The right to bail pending trial is guaranteed to all persons by Article I, Section 15 of the S.C. Constitution in all instances except in capital cases or offenses punishable by life imprisonment. The Constitution further provides that excessive bail cannot be charged. A magistrate or municipal judge cannot, therefore, set bail at a figure higher than an amount reasonably calculated to insure the presence of the accused at trial. See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed.3 (1961).
1. Authority of Magistrates and Municipal Judges to Set Bail
S.C. Code Ann. §22-5-510(A) provides that, " [m]agistrates may admit to bail a person charged with an offense, the punishment of which is not death or imprisonment for life; provided, however, with respect to violent offenses as defined by the General Assembly. . ., magistrates may deny bail giving due weight to the evidence and to the nature and circumstances of the event. 'Violent offenses' as used in this section means the offenses contained in §16-1-60. If a person under lawful arrest on a charge not bailable is brought before a magistrate, the magistrate shall commit the person to jail. If the offense charged is bailable, the magistrate shall take recognizance with sufficient surety, if it is offered, in default whereof the person must be incarcerated." § 22-5-510(B) provides that "[a] person charged with a bailable offense must have a bond hearing within twenty-four hours of his arrest and must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the incarcerating facility." § 22-5-510 does not apply to persons arrested on a bench warrant or arrested for a parole violation. The judge who issues the bench warrant should be the one to release the prisoner and only a circuit judge can grant bond for a person arrested for a parole violation. (§24-21-680).
The only exception to the law that summary court judges cannot set bail on charges that carry life imprisonment is for charges of burglary in the first degree. Pursuant to §17-15-10(B), any person charged with burglary in the first degree may have his bond hearing for that charge in summary court unless the solicitor objects. We recommend that you contact your local solicitor's office to determine how they wish to proceed with these types of cases.
§17-15-55 provides an exception in the law prohibiting a summary court judge's ability to set bond on charges that do not carry life imprisonment or death. Effective April 7, 2014, §17-15-55(C) provides that a person who commits a violent crime, as defined in §16-1-60, which was committed when the person was already out on bond for a previous violent crime and the subsequent violent crime did not arise out of the same series of events as the previous violent crime, then the bond hearing for the subsequent violent crime must be held by a circuit court within thirty (30) days of the defendant's arrest. Immediately after arrest of a defendant for such a charge, §17-15-55(D) requires that the arresting law enforcement agency must transmit notice of the second arrest, implicating §17-15-55(C), to the solicitor of the circuit in which the crime was committed and the administrative chief judge of the circuit in which the crime was committed. The prosecuting agency must notify any victims of the initial or subsequent crimes pursuant to Chapter 3, Title 16 of any bond hearings to be held in circuit court.
Municipal judges have the same authority to set bail by virtue of §14-25-45. The magistrates and municipal judges are the judicial officers who normally and most frequently set bail in South Carolina. Jailors, law enforcement officers, and solicitors have no authority to set bail. There are certain limited exceptions to this rule. For example, in traffic cases a highway patrolman may accept a sum of money as bail in lieu of immediately taking the defendant before a judicial officer. (§56-25-30). In cases of litter control, any officer authorized to enforce such law may accept a cash bond in lieu of requiring an immediate court appearance. (§16-11-710). In cases of fish and game law violations, a game warden may accept a sum of money as bail in lieu of immediately taking the defendant before a judicial officer. (§50-3-410).
Usually, the admitting magistrate or municipal judge is the judge in whose territorial jurisdiction, the crime has been committed. However, if the arrest is made in a county other than that in which the offense is charged, the magistrate or municipal judge at the place of arrest may set bail. See State v. Rabens, 79 S.C. 542, 60 S.E. 442 (1908). Once bail is set by a magistrate or municipal judge, absent "compelling circumstances", no other magistrate or municipal judge is authorized to amend the original order setting bail. (Op. Atty. Gen. No. 80-39, 1980). The judge who originally set the amount of bail, when presented with new information, might reconsider the bail which he had set earlier, provided the case has not been transferred to general sessions court. It would be inappropriate for a magistrate or municipal judge to hear the facts and change the bond set by another magistrate or municipal judge, unless there are compelling circumstances which prevent the first judge from hearing the motion.
By Order of the Chief Justice dated September 19, 2007 (See Orders Section), bond proceedings must be conducted twice daily, once in the morning and once in the evening, at specific times as arranged by the Chief Magistrate in each county. Any deviation from this requirement must be approved in writing by the Chief Justice. If, under extraordinary circumstances, the on-call magistrate is requested to conduct a bond hearing at a time other than specified, hearings shall be held for the entire jail population eligible for release. The on-call magistrate shall immediately inform the Chief Magistrate that a special bond proceeding was conducted. Preferential bond hearings are strictly prohibited and are considered a violation of the Rules of Judicial Conduct, Rule 502, SCACR. The Order also clarifies that bond hearings shall not be conducted over the telephone and Orders of release shall not be transmitted by facsimile from remote locations. The only exception to those requirements is in counties where videoconferencing of bond hearings is approved by Order of the Supreme Court dated August 6, 2003 (See Orders Section).
Any individual initially incarcerated without having been formally charged with the violation of a crime, who remains incarcerated for a maximum of twenty-four hours of delivery by law enforcement to the detention facility without having been formally charged with a crime, shall be discharged from the detention facility by the magistrate or municipal judge conducting bond hearings. However, if law enforcement or a prosecutorial agency presents compelling written evidence to the bonding magistrate or municipal judge as to why an individual should not be released within twenty-four hours pursuant to this provision of this Order, the bonding magistrate or municipal judge, after considering the evidence, may delay discharge of the defendant for an additional period not to exceed twenty-four hours. Any written evidence presented and accepted by the bonding judge as compelling evidence to delay the release of an uncharged individual must be immediately forwarded to the Chief Magistrate of that county. The Chief Magistrate in each county is responsible for coordinating with the necessary local officials, which includes, but may not be limited to, the custodian of the detention facility, local law enforcement, and any affected prosecutorial agencies, to ensure that the procedures for the required and proper accounting, notification, and release of individuals, pursuant to the Order of the Supreme Court dated September 19, 2007, are followed, regardless of whether the initial detention was initiated by municipal or county law enforcement.
2. Victims' Rights at Bond Proceedings
A matter with which magistrates and municipal judges must be concerned is the rights of victims. In recent years, the General Assembly has enacted laws to protect the rights of victims. § 16-3-1525(H)(2) concerns bond hearings in which bond is set by a summary court judge. Under this subsection, "the summary court judge, before proceeding with a bond hearing in a case involving a victim, must ask the representative of the facility having custody of the defendant to verify that a REASONABLE attempt was made to notify the victim sufficiently in advance to attend the proceeding." § 16-3-1525(N) requires that notification may not be only by electronic or other automated communication or recording. After three such unsuccessful attempts, personal contact with the victim should be attempted. If notice was not given in a timely manner, the hearing must be delayed for a reasonable time to allow notice.
Subsection (3) of § 16-3-1525(H) requires the summary court judge to "impose bond conditions which are sufficient to protect a victim from harassment or intimidation by the defendant or persons acting on the defendant's behalf." A victim of a crime has rights which must be recognized and protected by the magistrate or municipal judge. These rights are demanded by society and mandated by the law. § 16-3-1505 through § 16-3-1565 of the South Carolina Code of Laws contains the law concerning victims' rights. For a detailed outline of victims and witnesses' rights as pertaining to summary court judges, see Section D. entitled Victims' Rights in the Introduction to Criminal Law.
3. Conduct of Bail Proceedings
The bail proceeding is frequently the first contact between the accused and a judicial officer, with respect to the particular offense(s). For this reason, the bond proceeding is a very important phase of the criminal process, though it has never been held to be a stage at which the accused has the right to be represented by counsel. The accused may have his attorney present, but he has no absolute right to be represented.
At the time of the bail proceeding, the accused should be given certain information and be informed of certain rights. The judge should explain the nature of the charge(s) against the accused, being certain that he fully understands the charges, and the possible penalties involved. The accused should be informed that he has the right to remain silent, and that anything he says can be used against him in a court of law. He has the right to talk to a lawyer, and have a lawyer present at any time during interrogation or questioning by law enforcement officers. He should be informed that if he would like to be represented by a lawyer, but cannot afford one, a lawyer will be appointed to represent him. He need not talk to any law enforcement officers after he says that he would like to have a lawyer present, or that he does not wish to say any more.
Pursuant to South Carolina Rules of Criminal Procedure Rule 2, when a magistrate or municipal judge conducts a bail proceeding for an accused who is to be tried in general sessions court, that judge must inform the accused of his right to request a preliminary hearing. The notice must be provided both orally and in writing. The judge must also provide the accused with a simple form for requesting a preliminary hearing, which the accused need only sign and return to the judge. See Section F in the CRIMINAL Section for a detailed discussion of notification at bond hearing of defendant's right to preliminary hearing. Other rights of the defendant are set out in the CRIMINAL Section, Subsection G.
The judge should notify the defendant that he has a right to be present at his trial, and that the trial will proceed in his absence should he fail to attend the court. (Rule 16, South Carolina Rules of Criminal Procedure). The defendant acknowledges in writing that he has received such notice when he signs the bond form. If he fails to so acknowledge receipt of the notice, the judge should file a statement, in writing, that he has so notified the defendant of these rights.
4. Factors to Consider and Forms of Release
§ 17-15-10 et seq. requires that certain findings and inquiries be made.
§ 17-15-30(A) provides that in determining which conditions of release to impose, the magistrate or municipal judge may take into account the nature and circumstances of the offense charged, family ties of the accused, employment, financial resources, character, mental condition, the length of his residence in the community, his record of convictions, and any record of flight to avoid prosecution or failure to appear at other court proceedings.
§ 17-15-30(B) requires that a court consider, if available, the accused's criminal record, any charges pending against an accused at the time release is requested, all incident reports generated as a result of an offense charged, whether an accused is an alien unlawfully present in the United States, and poses a substantial flight risk due to his status, and whether the charged person appears in the state gang database maintained by SLED. According to SLED, only law enforcement has access to the gang database. Therefore, the investigating officer would have to present this information to the court at the bond hearing.
§ 17-15-30(C)(1) provides that prior to or at the time of the hearing, the arresting law enforcement agency shall provide the court with the following information if available: the accused's criminal record, any charges pending against the accused at the time release is requested, all incident reports generated as a result of the offense charged, and any other information that will assist the court in determining conditions of release.
§ 17-15-30(C)(2) provides that the arresting law enforcement agency shall inform the court if any of the information is not available at the time of the hearing and the reason the information is not available. Failure on the part of the law enforcement agency to provide the court with the information does not constitute grounds for the postponement or delay of the hearing.
§ 17-15-30(D) provides that a court hearing these matters has contempt powers to enforce these provisions.
When considering the release of a person on bond who is charged with a violent offense as defined in § 16-1-60, and the victim of the offense is a household member as defined in § 16-25-10, and the person: (1) is subject to the terms of a valid Order of Protection or Restraining Order of this State or another state; or (2) has a previous conviction involving the violation of a valid Order of Protection or Restraining Order of this State or another state, § 16-25-120 states that the court may consider the following factors for release of that person on bond: (1) whether the person has a history of domestic violence or a history of other violent offenses; (2) the mental health of the person; (3) whether the person has a history of violating Orders of a court or other governmental agency; and (4) whether the person poses a potential threat to another person. Additionally, when considering release of a person on bond under this section, the court must consider whether to issue a Restraining Order or Order of Protection against the person, using the criteria described above. If the court determines that such an Order is appropriate, it should issue the Order or forward the matter to the appropriate court.
In the cases of bonding individuals charged with harassment or stalking, a magistrate or municipal judge may order a defendant to undergo a mental health evaluation, performed by the mental health department, to determine if the defendant needs mental health treatment or counseling as a condition of bond. The evaluation must be scheduled within ten days of the Order of issuance. Upon completion of the evaluation, the examiner must report his findings, within forty-eight hours, to the local solicitor's office or summary court judge, for consideration by the bonding judge.
Under § 17-15-10, any person charged with a non-capital crime must be released pending trial on his own recognizance without surety, unless the judge determines that such release (1) would not reasonably assure the appearance of the accused at trial, or (2) would result in an unreasonable danger to the community or an individual. "Release on his own recognizance" means that the accused does not have to have sureties, but must be released if he signs an unsecured bond in the amount specified by the magistrate. The accused does not have to be actually worth the amount which the judge sets in cash or property, nor does he have to get a surety who is worth that amount in order to obtain his release. The amount set in the recognizance is simply an acknowledgment of an indebtedness to the state in the amount specified, which becomes absolute if the accused fails to comply with the conditions imposed.
Unless the magistrate or municipal judge can make a determination that the defendant falls within one of the two exceptions: (1) there is reason to believe that the defendant will not appear at his trial, or (2) he would create an unreasonable risk to the community or an individual, no conditions can be imposed on his release except that he should personally appear at subsequent proceedings in the case, should remain on good behavior, and should not depart the state. § 17-15-20.
If the magistrate or municipal judge determines in a noncapital case that the defendant's release on his own recognizance would not reasonably assure his appearance, or would result in unreasonable danger to the community or an individual, the defendant still has a constitutional right to bail, but the judge may impose any one or more of the conditions listed in §17-15-10:
(a) require the execution of a bond with good and sufficient sureties;
(b) place the accused in the custody of a designated person or organization agreeing to supervise him;
(c) place restrictions on the travel, association or place of abode of the accused during the period of release; and
(d) impose any other condition deemed reasonably necessary to assure appearance, including a condition that the person return to custody after specified hours.
If the magistrate or municipal judge finds that an unconditional release would create an unreasonable risk of flight or would create a risk to the community or an individual, and also finds that a secured bond is the best condition suited for the case, the defendant may come up with one of several kinds of security which the judge must accept. The defendant may obtain a commercial security, or he may find friends or relatives who can act as surety for him.
A magistrate or municipal judge may accept a real property interest as security for a bail bond. The defendant may be permitted to deposit cash or negotiable securities, such as a certified check, equal to the amount of the bond. State v. Harrelson, 211 S.C. 11, 43 S.E.2d 593 (1947). "South Carolina does not permit any judge to require that bond be in cash." 1973 S. C. Op. Atty. Gen. 55. In cases of state or municipal motor vehicle violations, §17-15-230 requires that a magistrate or municipal judge accept, in lieu of cash bail or bond, guaranteed arrest bond certificates, in an amount not to exceed $1,500, issued by an automobile club or association. However, these certificates are unacceptable when the offense is driving under the influence of intoxicating liquors or drugs or for a felony.
§14-1-214 authorizes the payment of fines, fees, assessments, court costs, and surcharges by credit card or debit card. This authority would include bond payments. That statute authorizes the imposition of a fee, which may be retained by the County, for processing payment by credit card. The fee should not exceed the amount to wholly offset the cost of processing the credit card payment.
§22-5-530 provides that a person charged with an offense triable in magistrate or municipal court is entitled to deposit with the magistrate or municipal court a sum of money not to exceed the maximum fine in the court for which the person is to be tried. In a jurisdiction in which the governing body has established a system for receipt of deposits in lieu of recognizance, a person held or incarcerated in a jail or detention center who is entitled to deposit a sum of money in lieu of entering into a recognizance under §22-5-530 may secure his immediate release from custody by paying to or depositing the sum of money with the jail or detention facility in which he is being held. The provisions of §22-5-530 do not extend to those individuals charged with crimes involving victims. Those individuals must appear before a judge for a bond hearing. That statute specifically provides that an individualized hearing must be held when the defendant is charged with a violation of Chapter 25, Title 16 as it relates to domestic violence. Additionally, the Chief Justice, by Order dated December 11, 2003 (See ORDERS Section), confirmed that the ability to immediately release persons pursuant to this statute is limited by §16-3-1525(H), which requires that the victim of any crime be notified of the defendant's bond hearing. If notification is not given in a timely manner, the bond hearing must be delayed, for a reasonable time, to allow notice. The December 11, 2003, Order requires that prior approval of the Chief Justice is required to implement a procedure allowing the deposit in lieu of recognizance pursuant to § 22-5-530.
The magistrate or municipal judge, or jailor in the situation cited above, should give a receipt for all cash or items deposited as security and should put them in safekeeping. If the case is beyond the trial jurisdiction of the magistrate or municipal judge, the money should be turned over to the clerk of court. (§17-15-200). If the defendant appears at the trial and otherwise complies with the conditions of the bond, he does not forfeit the bail, and is entitled to a return of the items. (§17-15-220). An attorney cannot be taken as bail. (§38-53-190).
§ 17-15-15(a) provides that:
In lieu of requiring actual posting of bonds as provided in item (a) of § 17-15-10, the court setting bond may permit the defendant to deposit in cash with the clerk of court an amount not to exceed ten percent of the amount of bond set . . .
Therefore, a judge is given an alternative to the requirement of surety, even when he has made the determination that a personal recognizance bond would not be appropriate under the circumstances. The judge has the option of permitting the defendant to deposit cash with the clerk of court, in an amount designated by the judge. The defendant is still obligated in the full amount of bond upon breach of condition. This option is available to the judge in offenses which will be tried in magistrate court, as well as those which will be tried in general sessions court.
5. Procedure for Posting Bail
Unless the magistrate or municipal judge determines that a release on recognizance will not reasonably assure the appearance of the defendant or will result in an unreasonable danger to the community, the defendant must be released on his own recognizance without security. In such cases, the court sets the amount of the recognizance bond, and the defendant "posts bail" by:
(1) signing the appearance recognizance (Bond Form 1) whereby he acknowledges an indebtedness to the state which would become absolute upon his failure to comply with the conditions, and
(2) acknowledging his understanding of the items and conditions of his release.
Where the magistrate or municipal judge determines that the case is within one of the two exceptions, but decides the surety is not needed, and imposes one or more of the conditions listed in §17-15-10(b) through (d), the defendant "posts bail" by signing the proper forms (Bond Form 1), including an acknowledgment of his understanding of the terms and conditions of release.
If the magistrate or municipal judge determines that the case falls within one of the two exceptions, and he thinks that security for the bond is needed, the defendant must be given some reasonable way to raise the bail. If the defendant wants to deposit cash or securities (§17-15-190), the magistrate or municipal judge should give the defendant a receipt and have the defendant sign a bond. If the defendant has a surety for the bond (§17-15-10(a)), the defendant and his surety should sign the bond. If the magistrate or municipal judge has authorized the defendant to deposit an amount in cash of up to ten percent of the amount of bond (§17-15-15), the defendant should still sign a bond acknowledging the conditions of such bond. It would be proper for the magistrate or municipal judge to accept such cash deposit from the defendant, and immediately transmit such money to the clerk of court, to be held pending disposition of the defendant's case. Note, however that cash should not be transmitted to the clerk of court under such circumstances; the money should be deposited in the magistrate's office account, and disbursement made to the clerk of court by check, as soon as possible. (Bond Form 2 includes sections to be used if the security is 1) cash in lieu of bond, 2) cash percentage in lieu of bond or 3) other sufficient surety.
Once the release procedures have been made, the magistrate or municipal judge should see that the defendant is promptly discharged from custody. This can be done by a discharge order to the jailer when he admits the defendant to bail.
§ 17-15-40 provides that the order of the court releasing the defendant pursuant to §17-15-10 shall be " . . . on a form to be prescribed by the Attorney General." The Attorney General has prescribed a Form 1 (dealing with the release of a defendant on his own recognizance) and a Form 2. The magistrates and municipal judges should see that the appropriate forms are completed each time that a defendant is admitted to bail. (See FORMS)
6. Duration of Bail
Release on bail by the magistrate or municipal judge obligates the defendant to appear at the trial, whether the trial is to be in the admitting judge's court or in a higher court. If his case is not determined at the first term after he is admitted to bail, he is obligated to attend further terms of court until there is a final disposition of his case. State v. Johnson, 213 S.C. 241, 49 S.E.2d 6 (1948). If the defendant is released on a surety bond, his surety is indebted to the state in the amount of bond set, should the defendant fail to appear at any hearing or trial date, or should the defendant breach any conditions of his bond. The surety is so obligated until final disposition of the defendant's case, due to the terms of the bond form which the surety signs with the defendant. A final disposition is not actually rendered until an order of discharge is issued by the court at which the defendant is bound to appear. Thus a finding of no bill by the grand jury or a nolle prosequi by the solicitor does not discharge the obligation. (A nolle prosequi is a formal entry on the record by the prosecution that they "will no further prosecute" the case). State v. Williams, 84 S.C. 21, 65 S.E. 982 (1909), Whaley v. Lawton, 57 S.C. 256, 35 S.E. 558 (1900).
Additionally, §17-15-20 provides that any appearance bond is valid for eighteen months in magistrate court. If that time period elapses prior to the final disposition (adjudication, finding of guilty, completion of a diversionary program, completion of deferred disposition, or as otherwise provided by law) of the case, the surety may be released from the bond by providing 60 days written notice with the solicitor or representative of the State (such as city attorney or arresting officer if there is no prosecuting attorney), the clerk of court, chief magistrate, or municipal court judge with jurisdiction over the case. If the appropriate court determines the defendant has substantially complied with his court obligations and the solicitor or representative of the State does not object within the required 60 days by demanding a hearing, the court shall order the appearance bond converted to a personal recognizance bond and relieve the surety of its liability.
7. Bond Estreatment
If the defendant defaults on his bond by failing to appear at trial after proper notice or otherwise violates the terms or conditions of his release, there is a "forfeiture" and the bond may be estreated in circuit court by the solicitor for general sessions offenses. [§17-15-170, State v. Bailey, 248 S.C. 438, 151 S.E.2d 87 (1966)]. Magistrates and municipal judges may estreat bonds, upon default by defendant, on cases within their jurisdiction in an amount of not more than the maximum fine allowable under §22-3-550 and §14-25-45, in addition to assessments. §17-15-170.
§38-53-70 provides a required procedure to be utilized by all courts when a defendant is released on bond and fails to appear at trial. After a defendant fails to appear at trial, the court must issue a bench warrant for the defendant. If a bondsman is obligated on the defendant's bond, the court shall make available for pickup by the surety or the representative of the surety who executed the bond on their behalf, a true copy of the bench warrant within seven days of its issuance at the clerk of court's office. The statute prohibits the court from estreating the bond for a ninety day period after the issuance of the bench warrant. If the bondsman fails to surrender the defendant or place a hold on the defendant's release from incarceration, commitment, or institutionalization within ninety days of the issuance of the bench warrant, the bond shall be forfeited. At any time before execution is issued on a judgment of forfeiture against a defendant or his surety, the court may direct that the judgment be remitted in whole or in part, upon conditions as the court may impose, if it appears that justice requires the remission of part or all of the judgment. In making a determination as to remission of the judgment, the court shall consider the costs to the State or a county or munici8pality resulting from the necessity to continue or terminate the defendant's trial and the efforts of law enforcement officers or agencies to locate the defendant. §17-15-170 requires the court to issue a summons to everyone bound on the forfeited bond, including the bondsman and insurance company in the case of a surety bondsman, to appear and show cause why judgment/estreatment should not be confirmed. Anderson County v. Indiana Lumbermens Mutual Insurance Company, 304 S.C. 363, 404 S.E.2d 718 (S.C. App. 1991). If the parties fail to appear at the show cause hearing, or fail to provide sufficient justification to the court for noncompliance, the judgment on the bond shall be confirmed. §38-53-70 allows the court to "permit the surety to pay the estreatment in installments for a period of up to six months; however, the surety must pay a handling fee to the court in an amount equal to four percent of the value of the bond. If at any time during the period in which installments are to be paid the defendant is surrendered to the appropriate detention facility and the surety complies with the recommitment procedures, the surety is relieved of any further liability."
If any bondsman fails to satisfy a properly estreated bond after receiving the proper notice, immediately notify the clerk of the circuit court in your county or in the county where the bondsman normally operates business. Also, notification must be made to the SC Department of Insurance, who is responsible for oversight of bondsmen, and has the authority to suspend bondsmen for failure to comply with a properly estreated bond.
In State v. McClinton, 369 S.C. 167, 631 S.E.2d 895 (2006) the South Carolina Supreme Court held that the three-year statute of limitations for contract actions applies to actions by the State for the forfeiture of a bail bond in a criminal case. The statute begins to run 30 days after issuance of a bench warrant for a defendant's failure to appear pursuant to the process established in §38-53-70.
8. Surety Relieved From Bond Obligation
§ 38-53-50 provides a procedure whereby a bondsman who is obligated on a defendant's bond may request to be relieved of that obligation or "taken off of the bond" under specific circumstances. § 38-53-50(A) provides that a surety may file a motion with the court with jurisdiction over the defendant requesting to be relieved on the bond obligation for "good cause" or the nonpayment of fees. "Good cause" means the violation of a specific term of the bail bond not to include the nonpayment of fees. § 38-53-10(14). (At the time of the filing of the motion, a fee of twenty dollars must be paid to the clerk of court to be retained by the clerk for use in the operation of the clerk's office. The fee will cover the cost of copies of the motion required by the surety.) A copy of the motion must be served upon the defendant, his attorney, and the solicitor's office. The court shall then schedule a hearing to determine if the surety should be relieved on the bond. All parties should be advised of the hearing date.
§ 38-53-50(B) provides an alternative procedure for the surety to follow if the circumstances warrant immediate incarceration of the defendant to prevent imminent violation of any one of the specific terms of the bail bond, or if the defendant has violated any one of the specific terms of the bond. In those circumstances, the surety may take the defendant to the appropriate detention facility for holding until the court determines whether the surety should be relieved of the bond obligation. The surety must file with the detention facility an un-clocked affidavit stating the facts to support the surrender of the defendant for good cause. Nonpayment of fees alone is not sufficient cause to warrant immediate incarceration of the defendant. The surety, within three business days following recommitment, must file with the court an affidavit, clocked in with the clerk, stating the facts to support the surrender of the defendant for good cause. The surety must provide the detention facility with the clocked copy of the affidavit within those three days. When the affidavit is filed with the court with jurisdiction over the defendant, the surety must also file a motion to be relieved with the court, serving the defendant, his attorney, and the solicitor's office. The surety must also pay a $20.00 filing fee with the motion. The court shall then schedule a hearing, as expeditiously as possible, to determine if the surety should be relieved. All parties should be notified of the hearing date. A surety who surrenders a defendant and files an affidavit which does not show good cause or the nonpayment of fees is subject to the penalty of perjury.
At the hearing in both situations provided above, the court must decide whether to relieve the surety of the obligation or whether the surety should remain on the bond. If the court determines that the surety should be relieved, a new undertaking must be filed with the court in order to secure the re-release of the defendant. The bonding court should use all information at its disposal to determine the appropriate bond for the re-release of the defendant in any conditions deemed appropriate. If the court requires that the surety stay on the bond, the defendant should be released under the original bond obligation.
§ 38-53-50(C) provides if the defendant is incarcerated by the surety or a law enforcement agency as the result of a bench warrant, the surety shall file an affidavit with the court stating that the defendant is incarcerated in the appropriate detention facility as a result of the bench warrant, as well as the violation of the specific term or terms of the bail bond stated in the bench warrant. Once the affidavit pursuant to the provisions of the subsection has been filed and served on the defendant, the surety is relieved of all liability on the bail bond by the court unless otherwise ordered by the circuit court within fourteen calendar days of the filing of the affidavit, or, if there is no term of court within the fourteen day period, at the ensuing term of court. A motion to be relieved is not required in this circumstance, nor is the $20.00 filing fee. Pursuant to §38-53-50(D), after the surety has been relieved by order of the court, a new undertaking must be filed with the appropriate court in order to secure the subsequent release of the defendant. The undertaking must include the same conditions included in the original bond, unless the conditions have been changed by the court.
An affidavit of surrender (SCCA/636), a Motion to be Relieved on the Bond (SCCA/635), and a Notice and Motion to be Relieved from Bond Pursuant to §17-15-20 (SCCA/634) are available in the "Forms" section of the Bench Book to be used with this procedure.
§17-15-20(B) provides that an appearance bond (surety bond) is valid for three years in general sessions court and 18 months in magistrate and municipal courts. If that time period elapses prior to the final disposition of the case, the surety may be released from the bond by providing 60 days written notice with the solicitor or representative of the State (such as city attorney or arresting officer if there is no prosecuting attorney), the clerk of court, chief magistrate, or municipal court judge with jurisdiction over the case. If the appropriate court determines the defendant has substantially complied with his court obligations and the solicitor or representative of the State does not object within the required 60 days by demanding a hearing, the court shall order the appearance bond converted to a personal recognizance bond and relieve the surety of its liability. If the solicitor files notice with the court, the court should hold a hearing and provide notice to the defendant, victims if applicable, the representative of the State, and the surety on the bond. If the bond is converted from a surety bond to a personal recognizance bond, Bond Form 1 should be completed by the court and signed by the defendant. However, if a hearing is demanded and the court does not feel the defendant has substantially complied with his court obligations, the court may order the surety stay in place.