Posted 7/6/2015

In Hernandez v. State, 2015 WL 3452431 (Tex.App. – Austin May 27, 2015) the trial court originally set the defendant’s bond at $75,000 but the State was not ready for trial within 90 days and pursuant to Tex. Code Crim. Proc. Art 17.151 the court released him on a $25,000 personal recognizance bond.  After he was indicted, the court held an ex parte hearing and ordered a $75,000 bond.  The issues were whether the court had the authority to revisit the bond issue after releasing the defendant under Art. 17.151 and, if so, whether it abused its discretion in this case.  The Court held that the trial court had authority and did not abuse its discretion.

Financial Casualty & Surety, Inc. v. Parker, 2015 WL 3466221 (S.D.Tex. June 1, 2015) granted the surety partial summary judgment against a sub-producer for premiums owed and unpaid bond forfeitures.  The court directed the surety to submit additional evidence to support the amount of its other claims including its claim for attorney’s fees.

In U.S. v. Hatfield, 2015 WL 3476927 (E.D.N.Y. June 2, 2015) the defendant was released on a personal bond of $400 million secured by deposit of $48 million in assets including cash of $17 million allegedly contributed by the defendant’s relatives.  The defendant appeared but violated other aspects of his release including lying to the court and attempting to conceal substantial assets.  The relatives attempted to recover their part of the cash deposit, but the court denied their motion to set aside forfeiture of the bond.  The court held that the bond could be forfeited for violation of the non-custodial provisions of the bail agreement.  The court reserved ultimate decision on disposition of the forfeited funds and directed that they be held in an escrow account.

In United States v. Smith, 2015 WL 3507749 (W.D.Ark. June 3, 2015) the defendant was released on a $50,000 bond secured by a lien on his home.  The bond was revoked based on probable cause to believe the defendant had committed a federal crime while released. The court accepted the Magistrate Judge’s recommendation and forfeited the amount of the bond but remitted $45,000 of the forfeiture and entered judgment for the Government in the amount of $5,000.  The Magistrate Judge thought that although the breach was willful the delay and expense to the Government were minimal and that justice would be served by setting aside $45,000 of the forfeiture.

In State v. Mottolese, 2015 WL 3634577 (Vt. June 12, 2015) the defendant failed to appear because he was incarcerated in New York (his residence and a location to which he had permission to travel).  The surety moved to reduce the forfeiture to an amount consistent with the cost of extradition.  The trial court forfeited the entire amount of the bond, and the surety appealed.  In a matter of first impression, the Court considered Vermont bail forfeiture statutes, case law from other jurisdictions, and the factors to be considered in determining the amount of the bond to forfeit.  The Court concluded that the defendant’s failure to appear was not willful, the surety acted in good faith and offered to pay the cost of returning the defendant to Vermont, and prejudice to the State was minimal.  The Court found that “Any forfeiture amount above the costs associated with extradition and delayed trial would therefore serve only to punish Allstate -- a result we have long proscribed.”  The Court remanded the case and instructed the trial court to determine the costs and expenses of extraditing the defendant and the delayed trial and to remit the forfeiture in excess of those amounts.

State v. Miles, 2015 WL 3894246 (Ha.App. June 23, 2015) held that the Prosecuting Attorney (as opposed to the Attorney General’s office) could properly represent the State in the bail forfeiture proceeding.  The surety argued that the forfeiture of a bail bond was a civil proceeding and, therefore, the Attorney General had to represent the State.  The Court found that pursuant to HRS §804-51 representation of the State was within the powers granted to the Prosecuting Attorney.  The Court affirmed the trial court’s decision denying the surety’s motion to set aside the forfeiture.  The Court did not reach the surety’s alternate argument that the Prosecuting Attorney could not represent the State in enforcement of the judgment because the case did not involvement any enforcement proceedings.

State v. Allen, 2015 WL 3916666 (Ha.App. June 24, 2015) followed the Court’s decision in State v. Miles, 2015 WL 3894246 (Ha.App. June 23, 2015) and rejected the surety’s argument that the Prosecuting Attorney was not authorized to represent the State.  The Court also rejected the surety’s argument that the trial court should have granted its motion for reconsideration after the defendant was surrendered to the authorities.  The defendant was surrendered after the 30 day search period expired and the surety’s original motion to set aside forfeiture was denied.  The Court noted that the motion to reconsider “was filed well outside of the thirty-day window.  Exodus’s April 24, 2014 Motion to Reconsider was thus an unpermitted and untimely second effort to set aside the Bail Forfeiture Judgment.”