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Rule 46 – Certain Procedural Provisions Governing Bail

May 13, 2021 | Criminal Procedure, Maine

(a) In General. This Rule contains certain procedural provisions governing bail for a defendant or for a witness. The procedure governing preconviction and post-conviction bail for a defendant is generally provided by statute.
(b) Bail by a Bail Commissioner.

(1)Required Factual Endorsements Upon Written Release Order. Every bail commissioner upon accepting bail shall endorse upon the written release order the following facts: the date and place (town or city) of accepting bail, the court before which the prisoner is required to appear, the crime or crimes of which the prisoner is accused, the amount and conditions of bail, the names and addresses of each surety or owner of cash bail, the prisoner’s mailing address and, if different, residence address, and, if known, the date and time the prisoner is to appear, the Arrest Tracking Number, the Charge Tracking Number, and the date of birth of the prisoner.
(2)Inability of Person in Custody to Pay Bail Commissioner Fee. A person presently in custody who is qualified to be released upon personal recognizance or upon execution of an unsecured appearance bond, whether or not accompanied by one or more conditions of bail that has been set by a judicial officer, but who in fact lacks the present financial ability to pay a bail commissioner fee, shall nonetheless be released upon personal recognizance or upon execution of an unsecured appearance bond. A bail commissioner shall not refuse to (A) examine a person to determine the person’s eligibility for bail, (B) set bail, (C) prepare the personal recognizance or bond, or (D) take the acknowledgement of the person in custody, because a person in custody lacks the present financial ability to pay a bail commissioner fee.
(c) Bail Given on Appeal; Place of Deposit. Whenever cash or other property is given on appeal, it shall be deposited with the clerk of the Unified Criminal Docket on the next regular business day.
(d) Redetermination of Bail by Another Justice or Judge. Any defendant charged with a crime bailable as of right who is aggrieved by a decision of the court made at arraignment or initial appearance as to the amount or conditions of bail set may file one petition for redetermination of bail by another justice or judge. Such petition must be filed with the court no later than 14 days before the date set for the defendant’s dispositional conference. If the defendant is incarcerated, hearing on the petition shall be scheduled before any justice or judge within 48 hours of filing, excluding Saturdays, Sundays, legal holidays, and court holidays. For a defendant who is in custody, the court shall provide notice of the hearing to the attorney for the State at least 24 hours before the hearing. If the defendant is not in custody, hearing on the petition shall be scheduled within 7 days after it has been filed. For a defendant who is not in custody, the court shall provide notice of the hearing to the attorney for the State at least 72 hours before the hearing. The court shall review the petition and, after providing the parties with an opportunity to be heard, may set bail in any manner authorized by 15 M.R.S. §1026.
(e) Review of Bail by or Appeal to a Single Justice of the Supreme Judicial Court.

(1)Petition. A petition for review of preconviction bail under 15 M.R.S. §1029 shall be filed in the Unified Criminal Docket. The clerk shall promptly deliver a copy of the petition to any Justice of the Supreme Judicial Court designated by a general order or special assignment of the Chief Justice to sit in single justice matters in that county. On receipt of the petition, the trial court’s order, and the available record of the hearing below, the assigned justice will either conduct a hearing de novo or conduct a review, depending upon what is required under the law. Briefing and oral argument may be dispensed with by the assigned Justice.
(2)Appeal. An appeal of post-conviction bail under 15 M.R.S. §1051, or an appeal of revocation of preconviction bail under 15 M.R.S. §1097 or revocation of post-conviction bail under 15 M.R.S. §1099-A shall be taken by filing a notice of appeal with the clerk of the Unified Criminal Docket. The clerk shall promptly deliver a copy of the notice to any designated justice of the Supreme Judicial Court. On receipt of the notice of appeal, the trial court’s order, and the available record of the hearing below, the assigned justice shall review the record and, with or without briefing or argument, determine whether the trial court’s order is without a rational basis.
(f) Statement to Person Offering Surety for a Defendant. Every judicial officer or clerk who accepts property, including money, as security for bail shall first provide to the prospective surety the oral and written advice required under 15 M.R.S. §1072-A(2) and (3) respectively, as well as a copy of the written release order pertaining to the defendant required under 15 M.R.S. §1072-A(1).
(g) Forfeiture.

(1)Declaration. If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail and give notice to the defendant and the person who has agreed to act as surety or deposited cash bail.
(2)Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.
(3)Enforcement. When no motion to set aside a forfeiture has been made within 28 days of notice of the declaration of forfeiture, the court shall enter a judgment of default and execution may issue thereon. By entering into a bond the defendant and the person who has agreed to act as surety or deposited cash bail submit to the jurisdiction of the court and their liability may be enforced on motion without the necessity of an independent action.
(4)Remission. After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.
(h) Exoneration. When the condition of the bond has been satisfied, the court shall exonerate the defendant and the person who has agreed to act as surety or deposited cash bail and release any bail.
(i) Bail for Witness. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure that person’s presence by subpoena, the court may order the arrest of that person and may require that person to give bail for his or her appearance as a witness. If the person fails to give bail the court may commit that person to the custody of the sheriff pending final disposition of the proceeding in which the testimony is needed, may order that person’s release if he or she has been detained for an unreasonable length of time, and may modify at any time the requirement as to bail.

If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that the witness’ deposition be taken. After the deposition has been taken the court may discharge the witness.

Me. R. Uni. Crim. P. 46

Amended effective November 2, 2016; last amended effective April 4, 2017.

Advisory Note – April 2017

The amendment makes the following changes to Rule 46(g) and (h).

First, in subdivision (g), paragraph (1) the word “prompt” is deleted as unnecessary in light of the first sentence of paragraph (3).

Second, in subdivision (g), paragraphs (1) and (3) and subdivision (h) the word “obligors” is replaced in favor of identifying with specificity those to whom “obligors” potentially refers-namely, the defendant and the person who has agreed to act as surety or deposited cash bail.

Third, in subdivision (g), paragraph (3), first sentence, the current period within which a motion to set aside a forfeiture can be filed before a court enters a judgment of default is shortened from 35 days to 28 days. A 28-day period is sufficient, since the time period starts only after notice of the declaration of forfeiture has been provided.