29-901 Bail; personal recognizance; conditions. - Nebraska Statutes

29-901. Bail; personalrecognizance; conditions.Any bailable defendantshall be ordered released from custody pending judgment on his or her personalrecognizance unless the judge determines in the exercise of his or her discretionthat such a release will not reasonably assure the appearance of the defendantas required or that such a release could jeopardize the safety and maintenanceof evidence or the safety of victims,witnesses, or other persons in the community. When such determination is made,the judge shall either in lieu of or in addition to such a release imposethe first of the following conditions of release which will reasonably assurethe appearance of the person for trial or, if no single condition gives thatassurance, any combination of the following conditions:(1) Place the defendant in the custody of a designated personor organization agreeing to supervise the defendant;(2) Place restrictions on the travel, association, or placeof abode of the defendant during the period of such release;(3) Require, at the option of any bailable defendant, eitherof the following:(a) The execution of an appearance bond in a specified amountand the deposit with the clerk of the court in cash of a sum not to exceedten percent of the amount of the bond, ninety percent of such deposit to bereturned to the defendant upon the performance of the appearance or appearancesand ten percent to be retained by the clerk as appearance bond costs, exceptthat when no charge is subsequently filed against the defendant or if thecharge or charges which are filed are dropped before the appearance of thedefendant which the bond was to assure, the entire deposit shall be returnedto the defendant. If the bond is subsequently reduced by the court after theoriginal bond has been posted, no additional appearance bond costs shall beretained by the clerk. The difference in the appearance bond costs betweenthe original bond and the reduced bond shall be returned to the defendant.In no event shall the deposit be less than twenty-five dollars. Whenever jurisdictionis transferred from a court requiring an appearance bond under this subdivisionto another state court, the transferring court shall transfer the ninety percentof the deposit remaining after the appearance bond costs have been retained.No further costs shall be levied or collected by the court acquiring jurisdiction;or(b) The execution of a bail bond with such surety or suretiesas shall seem proper to the judge or, in lieu of such surety or sureties,at the option of such person, a cash deposit of such sum so fixed, conditionedfor his or her appearance before the proper court, to answer the offense withwhich he or she may be charged and to appear at such times thereafter as maybe ordered by the proper court. The cash deposit shall be returned to thedefendant upon the performance of all appearances.If the amount of bail is deemed insufficient by the courtbefore which the offense is pending, the court may order an increase of suchbail and the defendant shall provide the additional undertaking, written orcash, to secure his or her release. All recognizances in criminal cases shallbe in writing and be continuous from term to term until final judgment ofthe court in such cases and shall also extend, when the court has suspendedexecution of sentence for a limited time, as provided in section 29-2202,or, when the court has suspended execution of sentence to enable the defendantto apply for a writ of error to the Supreme Court or Court of Appeals, asprovided in section 29-2301, until the period of suspension has expired. Whentwo or more indictments or informations are returned against the same personat the same term of court, the recognizance given may be made to include alloffenses charged therein. Each surety on such recognizance shall be requiredto justify under oath in a sum twice the amount of such recognizance and givethe description of real estate owned by him or her of a value above encumbranceequal to the amount of such justification and shall name all other cases pendingin which he or she is a surety. No one shall be accepted as surety on recognizanceaggregating a sum in excess of his or her equity in the real estate, but suchrecognizance shall not constitute a lien on the real estate described thereinuntil judgment is entered thereon against such surety; or(4) Impose any other condition deemed reasonably necessaryto assure appearances as required, including a condition requiring that thedefendant return to custody after specified hours. SourceG.S.1873, c. 58, §§ 346 to 348, p. 802; R.S.1913, § 9003; Laws 1921, c. 203, § 1, p. 733; C.S.1922, § 10027; C.S.1929, § 29-901; R.S.1943, § 29-901; Laws 1951, c. 87, § 1, p. 250; Laws 1953, c. 90, § 1, p. 261; Laws 1961, c. 132, § 1, p. 384; Laws 1972, LB 1032, § 174; Laws 1974, LB 828, § 1; Laws 1975, LB 284, § 2; Laws 1984, LB 773, § 1; Laws 1991, LB 732, § 74; Laws 1999, LB 51, § 1; Laws 2009, LB63, § 23; Laws 2010, LB771, § 15.Effective Date: July 15, 2010 Cross ReferencesAppeals, suspension of sentence, see section 29-2301.Forfeiture of recognizance, see sections 29-1105 to 29-1110.Suspension of sentence, see section 29-2202. Annotations1. Applicability of section2. Bonds3. Discretion of court4. Miscellaneous1. Applicability of sectionThis section does not apply after judgment has been rendered. State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982).This section does not apply to prisoner held under extradition warrant. In re Application of Campbell, 147 Neb. 382, 23 N.W.2d 698 (1946).2. BondsObligation of surety on bail bond is to have principal appear forthwith, where no date is fixed. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).Since 1953, a cash appearance bond may be given. Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d 380 (1962).In prosecution for violation of National Prohibition Act where bail bond had been declared forfeited before repeal of act, surety was liable. La Grotta v. United States, 77 F.2d 673 (8th Cir. 1935).3. Discretion of courtNot error for court to remand defendant on bail to custody following jury instructions, but prior to verdict. State v. Starks, 198 Neb. 433, 253 N.W.2d 166 (1977).Fixation of the amount of bail is a matter resting in the sound discretion of the trial court. Kennedy v. Corrigan, 169 Neb. 586, 100 N.W.2d 550 (1960).Acceptance and approval of bail bonds is a judicial function. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).Order fixing amount of bail will not be reviewed on habeas corpus unless it appears that amount is unreasonably great and disproportionate to the offense charged. In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893).4. MiscellaneousThe deposit of cash in lieu of or in support of bail under this section is for the purpose only of ensuring the defendant's appearance in court when required, and upon full compliance with any such court order and release of bail, the statutory refund must be made. State v. McKichan, 219 Neb. 560, 364 N.W.2d 47 (1985).Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).Record did not show that cash deposit was made. State v. Mills, 179 Neb. 853, 140 N.W.2d 826 (1966).Surety was estopped to question irregularities of the proceeding. Berkowitz v. United States, 90 F.2d 881 (8th Cir. 1937).