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Current as of January 01, 2023 | Updated by FindLaw Staff
In all criminal cases, the court shall provide, as an explicit condition of release that, should the defendant be charged with any crime during the period of release, or violate any other condition of release, the defendant's bail may be revoked, and the defendant can be held without bail until trial. The clerk must record on the court docket that this bail warning was given.
A defendant who is charged with a new offense while on release pending the adjudication of a prior charge may have his bail revoked pursuant to either G.L. c. 276, § 58 or G.L. c. 276, § 58B where there is probable cause to believe the defendant committed a crime while released on bail. Formal criminal charges need not be charged in order to revoke a defendant's bail for committing a new crime. In such circumstances, the Commonwealth may seek to revoke bail under either § 58 or § 58B. The judge must then determine whether the Commonwealth satisfied the requirements of the particular statute, either § 58 or § 58B, under which it sought to revoke bail.
There is a slight difference in the standards applicable to a § 58 revocation order and a § 58B revocation order. Upon finding probable cause to believe the defendant committed a new crime, revocation under § 58 requires an additional finding, by a preponderance of the evidence, that “the release of said person will seriously endanger any person or the community and that the detention of the person is necessary to reasonably assure the safety of any person or the community.” Revocation under § 58B requires an additional finding, by a preponderance of the evidence, either “that there are no conditions of release that will reasonably assure the person will not pose a danger to the safety of any other person or the community” or “the person is unlikely to abide any condition or combination of conditions of release.” In comparing these standards, the Supreme Judicial Court concluded that the standard under § 58B is a significantly weightier showing to revoke bail than under § 58.
A § 58 revocation order, once entered, shall be valid for a period of sixty days. The judge shall designate in the order of revocation the sixtieth day, specifically, the day of the week, the date of the month, and the year on which the sixtieth day falls, to avoid any misunderstanding. If the sixtieth day falls on a weekend or holiday, the preceding business day shall constitute the “sixtieth” day. A person so held shall be brought to trial as soon as reasonably possible. On the sixtieth day, if the case has not been adjudicated, the defendant must be brought before the court with jurisdiction over that offense for a new bail hearing.
If detained pursuant to a § 58B revocation order, the person detained “shall be brought to trial as soon as reasonably possible, but in the absence of good cause, a person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Mass. R. Crim. P. 36(b)(2).” G.L. c. 276, § 58B.
If, however, the judge finds that the detention standard is not met, the judge may amend the conditions of release accordingly.
Revocation and detention pursuant to § 58B can also be ordered upon a finding by clear and convincing evidence that the person has violated any other condition of release, and the judge finds that there are no conditions of release that will reasonably assure that the defendant will not pose a danger to the safety of any other person or the community, or that the defendant is unlikely to abide by any condition or combination of conditions of release.G.L. c. 276, § 58B.
When the charges against the defendant have not been dismissed or resulted in acquittal, and where no manifest injustice exists, a judge may not vacate a § 58 bail revocation order once it has entered. A judge's authority to vacate a § 58B revocation order once it has entered has not been similarly addressed and, unlike § 58, § 58B does not contain any language regarding the authority to review or terminate a § 58B revocation order. Clearly a showing of “manifest injustice” would allow the judge who imposed the § 58B revocation order to reconsider the order. Beyond that, it is not clear what other circumstances, if any, would allow a Trial Court judge to review or reconsider a § 58B revocation order.
COMMENTARYGeneral Laws c. 276, § 58, provides that, when any person is released on bail, the person authorized to admit the person to bail “shall provide as an explicit condition of release ․․․ that, should said person be charged with a crime during the period of his release, his bail may be revoked ․․․ and the court shall enter in writing on the court docket that the person was so informed and the docket shall constitute prima facie evidence that the person was so informed.” Bail warnings are required when a prisoner is released after being charged for any offense, not merely for violations of c. 209A orders or crimes constituting domestic abuse. However, it is particularly important that the warning be given in cases involving domestic abuse. If the warning is not given, the defendant may not know that his bail may be revoked if he commits a new offense while on release. A single justice has held that the failure to give the warning is a factor for the judge to consider when deciding whether or not to revoke bail based on commission of a new offense (although the failure to advise does not preclude revocation, see Commonwealth v. Tice, No. SJ-98-0349 (Sup. Jud. Ct. for Suffolk Cty., July 7, 1998) (Marshall, J., single justice)).
As this Guideline notes, where there is probable cause to believe a defendant committed a new crime while on release, the court may revoke the defendant's bail pursuant to either G.L. c. 276, § 58 or G.L. c. 276, § 58B.See Delaney v. Commonwealth, 415 Mass. 490, 494 (1993) (formal criminal charges need not be charged in order to revoke a defendant's bail for committing a new crime). For a comparison of these revocation statutes, see Josh J. v. Commonwealth, 478 Mass. 716 (2018). For procedural guidance on a revocation order pursuant to § 58, see Commonwealth v. Pagan, 445 Mass. 315, 322 (2005).
In Josh J., the Supreme Judicial Court noted that the rebuttable presumption contained in § 58B that “no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community” where the new crime is a federal felony or an offense described in clause (1) of G.L. c. 276, § 58A, “may be difficult to reconcile with the presumption recognized in § 58 that an individual will be released on bail or personal recognizance.” Josh J., 478 Mass. at 723 n.7. There is no similar rebuttable presumption under § 58.
While revocation under G.L. c. 276, § 58 is limited to circumstances where there is probable cause to believe a defendant committed a new offense, G.L. c. 276, § 58B makes explicit that a defendant's bail can be revoked for failing to comply with conditions imposed pursuant to G.L. c. 276, §§ 42A, 58, 58A, or 87. This codifies the decision in Jake J. v. Commonwealth, 433 Mass. 70, 77-78 (2000), which determined that the court had the inherent authority to revoke bail where conditions of release were violated despite the absence of an explicit statutory enforcement mechanism and held that § 58B applied to such revocations. The period of revocation is not to exceed ninety days unless good cause or excludable periods apply which can allow for a longer period of detention.G.L. c. 276, § 58B.
Cite this article: FindLaw.com - Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 8:07 - last updated January 01, 2023 | https://codes.findlaw.com/ma/guidelines-for-judicial-practice-abuse-prevention-proceedings/ma-r-abuse-prev-guideline-8-07/
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