Collecting fines and costs assessed upon conviction in a criminal matter is a daunting task for a county. So it is no wonder that being able to deduct fines, costs, fees and restitution from bond money already deposited with the clerk of the courts is seen as a good way to substantially increase the collection of these assessments without further use of county resources. The county cannot deduct any monies from cash posted for bonds unless there is first a conviction of the defendant, and proper notice given to, or an agreement to pay by, the person posting the cash bond.
Court ordered fines, costs, fees and restitution can only be deducted from cash bonds, or the cash deposit on a surety bond, but not from bail bonds. If a court allows a defendant to have a bail bond posted by a private bail bond company, the defendant pays a premium to the company. As an agent of defendant, the company paying the bond to the court insures that the defendant will appear at trial on the date set by the court. Bail bond companies are insurance companies and are subject to regulation by the Indiana Department of Insurance. The premium paid by or on behalf of the defendant to a bail bond company is not refundable because it is payment for a service and a court authorizing the pre-trial release of a defendant under this arrangement will have no assets on deposit for the payment of court-ordered fines and costs upon conviction.
Cash bail authorized by a court may be satisfied by paying the entire amount of the cash bond to the clerk of the court. Alternatively, a defendant may be authorized to post a “10% cash bond” by depositing cash or securities with the clerk of the court in an amount not less than ten (10%) percent of the bail. Three counties in Indiana use only cash bonds – Bartholomew, St. Joseph and Vanderburgh. Nationally, four states use only some form of cash bond for pre-trial release – Illinois, Kentucky, Oregon and Wisconsin. The defendant is usually required to sign a bail bond for the full amount of the bail set by the court, in addition to posting the cash or securities. If the conditions of bail are violated, the defendant must forfeit the full amount of the bond, and the court enters a judgment against the defendant for that amount.
Under IC 35-33-8-3.2(a), the trial court, upon conviction, may order fines, costs, fees and restitution to be paid from the proceeds of a cash or surety bond. The statute states: “If the court requires the defendant to deposit cash or cash and another form of security as bail, the court may require the defendant and each person who makes the deposit on behalf of the defendant to execute an agreement that allows the court to retain all or a part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.”
When a cash bond is posted by someone other than the defendant, upon conviction can fines and other costs be deducted from the cash bond? Yes, but only if the payee of the bond is notified that costs may be ordered by the court to be deducted from the cash bond or the payee signs an agreement that the bond proceeds are subject to attachment by the court upon conviction. When a surety bail bond is posted by depositing 10% of the bail with the clerk of the court under IC 35-33-8-3.2, notice must be given by the sheriff, court or clerk that the deposit may be forfeited or retained to pay costs, fines, fees or restitution upon conviction.
If a person other than defendant pays the bond, and receives no notification nor signs an agreement to the attachment of the bond upon execution, the laws of bailment apply. The person who paid the bond is the bailor, and the person being released by the bond is the bailee. The bailor’s property is used to secure the release of the bailee who promises to appear for all hearings in the matter and perform all other necessary acts insuring that the bond would not be revoked. Upon completion of the case, the bailor is entitled to a full refund of the bond without any deductions of money. See J.J. Richard Farm Corporation v. State of Indiana, 642 N.E.2d 1384 (1994).
In 1994, when the J.J. Richard Farm Corporation opinion was published, IC 35-33-8-3.1 controlled how the courts set bail and how the bail was released upon disposition of the case. At that time, IC 35-33-8-3.1 did not require the person paying a cash bond to execute an agreement that allowed the court to retain all or part of the cash bond upon disposition of the case. The court could order money retained as deposit to pay for fines, costs, fees and restitution but only from a 10% cash or securities bond. However, in the event of the posting of a real estate bond, the bond may be used only to insure the presence of the defendant in court, but may not be foreclosed for the payment of fines, costs, fees, or restitution.
If a court follows the proper procedures then it will be able to deduct fines, costs, fees and restitution from a cash bond on deposit with the clerk of the courts.