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COMMONWEALTH OF PENNSYLVANIA

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234 Pa. Code Rule 535. Receipt for Deposit; Return or Retention of Deposit.

Rule 535. Receipt for Deposit; Return or Retention of Deposit.

 (A)  Any deposit of cash in satisfaction of a monetary condition of bail shall be given to the issuing authority, the clerk of courts, or another official designated by the president judge by local rule pursuant to Rule 117(C). The issuing authority, clerk, or other official who accepts the deposit shall give the depositor an itemized receipt, and shall note on the bail bond the amount deposited and the name of the person who made the deposit. The defendant shall sign the bail bond, and be given a copy of the signed bail bond.

   (1)  When the issuing authority accepts a deposit of bail, the issuing authority shall note on the docket transcript the amount deposited and the name of the person who made the deposit. The issuing authority shall have the deposit, the docket transcript, and a copy of the bail bond delivered to the clerk of courts.

   (2)  When another official is designated by the president judge to accept a bail deposit, that official shall deliver the deposit and the bail bond to either the issuing authority, who shall proceed as provided in paragraph (A)(1), or the clerk of courts, who shall proceed as provided in paragraph (A)(3).

   (3)  When the clerk of courts accepts the deposit, the clerk shall note in the list of docket entries the amount deposited and the name of the person who made the deposit, and shall place the bail bond in the criminal case file.

 (B)  When the deposit is the percentage cash bail authorized by Rule 528, the depositor shall be notified that by signing the bail bond, the depositor becomes a surety for the defendant and is liable for the full amount of the monetary condition in the event the defendant fails to appear or comply as required by these rules and that, if the defendant is the named depositor, the amount otherwise returnable may be used to pay and satisfy any outstanding restitution, fees, fines, and costs owed by the defendant as a result of a sentence imposed in the court case for which the deposit is being made.

 (C)  The clerk of courts shall place all cash bail deposits in a bank or other depository approved by the court and shall keep records of all deposits.

 (D)  Unless a motion is filed pursuant to paragraph (E), within 20 days of the full and final disposition of the case, the deposit shall be returned to the depositor, less any bail-related fees or commissions authorized by law, and the reasonable costs, if any, of administering the percentage cash bail program.

 (E)  In any case in which the defendant is the named depositor, upon the full and final disposition of the case, the court may order, upon motion of the attorney for the Commonwealth, that any money deposited pursuant to this rule by or on behalf of the defendant that is otherwise returnable to the defendant be held and applied to the payment of any restitution, fees, fines, and costs imposed upon the defendant in the case for which the deposit had been made, unless the defendant shows that he or she would suffer an undue hardship.

 (F)  When a case is transferred pursuant to Rule 130(B) or Rule 555, the full deposit shall be promptly forwarded to the transfer judicial district, together with any bail-related fees, commissions, or costs paid by the depositor.

Comment

   When the president judge has designated another official to accept the bail deposit as provided in Rule 117, the other official’s authority under Rule 117 and this rule is limited to accepting the deposit, having the defendant sign the bail bond, releasing the defendant, and delivering the bail deposit and bail bond to the issuing authority or the clerk of courts.

   Paragraph (E) was added in 2014 to permit the attorney for the Commonwealth to seek, at the full and final disposition of any case in which the defendant is the named depositor of bail money, to have the deposited bail money applied to any restitution, fees, fines, and costs imposed on the defendant in the case for which the deposit had been made. This new provision, adopted pursuant to the authority granted in 42 Pa.C.S. §  5702, is a procedural mechanism by which the court may retain money previously deposited with the court to satisfy the defendant’s obligations but only in the current criminal case. This procedure also secures the right of the defendant to proffer reasons why retention of the bail money would be an undue hardship. See Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978).

   The procedure stated in this rule is the only procedure by which bail may be retained to pay for assessments imposed on the defendant. Any local practice that permits the retention of bail other than as provided in this rule is inconsistent with the statewide rules and subject to the provisions in Rule 105(B).

   For the manner of distribution of any funds applied to the outstanding restitution, fees, fines, and costs owed by the defendant, see the Pennsylvania Supreme Court’s Uniform Disbursement Schedule, In Re: Promulgation of Financial Regulations Pursuant to Act 49 of 2009 (42 Pa.C.S. § §  3733(A.1) and 3733.1), No. 335 Judicial Administration Docket (October 29, 2009), 204 Pa. Code §  29.353.

   The procedures in paragraph (E) contemplate the decision to retain the bail to be made at the court of common pleas. There may be court cases in which bail had been set that are resolved at the magisterial district court, for example, in cases in which a plea agreement is entered to withdraw misdemeanor or felony charges in exchange for a plea to summary charges or misdemeanor charges within the jurisdiction of the magisterial district judge. In such cases, the magisterial district judge may not order the retention of bail money where the defendant is the named depositor for the payment of assessments unless the Commonwealth and the defendant agree.

   Any order issued pursuant to paragraph (E) shall be in conformance with Rule 114.

   Given the complexities of posting real estate to satisfy a monetary condition of release, posting of real estate may not be feasible outside the normal business hours.

   Paragraph (B) requires the issuing authority or the clerk of courts who accepts a percentage cash bail deposit to explain to the person who deposits the money the consequences of acting as a surety. There will be cases in which a person merely deposits the money for the defendant to post, and is not acting as the defendant’s surety. In this situation, the defendant is the depositor and should receive the receipt pursuant to paragraph (A). See Rule 528. See also Rule 528 for the notice the clerk of courts or issuing authority must provide when a person other than the defendant deposits the cash percentage of the bail.

   When cash bail that is deposited in a bank pursuant to paragraph (C) is retained by a county in an interest-bearing account, case law provides that the county retains the earned interest. See Crum v. Burd, 571 A.2d 1 (Pa. Cmwlth. 1989), allocatur denied, 581 A.2d 574 (Pa. 1990).

   The full and final disposition of a case includes all avenues of direct appeal in the state courts. Therefore, the return of any deposits would not be required until after either the expiration of the appeal period or, if an appeal is taken, after disposition of the appeal. See Rule 534.

   Any fees, commissions, or costs assessed pursuant to paragraph (D) must be reasonably related to the county’s actual bail administration costs. Each county should establish local procedures to ensure adequate notice and uniform application of such fees, commissions, or costs. See, e.g., Buckland v. County of Montgomery, 812 F.2d 146 (3rd Cir. 1987).

   When a case is transferred pursuant to Rules 130(B) and 555, paragraph (F) and Rules 130(B) and 555 require that any bail-related fees, commissions, or costs collected pursuant to paragraph (D) be forwarded to the transfer judicial district. Fees, commissions, or costs that have been assessed but not paid at the time of transfer may not be collected in the transferring judicial district.

   When bail is terminated upon acceptance of the defendant into an ARD program, such action constitutes a ‘‘full and final disposition’’ for purposes of this rule and Rule 534 (Duration of Obligation). See Rule 313.

   Official Note

   Former Rule 4015, previously Rule 4009, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4015, former paragraph (b) integrated into paragraph (a) and new paragraph (b) adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 4015. Present Rule 4015 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 535 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000; amended March 3, 2004, effective July 1, 2004; amended June 30, 2005, effective August 1, 2006; amended March 9, 2006, effective August 1, 2006; amended December 8, 2014, effective February 9, 2015.

   Committee Explanatory Reports:

   Final Report explaining the provisions of the new rule published with Court’s Order at 25 Pa.B. 4116 (September 30, 1995).

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

   Final Report explaining new paragraph (E) concerning the interplay with Rules 130(B) (former Rule 21(B)) and 555 (former Rule 300) published with Court’s Order at 30 Pa.B. 2219 (May 6, 2000).

   Final Report explaining the March 3, 2004 changes to paragraph (A) published with Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

   Final Report explaining the June 30, 2005 changes to the rule correlative to new Rule 117 published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).

   Final Report explaining the March 9, 2006 changes to paragraph (A) concerning deposits of bail published with the Court’s Order at 36 Pa.B. 1398 (March 25, 2006).

   Final Report explaining the December 8, 2014 changes concerning defendant’s deposits of bail to be applied to restitution, fees, fines, and costs in the current case published with the Court’s Order 44 Pa.B. 7833 (December 20, 2014).

Source

   The provisions of this Rule 535 amended April 20, 2000, effective July 1, 2000, 30 Pa.B. 2211; amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended March 9, 2006, effective August 1, 2006, 36 Pa.B. 1397; amended December 8, 2014, effective February 9, 2015, 44 Pa.B. 7830. Immediately preceding text appears at serial pages (312446) and (338907) to (338908).



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