The Vermont Statutes Online

Title 13: Crimes and Criminal Procedure

Chapter 181: ARREST, COMPLAINT, AND BINDING OVER

 

Sub-Chapter 1: Arrest And Complaint

§ 7553a. Acts of violence; denial of release on bail

A person charged with an offense that is a felony, an element of which involves an act of violence against another person, may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence. (Added 1993, No. 143 (Adj. Sess.), § 2.)

§ 7553b. Right to speedy trial if bail is denied

(a) Except in the case of an offense punishable by death or life imprisonment, if a person is held without bail prior to trial, the trial of the person shall be commenced not more than 60 days after bail is denied.

(b) If the trial is not commenced within 60 days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set bail for the person. (Added 1993, No. 143 (Adj. Sess.), § 3.)

§ 7554. Release prior to trial

(a) Any person charged with an offense, other than a person held without bail under section 7553 or 7553a of this title, shall at his or her appearance before a judicial officer be ordered released pending trial in accordance with this section.

(1) The person shall be ordered released on personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer unless the judicial officer determines that such a release will not reasonably assure the appearance of the person as required. In determining whether the person presents a risk of nonappearance, the judicial officer shall consider, in addition to any other factors, the seriousness of the offense charged and the number of offenses with which the person is charged. If the officer determines that such a release will not reasonably assure the appearance of the person as required, the officer shall, either in lieu of or in addition to the above methods of release, impose the least restrictive of the following conditions or the least restrictive combination of the following conditions which will reasonably assure the appearance of the person as required:

(A) Place the person in the custody of a designated person or organization agreeing to supervise him or her.

(B) Place restrictions on the travel, association, or place of abode of the person during the period of release.

(C) Require the person to participate in an alcohol or drug treatment program. The judicial officer shall take into consideration the defendant's ability to comply with an order of treatment and the availability of treatment resources.

(D) Require the execution of a secured appearance bond in a specified amount and the deposit with the clerk of the Court, in cash or other security as directed, of a sum not to exceed 10 percent of the amount of the bond, such deposit to be returned upon the appearance of the person as required.

(E) Require the execution of a surety bond with sufficient solvent sureties, or the deposit of cash in lieu thereof.

(F) Impose any other condition found reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

(2) If the judicial officer determines that conditions of release imposed to assure appearance will not reasonably protect the public, the judicial officer may in addition impose the least restrictive of the following conditions or the least restrictive combination of the following conditions which will reasonably assure protection of the public:

(A) Place the person in the custody of a designated person or organization agreeing to supervise him or her.

(B) Place restrictions on the travel, association, or place of abode of the person during the period of release.

(C) Require the person to participate in an alcohol or drug treatment program. The judicial officer shall take into consideration the defendant's ability to comply with an order of treatment and the availability of treatment resources.

(D) Impose any other condition found reasonably necessary to protect the public, except that a physically restrictive condition may only be imposed in extraordinary circumstances.

(E) If the person is a state, county, or municipal officer charged with violating section 2537 of this title, the court may suspend the officer's duties in whole or in part, if the court finds that it is necessary to protect the public.

(3) A judicial officer may order that a defendant not harass or contact or cause to be harassed or contacted a victim or potential witness. This order shall take effect immediately, regardless of whether the defendant is incarcerated or released.

(b) In determining which conditions of release to impose under subsection (a) of this section, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of residence in the community, record of convictions, and record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. Recent history of actual violence or threats of violence may be considered by the judicial officer as bearing on the character and mental condition of the accused.

(c) A judicial officer authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of release and shall advise him or her that a warrant for his or her arrest will be issued immediately upon any such violation.

(d)(1) A person for whom conditions of release are imposed and who is detained as a result of his or her inability to meet the conditions of release or who is ordered released on a condition that he or she return to custody after specified hours shall, within 48 hours of application, be entitled to have the conditions reviewed by a judge in the court having original jurisdiction over the offense charged. A person applying for review shall be given the opportunity for a hearing. Unless the conditions of release are amended as requested, the judge shall set forth in writing or orally on the record a reasonable basis for continuing the conditions imposed. In the event that a judge in the court having original jurisdiction over the offense charged is not available, any superior judge may review such conditions.

(2) A person for whom conditions of release are imposed shall, within five working days of application, be entitled to have the conditions reviewed by a judge in the court having original jurisdiction over the offense charged. A person applying for review shall be given the opportunity for a hearing. Unless the conditions of release are amended as requested, the judge shall set forth in writing or orally on the record a reasonable basis for continuing the conditions imposed. In the event that a judge in the court having original jurisdiction over the offense charged is not available, any superior judge may review such conditions.

(e) A judicial officer ordering the release of a person on any condition specified in this section may at any time amend the order to impose additional or different conditions of release; provided that the provisions of subsection (d) of this section shall apply.

(f) The term "judicial officer" as used in this section and section 7556 of this title shall mean a clerk of a Superior Court or a Superior Court judge.

(g) Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.

(h) Nothing contained in this section shall be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where such disposition is authorized by the court.

(i) The Court Administrator shall establish forms for appearance bonds, secured appearance bonds, surety bonds, and for use in the posting of bail. Each form shall include the following information:

(1) The bond or bail may be forfeited in the event that the defendant or witness fails to appear at any required court proceeding.

(2) The surety or person posting bond or bail has the right to be released from the obligations under the bond or bail agreement upon written application to the judicial officer and detention of the defendant or witness.

(3) The bond will continue through sentencing in the event that bail is continued after final adjudication. (Added 1967, No. 337 (Adj. Sess.), § 4; amended 1969, No. 125, § 12; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1987, No. 102, § 2; 1989, No. 293 (Adj. Sess.), § 1; 1993, No. 143 (Adj. Sess.), § 4; 2001, No. 124 (Adj. Sess.), § 2, eff. June 5, 2002; 2003, No. 73 (Adj. Sess.), § 6, eff. March 1, 2004; 2005, No. 63, § 10; 2005, No. 193 (Adj. Sess.), § 10; 2007, No. 108 (Adj. Sess.), § 1; 2007, No. 169 (Adj. Sess.), § 2; 2009, No. 154 (Adj. Sess.), § 118.)

§ 7554a. Approval of fidelity companies and agents; duty of court administrator

The Court Administrator, after consultation with the Commissioner of Financial Regulation, may approve an entity that is licensed or authorized under the provisions of 8 V.S.A. chapter 111, and any agent who is licensed under the provisions of 8 V.S.A. chapter 131, to act as a surety, or on behalf of a surety, in this State to execute a bond in the form established by the Court Administrator under subsection 7554(i) of this title, or post bail as required as a condition of release, and if so approved, the entity or agent shall not need to be approved by any court, judicial officer, or any other person. (Added 1993, No. 233 (Adj. Sess.), § 83, eff. June 21, 1994; amended 1995, No. 180 (Adj. Sess.), § 38(a); 2001, No. 124 (Adj. Sess.), § 3, eff. June 5, 2002; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.)

§ 7554b. Home Detention Program

(a) Definition. As used in this section, "home detention" means a program of confinement and supervision that restricts a defendant to a preapproved residence continuously, except for authorized absences, and is enforced by appropriate means of surveillance and electronic monitoring by the Department of Corrections. The Court may authorize scheduled absences such as work, school, or treatment. Any changes in the schedule shall be solely at the discretion of the Department of Corrections. A defendant who is on home detention shall remain in the custody of the Commissioner of Corrections with conditions set by the court.

(b) Procedure. The status of a defendant who is detained pretrial for more than seven days in a correctional facility for lack of bail may be reviewed by the court to determine whether the defendant is appropriate for home detention. The request for review may be made by either the Department of Corrections or the defendant. After a hearing, the Court may order that the defendant be released to the Home Detention Program, providing that the court finds placing the defendant on home detention will reasonably assure his or her appearance in court when required and the proposed residence is appropriate for home detention. In making such a determination, the Court shall consider:

(1) the nature of the offense with which the defendant is charged;

(2) the defendant's prior convictions, history of violence, medical and mental health needs, history of supervision, and risk of flight; and

(3) any risk or undue burden to other persons who reside at the proposed residence or risk to third parties or to public safety that may result from such placement.

(c) Failure to comply. The Department of Corrections may revoke a defendant's home detention status for an unauthorized absence or failure to comply with any other condition of the Program and shall return the defendant to a correctional facility. (Added 2009, No. 146 (Adj. Sess.), § D4.)

§ 7555. Repealed. 1967, No. 337 (Adj. Sess.), § 6.

 

Sub-Chapter 2: Binding Over To County And District Courts

§ 7555a. Legislative findings

The general assembly finds:

(1) During the 1991-2 and the 1993-4 sessions, the general assembly adopted Proposal 7, which proposed to amend section 40 of Chapter II of the Vermont Constitution to allow a judge to order a person charged with a felony involving an act of violence to be held without bail when the evidence of guilt is great and the court finds by clear and convincing evidence

(A) that the person's release poses a substantial threat of physical violence to any person; and

(B) that no condition of release will reasonably prevent the physical violence.

(2) On November 8, 1994, the voters of the state of Vermont approved Proposal 7.

(3) On December 13, 1994, the governor certified the amendment thereby making it effective on that date.

(4) As amended, section 40 of Chapter II of the Vermont Constitution provides that if a judge orders a person held without bail, that person is entitled to a review de novo by a single justice of the supreme court forthwith.

(5) Given the unique nature of the trial court hearing which can result in the accused being denied bail, in passing Proposal 7, and its enabling legislation, H.589, the general assembly intended to provide the accused with a second evidentiary hearing by a single justice without regard to the record compiled before the trial court. However, in the case of State v. Madison, No. 95-046 (1995), the Vermont supreme court held that the term "review de novo" as it is used in section 40 of Chapter II of the Vermont Constitution and in H.589 does not require the single justice to conduct a second evidentiary hearing and that the legislature should have used the term "hearing de novo" if it intended a second, independent evidentiary hearing.

(6) Proposal 7 substantially increased the court's authority prior to trial and conviction to incarcerate persons accused of certain offenses. It was the intent of the general assembly to balance this increased judicial authority with increased due process for the accused person. That increased due process was intended to be in the form of a new and independent evidentiary hearing.

(7) In certain respects, the Vermont Constitution is not a grant of power to the legislature, but is a limitation on its general powers. Section 40(2) of Chapter II establishes the minimum required due process for an accused, but the general assembly may require greater due process.

(8) It was the clear and unequivocal intent of the general assembly that a person who is denied bail and is incarcerated prior to trial under the authority of section 40(2) of Chapter II be entitled to a second full evidentiary hearing by a single justice.

(9) In order to implement the intent of the general assembly, subsection 7556(d) of this title is amended to make it clear and unequivocal that a person who is denied bail under the authority of section 40(2) of Chapter II is entitled to a second full evidentiary hearing by a single justice. Such a hearing is intended to be in addition to but not in conflict with the constitutionally required minimum due process established by Proposal 7. (Added 1995, No. 170 (Adj. Sess.), § 24a, eff. May 15, 1996.)