RULE 46. RELEASE FROM CUSTODY
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(1) Declaration. If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.
(2) Setting Aside. The court may direct
thata forfeiture be set aside, upon such conditions as the court may impose, if it appears thatjustice does not require theenforcement of the forfeiture.
(3) Enforcement. If a forfeiture has not been set aside, the court on motion shall enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of any appropriate court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail or send by third-party commercial carrier copies to the obligors at their respective last-known addresses.
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Rule 46 was amended, effective March 1, 1986; March 1, 1990; January 1, 1995; March 1, 1999.
Rule 46 is an adaptation of Rule 46, FRCrimP, as amended in 1972.
Subdivisions (a)(b)(c)(e) and (f) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subdivision (a) is adapted from the language of the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 214), 18 U.S.C. § 3146.
Subdivision (a) was amended, effective January 1, 1995, to make the safety of any other person or the community a relevant consideration when determining which conditions of release will reasonably assure the appearance of a person charged with an offense. Additional conditions of release were added from the Bail Reform Act of 1984, 18 U.S.C. § 3142(c).
Subdivision (b) is adapted from the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 215), 18 U.S.C. § 3147(a).
Subdivision (c) follows subdivision (b) of the federal rule and provides for bail during trial. This provision continues previous North Dakota law (Section 29-08-08, NDCC).
Subdivision (d) and NDRAppP 9(b) are identical and are derived from FRAppP 9(b). These subdivisions regulate the procedure for release of the defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision (d) and NDRAppP 9(b) were amended, effective March 1, 1986, to permit modification or revocation of the release of a defendant who was initially released pending appeal and to clarify
thatan application for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court.
Subdivision (e) is similar to 18 U.S.C. § 3149.
Subdivision (f) follows subdivision (d) of the federal rule.
Subdivision (g)(1) follows subdivision (e)(1) of the federal rule and
existingprevious North Dakota law (Section 29-08-21, NDCC) and requires thata forfeiture of the bond must be declared if there is a breach of conditions on the bond. Although this provision has been held to be mandatory, subdivision (g)(2) permits an excusal of the forfeiture if "justice does not require the enforcement of the forfeiture". "The forfeiture provision is designed to discourage violations of bail covenants and to deter defaults which create unnecessary delay and expense to the government [prosecution]." Smith v. United States, 357 F.2d 486, 490 (5th Cir. 1966).
Subsection (g)(3) follows subdivision (e)(3) of the federal rule and establishes a single procedure, copied from Rule 65.1, FRCivP, through which the court, on motion, can enforce forfeited bail bonds. Subdivision (g)(3) was amended, effective March 1, 1986, to delete "district" court and make clear
that theobligors, by entering into bond, subject themselves to the jurisdiction of an appropriate court and appoint the clerk as their agent for service of any papers.
Subdivision (g)(3) was amended, effective March 1, 1999, to allow copies of the motion to be served via commercial carrier as an alternative to mail.
Subdivision (g)(4) follows subdivision (e)(4) of the federal rule. A determination for remission should be made only after judgment of default has been entered. [United States v. Miller, 323 F.2d 403 (6th Cir. 1963).]
Subdivision (h) follows subdivision (e)(4) of the federal rule. The provision that the surety may surrender the defendant into custody, whether or not the case has been disposed of, is consistent with
existingprevious North Dakota law (Section 29-08-20, NDCC) and avoids a breach and forfeiture when the surety has reason to anticipate that defendant will not appear.
Subdivision (i) follows subdivision (g) of the federal rule.
SOURCES: Minutes of Rules Committee Meetings of January 29-30, 1998, page 20; April 28-29, 1994, pages 4-6; January 27-28, 1994, pages 18-23; September 23-24, 1993, pages 21-23; April 20, 1989, page 4; December 3, 1987, page 15; November 29, 1984, page 12; April 26, 1984, pages 11-17 and 21; January 19, 1984, pages 5-9; April 24-26, 1973, pages 14-15; December 11-15, 1972, pages 50-53; November 18-20, 1971, pages 12-22; Rule 46, FRCrimP.
SUPERSEDED: 29-08-04, 29-08-05, 29-08-06, 29-08-07, 29-08-08, 29-08-09, 29-08-10, 29-08-11, 29-08-12, 29-08-13, 29-08-14, 29-08-15, 29-08-17, 29-08-18, 29-08-19, 29-08-20, 29-08-21, 29-08-23, 29-08-24, 29-08-25, 29-12-02, 29-21-34, 29-28-16, 29-28-17, 31-03-21, 31-03-22, 31-03-23, 33-12-10, 33-12-36, 33-12-37, 33-12-38, NDCC.
CONSIDERED: 12-01-13, 22-02-09, 29-05-12, 29-05-13, 29-05-14, 29-08-01, 29-08-02, 29-08-03, 29-08-16, 29-08-22, 29-08-26, 29-08-27, 29-21-21, 29-21-23, 29-22-31, 31-03-19, 31-03-20, 31-03-24, NDCC.