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| Bond Exonoration http://fugitiverecovery.com/forum/viewtopic.php?f=13&t=2757 |
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| Author: | AndyL [ Thu 04 Jan 2007 08:58 ] |
| Post subject: | Bond Exonoration |
I remember someone talking a while back about being able to get a bond exhonorated if you know where they are but you cant touch them due to the law? Could anyone point me to where I could find that info? I have a case in a county where I would like to try that. I dont like the judge or prosecutor anyhow, and the feelings mutual, its not too much money if I lose and I am going to try a couple things, this included if I can get the info, to see what the limits are. I already have an attorney working on it and he said it may set case law if I can get information where it has happened in another jurisdiction. Thanks Andy |
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| Author: | KARMA [ Thu 04 Jan 2007 09:41 ] |
| Post subject: | |
That is an option per Arkansas Statute on 'action on bond' 16-84-201 Good Luck to you I have used the Statute on more than one occasion |
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| Author: | SpanielPI [ Thu 04 Jan 2007 09:53 ] |
| Post subject: | |
It's also in California 1304 or 1305..ask Tony Suggs for the exact statute. |
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| Author: | tsuggs [ Thu 04 Jan 2007 13:32 ] |
| Post subject: | |
Here's part of CA Penal Code 1305 that may pertain to your situation. It all depends on why you can't retrieve him which part of the statute that you must use. Also, some states may NOT use case law from other states. CA Penal Code 1305 (1) The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities. (2) The absence of the defendant is without the connivance of the bail. (e) In the case of a temporary disability, the court shall order the tolling of the 180-day period provided in this section during the period of temporary disability, provided that it appears to the satisfaction of the court that the following conditions are met: (1) The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities. (2) Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180-day period. (3) The absence of the defendant is without the connivance of the bail. The period of the tolling shall be extended for a reasonable period of time, at the discretion of the court, after the cessation of the disability to allow for the return of the defendant to the jurisdiction of the court. (f) In all cases where a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release. (g) In all cases of forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state, is temporarily detained, by the bail agent, in the presence of a local law enforcement officer of the jurisdiction in which the defendant is located, and is positively identified by that law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release. (h) As used in this section, "arrest" includes a hold placed on the defendant in the underlying case while he or she is in custody on other charges. (i) A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 30-day period upon a showing of good cause. The motion may be made by the surety insurer, the bail agent, the surety, or the depositor of money or property, any of whom may appear in person or through an attorney. The court, in its discretion, may require that the moving party provide 10 days prior notice to the applicable prosecuting agency, as a condition precedent to granting the motion. In CA, this also applies if the defendant is out of the country or being denied re entry by the INS. |
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| Author: | Mdbtyhtr [ Thu 04 Jan 2007 16:46 ] |
| Post subject: | |
I have used this process successfully in the past for bondsmen clients. First, after a documented investigation, I make an appointment to speak to the district attorney and present my information. I ask them to increase the level of extradition to include the location where the subject is found. I promise them that I will recover and transport at no cost to the wanting jurisdiction. I request a letter from them that admits me as an actor on the case. This is important if the locating jurisdiction will not release the individual to you otherwise, absent the letter of authorization. If they refuse to cooperate, politely thank them for their time and leave, never argue with them. Make a motion before the court for a hearing, include your investigation and the law of the state where the individual is located that precludes you from completing your task, include your meeting with the State's Attorney that would not cooperate, request in your conclusion that the bond be exonerated due to your investigation, the laws governing you and the lack of cooperation from the DA and good luck. |
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| Author: | Steve_Hedrick [ Thu 04 Jan 2007 17:00 ] |
| Post subject: | |
Each state has different laws concerning this civil situation. Your state is no different. You must find case law in YOUR state, to win your case. I would start with researching "was the Defendant placed into NCIC as a Wanted Person" when they failed to appear? I have WON numerous final judgement hearings for my clients when I have shown to the Court the Defendant was arrested in another jurisdiction, AFTER the Defendant failed to appear on the initial charge that he or she posted bond on. My agrument has been that if the law enforcement agency had conducted Due Diligence and listed the Defendant into the proper law enforcement data bases, the Defendant would have been returned to custody to that jurisdiction. |
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| Author: | AndyL [ Thu 04 Jan 2007 17:07 ] |
| Post subject: | |
Mdbtyhntr, Thats exactly what Im in the process of doing. Exactly what you just posted. Im gathering facts. My atty just wanted to see if there was case law in other states. Thanks for all the info. Andy |
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| Author: | mark cavendish [ Thu 04 Jan 2007 17:34 ] |
| Post subject: | |
Just to be clear is what your doing here asking for suspension of forfetiture based on the fugitive being held in another jurisdiction? And then saying the fugitive had the intent to apear but was but was unable to because of that confinement. Then useing aplicable state statutes and case law to support this arguement. And the due diligence question. So would you make this case to the D.A. and take it to the Judge? And the Judge could grant you more time " maybe another 120 days?" etc? Or put the process on hold until the subject is released? |
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| Author: | Mdbtyhtr [ Thu 04 Jan 2007 17:49 ] |
| Post subject: | |
Mark, We are speaking of a fugitive with no intention of appearing, locating himself in a state beyond the jurisdiction of the court. This would require the raising of the extradition level beyond what they would do for a non-bail secured individual. The cost of recovering the individual usually precludes them from increasing the extradition level. This is when the UCEA comes into effect as well as other individual state laws that might stop you from recovering your charge. They can't authorize you to break the law in order to uphold it. Scott |
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| Author: | tsuggs [ Thu 04 Jan 2007 18:03 ] |
| Post subject: | |
So, The defendant is NOT in custody in another state on other charges and his warrant is NOT in NCIC? The Amercian Bail Coalition lists state case law rulings every quarter. If you contact them through their website they can popint you to recent cases for MO. |
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