Rule 46 Release from Custody
Rule Text
(a) Prior to trial. — Eligibility for release prior to trial shall be in accordance with Rules 46.1 and 46.3.
(b) During trial. — A person released before trial shall continue on release during trial under the same terms and conditions as were previously imposed unless the court determines that other terms and conditions, or the termination, of release are necessary to assure such person’s presence during the trial or to assure that such person’s conduct will not obstruct the orderly and expeditious progress of the trial.
(c) Pending sentence and notice of appeal. — Eligibility for release pending sentence or pending notice of appeal or expiration of the time allowed for filing notice of appeal, shall be in accordance with Rule 46.2. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
(d) Pending determination of a petition to revoke probation. — When a petition to revoke probation has been filed, the court may, in its discretion, admit the defendant to bail pending a hearing.
(e) Justification of sureties. — Every surety, except a corporate surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which the surety proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by the surety and remaining undischarged and all the other liabilities of the surety. No bond shall be approved unless the surety thereon appears to be qualified.
(f) Forfeiture of bail. —
(1) Declaration. — If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.
(2) Setting Aside. — The court may direct that a forfeiture be set aside in whole or in part, upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.
(3) Enforcement. — When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond, the obligors submit to the jurisdiction of the court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. The obligors’ liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses.
(4) Remission. — After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2).
(g) Exoneration of obligors. — When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
(h) Supervision of detention pending trial. — The court shall exercise supervision over the detention of defendants and witnesses within its jurisdiction pending trial for the purpose of eliminating all unnecessary detention. Each Monday and Thursday, or if Monday or Thursday is a holiday, the first working day following, the custodial officer shall make a report to the court listing each defendant and witness who has been in custody pending initial appearance, extradition proceedings, or a probation revocation hearing for a period in excess of 48 hours. The sheriff shall make a biweekly report to the court listing each defendant and witness who has been held in custody pending arraignment or trial for a period in excess of 10 days. As to each witness so listed the attorney for the state shall make a statement of the reasons why such witness should not be released with or without the taking of a deposition pursuant to Rule 15(a). As to each defendant so listed the attorney for the state shall make a statement of the reasons why the defendant is still held in custody.
Amendment history: Amended July 22, 1993, effective October 19, 1993. Compare. — Rule 46, Fed. Rules Cr. Proc. Remission of less than full amount of bond upheld.— District court did not abuse its discretion when it remitted $25,000 of a forfeited $100,000 surety bond given the willfulness of the violation, costs to the government, the surety’s efforts to apprehend the defendant, delay caused by the violation, and mitigating factors like the defendant’s mental health issues. Gustke v. State (In re Gustke), 2025 WY 47, 567 P.3d 685, 2025 Wyo. LEXIS 50 (Wyo. 2025). Discretion to set aside a forfeiture of bail. — Because the record was not adequate for appellate review and revealed no adequate bases for the ultimate conclusion made by the district court that the surety should forfeit 70 percent of the bond posted on behalf of the defendant, the district court’s order of partial forfeiture of bail was remanded with directions to develop the record with respect to the court’s consideration of the facts of the case in view of the applicable criteria that must be considered and applied by a court when considering a motion from a surety to set aside forfeiture of a bond. Action Bailbonds v. State, 49 P.3d 1002, 2002 Wyo. LEXIS 109 (Wyo. 2002). Where the district court focused on defendant’s previous failure to appear, the resulting inconvenience to the court and other participants in having to reset defendant’s probation revocation hearing, and the surety’s awareness of the high bond amount, the district court did not address the factors relevant under case law to determining a motion to set aside a forfeiture, and no adequate bases existed for appellate review of the district court’s order of partial bond forfeiture, thereby necessitating a remand for development of the record. Northwest Bail Bonds, Inc. v. State (In re Northwest Bail Bonds, Inc.), 2002 WY 102, 50 P.3d 313, 2002 Wyo. LEXIS 108 (Wyo. 2002). Remission appropriate. — District court did not abuse its discretion by ordering the remission of 50 percent of forfeited bail bonds based on its consideration of all applicable factors under W.R.Cr.P. 46(f)(4), including the court’s interest in ensuring the timely appearance of criminal defendants, the fact that defendants’ conduct did not rise to the level of “willfulness,” and the mitigating factors offered in favor of two sureties. Beagle v. State (In re Application of Action Bailbonds), 2004 WY 30, 86 P.3d 1271, 2004 Wyo. LEXIS 39 (Wyo. 2004). Sentencing credit. — Where defendant was arrested for felony attempted larceny, he was granted a conditional release from pretrial custody under subsection (a) of this rule to participate in a residential substance abuse treatment facility; because defendant was not in official detention and was not subject to a charge of escape from official detention under Wyo. Stat. Ann. § 6-5-206(a), defendant was not entitled to credit against his prison sentence for that time period. Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Wyo. 2012).