In the Circuit Court of the Twelfth Judicial Circuit in and for
DeSoto, Manatee, and Sarasota Counties, Florida
Administrative Order NO: 2022–17.3
In order to provide guidelines concerning bonds in accordance with Chapter 903, Florida Statutes, by the power vested in the chief judge under Article V, section 2(d) of the Florida Constitution, section 43.26, Florida Statutes, and Rule 2.215(b), Florida Rules of General Practice and Judicial Administration, it is therefore ordered and adjudged as follows:
- Bail bonds are contracts. Pinellas v. Robertson, 490 So. 2d 1041 (Fla. 2d DCA 1986). Contract law applies to the interpretation and enforcement of bail bonds. United States v. Dudley, 62 F. 3d 1275 (10th Cir. 1995). Because actions on contracts are civil in nature, the Florida Rules of Civil Procedure apply to bail bond proceedings.
- A corporation cannot represent itself in court without a licensed attorney. The filing of documents with a court on behalf of a party by a non-lawyer corporate representative constitutes the unauthorized practice of law. Szteinbaum v. Kaes Inversiones y Valores, 476 So. 2d 247 (Fla. 3d DCA 1985); Nicholson Supply Co. v. First Federal Savings & Loan Ass’n, 184 So. 2d 438 (Fla. 2d DCA 1966); s. 454.23, F.S. Any request for court action made on behalf of a corporation constitutes representation, regardless of how the document is titled, and must be filed by an attorney who is licensed or otherwise permitted to practice law in the State of Florida. However, if the surety or bond agent is a natural person and is individually liable on the bond (i.e., the forfeiture or judgment would be entered against the natural person in his or her individual capacity), then that natural person may proceed in court pro se. References in this order to “the surety” include corporate sureties, corporate bond agencies, individual sureties, individual bond agents and cash bond depositors, where applicable.
- In all civil or criminal proceedings, the party seeking relief is responsible for taking any action needed to obtain the relief requested. When request for relief on a bond forfeiture or exoneration issue is filed, it is the responsibility of the surety to present the proposed order to the court and to take all other action needed to bring the matter before the appropriate judge, including obtaining consents, or setting a hearing if consents cannot be timely obtained.
- When a pleading is presented to the court, and the matter is ready for ex parte action by the court, the court will enter a timely ruling. Pleadings include motions, petitions, applications, and all other writings which request action by the court.
- When proof of payment of transportation expenses is required in any proceeding under Chapter 903, Florida Statutes, the surety may provide such proof by filing an affidavit substantially similar in form to Exhibit “A” attached to this order. Such form may be revised from time to time by the Criminal Division Administrative Judge.
- A determination of whether transportation expenses are due for transports taking place within the Twelfth Judicial Circuit is dependent on the type of proceeding involved and the statutory requirements for the proceeding. When the surety is required by statute to provide transportation to the “jurisdiction of the court” and the case is a county or circuit court case in the Twelfth Judicial Circuit, the surety is required to pay the costs of transporting the defendant between counties within the Twelfth Judicial Circuit pursuant to s. 903.21(3)(b)2., F.S. which defines “jurisdiction” as “the county from which the defendant was released on bail.”
Surrender of Defendant Prior to Forfeiture
- A defendant may surrender voluntarily, or a surety may surrender a defendant at any time before a breach of the bond. s. 903.20, F.S. A surety desiring to surrender a defendant must deliver a copy of the bond and the defendant to the official who had custody of the defendant at the time bail was taken, or to the official into whose custody the defendant would have been placed if not committed. Upon taking the defendant into custody, the official shall issue a certificate acknowledging the surrender, pursuant to s. 903.21(1), F.S.
- Prior to the Clerk of Court’s entry of a final judgment of forfeiture, if a defendant is surrendered to the county from which he or she was released on bail, the Clerk of Court shall automatically discharge the forfeiture if the surety pays all costs and expenses associated with the return of the defendant to the jurisdiction of the court as defined by s. 903.21(3)(b)2., F.S., and files an affidavit of proof substantially similar in form to Exhibit “A” attached to this order.
Exoneration of Bondsman Prior to Forfeiture
- When a defendant is in custody, the surety may apply for exoneration from the court by filing a pleading that includes a statement of the facts and legal argument in support of exoneration. The surety must follow this process in order to come off the bond. There is no statutory authority for the Clerk of Court to exonerate the bondsman absent a court order.
- Before breach of the bond, and when a surety seeks exoneration for the reasons set forth in s. 903.21(3), F.S., the surety must provide the court a written commitment that the surety will pay the cost of transporting the defendant to the detention center of the county where the case in which the posted bond is pending, together with any other relevant documentation in support of exoneration which the surety wishes the court to consider. The surety must provide a copy of the proposed order that will go to the Sheriff’s Office and include the Sheriff’s Office on the certificate of service on the proposed order.
- If the surety surrenders the defendant under s. 903.21(1) and (2), F.S. and seeks exoneration, the surety must attach to the pleading:
- a certificate acknowledging the defendant’s surrender from the official into whose custody the defendant would have been placed if committed, including the location and jurisdiction of the facility in which the defendant is incarcerated;
- a copy of the bond from which exoneration is sought; and (c) a certification showing that notice was given to the state attorney at least three
- days before the pleadings and attachments were filed.
- Any pleading in support of exoneration becomes moot if the bond is forfeited before the exoneration order is entered by the Court.
Discharge of Forfeiture
- A surety may petition the court to discharge a forfeiture within sixty (60) days of the forfeiture only for the reasons enumerated in s. 903.26(5), F.S. A petition to discharge a forfeiture does not toll the statutory 60-day time period before entry of a judgment. See County Bonding v. State, 724 So. 2d 131 (Fla. 3d DCA 1998) (forfeitures must be paid or a discharge order entered to prevent entry of a judgment) and Frontier Ins. Co. v. State, 760 So. 2d 299 (Fla. 3d DCA 2000) (court loses jurisdiction to discharge after sixty (60) days).
- The Clerk of the Court in any county of the Twelfth Judicial Circuit where a criminal case is pending may discharge a forfeiture if the surety files in that county an affirmation from the Sheriff or correctional officer of that county stating that the defendant has been arrested and returned to the county where the case is pending, and the defendant posted bail, and that the costs incurred in returning the defendant have been paid pursuant to s. 903.26(8), F.S. The defendant must be incarcerated in that county, and the affirmation must be substantially similar in form to Exhibit “B” attached to this order, which form may be revised from time to time by the Criminal Division Administrative Judge.
- When the State Attorney files a dismissal, nolle prosequi, or a decline, the Clerk of Court is authorized to automatically discharge a forfeiture on the dismissed case under s. 903.26(8), F.S. until such time a judgment is entered.
Setting Aside Forfeiture
- The setting aside of a bond forfeiture is an equitable proceeding. When a forfeiture is set aside (as opposed to discharged), the parties are returned to their pre-forfeiture status and the bonds remain intact. See Bush v. International Fidelity, 834 So. 2d 212 (Fla. 4th DCA 2002), review denied, 847 So. 2d 976 (Fla. 2003).
- Any party to the bond contract may petition the court to set aside the forfeiture within 60 days of the forfeiture. The petition to set aside forfeiture does not toll the statutory 60- day period for entry of a judgment. See Frontier v. State, 760 So. 2d 299 (Fla. 3d DCA 2000).
- The foregoing procedures concerning the setting aside of a bond forfeiture in connection with the quashing of a capias are discretionary. If for any reason the court does not simultaneously resolve the bond forfeiture in conjunction with the capias proceeding, any party to the bond contract may address the bond forfeiture in later proceedings, but within 60 days of the forfeiture, in accordance with the provisions of Chapter 903, Florida Statutes, and this administrative order.
- A court must cancel a bond when no formal charges have been brought against a defendant within 365 days after arrest.
- Bail bonds in effect and not forfeited in cases in which a dismissal, nolle prosequi, or decline is entered are canceled by operation of law. s. 903.31., F.S. The Clerk of Court will provide a copy of the dismissal order, the notice of case action, decline, or the record entry of the nolle prosequi, upon payment of the statutory fee, to anyone requesting documentation showing that a bond was canceled by operation of the law. If a certification of cancellation is attached to the original bond, the Clerk of Court shall furnish an executed certificate of cancelation to the surety without cost.
- Bail bonds in effect and not forfeited in cases where a defendant is admitted into a pretrial intervention program and a copy of the signed pretrial intervention program is received and filed by the Clerk, are canceled by operation of law. See s. 903.31(2), F.S.
- Bail bonds are canceled by operation of the law where the defendant received a sentence and there are no other outstanding counts in the defendant’s case. See s. 903.31(2), F.S.
- A bond may not be canceled when a forfeiture is pending. s. 903.31(1), F.S
Change in Charges
- When there is a change in charges against a defendant, the surety may be relieved of its liability on a bond. See Midland Insurance v. State, 354 So. 2d 961 (Fla. 3d DCA 1978). If a surety believes that its obligation has been impaired for this reason, the surety may motion the court to cancel the bond. Absent a court order, the Clerk of Court will not discharge any bond where there is a change in charges against a defendant.
- If a bond has not been forfeited, the original appearance bond automatically expires thirty-six (36) months after the bond was posted.
- A bond revocation does not address the disposition of any bond. Moreover, Chapter 903, Florida Statutes, does not instruct the Clerk of Court to do anything after a bond is revoked. The Court shall announce the disposition of the bond at the time of the revocation. Otherwise, the Clerk of Court will not take any action with regard to the disposition of the bond upon a revocation.
Return of Cash Bond
- Pursuant to s. 903.286, F.S., the Clerk of Court will withhold from the return of a cash bond posted on behalf of the defendant by a depositor other than a licensed bail bond agent or surety, sufficient funds to pay any unpaid costs of prosecution, costs of representation provided by s. 27.52, F.S., and s. 938.29, F.S., court fees, court costs and criminal penalties, in all of a defendant’s Twelfth Judicial Circuit cases. Cash bonds are subject to forfeiture and may not be discharged after 60 days from the date of the forfeiture. Frontier Ins. Co. v. State, 760 So. 2d 299 (Fla. 3d DCA 2000) (court loses jurisdiction to discharge after sixty (60) days).
- A surety may petition for remission only by following the procedures set forth in s. 903.28, F.S. A petition for remission must be filed within two (2) years from the date of forfeiture. Leach v. State, 293 So. 2d 77 (Fla. 1st DCA 1974); State f/u/b/o Data County v. Romero, 456 So. 2d 1281 (Fla. 3d DCA 1984). Forfeitures which have gone to judgment do not qualify for remission unless the judgment has been set aside. Accredited Surety & Casualty Co. v. State, 418 So. 2d 378 (Fla. 5th DCA 1982).
- A surety’s petition for remission must include an affidavit setting forth the facts on which the application for remission is founded.
- A surety’s petition for remission based upon a claim of the surety’s attempt(s) to procure or cause the apprehension or surrender of the defendant must prove the attempt(s) by further documentation or evidence.
- A surety must give the Clerk of Court, Clerk’s Counsel or the County Attorney and State Attorney twenty (20) days’ notice before a hearing on a petition for remission, or before submission of a proposed order of remission to the court.
- The surety must submit to the court proof that costs have been paid, unless the ground for remission is that there was no breach of the bond.
- The court has discretion to direct remission of less than the full percentage authorized under s. 903.28(2)-(6), F.S. Accredited Surety v. Putnam County, 528 So. 2d 430 (Fla. 5th DCA 1988). If the court does not direct remission of the full percentage authorized under the applicable subsection, the court must make findings supporting its decision.
- A petition to set aside a forfeiture judgment must be made within thirty-five (35) days from the date of forfeiture by following the procedures set forth in s. 903.27(5), F.S. Other post-judgment pleadings may be filed as authorized by law.
- The surety must pay the amount of the forfeiture judgment to the Clerk of Court before filing a motion to set aside a judgment forfeiture. The filing of the motion, together with the payment of the required escrow deposit, acts as an automatic stay of further proceedings, including execution. The filing of a motion without the required payment does not stay execution or further proceedings.
Done and ordered in chambers, Sarasota County, Florida this 28th day of November, 2022.
Charles E. Roberts
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