When a person is arrested, a law enforcement officer must take that person before a judicial official without unnecessary delay. G.S. 15A-501(2). Subject to certain statutory exceptions, defendants charged with most non-capital offenses are entitled to pretrial release. G.S. 15A-533(b).
G.S. 15A-534 requires that at least one of five conditions of pretrial release be imposed before a defendant can be released. One type of release condition a judicial official may impose on a defendant is a secured bond. A bail bond may be secured in one of three ways: a cash deposit of the full amount of the bond, a mortgage by the defendant pursuant to G.S. 58-74-5, or by at least one solvent surety.
Judicial officials frequently impose secured bonds and accept cash in satisfaction of those bonds. However, people posting those cash bonds—whether it be the defendant or a person posting on behalf of the defendant—may not always fully understand the procedure surrounding cash bonds. This post addresses the common question of who is entitled to a refund of the cash at the conclusion of the case and how a person can preserve their interest in the cash pending the outcome of the case.
Taking cash bonds
When cash is being offered to satisfy a secured bond, the judicial official taking the cash bond should first determine whether the cash is being deposited by the defendant or by another person. This information guides the judicial official in completing the “Appearance Bond For Pretrial Release” form (AOC-CR-201), which later dictates who is entitled to the cash once the case has concluded. There are notes on cash bonds on side two of AOC-CR-201 on how to complete the form when the cash is intended to be used to satisfy the defendant’s obligations for something other than the requirement to appear (such as for child support, fines, or court costs) and when the cash is not intended for such use. Those notes are detailed in the following paragraphs.
Cash deposited by the defendant
Occasionally, a defendant who is arrested has immediate access to enough cash to post a secured bond. In that case, the judicial official checks the box designated “Cash Appearance Bond By Defendant” on the AOC-CR-201. The defendant signs the bond in the block designated “Signature Of Defendant.” No one signs as surety. The judicial official then completes the portion of the form designated “Complete if Cash Deposited,” lists the receipt number, and signs and prints their name as “Official Accepting Cash.” The judicial official issues a receipt in the name of the defendant.
Cash deposited by a third party
If someone other than the defendant is depositing the cash, the judicial official should determine whether that other person intends for the cash to be used to satisfy the defendant’s obligations for something other than the requirement to appear (such as for child support, fines, or court costs), or whether the person is depositing the cash solely for the purpose of assuring the defendant’s appearance. The official might consider asking the person posting the bond: “Do you expect to get the money back if the defendant complies with the bond or do you want the money to be used for court costs or other obligations of the defendant if they comply with the bond?”
If the deposit by a third party is intended to be used to satisfy the defendant’s obligations other than the requirement to appear, the process is similar to the one detailed above. The defendant signs the bond in the block designated “Signature Of Defendant.” No one signs as surety. The judicial official then completes the portion of the form designated “Complete if Cash Deposited,” lists the receipt number, and signs and prints their name as “Official Accepting Cash.” The judicial official issues a receipt in the name of the defendant.
If the cash deposit is not intended to be used to satisfy the defendant’s obligations other than the requirement to appear, the person providing the cash must execute the bond as a surety in order to preserve their legal interest in the cash as against the state. In that circumstance, the judicial official should check the box designated “Surety Appearance Bond” and complete the portion designated “Accommodation Bondsman,” with the name, address, and telephone number of the person who is depositing the cash. The defendant signs in the block designated “Signature Of Defendant,” and the person who is posting cash signs as surety under “Signature Of Surety.” The person’s signature as surety binds that person to the conditions of the bond and authorizes forfeiture of the cash upon the defendant’s failure to appear. The judicial official then completes the portion designated “Complete If Cash Deposited,” lists the receipt number, signs and prints their name as “Official Accepting Cash,” and issues a receipt in the name of the person who is depositing the cash.
Release and return of cash bonds
While AOC-CR-201 provides some guidelines for taking cash bonds, there is no similar guidance for the process on returning cash bonds. This is where the importance of filling out the form correctly rears its head since only the form—not the receipt—will dictate to whom the funds will be returned.
Cash returned to the defendant
When a cash appearance bond was posted (1) by the defendant or (2) by another person who intended for the cash to be used to satisfy the defendant’s obligations other than the requirement to appear, the block “Cash Appearance Bond By Defendant” will have been checked on the form. Only the defendant is entitled to the return of the cash deposited as security for the bond. The judicial official—usually the clerk—refunds such a bond only to the defendant regardless of what name is on the receipt.
Cash returned to a third party
When the cash appearance bond was posted by someone other than the defendant, and the person posting the bond did not intend for the cash to be used to satisfy the defendant’s obligations other than the requirement to appear (i.e., the person intended to preserve their legal interest in the money), the block “Surety Appearance Bond” will have been checked on the form. Only the person who signed as surety is entitled to the return of the cash deposited as security for the bond, and the clerk should refund such a bond only to the surety.
Ambiguous ownership of a cash bond
Occasionally, the ownership of a cash bond may be ambiguous on the face of the record. When this happens, the clerk usually notifies everyone with any potential interest in the bond money that (1) the bond money is eligible for disbursement due to the case’s conclusion, but the ambiguity in the record prevents the clerk from disbursing without the court resolving the question of ownership; and (2) the clerk will retain the money until the court orders disbursement to a specific entity; and (3) interested parties may wish to consult counsel.
The clerk will likely send an identical notice to all of the interested parties: the district attorney, the defendant (through counsel, if they were represented), and any third party identified on the record in a way that suggests they might have an interest in the money (e.g., if their name is on the receipt).
Although not required, a good practice is for judicial officials to prepare a notice for people who post cash bonds explaining the implications of the form, how the bond will be returned, and the procedure for getting the money returned. Many people are focused on getting their loved one out of jail and may not be aware of how their decision at this stage of the process impacts their funds later down the line. An understanding between the depositor and the judicial official could help avoid a headache for all at the conclusion of the case.