HB 368: "An Act relating to release of persons before trial and before sentencing or service of sentence; relating to custodians of persons released, to security posted on behalf of persons released, and to the offense of violation of conditions of release; amending Rule 41(f), Alaska Rules of Criminal Procedure; and providing for an effective date."
00HOUSE BILL NO. 368 01 "An Act relating to release of persons before trial and before sentencing or 02 service of sentence; relating to custodians of persons released, to security posted 03 on behalf of persons released, and to the offense of violation of conditions of 04 release; amending Rule 41(f), Alaska Rules of Criminal Procedure; and providing 05 for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 09.50.010 is amended to read: 08 Sec. 09.50.010. Acts or omissions constituting contempt. The following acts 09 or omissions in respect to a court of justice or court proceedings are contempts of the 10 authority of the court: 11 (1) disorderly, contemptuous, or insolent behavior toward the judge 12 while holding the court, tending to impair its authority or to interrupt the course of a 13 trial or other judicial proceeding; 14 (2) a breach of the peace, boisterous conduct, or violent disturbance,
01 tending to interrupt the course of a trial or other judicial proceeding; 02 (3) misbehavior in office, or other wilful neglect or violation of duty 03 by an attorney, clerk, peace officer, or other person appointed or elected to perform 04 a judicial or ministerial service; 05 (4) deceit or abuse of the process or proceedings of the court by a party 06 to an action or proceedings; 07 (5) disobedience of a lawful judgment, order, or process of the court; 08 (6) falsely pretending to act under authority to an order or process of 09 the court; 10 (7) rescuing a person or property in the custody of an officer by virtue 11 of an order or process of the court; 12 (8) unlawfully detaining a witness or party to an action or proceeding 13 while going to, remaining at, or returning from the court where the witness or party 14 is for trial; 15 (9) any other unlawful interference with the process or proceedings of 16 the court; 17 (10) disobedience of a subpoena duly served, or refusing to be sworn 18 or answer as a witness; 19 (11) when summoned as a juror in a court, neglecting to attend or 20 serve, or improperly conversing with a party to an action or proceeding to be tried at 21 the court or with another person in relation to the merits of the action, or receiving a 22 communication from a party or other person in respect to it without immediately 23 disclosing it to the court; 24 (12 ) disobedience by an inferior court, judge, magistrate, referee, 25 master, or officer of the lawful judgment, order, or process of a higher court, or 26 proceeding in an action or proceeding contrary to law after the action or proceeding 27 is removed from the jurisdiction of that inferior court, judge, magistrate, or officer ; 28 (13) failure to report immediately that a person released under 29 AS 12.30 has violated a condition of release when acting as a custodian appointed 30 by the court for the released person . 31 * Sec. 2. AS 09.50.020(a) is amended to read:
01 (a) A person who is guilty of contempt is punishable by fine of not more than 02 $300 or by imprisonment for not more than six months. However, when the contempt 03 is one mentioned in AS 09.50.010(3) - (12), or in an action before a magistrate, the 04 person is punishable by a fine of not more than $100 unless it appears that a right or 05 remedy of a party to an action or proceeding was defeated or prejudiced by the 06 contempt, in which case the penalty shall be as prescribed for contempts described in 07 AS 09.50.010(1) , [AND] (2) , and (13) . 08 * Sec. 3. AS 11.56 is amended by adding a new section to read: 09 Sec. 11.56.757. Violation of condition of release. (a) A person commits the 10 crime of violation of condition of release if the person 11 (1) has been charged with a crime or convicted of a crime; 12 (2) has been released under AS 12.30; and 13 (3) violates a condition of release imposed by a judicial officer under 14 AS 12.30, other than the requirement to appear as ordered by a judicial officer. 15 (b) Violation of condition of release is 16 (1) a class A misdemeanor if the person is released from a charge or 17 conviction of a felony; 18 (2) a class B misdemeanor if the person is released from a charge or 19 conviction of a misdemeanor. 20 (c) In this section, "conviction" means that an adult, or a juvenile charged as 21 an adult under AS 47.12, has entered a plea of guilty, guilty but mentally ill, or nolo 22 contendere, or has been found guilty or guilty but mentally ill by a court or jury. 23 * Sec. 4. AS 12.30.020(b) is amended to read: 24 (b) If a judicial officer determines under (a) of this section that the release of 25 a person will not reasonably assure the appearance of the person, or will pose a danger 26 to the alleged victim, other persons, or the community, the judicial officer may 27 (1) place the person in the custody of a designated person or 28 organization agreeing as a custodian to supervise the person; the court shall inform 29 the custodian about the duties required of a custodian, and that failure to report 30 immediately in accordance with the terms of the order that the person released 31 has violated a condition of release may result in the custodian being held in
01 contempt under AS 09.50.010; 02 (2) place restrictions on the travel, association, or place of abode of the 03 person during the period of release; 04 (3) require the person to return to custody after daylight hours on 05 designated conditions; 06 (4) require the execution of an appearance bond in a specified amount 07 and the deposit in the registry of the court, in cash or other security, a sum not to 08 exceed 10 percent of the amount of the bond; the deposit to be returned upon the 09 performance of the condition of release; 10 (5) require the execution of a bail bond with sufficient solvent sureties 11 or the deposit of cash; [OR] 12 (6) require the execution of a performance bond in a specified 13 amount and the deposit in the registry of the court, in cash or other security, of 14 a sum not to exceed 10 percent of the amount of the bond; the deposit to be 15 returned upon the performance of the condition of release; or 16 (7) impose any other condition considered reasonably necessary to 17 assure the defendant's appearance as required and the safety of the alleged victim, 18 other persons, or the community. 19 * Sec. 5. AS 12.30.060 is amended to read: 20 Sec. 12.30.060. Penalties for failure to appear. A person released under the 21 provisions of this chapter who knowingly [WILFULLY] fails to appear before a court 22 or judicial officer as required shall incur a forfeiture of any security that was given or 23 pledged for the person's release , as provided in AS 12.30.065, and if the person was 24 released 25 (1) in connection with a charge of felony, or while awaiting sentence 26 or pending appeal after conviction of an offense, is guilty of a felony and upon 27 conviction is punishable by a fine of not more that $5,000 or by imprisonment for not 28 more than five years, or by both; 29 (2) in connection with a charge of misdemeanor, is guilty of a 30 misdemeanor and upon conviction is punishable by a fine of not more than the 31 maximum provided for the misdemeanor, or by imprisonment for not more than one
01 year, or by both; or 02 (3) for appearance as a material witness, is guilty of a misdemeanor 03 and upon conviction is punishable by a fine of not more than $1,000, or by 04 imprisonment for not more than one year, or by both. 05 * Sec. 6. AS 12.30 is amended by adding a new section to read: 06 Sec. 12.30.065. Forfeiture of security. (a) The court shall forfeit any 07 security given or pledged for the release of a person under this chapter if the person 08 violates a condition of release that prohibits the person from knowingly or intentionally 09 contacting, either directly or indirectly, a victim or witness in the proceeding. 10 (b) The court may order the forfeiture of all or a portion of any security given 11 or pledged for the release of a person under this chapter if the person fails to appear 12 before a court or judicial officer as required in an order by a court or judicial officer 13 or violates a condition of release other than one described in (a) of this section. 14 (c) If the court orders a forfeiture under this section, the court shall issue a 15 judgment for the amount forfeited. Proceedings to enforce the judgment may be 16 instituted by the prosecuting authority. Execution shall issue on judgments of 17 forfeiture entered under this subsection in the same manner as on other judgments for 18 the payment of money. 19 * Sec. 7. AS 12.55.025(c) is amended to read: 20 (c) Except as provided in (d) and (e) of this section, when a defendant is 21 sentenced to imprisonment, the term of confinement commences on the date of 22 imposition of sentence unless the court specifically provides that the defendant 23 must report to serve the sentence on another date. If the court provides another 24 date to begin the term of confinement, the court shall provide the defendant with 25 written notice of the date, time, and location of the correctional facility to which 26 the defendant must report . A defendant shall receive credit for time spent in custody 27 pending trial, sentencing, or appeal, if the detention was in connection with the offense 28 for which sentence was imposed. A defendant may not receive credit for more than 29 the actual time spent in custody pending trial, sentencing, or appeal. The time during 30 which a defendant is voluntarily absent from official detention after the defendant has 31 been sentenced may not be credited toward service of the sentence.
01 * Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section 02 to read: 03 DIRECT COURT RULE AMENDMENT. (a) Rule 41(f), Alaska Rules of Criminal 04 Procedure, is amended to read: 05 (f) Forfeiture. 06 (1) Judgment of Forfeiture. If the person released on bail on the giving 07 or pledging of security fails to appear before a court or a judicial officer as required, 08 or violates a condition of release prohibiting the person knowingly or intentionally 09 from contacting a victim or witness, the judge or magistrate before whom the person 10 released was to appear shall provide for forfeiture of [FORFEIT] the security as 11 provided in AS 12.30.065 . The clerk may sign the judgment of forfeiture if directed 12 to do so on the record in the particular proceeding by the judge. However, the 13 judgment of forfeiture may not be enforced until a hearing is held pursuant to 14 subparagraph (f)(3) [(d)(3)] or, if no hearing is requested, until 30 days after the date 15 of notice of the judgment of forfeiture. Nothing in this subparagraph shall interfere 16 with the issuance of a summons or bench warrant for a person who fails to appear as 17 required before a court or judicial officer. 18 (2) Notice of Forfeiture. The clerk shall send notice of the judgment 19 of forfeiture to the defendant, the defendant's attorney and the person pledging the 20 security at their last known addresses. The notice must state that a hearing will be 21 held on the forfeiture if timely requested pursuant to subparagraph (f)(3) [(d)(3)]. 22 (3) Hearing. If requested by the defendant or person giving or pledging 23 the security within 30 days of the date of notice of the forfeiture, the court shall hold 24 a hearing [TO DETERMINE WHETHER THE DEFENDANT'S FAILURE TO 25 APPEAR WAS WILLFUL]. The state, the defendant, the defense attorney, and the 26 person giving or pledging the security have the right to be heard at this hearing. The 27 court shall set aside the judgment of forfeiture if it is proven by a preponderance of 28 the evidence that the (A) failure to appear or failure to comply with a condition 29 other than one described in AS 12.65.065(a) was due to circumstances beyond the 30 control of the defendant; or (B) the defendant's contact with a victim or witness 31 did not occur or was not done knowingly or intentionally [WAS NOT WILLFUL].
01 The court may set aside the judgment of forfeiture if the court concludes that justice 02 does not require the enforcement of the judgment. An appeal may be taken from the 03 judgment of forfeiture in the manner of other appeals. 04 (4) Remission. Within one year after entry of judgment of forfeiture, 05 a person who has given or pledged security may apply to the court for a remission, 06 either in whole or in part, based on the return of the defendant with the assistance of 07 the person who gave or pledged security or upon such other extraordinary 08 circumstances as justice requires. The conditions of remission may include payment 09 of expenses incurred for enforcement of the forfeiture and for securing the return of 10 the defendant to custody. 11 (5) Exoneration. When the conditions of the bond have [HAS] been 12 satisfied or the forfeiture thereof has been remitted, the court shall exonerate the 13 obligors and release any bail. A surety may be exonerated by a deposit of cash in the 14 amount of the bond or by a timely surrender of the defendant into custody. 15 (6) Enforcement. Execution shall issue on judgments of forfeiture in 16 the same manner as on other judgments for the payment of money. 17 (b) Sections 5 and 6 of this Act and (a) of this section take effect only if (a) of this 18 section receives the two-thirds majority vote of each house required by art. IV, sec. 15, 19 Constitution of the State of Alaska. 20 * Sec. 9. The uncodified law of the State of Alaska is amended by adding new sections 21 to read: 22 APPLICABILITY. (a) Sections 1 - 3, 5, and 6 of this Act apply to offenses 23 committed on or after the effective date of this Act. However, the underlying offense for 24 which a person is on release before trial, sentence, or service of sentence may occur before, 25 on, or after the effective date of this Act. 26 (b) Section 4 of this Act applies to custodians appointed and performance bonds 27 posted on or after the effective date of this Act. However, offenses that give rise to the 28 appointment of a custodian or the posting of the performance bond may occur before, on, or 29 after the effective date of this Act. 30 (c) Sections 6 and 8 of this Act apply to acts that require or allow forfeiture of 31 security that occur on or after the effective date of this Act. However, offenses that give rise
01 to the giving or pledging of security may occur before, on, or after the effective date of this 02 Act. 03 (d) Section 7 of this Act applies to actions occurring before, on, or after the effective 04 date of this Act. 05 * Sec. 10. This Act takes effect immediately under AS 01.10.070(c).