TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 46, N.D.R.Crim.P., Release from Custody
Court Administrator Sally Holewa, in a request forwarded by Judge Hagerty, asks that the Committee consider adding some rule provisions to clarify procedure in regard to bail sureties. She provided suggestions for changes, which were taken from Minnesota's Criminal Practice Rule 702. Ms. Holewa's e-mail, her suggested changes, and the Minnesota rule are attached.
Ms. Holewa would like to see the following provisions added to the rules: a provision requiring court notice to sureties when bail is forfeited, a provision making clear the procedure sureties should follow when they wish to challenge a forfeiture, and a provision allowing automatic suspension of sureties when they fail to pay on a forfeited bond.
Rule 46 already has several subdivisions dealing with sureties and provides some guidance in regard to bail forfeiture. Staff, therefore, has attempted to integrate Ms. Holewa's suggestions into Rule 46.
In addition, while Rule 46 is somewhat different from Fed.R.Crim.P. 46, the surety provisions of our rule and the federal rule are quite similar. Therefore, the proposed amendments to Rule 46, attached, also integrate the federal form and style updates into the surety provisions of Rule 46.
Here is a summary of the proposed amendments:
Lines 60-74 and 173-177 of the attached proposal contain changes already approved by the Committee that are before the Supreme Court for further final approval.
Lines 101-158 of the rule contain form and style amendments based on the federal rule changes.
Lines116-119 of the rule contain a new provision for suspension of sureties based on Ms. Holewa's suggestion and the Minnesota bail rule.
Lines 124-127 of the rule contain a new provision requiring notice to sureties when bail is forfeited based on Ms. Holewa's suggestion and the Minnesota bail rule
Lines 132-133 of the rule contain a new provision setting a deadline for making a motion to set aside bail forfeiture based on Ms. Holewa's suggestion and the Minnesota bail rule.
Lines 191-218 of the rule's explanatory note contain amendments intended to explain the changes made.