Rule 46. Certain Procedural Provisions Governing Bail

(a) In General. This Rule contains certain procedural provisions governing bail for a defendant or for a witness. The procedure governing preconviction and post-conviction bail for a defendant is generally provided by statute.

(b) Bail by a Bail Commissioner.

(1) Required Factual Endorsements Upon Written Release Order . Every bail commissioner upon accepting bail shall endorse upon the written release order the following facts: the date and place (town or city) of accepting bail, the court before which the prisoner is required to appear, the crime or crimes of which the prisoner is accused, the amount and conditions of bail, the names and addresses of each surety or owner of cash bail, the prisoner's mailing address and, if different, residence address, and, if known, the date and time the prisoner is to appear, the Arrest Tracking Number, the Charge Tracking Number, and the date of birth of the prisoner.

(2) Inability of Person in Custody to Pay Bail Commissioner Fee . A person presently in custody who is qualified to be released upon personal recognizance or upon execution of an unsecured appearance bond, whether or not accompanied by one or more conditions of bail that has been set by a judicial officer, but who in fact lacks the present financial ability to pay a bail commissioner fee, shall nonetheless be released upon personal recognizance or upon execution of an unsecured appearance bond. A bail commissioner shall not refuse to (A) examine a person to determine the person's eligibility for bail,

(B) set bail, (C) prepare the personal recognizance or bond, or (D) take the acknowledgement of the person in custody, because a person in custody lacks the present financial ability to pay a bail commissioner fee.

(c) Bail Given on Appeal; Place of Deposit. Whenever cash or other property is given on appeal, it shall be deposited with the clerk of the Unified Criminal Docket on the next regular business day.

(d) Redetermination of Bail by Another Justice or Judge . Any defendant charged with a crime bailable as of right who is aggrieved by a decision of the court made at arraignment or initial appearance as to the amount or conditions of bail set may file one petition for redetermination of bail by another justice or judge. Such petition must be filed with the court no later than 14 days before the date set for the defendant's dispositional conference. If the defendant is incarcerated, hearing on the petition shall be scheduled before any justice or judge within 48 hours of filing, excluding Saturdays, Sundays, legal holidays, and court holidays. For a defendant who is in custody, the court shall provide notice of the hearing to the attorney for the State at least 24 hours before the hearing. If the defendant is not in custody, hearing on the petition shall be scheduled within 7 days after it has been filed. For a defendant who is not in custody, the court shall provide notice of the hearing to the attorney for the State at least 72 hours before the hearing. The court shall review the petition and, after providing the parties with an opportunity to be heard, may set bail in any manner authorized by 15 M.R.S. § 1026.

(e) Review of Bail by or Appeal to a Single Justice of the Supreme Judicial Court.

(1) Petition . A petition for review of preconviction bail under 15 M.R.S. § 1029 shall be filed in the Unified Criminal Docket. The clerk shall promptly deliver a copy of the petition to any Justice of the Supreme Judicial Court designated by a general order or special assignment of the Chief Justice to sit in single justice matters in that county. On receipt of the petition, the trial court's order, and the available record of the hearing below, the assigned justice will either conduct a hearing de novo or conduct a review, depending upon what is required under the law. Briefing and oral argument may be dispensed with by the assigned Justice.

(2) Appeal . An appeal of post-conviction bail under 15 M.R.S. § 1051, or an appeal of revocation of preconviction bail under 15 M.R.S. § 1097 or revocation of post-conviction bail under 15 M.R.S. § 1099-A shall be taken by filing a notice of appeal with the clerk of the Unified Criminal Docket. The clerk shall promptly deliver a copy of the notice to any designated justice of the Supreme Judicial Court. On receipt of the notice of appeal, the trial court's order, and the available record of the hearing below, the assigned justice shall review the record and, with or without briefing or argument, determine whether the trial court's order is without a rational basis.

(f) Statement to Person Offering Surety for a Defendant. Every judicial officer or clerk who accepts property, including money, as security for bail shall first provide to the prospective surety the oral and written advice required under 15 M.R.S. § 1072-A(2) and (3) respectively, as well as a copy of the written release order pertaining to the defendant required under 15 M.R.S. § 1072-A(1).

(g) Forfeiture.

(1) Declaration . If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail and give notice to the defendant and the person who has agreed to act as surety or deposited cash bail.

(2) Setting Aside . The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

(3) Enforcement . When no motion to set aside a forfeiture has been made within 28 days of notice of the declaration of forfeiture, the court shall enter a judgment of default and execution may issue thereon. By entering into a bond the defendant and the person who has agreed to act as surety or deposited cash bail submit to the jurisdiction of the court and their liability may be enforced on motion without the necessity of an independent action.

(4) Remission . After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.

(h) Exoneration. When the condition of the bond has been satisfied, the court shall exonerate the defendant and the person who has agreed to act as surety or deposited cash bail and release any bail.

(i) Bail for Witness. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure that person's presence by subpoena, the court may order the arrest of that person and may require that person to give bail for his or her appearance as a witness. If the person fails to give bail the court may commit that person to the custody of the sheriff pending final disposition of the proceeding in which the testimony is needed, may order that person's release if he or she has been detained for an unreasonable length of time, and may modify at any time the requirement as to bail. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that the witness' deposition be taken. After the deposition has been taken the court may discharge the witness.

Committee Notes

Advisory Note – April 2017 The amendment makes the following changes to Rule 46(g) and (h). First, in subdivision (g), paragraph (1) the word "prompt" is deleted as unnecessary in light of the first sentence of paragraph (3). Second, in subdivision (g), paragraphs (1) and (3) and subdivision (h) the word "obligors" is replaced in favor of identifying with specificity those to whom "obligors" potentially refers—namely, the defendant and the person who has agreed to act as surety or deposited cash bail. Third, in subdivision (g), paragraph (3), first sentence, the current period within which a motion to set aside a forfeiture can be filed before a court enters a judgment of default is shortened from 35 days to 28 days. A 28-day period is sufficient, since the time period starts only after notice of the declaration of forfeiture has been provided.

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 46 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivision (c) the words "Unified Criminal Docket" replace the words "trial court." Second, subdivision (d) is entirely new. It establishes the needed procedure for a redetermination of bail by another justice or judge for any defendant charged with a crime bailable as of right who is aggrieved by a decision of the court made at arraignment or initial appearance as to the amount or conditions of bail. The redetermination of bail by another justice or judge by way of petition is as authorized pursuant to M.R.U. Crim. P. 36(b)(2). The petition must be filed in the Unified Criminal Docket no later than 14 days before the date set for the defendant's dispositional conference. Hearing before any justice or judge must be scheduled within 48 hours of filing, excluding Saturdays, Sundays, legal holidays, and court holidays, if the defendant is incarcerated. The court must provide notice of the hearing to the attorney for the State at least 24 hours before the hearing. If the defendant is not incarcerated, the hearing before any justice or judge must be scheduled within 7 days after it is filed. The court must provide notice of the hearing to the attorney for the State at least 72 hours before the hearing. The hearing justice or judge, after receiving the petition and providing the parties an opportunity to be heard, may set bail in any manner authorized by 15 M.R.S. § 1026. Third, because the content of subdivision (d) is entirely new, subdivisions (d), (e), (f), (g), and (h) of M.R. Crim. P. 46 are redesignated (e), (f), (g), (h), and (i) in the new Rule. Fourth, in subdivision (d) the letter "s" in the word "state" is capitalized because it is used in the term "attorney for the State." See Committee

Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). Fifth, in subdivision (e)(1) and (2) the words "Unified Criminal Docket" replace the words "Superior Court." Sixth, in subdivision (g)(3) the words "30 days of notice of the declaration of forfeiture" is changed to "35 days of notice of the declaration of forfeiture" to reflect the Court's preference for calculating time periods for rule purposes in increments of 7 rather than increments of 5.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1965 [M.R. Crim. P. 46(d).] There is no Advisory Committee Note to the amendment to Rule 46(d) effective December 1, 1965. However, the following notation was made in Glassman, at 403: "This change was necessitated by the failure of the Legislature to adopt a proposed Bail Jumping Statute, L.D. No. 1118, 102nd Legislature, 1965."

Advisory Committee Note—1979 [M.R. Crim. P. 46(a).] The amendment incorporates provisions on bail pending appeal previously found in Rule 38 and provides for bail on appeal to be set by the preceding Justice prior to the filing of a notice of appeal.

Advisory Committee Note—1980 [M.R. Crim. P. 46(a) and (d).] Provisions dealing with bail pending appeal are split out from Rule 46 and collected in a new Rule 46A, thereby aiding clarification of the subject. Rule 46(d) is amended to make it clearer that a bail bond may either be secured or unsecured.

Advisory Committee Note—1983 [M.R. Crim. P. 46.] Maine Rules of Criminal Procedure 46, 46A, 46B, 46C and 46D: The amendments seek to clarify which bail rule applies to which time interval and to make certain other clarifying revisions. In Fredette v. State , 428 A.2d 395, 398 n.6 (Me. 1981) the Court expressed some uncertainty over which bail rule applies to which time interval. The amendment seeks to make clear that Rule 46 governs pre-verdict bail and that Rule 46A governs post verdict bail. Post-verdict bail set by the Superior Court may be pending imposition or execution of sentence or entry of judgment or appeal. Once a judgment is entered, a defendant aggrieved by the Superior Court's decision on bail pending appeal may apply for bail pending appeal to a single justice of the Supreme Judicial Court. In order to clarify these aspects of post-verdict bail, present Rule 46A has been split into two Rules, Rules 46A and 46B. Revocation of post-verdict bail set pursuant to either Rule 46A or 46B is governed by new Rule 46C, which is drawn from present Rule 46A(e). The provisions for forfeiture and exoneration of bail presently found in Rule 46(e) and (f) are meant to apply to both pre-verdict and post-verdict bail. Therefore, they are split off as a new Rule 46D.

Advisory Committee Note—1989 [M.R. Crim. P. 46.] Rule 46 has been substantially reorganized and now incorporates the language formerly found in former Rules 46A, 46D, and the last two sentences of former Rule 15(a). It is anticipated that Rule 46 will be rewritten in 1989 in light of the adoption of the Maine Bail Code (15 M.R.S. §§ 1001-1102). Advisory Committee—1991 [M.R. Crim. P. 46(e)(1) and (3).] The proposed amendment reverses the burden of filing a motion once a declaration of forfeiture of bail is entered. Under the present rule the state must file a motion to reduce the declaration to a judgment, necessitating notice and hearing. The amendment requires notice of the declaration of forfeiture to the obligors and requires them to file a motion to set aside the forfeiture in order to prevent the entry of judgment. This should reduce delay and unnecessary paperwork, and make the process similar to that of a civil default. See Rule 55 of the Maine Rules of Civil Procedure.

Advisory Committee Note—1998 [M.R. Crim. P. 46(b).] This amendment conforms the rule to the language and current practice under the Bail Code. [M.R. Crim. P. 46(d).] This amendment, added by the Supreme Judicial Court, is intended to broaden the current rule to include review of preconviction and post-conviction bail, including the revocation of preconviction and post-conviction bail, by a single Justice of the Supreme Judicial Court as statutorily authorized in the Maine Bail Code. 15 M.R.S. § 1029(1)(B) allows a defendant who is in custody following a Harnish bail proceeding conducted in the Superior Court to petition a single Justice for review. 15 M.R.S. § 1051(5) and (6) allow either party aggrieved by a trial court's post-conviction bail order to appeal to a single Justice. 15 M.R.S. § 1097(3) allows a defendant in custody as a result of the revocation of preconviction bail conducted in the Superior Court to appeal to a single Justice. 15 M.R.S. § 1099-A(2) allows a defendant in custody as a result of the revocation of a post-conviction bail conducted in either the District or Superior Court to appeal to a single Justice. The amendment also intends that Rule 46(d) apply as well to a petition for writ of habeas corpus initiated by a defendant in custody following a pre-conviction bail hearing conducted in the Superior Court. A defendant similarly aggrieved in the District Court must instead seek review from a Justice of the Superior Court. State v. Argraves , 666 A.2d 79, 81 (Me. 1995). [M.R. Crim. P. 46(e), (f) and (g).] Present Rules 46(e), (f) and (g) are redesignated to accommodate new Rule 46(e). [M.R. Crim. 46(e).] This new rule responds to the recent enactment of 15 M.R.S. § 1072-A (Maine Bail Code) requiring that "the Supreme Judicial Court . . . by rule specify who is responsible for providing to the prospective surety the required oral and written advice as well as the copy of the written release order pertaining to the defendant." See P.L. 1997, ch. 543, § 17; Comm. of Conference Amend. A to L.D. 1571, No. S-423, Summary, paragraph number 13 (118th Legis. 1997). [M.R. Crim. P. 46(g).] This newly redesignated rule is amended to delete matter now covered by the Bail Code. [M.R. Crim. P. 46(h).] This newly redesignated rule is amended to expressly recognize the right of a court to arrest a material witness upon a proper showing, now legislatively authorized in the Bail Code (15 M.R.S. § 1104). See P.L. 1997, ch. 317, § A-2; L.D. 1490 Summary at page 3 (118th Legis. 1997).

Advisory Committee Note—2003 [M.R. Crim. P. 46(b).] The amendment deletes the current requirement that the written release orders have endorsed upon it, if known, the "incident number assigned by the arresting officer" because the "Arrest Tracking Number" and "Charge Tracking Number" will serve as the unique identifiers. See Advisory Committee Note to M.R. Crim. P. 3(f) and M.R. Crim. P. 7(f). See also Advisory Committee Note to M.R. Crim. P. 53(a) and M.R. Crim. P. 57.

Advisory Note – November 2006 The amendment to M.R.Crim.P. 46(b), in addition to modifying its heading, creates two separate numbered paragraphs in subdivision (b). Paragraph (1), captioned "Required Factual Endorsements Upon Written Release Order" contains the content of current subdivision (b). New paragraph (2) captioned "Inability of Person in Custody to Pay Bail Commissioner Fee" precludes a bail commissioner from refusing to take the steps necessary to release a person from custody upon personal recognizance or upon execution of an unsecured appearance bond, whether or not accompanied by one or more conditions that has been set by a judicial officer, merely because the person lacks the financial ability to pay a bail commissioner fee. A person in custody under these circumstances must be released by a bail commissioner upon personal recognizance or upon execution of an unsecured appearance bond.