III. INDICTMENT AND INFORMATION.

217

Rule 9: Capias or Summons upon Indictment or Presentment.

(a) Issuance. After the grand jury returns an indictment or presentment, the clerk shall issue a capias or a criminal summons for each defendant named in the indictment or presentment:

(1) who is not in actual custody;

(2) who has not been released on recognizance or bail; or

(3) whose bail has been declared forfeited.

The clerk shall issue a criminal summons (instead of a capias) after an indictment or presentment and for any subsequent process when so requested by the district attorney general or directed by the court.

(b) Form and Content.

(1) Capias. The capias shall:

(A) be in the same form as an arrest warrant;

(B) be signed by the clerk;

(C) describe the offense charged; and

(D) command that the defendant be arrested and brought before the court in which the charge is pending.

(2) Summons. The criminal summons shall be in the same form as the capias except that it shall require the defendant to appear before the court at a stated time and place, and shall give the defendant notice that the failure to appear as ordered may constitute contempt of court.

(c) Delivery for Service. The clerk shall deliver the capias or criminal summons to the sheriff or other person authorized by law to execute or serve it.

(d) Execution; Return.

(1) Execution. A capias or criminal summons shall be executed and served as provided in Rule 4(e).

(2) Return. The peace officer executing a capias shall make a return to the court. On or before the return day, the person to whom a criminal summons was delivered for service shall make the return. At the request of the district attorney general, any unexecuted capias shall be returned and cancelled.

(e) Reissuance. At the request of the district attorney general made while the indictment is pending, or on the court’s own initiative, the court may direct the clerk to deliver to the sheriff or other authorized person for execution or service a capias that was returned unexecuted and was not canceled, a criminal summons that was returned unanswered, or a duplicate of either.

(f) Failure to Appear. The court shall issue a capias to a defendant–other than a corporation, limited liability company, or limited liability partnership–who fails to appear in response to a criminal summons. If a corporation, limited liability company, or limited liability partnership does not appear after being summoned, the court having jurisdiction to try the offense for which the summons was issued shall enter a not guilty plea and may proceed to trial and judgment without further process.

Advisory Commission Comment.

This rule is patterned after the proposals of the Law Revision Commission in § 40-9-107 and § 40-9-110 of their proposed code.

No provision is made for process following a prosecution commenced by a criminal information, because under Art. 1, § 14 of our Constitution and § 40-3-101, a threshold waiver and agreement by the accused would be required and hence process would not be needed.

This rule provides that the district attorney general or the trial judge may direct that the clerk issue a criminal summons rather than a capias.

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