Bail as Surety; Criminal Defendant's Bonds


The relationship of surety bonds to insurance, the place of bail in the field of surety; the criminal defendant’s bonds, the proceedings in which each is used, guarantees and reasons for forfeiture.

The laws of the State of Florida allow any licensed Bail Bond Agent to write any of the bonds for criminal defendants. However, not all surety companies will write the complete list (on the previous page of this study guide), and one or more types of bonds are excluded on the power of attorney forms printed by most companies. The new limited surety agent is well advised to become acquainted with the restrictions of his or her surety company. Professionals are, of course, free to make their own decisions.

One guarantee common to all these bonds is that the principal will not depart the jurisdiction of the court without leave. Criminal defendant’s bonds are all referred to as “appearance bonds.” They are, with one exception to be discussed later, written to guarantee the defendant will appear in court or will appear to surrender. Less correctly, all criminal defendant’s bonds are sometimes referred to as “bail.” Bail implies pre-trial release, and only one type of bond meets that definition. The following list describes the seven types of criminal defendant’s bonds.

Bail Bonds

The bail bond serves as a promise that the defendant will present themselves to court as and when demanded by the judicial authorities and/or the guarantor. Should the defendant fail to make any required court appearance during the legal process, it may lead to the forfeiture of the bond. These bonds represent a pledge and duty on the part of the bail bond agent to guarantee that the defendant will attend all future legal proceedings.

In reality, the fulfillment of the obligations associated with these bonds can be achieved through various means, not all of which necessitate the defendant's physical presence in court. The conditions under which bail bonds are considered fully satisfied will be addressed in a subsequent lesson.

Appeal Bonds

Appeal Bonds hold significant prominence in the portfolio of a Bail Bond Agent, ranking as the second most crucial type of bond. According to Florida Statute 903.132(3), an original appearance bond cannot be extended to cover the appeal process. Recognizing the heightened risk and the potential for extended timelines, a new bond agreement is required for the appeal phase.

In instances where a defendant has been convicted and sentenced in a criminal case, they still have options for recourse. Defendants who believe there has been a judicial error, consider the sentence disproportionately harsh relative to the offense, or feel their constitutional rights have been infringed, have the opportunity to (1) inform the trial court of their intention to appeal and (2) submit an appeal to a superior court.

Should the appellate court decide to review the case and the appellant is deemed eligible for bail during the appeal, the appellant may post bail to remain at liberty while the appellate court examines the case. The outcomes from the appellate court can vary: (1) it might overturn the lower court's decision, necessitating a new trial; (2) it could affirm the lower court's ruling, requiring the defendant to start serving their sentence; or, on rare occasions, (3) it might find the charges were unfounded and order their dismissal by the lower court.

The bond ensures that the appellant will comply with the appellate court's verdict and will surrender to authorities as directed. Failure of the appellant to surrender will result in the forfeiture of the bond.

An additional, unique condition of an appeal bond is the requirement for the appellant to actively pursue the appeal. This clause aims to deter the submission of insubstantial appeals that are used merely as a strategy to temporarily secure the convicted individual’s freedom for the purpose of fleeing the court’s jurisdiction. If the appeal is not diligently advanced through the necessary subsequent legal steps, the bond is at risk of being forfeited.

The bond is considered fully resolved, and the surety is absolved of responsibility once the charges are dismissed or the defendant has surrendered as required.

Supersedeas Bonds

Supersedeas Bonds are notably less prevalent compared to bail and appeal bonds, given that the Writ of Supersedeas is invoked only under exceptional circumstances. "Supersedeas," a Latin term, translates to "you shall desist." Commonly referred to as a "stay," the Writ of Supersedeas effectively halts or postpones the actions of a lower court, with the duration of this suspension being either indefinite or fixed.

In scenarios where a defendant has been found guilty and sentenced, there may arise a critically compelling reason to delay the execution of said sentence. For example, a defendant may suffer from a rare and severe illness that necessitates treatment available only at a specialized facility located outside the state. Initially, the defendant would request the sentencing court to defer the execution of the sentence. Should this plea be denied, the defendant is then entitled to petition a higher court for a Writ of Supersedeas, which would command the lower court to abstain from carrying out the sentence until the medical treatment is concluded. Upon the issuance of the writ, the defendant might be granted the opportunity to post a bond, thereby securing temporary freedom.

The supersedeas bond shares several characteristics with an appeal bond and is arranged in a comparable manner. The bond obligates the defendant to voluntarily present themselves for custody upon the expiration of the stay and to compensate for any additional legal expenses that accrue due to the postponement. Non-compliance with these terms, such as failing to surrender or to settle court costs, may result in the bond's forfeiture.

Habeas Corpus Bonds

Habeas Corpus Bonds derive their name from the Latin phrase "habeas corpus," which translates to "you have the body." This term underscores one of the foundational rights enshrined in the American Constitution: the protection against being detained without the lawful process.

Individuals who believe they are being held unjustly can file a petition for a Writ of Habeas Corpus. Upon reviewing such a petition, should the court identify legitimate grounds for consideration, it will issue the writ, necessitating the appearance of the defendant in court.

With the advent of modern communication technologies, courts are typically able to expedite their review of habeas corpus petitions, leading swiftly to either the detention being continued or the individual being released. In circumstances where the court's decision is pending, the individual may be permitted to post a bond, securing their temporary release during the interim. The conditions tied to a habeas corpus bond include the requirement for the individual to return to custody should the court uphold the legality of the initial detention, as well as the obligation to cover any legal expenses incurred by the petition. A failure to comply with these conditions, such as not surrendering or not paying the associated costs, will result in the forfeiture of the bond.

The resolution of a habeas corpus bond is achieved either through the individual's compliance with the court's directives and the settlement of costs or by a judicial ruling affirming that the individual's detention was unwarranted from the outset.

Extradition Bonds

Extradition Bonds stem from the term "extradition," originating from the Latin "tradere," meaning "to hand over." This legal process is activated when an individual accused of committing a crime in one jurisdiction (State A) escapes to another (State B) to evade legal action. Should the individual be apprehended in State B, the governor of State A may formally request their counterpart in State B for the extradition of the fugitive to face charges in the original jurisdiction. This request is typically honored, as no state prefers to become a refuge for fugitives, and mutual cooperation is desired should roles be reversed in the future.

Extradition procedures are governed by due process, requiring State B to meet specific legal standards before transferring the accused, ensuring, among other things, that the correct individual is being extradited.

Should the alleged crime be eligible for bail, State B might allow the accused to post an extradition bond, also known as a "fugitive bond." This permits the individual to remain free within the jurisdiction of State B while the prerequisites for extradition are being arranged. The extradition bond mandates that the accused must present themselves for extradition to the state where the crime was originally committed upon request. Failure to comply will result in the forfeiture of the bond.

Fulfillment of the bond’s obligations is achieved when the accused surrenders for extradition, it is proven that the detained individual is not the one named in the extradition warrant, or if State B ultimately decides against complying with the extradition request.

It is important to note that the practice of extradition is not limited to state-to-state scenarios but also extends to territories and international jurisdictions.

Civil Contempt Bonds

Civil Contempt Bonds necessitate a foundational understanding of contempt types and their respective punitive measures for clear articulation. Contempt of court is categorized broadly into two forms:

(a) Criminal contempt represents actions that directly disrespect or challenge the authority of the court, typically occurring within the courtroom setting. Examples include causing disruptions during court proceedings or insulting the judge. In such instances, the traditional procedures of due process may be bypassed, allowing for immediate sentencing. It is important to note that criminal contempt is not eligible for bail; however, the imposed sentence is subject to appeal. Appeals in these cases are processed through an appeal bond, as previously delineated.

(b) Civil contempt, in contrast, does not constitute a direct affront to the court's dignity but rather entails a failure to comply with court orders intended for the benefit of another party. Examples of this include neglecting to pay fines or failing to fulfill court-mandated child support payments. Offenders may be incarcerated but are typically given the option to post bail to secure their release. This form of contempt is labeled "civil" even when it originates from criminal proceedings.

A Civil Contempt Bond is designed to assure that the defendant will adhere to court orders henceforth. This bond may specify that forfeiture is the consequence of non-compliance. Such orders predominantly involve monetary compensation, for which the surety might be held accountable, and can encompass any additional requirements deemed necessary by the judge. The term "future" in this context can extend indefinitely, potentially spanning the lifetime of the defendant.

Ne Exeat Bonds

Ne Exeat Bonds originate from the Latin term "ne exeat," which translates to "let him not exit." The issuance of a Writ of Ne Exeat is a rare occurrence, and the likelihood of a Bail Bond Agent being requested to issue such a bond is minimal.

This type of bond comes into play in civil litigation when one party is concerned that the opposing party might leave the court's jurisdiction prior to the resolution of the case. In such instances, the concerned party may petition the court for a Writ of Ne Exeat. Upon approval, the defendant may be detained as a precautionary measure; however, they are given the option to post a ne exeat bond to temporarily regain their freedom while awaiting the case's conclusion.

The ne exeat bond bears a closer resemblance to a bail bond than to a civil contempt bond, primarily because it obligates the defendant to remain within the jurisdiction and to make all mandated court appearances throughout the duration of the legal proceedings. It is noteworthy that civil cases do not adhere to the same expedited trial requirements as criminal cases, and it is not uncommon for such litigation to extend over several years.

Moreover, the bond may also impose a secondary requirement to "comply with court orders," mirroring the stipulations associated with civil contempt bonds. Thus, all precautions highlighted in the context of civil contempt bonds are equally pertinent here.

The bond is deemed fulfilled, and the surety is consequently discharged once the defendant has complied with all court appearance requirements, fulfilled any additional obligations imposed by the court, and the legal matter has been conclusively settled.

Federal Bonds

Federal bonds operate outside the jurisdiction of state regulations and, as such, do not form the primary focus of this examination. Nonetheless, the conduct of a bail bond agent in the issuance of a federal bond falls under the oversight of the Department of Financial Services. Importantly, possession of a bail bond license from any state empowers a bail bond agent to issue federal bonds, with the exception of immigration bonds, assuming the agent's company holds a Federal Certificate of Authority. (It is mandatory for professional bail bond agents to secure their individual certificates.) Given these nuances, a concise overview is warranted.

U.S. courts are authorized to accept bonds for any charge that would be eligible for bail in state courts, as well as for offenses processed in federal courts and for specific cases that have no state-level counterparts.

The issuance of immigration bonds is not permissible under a bail bond agent license. In Florida, only general lines agents who are licensed and appointed may issue immigration bonds.

The responsibility for preparing bond forms typically rests with the court, with the set amount, approval, and acceptance being determined by the magistrate.

The cost premium associated with federal bonds is notably higher, attributed to compelling reasons. Federal legislation lacks provisions for the forgiveness of bond forfeitures, leaving such decisions entirely to the magistrate's discretion. Unlike state jurisdictions, the federal government does not maintain pre-trial detention facilities, leading to the practice of "renting" space in county jails for federal detainees. If a Bail Bond Agent needs to hand over a federal detainee, they must manage the detainee's custody while seeking a magistrate's assistance to secure a detention cell.

Additionally, under the Racketeer Influenced and Corrupt Organizations (RICO) Act, the federal government is empowered to seize any assets of a criminal defendant believed to be financed through criminal activities. This extends to the collateral provided to Bail Bond Agents, potentially rendering the bonds unsecured if such assets are confiscated.