Scenario - Defendant is out on bond (felony), and believed to have committed new offense (misd.). Am filing a motion to increase bond. Defendant has counsel. Can I present Motion to Increase Bond to Court and obtain an order prior to serving copy of the motion on Defendant's counsel (who could warn defendant and potentially delay re-arrest)? I think the prior DA routinely did this, but want to make sure there is some authority for it. Please help.
I generally do them at the same time. I either have the case set on the docket, or wait until the next setting (assuming it isn't high risk and urgent). Then, I let the judge and bailiff know that I have a motion to present so that they can put the defendant in the jury box and watch him so he can't flee. Then when Defense arrives, I present them with motion at the bench and have D taken into custody.
If ever given a chance to talk outside the courtroom, the D ALWAYS runs.
For previous discussion, click here.
As a practical matter, consider letting the bonding agency know of your plans before you file the motion to raise bond. The bond agents I used to work with when I was in the trial division proved very helpful in insuring Ds showed up to any hearing on a motion to raise bond.
Thank you for your responses. My main concern was presenting the motion and order to the Judge ex parte and prior to it being served on the defendant. There is not an allegation of a violation of a condition of the existing bond, just a motion to find bond insufficient, so the prior thread was not extremely helpful. I know I would have a problem with a defense attorney presenting a motion to reduce bond to the judge ex parte and getting an order signed before there was any notice to the state. Thoughts?
My understanding is that a bondsman can ask the court for a capias (called "getting off the bond") if he has reason to believe the defendant is going to abscond, and have his client picked right up--no hearing required. If the court denies the bondsman's motion, and his client fails to appear, the bondsman is off the hook for the bond.
If a bondsman can do it, why can't a prosecutor? It makes no sense to require the state to notify the defendant of their wish to raise bond, if they have a real fear he is about to abscond.
There is no equivalence between a prosecutor getting a capias issued ex parte, and a defense atty. getting a bond lowered ex parte. The point of getting the capias issued without the defense knowing is to insure the defendant will not blow town. After he's arrested, he can then have a hearing. If the state is required to give notice before having the def. picked up, there may well be no hearing because the def. is likely to run away.
This is just basic common sense.
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