BAIL MODIFICATION

Ordinarily, if an accused has been admitted bail the court may not,

alter the amount of bail. Utah Constitution, Art. I Section 8, Art. I Section 9;

U.C.A. 77-20-1. State v. Kastanis, 848 P.2d 673 (Utah 1993). The amount

of bail may be increased where, in the judgment of the court, it is

necessary. However, an increase of bail may not be used to sanction the

accused. Article I, § 8 of the Utah Constitution. A court is generally

empowered to modify the bail upward if, however, in the light of new

evidence, or additional circumstances not presented to the court upon the

making of its initial bail determination, the initial bond is insufficient to

insure the accused's continuing presence until a final determination of guilt

or innocence. Utah Const. Art. I, § 8(1). It is the state's burden to bring such

new information or change of circumstances to the court's attention. U.C.A

§77-20-1(3)(a)(2008).

Put simply, a judge can never raise a bail amount simply because

they feel like it. There has to be a legitimate reason—a change in

circumstances—and they must state this reason on record. Additionally, the

defendant must also be told about any raise in bail in order to challenge the

modification.

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 By finding that an immediate increase in bail is warranted, a trial court

is necessarily finding that the original bond is insufficient to guarantee the

defendant's appearance and ensure public safety. U.C.A. § 77-1-6(h)

(1980). Accordingly, before the state can seek to modify bail, the state must

have good cause, with notice to the defendant, to move to modify the bond.

Utah R. Crim. P. 7(c)(1) and 7(c)(4)(2014).

Good cause to increase bail must be founded on changed

circumstances relating to the defendant or the proceedings, not on the

conclusion that another judge, in previously setting bail, committed legal

error. People ex rel. Meyer on Behalf of Cruz v. Commissioner of Dept. of

Correction of City of N.Y., 119 A.D.2d 472, 500 N.Y.S.2d 684 (1st Dep't

1986). An increase in bail not warranted by a change in circumstances is

an abuse of discretion, but the return of an indictment against a person

already released on bond is a change in the status of the accused sufficient

to authorize the court to summarily exercise a new discretion and increase

the bail. In re Alberto, 102 Cal. App. 4th 421, 125 Cal. Rptr. 2d 526 (2d

Dist. 2002).

Unless statutorily provided, a court may not raise the amount of the

bond required pursuant to its own motion. Montgomery v. Jenne, 744 So.

2d 1148 (Fla. 4th DCA 1999); See Knight v. Gee, 161 So. 3d 473 (Fla. 2d

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DCA 2014) (holding that the trial court lacked the authority to increase a

defendant's bond in one criminal case from $5,000 to $17,000 and in a

second criminal case from $1,000 to $9,500, despite the contention that the

defendant was not cooperating with law enforcement in the manner

anticipated when the low bond was originally set, where the state never

properly moved to modify bail).

Prior to the revocation of pretrial bail, the defendant is entitled to the

following: (1) written notice of the alleged grounds for revocation and the

date, place, and time of the hearing; (2) disclosure of the evidence against

the defendant; (3) the meaningful opportunity to be heard and to present

evidence; (4) the right to confront and cross-examine witnesses; and (5)

the right to make arguments in defense. King v. Zimmerman, 632 F. Supp.

271 (E.D. Pa. 1986).

After Mr. Petersen’s bail was set, he was entitled to: a) notice of the

amount of his bail under U.C.A. §77-20-1(3)(a)(2008); and, b) the

opportunity to challenge both the amount of his bail and the evidence in

support of the bail order under U.C.A. §77-20-1(5)(a-c)(2008). However, in

this case, after already setting Mr. Petersen’s bail, the State deviously

conferred after hours and unilaterally increased the bail threefold. Mr.

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Petersen was not given any notice or the opportunity to challenge the

suddenly increased bail.

According to Utah’s Bail Statute, person has the right to challenge

his/her bail via a motion to modify “at any time upon notice to the opposing

party sufficient to permit the opposing party to prepare for hearing…”

U.C.A. §77-20-1(5)(a) (2008). Although a magistrate or court may “rely

upon information contained in…any sworn probable cause statement…” in

setting bail, the Bail Statute explicitly requires that a magistrate or court

hearing a motion to modify bail set in reliance on a sworn probable cause

statement to ensure that “each party is provided an opportunity to present

additional evidence or information relevant to bail.” U.C.A. §77-20-1 (5)(c)

(2008).

Here, despite the fact that Mr. Petersen is constitutionally and

statutorily entitled to be provided notice of his bail and an opportunity to

challenge the basis of the bail as well as the amount, he was never

personally informed of the amount of the bail by the State nor was he ever

provided the opportunity to challenge the amount of his bail.

Notwithstanding the fact the Utah Constitution clearly provides that

the right to bail is a fundamental right and the Legislature has statutorily

provided that the accused is entitled to the right to challenge the bail by

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presenting additional information and evidence to the Court, the State has

unilaterally deprived Mr. Petersen of these statutory and constitutional

protections.