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Changes In Bond Status

A bond is an amount of money set by the court, per count (charge), to ensure that the accused appears in court. There are types of non-monetary bonds (such as ROR or Pretrial Services), but for purposes of this entry, let's assume that your bond is just a standard monetary bond.

When you are arrested and taken to jail, the judge will most likely impose a bond. The bond may be standard, or higher or lower than standard depending on your prior history and the facts of the alleged crime.

If your bond is the standard bond, you will most likely hire a bail bondsman who will post the entire bond for a 10% fee, called a premium. For instance, if your bond is $5,000, you will pay a bondsman $500 as a non-refundable fee, and in turn the bondsman will post, or guarantee, the full $5,000. For the fee you pay them, the bondsman assumes the risk of ensuring the court that you will show up.

A bond is a contract between the defendant, the bondsman, and the court. It basically states that the accused will pay X amount of money to ensure their appearance. The risk assumed by the bondsman is based on the charges. If the accused is charged with a second-degree misdemeanor, therefore facing only 60 days in jail, the bond amount is relatively low since it is not likely that somebody would willingly flee the jurisdiction to avoid a maximum sentence of 60 days. If the charge is a first-degree felony, the bond is higher since the risk of flight increases as the maximum exposure on the charge is 30 years.

The bondsman assumes the risk at the time the bond is issued. The risk is based on the charges at the time of execution of the bond. If you are arrested for grand theft and post a bond 24 hours after arrest, the bondsman assumes the risk based on a maximum exposure of 5 years. If you are a first-time offender, since you are probably not looking at prison time, the risk of flight is low.

Now at arraignment, let's say that the prosecutor adds a second charge of grand theft. Whereas the police charged you with one count, the prosecutor - having completed a 21-day pre-file investigation - believes that a second occurrence of grand theft took place. Therefore, they file an information at arraignment alleged two counts of grand theft.

The bondsman is not legally obligated to remain liable on the bond. That's because there has been a change in circumstances. Now, instead of facing 5 years in prison, you are facing 10. The risk of flight has increased. Since the material terms of the contract have changed, the bondsman is no longer obligated to honor its terms. It's kind of like if you agree to buy a car for $10,000, and on the day you come to pick up the car and make payment, the price is $12,000. You are no longer obligated to buy the car because you did not agree to the price of $12,000. You agreed to $10,000.

A bond works the same way. The bondsman agreed to be responsible for you when the risk was low - 5 years maximum prison time. Now that the exposure has increased, it is more likely that somebody facing 10 years would flee as opposed to someone facing 5.

What do you do?

The court can legally take you into custody at arraignment if there is a change of charge or even additional charges. What is best to do is make sure your bail bondsman is nearby so that they can come to court or even provide an affidavit telling the court that despite the change in charges or added charges, they will remain liable on the bond.

The prosecutor may also ask the court to increase the bond at arraignment should they file a notice of enhancement if you are a "career criminal," such as a Habitual Felony Offender (HO). If the prosecutor files a motion to increase bond, you are statutorily entitled to 3 hour's notice. In order to increase the bond, the prosecutor must show the court that there has been a material "change in circumstances." Prevailing case law states that the mere filing of an information (charging document) alone does not create a "change in circumstances" - at least not enough to warrant an increase in the bond amount.

Getting arrested while out on bond is one way to get your bond revoked. Violating any special terms or conditions of your bond, such as curfew or violating a stay-away order, can also result in the revocation of your bond.

Having a bond is a good thing. It means that you do not have to sit in jail while your case is pending. Criminal cases can sometimes take years to resolve.

Eric Matheny is a former prosecutor who practices criminal defense in Miami-Dade and Broward. Attorney Eric Matheny is experienced in bond matters and may be able to help you or your loved one with their criminal case. Call today to discuss your case confidentially.