Cases - Indiana

State v. Boles, 792 N.E.2d 553 (Ind. App. 2003) involved a consolidated appeal of nine cases in which the trial court clerk imposed "late surrender fees" after the defendant failed to appear.  The Court of Appeals affirmed the trial court's order vacating the fees and exonerating the bonds.  In each case, the court had failed to give the bail bondsman or surety advance notice of the trial or hearing date at which the defendant did not appear.  The Court of Appeals held that such notice was mandatory.  The Court also held that only a trial court judge, not the clerk, could assess late surrender fees.

In State v. Boles, 2004 WL 1445441 (Ind. June 29, 2004) the Indiana Supreme Court reversed the trial court and Court of Appeals and held that late surrender fees and bond forfeiture can be imposed even though the court failed to give the bail agent or surety advance notice of the appearance date as required by Ind. Code §27-10-2-8(a).  The Supreme Court also held that the clerk, as opposed to the Judge, could assess the late surrender fees.  The bail agent and surety would still be entitled to receive notice that the defendant failed to appear pursuant to §27-10-2-12(a), and only the Judge could declare a forfeiture of the bond.  The Court remanded the case to the trial court to determine whether the late surrender fees should be waived pursuant to §27-10-2-12(e) because of the surety's or bail agent's diligent efforts to locate the defendants.

In Smith v. City of Hammond, 2004 WL 2453757 (7th Cir. November 3, 2004) a City Court judge refused to permit use of a surety bond for bail and instead ordered that bail be “cash bond” meaning that the defendant had to deposit 10% of the face amount of the bail and would receive that deposit, less certain deductions, back if she appeared.  The bondsman sued the judge, the city court, the City, the police chief and the city clerk asserting that he was deprived of a property right in violation of 42 U.S.C. §1983.  The alleged property right was his license as a bondsman.  The plaintiff sought a preliminary injunction and appealed its denial.  The Seventh Circuit affirmed on multiple grounds and remanded the case with the suggestion that it be dismissed “without further ado” since it was plainly without merit