Whether or not you’ve ever been arrested in Florida, you’ve still likely heard the terms “bail” and “bond” in relation to pre-trial release.
Although closely related and often used interchangeably, they serve different purposes in the criminal justice system and, ultimately, determine your financial burden for release. Keep reading to learn more about the key differences between the two terms and what’s required to qualify for each.
What Is The Difference Between “Bail” And “Bond”?
In Florida the two words are legally the same thing. Florida Statute 903.011(1) says the terms “bail” and “bond” include any and all forms of pretrial release, and Florida Statute 903.011(3) forbids setting different monetary amounts for cash, surety or any other form of release. What changes is who puts up the money and what it costs you.
Bail is the money paid to the court to be released from jail while awaiting trial. It is used to guarantee the defendant's appearance in court.
For example, if the judge at your initial hearing sets your bail at $10,000, you will be required to pay the total amount to secure your release. This money guarantees that you will show up to your court date once you’ve been released from jail.
What Is A Bail Bond?
In some cases, a bail bond can be secured instead of paying the bail itself. A bail bond is a promise made by a third-party bondsman to cover the bail amount if the defendant fails to appear in court.
A surety bond is written by an insurer through a licensed bail bond agent. Under Florida Statute 903.011(2), the monetary part of any form of pretrial release may be met by a surety bond, so the court takes the bond in place of cash.
The premium is fixed, not negotiable. Florida Statute 648.33(2) makes it unlawful for a bail bond agent to charge more or less than the rate the insurer has filed with and had approved by the state, and charging off that filed rate is a first-degree misdemeanor under Florida Statute 648.33(3). The filed rate in Florida is commonly 10 percent, so a $10,000 bond costs about $1,000. That premium buys the bond. It is not applied to your case and you do not get it back.
The Bail Process
At a bail hearing, the court decides whether a defendant can be released from custody. The judge presides over the hearing and considers various factors to determine whether the defendant is a flight risk and a danger to the public.
The severity of the alleged crime, the defendant's criminal history, employment, and family ties all affect the amount of bail.
In some cases, the judge may release the defendant on their recognizance, meaning no bail is required. However, if bail is set, the defendant must post the bail amount to secure their release.
Posting Bail And Release Conditions
To post bail, the defendant has two options:
- Bail: Pay the total bail amount in cash. The amount will be refunded (minus court fees) if the defendant complies with the conditions of release and appears for all court dates.
- Bond: a licensed bail bond agent posts a surety bond for you. You pay a nonrefundable premium at the rate the insurer filed with the state, commonly 10 percent, and the surety company carries the risk if you fail to appear
The judge sets conditions of release at first appearance, not at arraignment, and they can include travel restrictions, no contact with the alleged victim, regular check-ins or treatment. Florida Statute 903.0471 lets a court revoke pretrial release and order detention on its own motion if it finds probable cause that you committed a new crime while released or materially violated any other condition.
Roles And Responsibilities
Three parties matter once bail is set: the court that sets and holds the money, the surety company that guarantees it, and the licensed bail bond agent who writes the bond.
The Role Of A Bail Bondsman
A bail bondsman is a professional who helps a defendant obtain release from police custody by providing a financial guarantee to the court. They usually work with a bail company and act as an intermediary in the bail process.
The agent assesses your record and your likelihood of appearing before writing the bond, and charges the filed premium for it. Bail bond agents in Florida have to be licensed and appointed under chapter 648, and Florida Statute 648.30 makes acting as one without that license a third-degree felony.
Failure To Appear And Bail Jumping
If you are released from jail on bail, you must appear at every scheduled court date. Willfully failing to appear is a crime in its own right under Florida Statute 843.15: a third-degree felony if you were released on a felony charge, and a first-degree misdemeanor if you were released on a misdemeanor. The court also issues an arrest warrant.
The surety then has a deadline. Under Florida Statute 903.26(2)(a) the court declares the bond forfeited, the clerk sends notice within five days, and the forfeiture must be paid within 60 days of that notice unless the company gets you back before the court first.
Recovery And Enforcement
Florida does not allow bounty hunters. Florida Statute 648.30(2) says a person may not represent himself or herself to be a bail enforcement agent, bounty hunter or other similar title in this state, and Florida Statute 648.30(3) limits apprehending, detaining or arresting a person out on bond to certified law enforcement officers, licensed Florida bail bond agents, and agents holding an equivalent license in the state where the bond was written. Violating that section is a third-degree felony under Florida Statute 648.30(4).
So if you miss court, the people looking for you are the licensed agent who wrote your bond and the police acting on the warrant. Anyone else who grabs you is committing a felony.
The Financial Aspects Of Bail And Bond
As a defendant, your bail amount ensures you show up to your trial once released. Whether you choose to pay the entire bail amount on your own or use a bail bondsman, each choice has pros and cons.
Upfront Costs
A bond costs far less up front than the full bail amount. The premium is the insurer's filed rate, commonly 10 percent of the bond, and Florida Statute 648.33(2) bars an agent from discounting it or marking it up. It is nonrefundable whatever happens in your case.
In some cases, the bail bond company may also require collateral for the bail, such as real estate or other assets, to ensure the defendant's appearance in court.
The up-front costs for bail will be higher than paying for a surety bond, but as long as you show up to your court date, the entire bail amount will be refunded.
Refund Policies And Forfeiture
The refund conditions for deposit payments vary considerably. If you pay bail in cash directly to the court, you are entitled to a refund if you fulfill all conditions imposed by the court and appear at all scheduled court dates. The clerk deducts first. Florida Statute 903.286 requires the clerk of court to withhold from a cash bond refund enough to cover unpaid costs of prosecution, costs of representation, court fees, court costs and criminal penalties, no matter who posted the money.
As mentioned above, if you use the services of a bail agent, the premium you pay to the agent is non-refundable, even if you fulfill all the conditions imposed by the court. This amount serves as compensation for assuming the financial risk on your behalf.
If you’ve provided collateral, such as real estate, in addition to the bond premium, the bail agent has the right to seize the collateral.
Speak To A Criminal Lawyer About Pre-Trial Release In Florida
If you or a loved one has been charged with a crime in Florida and would like legal representation to assist with pre-trial release, the experienced criminal defense lawyers at Weinstein Legal Team can help.
Our attorneys appear at first appearance, argue the Florida Statute 903.046(2) factors, and ask the court to reconsider a bond you cannot post. Click here to schedule a free consultation with an experienced criminal lawyer at Weinstein Legal Team, or give us a call at 888.626.1108 to speak with an attorney right away.
