April 4, 1975
Mr. George Kane, Commissioner
School and Public Lands
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-62
Disposition of bail or bond forfeitures for failure to appear
Dear Mr. Kane:
You have submitted the following question:
Is the county treasurer required to remit to the state general fund all proceeds resulting from forfeiture of recognizance, bailor bond in criminal proceedings?
The answer to your question is found in SDCL 23-26-13, which reads as follows:
After the forfeiture of recognizance, bond or undertaking of bail, the state's attorney must proceed, with all due diligence, by action against the bail upon the instrument so forfeited. If money deposited instead of bail be so forfeited, the clerk of the court or other officer with whom it is deposited, must, immediately after the final adjournment of the court, pay over the money deposited to the county treasurer who shall remit the same within thirty days to the state treasurer for deposit in the state general fund.
It is clear that this statute requires the county treasurers to deposit the forfeitures you mentioned into the state general fund. This statute became effective January 7, 1975. Under prior law, the above-mentioned forfeitures belonged to the counties and were ultimately expended for public school purposes.
SDCL 23-48-30 does not apply to the above mentioned forfeitures. That section only applies to fines, forfeitures, and pecuniary penalties for the violation of any state law. (Emphasis added.) Forfeiture of recognizance or bail because of a failure to appear at the time and date set for a hearing does not constitute a conviction or guilty plea for the violation of a state law.
Obviously, the county treasurers are required by the new law to distinguish criminal fines and forfeitures, from bond or bail forfeiture. If money is deposited in lieu of bail bond, the county treasurers must send the deposit within thirty days of receipt to the state treasurer.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:GV:rw
