within 24 hours of their booking, and the only way around attending your bond hearing is if your bond happens to be posted prior to your appearance at that hearing (which is called an "Initial Appearance").
The Rule applies equally across the State but each FL Circuit has it's own bond schedule (more on that below), and if you are bondable upon booking then bail or bond can be posted and, absent any hold, you will be released without the necessity of going before a judicial officer.
So what does this mean? It means that if you have a bondable offense then your bond can be posted as soon as you are booked, after which you will be processed and released (depending upon how busy and functional the jail is your release could take a few or a bunch of hours); but if no one posts bond before your 24 hours expires, if you are either being held on a non-bondable offense, or if you have another hold (like a bench warrant, a fugitive warrant, a child support warrant, an ICE hold or any of a number of other possible detainers) or if the State seeks pretrial detention then you will have to attend your "Initial Appearance", either in person or on CCTV.
What happens at my Initial Appearance?At your Initial Appearance / Bond Hearing the Judge will inform you of the charges against you, s/he will review the initial police report to determine whether or not there is probable cause for the charge (if there isn't then you will be "ROR'd" - released on your own recognizance), s/he will establish whether or not you are entitled to pretrial release (if you are either being held on a nonbondable offense, or if you have another hold - like a bench warrant, a fugitive warrant, a child support warrant, an ICE hold or any of a number of other possible detainers - then you may get a bond on your new case but because of the hold you will not be released from custody), s/he will make sure that you are represented by counsel (be it private or the PD) and you, your representative and or your family / supporters will be afforded an opportunity to speak to the Court as to your bond status.
It's important to know that you are not required to say anything at all at your Initial Appearance (you enjoy the 5th Amendment Privilege against Compulsory Self-Incrimination) and that if you do choose to speak at your Initial Appearance then anything that you say is being recorded and can be used against you in subsequent proceedings. As usual, in court the less you say the better, so if you do speak then please limit yourself to things relative to your release (like your ties to the community, family, health, work issues... legitimate reasons for you to be let out of jail) and DO NOT discuss the facts of the case. You should trust you lawyer - whether private or PD - to do the talking for you at your initial appearance.
When can I be denied Bond / Bail in FL?As previously discussed, if you are being held on a non-bondable offense (a capital offense or an offense punishable by life imprisonment and the "proof of guilt is evident or the presumption is great"... more on that later) then you will not get bond at your Initial Appearance.
You can apply to your Judge for an "Arthur Hearing" (again, more on that later) but unless the State agrees / stipulates to some form of pretrial release then until your Arthur Hearing occurs (and assuming a successful outcome) you are going to remain in custody.
Further, if you have another hold (a bench warrant, a fugitive warrant, a child support warrant, an ICE hold or any of a number of other possible detainers) or if you are on probation, parole or pretrial release in another case, then while you may get a bond on your new substantive case you will still not be released until the underlying hold / detainer is resolved by the Judge who issued it.
What is a "Standard Bond Schedule"?There are 20 Judicial Circuits in Florida, all but 5 of which span multiple counties (for more on this take a look at - https://en.wikipedia.org/wiki/Florida_circuit_courts ), and while all 20 are bound by FL law (including the statutes and rules that I am citing in this Legal Guide) each of these Judicial Circuits is perfectly free to determine what bond it will require to be posted for given offenses in their respective jurisdictions.
Each Judicial Circuit has a "standard bond schedule", meaning that a specific dollar amount is pre-established for each and every offense, and upon booking that standard amount is automatically applied.
What this means is that the same offense could have very different bond amounts from place to place. For instance, a simple DUI with no accident may have a $100.00 bond in County X but the same DUI could have a $1,000.00 bond in County Y; or a Strong Armed Robbery could have a $500.00 bond in County A but the same SAR could have a $5,000.00 bond in County B.
So, if you're booked into the jail, are entitled to bond and your bond is posted before you go to your Initial Appearance then that's that (i.e. you'll be released on standard bond as soon as you are processed). However, if you fail to post bail prior to the Initial Appearance then you will be taken before the Judicial Officer, your case and circumstances will be reviewed and, assuming your eligibility, the Judge will either impose the standard bond or tailor some other condition of pretrial release which satisfies the court that the community will be safe and that you will appear in court as required.
If I'm entitled to Bond MUST the Judge give me the Standard Amount?No. If you're booked into a jail and if you're entitled to bond and if your bond is posted before you go to your Initial Appearance then that's that... you'll be released on standard bond as soon as you are processed. However, if you fail to post bail prior to the Initial Appearance then you will be taken before the Judicial Officer, your case and circumstances will be reviewed and, assuming your eligibility, the Judge will either impose the standard bond or tailor some other condition of pretrial release which satisfies the court that the community will be safe and that you will appear in court as required.
What does this mean? It means that the Judge can impose the standard bond, can increase it to a higher bond, can lower it to a reduced bond or can structure conditions of release that do not involve money / finances at all (i.e. an ROR - release on [personal] recognizance - or a release to "pretrial services"... more on that below) .
What will the Judge consider when determining my bond amount?Per both FL Rule of Criminal Procedure 3.131(b)(3) and F.S. 903.046(2) when setting bail a Court MUST consider the following factors: (a) The nature and circumstances of the offense charged; (b) The weight of the evidence against the defendant; (c) The defendant*s family ties, length of residence in the community, employment history, financial resources, and mental condition; (d) The defendant's past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings. Notwithstanding anything in this section, the court has discretion in determining conditions of release if the defendant proves circumstances beyond his or her control for the failure to appear; (e) The nature and probability of danger which the defendant*s release poses to the community; (f) The source of funds used to post bail or procure an appearance bond, particularly whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden of establishing the noninvolvement in or nonderivation from criminal or other illicit activity of such proffered funds, real property, property, or any proposed collateral or bond premium falls upon the defendant or other person proffering them to obtain the defendant*s release; (g) Whether the defendant is already on release pending resolution of another criminal proceeding or on probation, parole, or other release pending completion of a sentence; (h) The street value of any drug or controlled substance connected to or involved in the criminal charge. It is the finding and intent of the Legislature that crimes involving drugs and other controlled substances are of serious social concern, that the flight of defendants to avoid prosecution is of similar serious social concern, and that frequently such defendants are able to post monetary bail using the proceeds of their unlawful enterprises to defeat the social utility of pretrial bail. Therefore, the courts should carefully consider the utility and necessity of substantial bail in relation to the street value of the drugs or controlled substances involved; (i) The nature and probability of intimidation and danger to victims; (j) Whether there is probable cause to believe that the defendant committed a new crime while on pretrial release; and (k) Any other facts that the court considers relevant.
What does bond cost?It depends on what kind of bond we are discussing (remember, with bail the full amount is posted by a citizen... with bond you are using an intermediary to post your bond, a "Resident Limited Surety" who is properly licensed by the FL Division of Insurance and Insurance Agency Services, which falls under the FL Department of Financial Services as a "Bail Bond Agent", and this person is entitled to a fee for the service that they provide). For bond in FL State Court you have to pay a flat 10% fee (10% of the total bond amount) to the surety, for a FL State Court Post Conviction Bond you have to pay a flat 10% fee (10% of the total bond amount) and for a FL State Court Appeal Bond you have to pay a flat 10% fee (10% of the total bond amount).
Are there alternatives to posting Bond / Bail?Yes. Much to the chagrin of most every FL surety there are alternatives to bail / bond in FL, and in fact, per FL Rule of Criminal Procedure 3.131(b), "there is a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release."
This Rule actually requires that "[t]he judicial officer shall impose the first of the following conditions of release that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; or, if no single condition gives that assurance, shall impose any combination of the following conditions: (A) personal recognizance of the defendant; (B) execution of an unsecured appearance bond in an amount specified by the judge; (C) placement of restrictions on the travel, association, or place of abode of the defendant during the period of release; (D) placement of the defendant in the custody of a designated person or organization agreeing to supervise the defendant; (E) execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that any criminal defendant who is required to meet monetary bail or bail with any monetary component may satisfy the bail by providing an appearance bond; or (F) any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours."
What this means is that so long as a determination is made that society is safe and that you will appear in court when required, then a Judge has options other than monetary bail. For instance you could be ROR'd (released you on your own recognizance) or you could be placed on house arrest(with or without having to wear a GPS monitor) or you could be released to "pretrial services" (an agency that's tasked with supervising people who are pretrial released from jail without bond)
What is PreTrial Services?F.S. 907.041 (entitled "Pretrial detention and release") confirms the Legislative policy in FL that there is "create[d] a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release unless such person is charged with a dangerous crime."
This means that unless you are charged with a "dangerous crime" (these are specifically listed in F.S. 907.041(4)) then there is "a presumption in favor of [your] release on nonmonetary conditions" (i.e. an ROR - or "Release On Your Own Recognizance", a Promise / Notice to Appear (PTA/ NTA) or release to the care of a "pretrial release program"). Most Judicial Districts / Counties in Florida have their own individual Pretrial Release / Pretrial Services programs.
For instance, Miami-Dade County has a local Pretrial Services (PTS) agency that releases persons, free of charge before their trial, in exchange for a promise to appear in court and rudimentary periodic check-in conditions (either in person or over the phone).
Per F.S. 907.041(3)(b) you can't be released on nonmonetary conditions under the supervision of a pretrial release service unless the service certifies to the court that it has first investigated or otherwise verified the following information: The circumstances of the accused's family, employment, financial resources, character, mental condition, and length of residence in the community; The accused's record of convictions, of appearances at court proceedings, of flight to avoid prosecution, or of failure to appear at court proceedings; and Other facts are necessary to assist the court in its determination of the indigence of the accused and whether she or he should be released under the supervision of the service.
What happens if I am denied Bond?In FL, unless you are being held on a non-bondable offense, are subject to a detainer / hold, are on probation or parole or were already on some form of pretrial release when you were taken into custody then there is a presumption that you are entitled to some form of pretrial release; but, if after your Initial Appearance you are held without bond (for any reason), then you still have options.
No matter what bond is set (including no bond), per FL Rule of Criminal Procedure 3.131(d)(2) all you need is 3 hours notice to the State to apply for bail to be set or modified (of course what's good for the goose is also good for the gander, meaning that upon 3 hours notice the State can ask for a bond review in your case too, and they can ask the court to revoke, rescind or to upward modify your conditions of pre-trial release). Regardless of who is asking for a "Subsequent Application for Setting or Modification of Bail" the burden is on the moving party to show "good cause" for their request.
That said, if you are being held on a detainer or for a VOP or if a preexisting bond was violated then you're gonna have to apply directly to the source for relief. For instance, if you get arrested for DUI but you have an ICE hold then even if you get a bond on the DUI you would need a waiver or a bond from ICE to be released. Similarly, if you get arrested for DUI but you were on probation or parole at the time then even if you get a bond on the DUI you would need to apply to your probation Judge or the Parole Board for a waiver or a bond in order to be released.
In the same vein, if you get arrested for DUI but you were also on bond for an unrelated case then even if you get a bond on the DUI you would need a waiver or a bond from the Judge presiding over the preexisting case to be released. And if you are being held on a non-bondable offense then you'll need to apply and wait for an "Arthur Hearing" to address your bond status (more on that to later).
The bottom line is that after your initial appearance all issues relative to release need to be properly noticed and addressed by whomever has jurisdiction over the matter at issue.
What if my bond is set too high for me to post?Bond is supposed to be set in an amount that is commensurate with both protecting the community and guaranteeing your future appearance.
As I mentioned earlier most charges will have a standard bond (meaning that the same amount is applied across the board to anyone and everyone who is booked under the same charge) but still, while you may be entitled to bond you are not necessarily entitled to one that you can afford to post.
So, if your bond is set too high then you must avail yourself of FL Rule of Criminal Procedure 3.131(d) and move to modify it to something that you can afford or to a non-monetary form of pretrial release. Just remember that if you seek to modify your bond then the burden is on you to show good cause for the court to do so.
How does my can Bail / Bond get posted?In FL State Court proceedings there are 2 ways this can happen: 1) Bail (the full amount of the bond) can be posted with either the Jail or the Clerk of Court (depending upon your jurisdiction's protocol) by anyone; or 2) Bond can be posted by a bondsman / surety.
In the case of bail it's simple: Person X walks up to either the bond window at the jail or the Clerk of Court, advises who's bail they wish to post, presents the dough (either cash, credit card or check... again different jurisdictions will have different rules regarding what form of tender they will accept) and then they're issued a bail receipt. The money is held by the Clerk until the case is either closed or the bond violated - whichever comes first - but note that there's a catch here (more on the catch discussed below, see: "If I post an all cash bail will I get it back?" - # 19 - below).
In the case of bond someone needs to contact a licensed surety, fill out a boat load of paperwork, pay a 10% premium (the bondsman*s fee) to the surety and the person may or may not be required to collateralize the full amount of the bond before the surety will post the documents. The keys here are that 1) In the event that bad things happen (i.e. the subject "skips", gets arrested, otherwise violates the conditions of bond and it is estreated) then whomever filled out the paperwork is responsible to the surety for the full amount of the bond; 2) The 10% premium is the bondman's non-refundable fee (so whomever fills out the paperwork will pay a $100.00 fee on a $1,000.00 bond or a $1,000.00 fee on a $10,000.00 bond, etc) and 3) absent a Court Order to the contrary it is up to the individual surety as to whether they wish to collateralize the bond or not, but if so then whomever fills out the paperwork will be on the hook for the full amount of the bond.
What are the documents that require signatures when posting a bond.?Bond is a three party contract (between the surety, the court and the arrestee) and a boat load of paper is required to properly prepare and post bond. Among these documents are: A) An application by the Arrestee and the Indemnitor(s), B) An Indemnity Agreement, C) A Contingent Promissory Note, D) A Mortgage Agreement, E) A Privacy Disclosure, F) A Bail Bond Information Sheet; G) A Collateral Receipt and H) A Bond Premium Receipt.
Why does Bond have to be "Collateralized"?When you post bail you are coughing up (and risking) the full amount of the bond in real dollars. When a surety posts bond they do not have to post the full amount as you do, but they are entering into a contract with the court guaranteeing the full amount in the event that bad things happen (i.e. the subject "skips", gets arrested, otherwise violates the conditions of bond and it is estreated), and the surety is therefore on the hook for the full amount of the bond.
Unlike a family member who posts bail, most often times sureties do not know or have reason to trust the arrestee, and so they will engage in self-protection by "collateralizing" the full amount of the bond. This can be done in any of a number of ways, for instance a surety can receive and hold property with sufficient value to cover the bond (be it jewelry, art, firearms, whatever) or a lien can be taken against real property or a credit card can be swiped... the possibilities for collateralization are only limited by the creativity and willingness of the surety.
That said the surety is free NOT to collateralize the bond, and many times they don't require collateral (in my experience this happens with repeat clients, with folks who a trusted person - be it a civilian or a lawyer - vouches for and also in the case of minor cases with small bonds, where the surety is not concerned about the probability of "bad things happening"), but in the end, unless there is a NEBBIA condition then the decision to collateralize is entirely up to the surety.
Should I post bail or guarantee bond for someone else?This is as personal decision as you'll ever be tasked to make.
Posting bail / guaranteeing bond puts your money on the hook for someone else.
Unless you are around / atop of that person 24/7/365 then you cannot guarantee what they will or will not do, where they will or will not go, who they will or will not associate with and what decisions that they will make in a given moment of time. What remains constant is that when you post bail it's your money on the line.
So the questions that you need to ask before posting bail or guaranteeing a bond are: "Do I trust this person A) not to make any bad decisions that could jeopardize your assets and B) to appear in court as required?"... and only you can answer those questions.
If I post an all cash bail will I get it back?If you post an all cash bail for yourself or another then, theoretically, once the case is successfully closed the bail should be returned to the person who posted it (usually by check and usually several weeks after the fact), and this process may or may not be sped up by appearing at the jail or clerk's window and presenting the original bail receipt (although I have never seen a check cut in the moment... only mailed out well after the fact).
But then there's pesky F.S. 903.286 (entitled: "Return of cash bond; requirement to withhold unpaid fines, fees, court costs; cash bond forms") that makes a provision for the Court to get it's money relative to the case from any cash bail that was posted.
This statute requires "the clerk of the court shall withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent licensed pursuant to chapter 648 sufficient funds to pay any unpaid costs of prosecution, costs of representation as provided by ss. 27.52 and 938.29, court fees, court costs, and criminal penalties."
What this means is that if any monies are owed to the Court (not restitution or probation monies but dollars due to the Court) then after the case is closed outstanding and assessed court costs, PD fees and ASA surcharges will be taken from the cash bond.
So, if you post a $1,000.00 cash bond for me in my DUI case and I wind up getting a breakdown to wet reckless but have to pay $350.00 in court costs and a $50.00 PD fee from my initial appearance then some time down the pike you are only getting a $600.00 refund from the Clerk.
What is an Arthur Hearing?Referring back to "Do I have a right to Bond / Bail in FL?" above, Pursuant to Article I, Section 14 of the Florida Constitution (entitled "Pretrial release and detention"): "Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained." (This is also codified in FL Rule of Criminal Procedure 3.131(a)).
An "Arthur Hearing" is a special bond hearing for a someone who's being held on an otherwise non-bondable offense (i.e. someone who was charged with a capital offense or an offense punishable by life imprisonment), and the purpose of an Arthur Hearing is for a Judge to determine whether such a person should be released on bail pending trial.
Arthur Hearings are kind of like a mini-trials, except that the issue is bond (not guilt), hearsay is admissible, the State can present affidavits instead of live witnesses (of course the defense can subpoena anyone with relevant testimony) and instead of a jury it is the Judge who is the sole decision maker.
In order to get a bond after an Arthur Hearing the Court needs to be persuaded that "the proof of [your] guilt is [not] evident or [that] the presumption [of your guilt] is [not] great" (i.e. that there's insignificant evidence to prove your guilt) and that you are neither an immediate danger to the community nor a risk of flight.
Because the State must demonstrate that in your case "the proof of guilt is evident or the presumption is great", some of the collateral (side) benefits of conducting an Arthur Hearing are that - win, lose or draw - you get to preview the State's case and you get to secure sworn testimony from key witnesses, both of which can be invaluable tools as you prepare to defend what are, by nature, the most serious of charges.
In conducting an Arthur Hearing your defense lawyer should aggressively challenge State witnesses and evidence and perhaps present evidence that is favorable to the defense, but even if "the proof of guilt is evident or the presumption is great" then your attorney should appeal to the Court's equitable and discretionary power to grant some form of pretrial release (bond, house arrest, GPS monitoring... whatever) by presenting character witnesses (family, friends, employers, religious or community figures, etc) who can convince the court that you do not present an immediate danger to the community or a risk of flight.
What is NEBBIA?"*NEBBIA" is a condition of bond (usually employed in drug and fraud / theft cases) that permits the State and the Court to be satisfied that the source of the funds used for bail / bond are in fact legitimate monies from a proper source. (For you history buffs the moniker stems from a 1966 federal court case called United States v. Nebbia (357 F2d. 303) and as a matter of State law it's codified in F.S. 903.046(2)(f)).
If NEBBIA is ordered then to satisfy it (i.e. to prove that the source of the funds used for bail / bond are in fact legitimate monies from a proper source), at a minimum the following documents will be required: A) The most recent three (3) months bank statements for the account that the bond premium will be provided from, B) A printout of any/all activity in the account since the ending date of the last bank statement for the account the bond premium will be provided from, C) The last filed tax return belonging to the individual providing the bond premium, D) A copy of the Warranty Deed of the property being used to secure the bond, E) A copy of the HUD Statement at time of purchase of property being used to secure the bond and F) A copy of any check(s) provided as deposit or at closing for purchase of property being used to secure the bond.
These (and possibly other) materials are gathered, fact checked, compiled into a "NEBBIA package" and are presented to the government for it's approval and then to the Court, either with a stipulation or with a request for a hearing.
NEBBIA packages can be prepared by attorneys but they are generally pieced together by skilled and experienced Sureties.
Only after the Court has determined that NEBBIA has been satisfied (i.e. that the source of the funds used for bail / bond are in fact legitimate monies from a proper source) can bond be posted. If for any reason under the sun your prosecutor won't agree then your defense lawyer needs to set the matter for hearing asap, and at that hearing your lawyer needs to convince the Judge that the proposed bond financing is 100% legit.
Can I get bond on a VOP?You can, but you probably won't, at least not up front.
Violations of probation (VOPs) start by your PO swearing out an affidavit claiming that you either failed to do something that you were required to do or that you did something that you were not supposed to do while on probation.
When the Judge reviews the affidavit a determination is made as to whether or not a probation warrant will be issued and if so whether or not a predetermined bond amount will be permitted. The decision to attach bond or not on a VOP warrant is 100% discretionary with the Judge and, 999 of 1,000 times the answer will be a "no bond" hold.
Since 99% of probation warrants have no provision for bond if you are served with a VOP warrant then you'll be booked into the jail, sent to your Initial Appearance and held over until you are brought before the Judge who issued the warrant (note that if you happen to get taken into custody in another County or State then you will have to sit and wait to be extradited back to the issuing Court, and that could take weeks); but your lawyer can apply to your Judge for bond on a VOP warrant at any time. Just remember that unlike the situation with a new substantive arrest you have no right (not constitutional, statutory or by rule) to bond on a VOP
What are the conditions of Bail / Bond in FL?Florida Statute 903.047 lays out the "standard conditions" of pretrial release and these apply equally and across the board to anyone who is released from custody pending further court
In a nutshell the standard conditions are simple: A) Refrain from criminal activity of any kind, B) If a "no contact" order is issued then refrain from any contact of any type with the subject of the "no contact" order (usually the alleged victim) and C) Comply with all conditions of pretrial release.
However, Judge's enjoy great discretion in setting bond and are free to impose pretty much any condition which serves to reasonably protect society and ensure the Defendant's presence in Court (for instance, a curfew, GPS monitoring, a SCRAM bracelet, a "no drink" or a "no drive" order, etc.).
So long as the condition is reasonable and doesn't violate the 8th Amendment (i.e. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.") to the U.S. Constitution then it is lawful.
What happens if I don't honor the conditions of my Bond?If you violate any of your bond conditions (in a big or a small way) then you're subject to (in order of least to most punitive) either modification, revocation or estreature of your bail / bond / pretrial release.
Bond modification changes the conditions of your bond. So, for instance, if you violated your bond by blowing a curfew then your bond may be amended to include GPS monitoring or to house arrest.
Bond revocation means that your bond is rescinded and that you are remanded into custody. In this event the bond is discharged (not estreated, as discussed below) and whomever posted it (whether bail by a private citizen or bond by a surety) will be off the hook (i.e. a private citizen will get her/his money back and a surety will be discharged from further liability).
Estreature - the most extreme sanction - means forfeiture. An estreature is an order from the judge directing the forfeiture of the cash or the cash amount of the bail bond. When a Court estreats a bond it's enforcing the forfeiture of a posted bond (in other words, the Court has determined that the subject of the bond materially breached his contract with the court and, as a consequence, the Court is seeking to make the funds it's own and either the person who posted bail or the surety who posted bond is "*SOL"). I'm not going to detail the specifics of bond estreature / forfeiture protocol here (this Legal Guide is already massive and I'm not done yet) but of you are interested then everything that you want / need to know can be found at F.S. 903.26 (entitled "Forfeiture of the bond; when and how directed; discharge; how and when made; effect of payment").
Can my bond be surrendered?Yes, and there are 2 ways that this can happen: 1) The State Attorney can move to revoke / surrender your bond. This usually happens if you are accused of committing a new crime while out on an existing bond. In order for your prior bond to be revoked / surrendered an evidentiary hearing must occur and the Judge must issue an Order. 2) If a surety believes that one of his client's has become a flight risk or if conditions of the bail bond agreement have not been met (like payment of a premium, a failure of collateral, a lapse in contact, etc) then the surety can "go off bond" or "surrender" the bond in question. When this happens the surety literally picks up the subject (a pseudo-arrest) and delivers the person to the local jail. See: F.S. 903.20 (entitled "Surrender of defendant"): "The defendant may surrender himself or herself or a surety may surrender the defendant any time before a breach of the bond."
Can a Bondsman arrest me?Yes. Your surety can apprehend and arrest you in FL if you either A) fail to appear in court and the judge has forfeited / estreated your bond or, per F.S. 903.22 (entitled "Arrest of principal by surety before forfeiture"), B) "A surety may arrest the defendant before a forfeiture of the bond for the purpose of surrendering the defendant or the surety may authorize a peace officer to make the arrest by endorsing the authorization on a certified copy of the bond." Also, per F.S. 903.29 (entitled "Arrest of principal by surety after forfeiture"): "Within 2 years from the date of forfeiture of a bond, the surety may arrest the principal for the purpose of surrendering the principal to the official in whose custody she or he was at the time bail was taken or in whose custody the principal would have been placed had she or he been committed."
Can I travel while on Bond?It depends. If you are restricted (geographically or practically) by the conditions of your bond then your travel is determined by those restrictions (for instance, if you are on house arrest then a lack of travel is implicit or if you are restricted to a specific geographic area like the jurisdiction of the Court), but absent specified restrictions you are free to travel. Still, if you have a need to travel then the best practice is to address the matter with both your surety and the court and to secure express permission beforehand.
Consider these three common examples: 1) You live beyond the Court's jurisdiction (either out of County or State): In such an event it would be ludicrous to expect you to remain local for weeks, months, perhaps years while out on bond. 2) You are a traveling salesperson or your job requires frequent out of State travel: This is something that you are going to want to have clearly understood and agreed to right up front. 3) You want to leave the Country while on bond (for pleasure or business, on a plane or a ship... it matters not): If you're smart then you'll expect that ICE will both see your pending charges and give you a hard time, and having a handy physical Court Order that specifically permits your travel will alleviate any problem at the border.
The bottom line is to assume nothing... except that you must seek permission to travel beyond the jurisdiction of the Court while out on bond.
How does House Arrest work?House arrest is one of those non-monetary and more restrictive form of pretrial release that locks you down in your home as opposed to detaining you in a jail cell while you are await resolution of your criminal case. With house arrest you can be on total lock down or you may be permitted to leave at certain times on certain days and for certain purposes.
Although the terms and conditions will vary from case to case and person to person, as a general rule while on house arrest you're essentially confined to your home unless you are working, attending school, participating in treatment, going to court or doing some other activity which has been approved in advance by the Court. You're not allowed to leave your home to visit family or friends, to go out to dinner or to the movies, to go on vacation, or to engage in most of the other activities you are used to being able to do as a free person.
While on house arrest you need to think of your house as your private jail cell and, believe it or not, it's not easy to confine yourself to your home, and to be there at all times that you are supposed to be there with no margin of error, and a large percentage of those who try fail. But, if you can make it, then you can continue to work to support yourself and your family, or attend school, sleep in your own bed, order in or cook whatever food you like, watch TV, play video games, be around people that you want to spend time with and enjoy voluntary intimate relations with partners of your own choosing while you await resolution of your case.
The downside is that there's almost always a "zero tolerance policy" for slip-ups while on house
arrest, meaning that if you violate then the next stop is almost always jail
Is Bond / Bail different in FL State Court than in Federal Court?Yes. For bond in FL State Court you have to pay a flat 10% fee (10% of the total bond amount) to the surety, for a FL State Court Post Conviction Bond you have to pay a flat 10% fee (10% of the total bond amount) and for a FL State Court Appeal Bond you have to pay a flat 10% fee (10% of the total bond amount).
The federal court system uses 3 different types of bonds: 1) A "Signature Bond" is an unsecured bond that basically boils down to nothing more than a promise to appear with a built in penalty of owing the amount of the bond should you fail to appear: 2) A "10% Bond" is a where an amount of bail is set by the Court and the Defendant is permitted to have someone post 10% of that amount in cash with the Clerk of Court; and C) A "Corporate Surety Bond" requires a surety to financially guarantee by way of an insurance policy written by a bail bond agency that the Defendant will appear in court, and CSB*s require that a 15% premium be paid to the corporate surety.
Wrapping it all up...This has been one heck of a journey. I hope that I've addressed and been able to answer any and all questions that you may have had about pretrial release / bail / bond, but if not then you are free to reach out and ask me anything that you'd like. Thanks for taking a look, I hope that I've managed to be helpful to you and I wish you and yours the best of luck and success. Fondly, ==> MAH/Esq / #HaberPA