Posted 12/17/2015

In State v. Womack, Case No. 13-4352 (Ha.App. November 27, 2015) the defendant failed to appear on August 6, 2009, and the trial court orally granted the State’s request for forfeiture of the bond, but the judgment of forfeiture was entered on April 30, 2013, and the surety received notice on May 28, 2013.  The surety argued that the nearly four year delay constituted good cause to set aside the forfeiture.  The Court held that the surety had to establish prejudice from the delay and that the record in the trial court was unclear as to whether the surety had actual notice of the defendant’s failure to appear on or around the date it occurred.  The Court remanded the case for a determination of “whether Exodus had actual notice of Womack’s non-appearance in or around the time period of the trial call, and whether Exodus was prejudiced by the delayed entry of the Bail Bond Forfeiture Judgment.”  The Court rejected the surety’s arguments that the trial court abused its discretion in not issuing a subpoena and in denying the surety’s request to enlarge the search period.

In People v. United States Fire Insurance Co., 2015 WL 7769514 (Cal.App. December 3, 2015) the defendant failed to appear, the bond was forfeited, and notice was mailed to the surety on August 28, 2013.  On February 28, 2014, the surety filed a timely motion to extend the appearance period.  On March 25, 2014, the trial court granted the motion and extended the appearance period to August 28, 2014.  The County took the position that this used up the maximum extension of 180 days (365 days from the mailing of the original notice of forfeiture).  The surety took the position that the maximum extension was 180 days from March 25 when the motion was granted and so there were 24 days of extension still available.  On August 28, 2014, the surety filed a motion for a second extension, and the motion was set for hearing on September 25.  On September 3, however, the County filed its opposition and requested immediate entry of summary judgment.  On September 3 the trial court (by a different judge than the one before whom the surety’s motion was pending) entered summary judgment.  On September 25 the surety’s motion for an additional extension was denied on the grounds that the maximum extension had already been used.  On October 1 the surety moved to set aside the summary judgment, and on October 15 the surety surrendered the defendant.  On October 30 the court denied the surety’s motion to set aside the summary judgment, and the surety filed a timely appeal.

The Court of Appeal recognized that the underlying issue of whether the maximum extension of 180 days ran from the expiration of the first 185 day appearance period or from the date of the motion granting the extension was pending before the California Supreme Court but nevertheless analyzed the issue and held that the statute’s clear language was that the extension ran from the date the motion was granted.  Therefore, there were 24 days of permissible appearance period remaining and the surety’s motion for that extension was pending when the trial court entered summary judgment.  The surety argued that since the defendant was recovered during the permissible extension the summary judgment should be voided and the bond exonerated.  Although the Court thought this reasoning “appears at first glance to be sound” it did not rely on it.  Instead, the Court held that the bond should be exonerated pursuant to Penal Code §1306(c).  The summary judgment was premature, and the surety brought that fact to the court’s attention via its timely motion to set it aside.  The Court found that the first day upon which a timely summary judgment could have been entered was September 26 (the day after denial of the surety’s motion for an extension of the appearance period) and since none was entered within the 90 day period following September 26 the court lost jurisdiction to enter judgment and the bond must be exonerated.  [Published].

United States v. Torres, 2015 WL 7770068 (7th Cir. December 2, 2015) is a rare case in which a federal court enforced forfeiture of the appearance bond provided by the defendant’s relatives.  The $200,000 bond was secured by a lien on the defendant’s parents’ real property.  The defendant pled guilty on June 27, 2013, but the court continued the issue of acceptance of the plea so he could remain released on the bond.  On November 11 the Government moved to revoke the release for violation of several conditions including drug use and contacting a witness.  The next day the motion was heard, with the defendant and counsel present, and granted.  The court revoked the bond and directed the defendant to surrender “today.”  The defendant, counsel and a pretrial services officer then went into the hall, but when counsel and the pretrial services officer returned to the courtroom to ask what time the defendant had to surrender, the defendant fled and was still a fugitive.  On February 14, 2014 the trial court entered judgment forfeiting the bond, and the sureties appealed.

The Court found that the court’s order revoking the bond did not mean the surety’s obligations terminated prior to the defendant’s flight.  The Court stated, “The mere order of revocation does not terminate a bond.  It is the defendant’s return to custody pursuant to that order that terminates the bond.”  The Court also rejected the sureties’ arguments that they were discharged by material changes to the circumstances of the defendant’s release.  Although removal of electronic monitoring and the guilty plea were material changes, the sureties were on notice they occurred.  The bond revocation was not a material change that increased the sureties’ risk, and so no notice was required.  The Court recognized that the sureties should have notice of the revocation hearing but found that they had not met their burden to show a lack of notice.

Finally, the Court held that the district court did not abuse its discretion in refusing to set aside the forfeiture under Federal Rule of Criminal Procedure 46(f)(2)(B) as not required by justice.  The defendant was still at large, and the Court thought that weighed heavily in favor of forfeiture.

In Beth’s Bail Bonds, Inc. v. State, 2015 Ark.App. 660 (November 18, 2015) after the defendant failed to appear, the trial court held a show cause hearing and forfeited the bond.  The surety eventually recovered the defendant, and the criminal case against him was dismissed on speedy trial grounds.  The trial court denied the surety’s motion to set aside the forfeiture, and the surety appealed.  The surety purported to appeal both the forfeiture and denial of its motion to set aside, but the Court found that it did not have jurisdiction over the appeal from the forfeiture because it was not filed within 30 days of the forfeiture order.  The Court, therefore, did not consider the surety’s argument that the summons to it was defective.  The Court also held that the surety’s objection to the County Attorney’s representation of the State was not made at the first opportunity and could not be first made in a post-trial motion.  Finally, the trial court did not abuse its discretion by not setting aside the forfeiture judgment under Rule 60(a), Ark.R.Civ.P.  The Court affirmed the trial court’s judgment.

In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., Case No. B252486 (Cal.App. November 23, 2015) the defendant failed to appear for trial.  The defendant’s attorney said her office was trying to locate him.  The Judge and the lawyers engaged in a discussion of possibly continuing the matter to that afternoon, but there was no evidence of an excuse for the defendant’s non-appearance and no declaration of default in open court.  The court’s minutes indicated that the court later forfeited the bond and issued a bench warrant.  After continuance of the appearance period and entry of summary judgment, the surety moved to set aside the forfeiture and judgment and exonerate the bond.  The Court held that the failure to declare a forfeiture in open court when the defendant first failed to appear without excuse deprived the trial court of jurisdiction to declare a forfeiture at a later time.  The Court reversed the judgment and remanded the case with directions to set aside the summary judgment, discharge the forfeiture and exonerate the bond.  [Not published].

In re Grand Jury Proceeding, Case No. 11-cr-90758 (N.D.Cal. November 20, 2015) denied a motion to set aside forfeiture of two $750,000 cash bonds posted to allow material witnesses to travel to China.  The parent corporation of the witnesses’ employers posted the bonds, and the witnesses were allowed to leave.  They failed to return as requested by the U.S. Attorney to testify at the criminal trial, but the criminal defendant was convicted on all counts anyway.  When the Government moved to forfeit the bonds, the witnesses moved to set aside the forfeitures.  They argued that without a request from the United States under the Mutual Legal Assistance Agreement (MLAA) between the U.S. and China, they were not allowed to travel and their employer would not return their passports.  The court was not convinced that the witnesses’ characterization of the MLAA was accurate and found that their failure to appear was willful.  The court noted that if the witnesses’ representations were believed, the surety itself (the employers’ parent) prevented them from returning.  There was no prejudice to the Government since it prevailed in the criminal trial without the testimony, but the other factors were either neutral of favored forfeiture.  Therefore, the court declined to set aside forfeiture of the bonds.

In State v. Dominguez-Villalobos, 2015 –Ohio-4820 (Ohio App. November 23, 2015) the defendant was released in 2009 on a $25,000 cash bond and promptly deported.  He returned to New Mexico in 2012 but did not contact the Ohio authorities or return to Ohio to face the still pending charges.  The bond was forfeited in 2013.  In 2014 the defendant was detained in New Mexico and returned to Ohio.  The trial court denied his motion for relief from the forfeiture, and the defendant appealed.  The Court rejected the argument that the deportation made his appearance impossible and noted that after he returned to the United States he made no effort to return to Ohio to resolve the charges against him or to claim the bond.  The Court held that the trial court did not abuse its discretion and affirmed forfeiture of the bond.

In People v. Bankers Insurance Co., Case Nos. H040224 and H040225 (Cal.App. November 25, 2015) the felony defendant did not waive her right to be present.  She was in court when the court scheduled a preliminary setting hearing for July 3, 2013, but she was not explicitly ordered to be present on July 3.  She failed to appear, and the trial court forfeited the bond.  After denial of its motion to vacate and entry of summary judgment, the surety appealed.  The issue was whether Penal Code §977 and a Local Rule consistent with it lawfully required the defendant to appear on July 3.  The Court recognized that the issue was pending before the California Supreme Court but held that the defendant’s appearance was required and the bond was properly forfeited.  The Court reasoned that under §977 the defendant’s presence was required in the absence of a written waiver, and she had notice of the preliminary setting hearing because she was present in court when it was scheduled.  Therefore, she was lawfully required to be present, and when she did not appear the trial court properly forfeited the bond.  [Not published].

In State v. Wilson, 2015 WL 7568567 (La.App. November 25, 2015) the defendant failed to appear on January 24, 2014.  The surety surrendered him on January 29, paid the surrender fee, and was issued a certificate of surrender pursuant to La.C.Cr.P. art. 345.  The defendant was brought to court on February 7 and the court reinstated the bond and set aside the forfeiture.  The record did not show that the court was aware of the surety’s surrender of the defendant.  When the defendant again failed to appear on March 13, the court granted a judgment of bond forfeiture and subsequently denied the surety’s efforts to have the judgment set aside.  The surety appealed, and the State argued that in surrendering the defendant the surety had not complied with La.R.S.. 22:1585 and that compliance with both that statute and art. 345 was necessary.  The Court of Appeal disagreed and held that only art. 345 applied.  La.R.S. 22:1585 is part of the statutes regulating insurance companies and applies if the surety surrenders the defendant for nonpayment of the bond premium.  The Court noted that the statute provided for administrative sanctions but did not provide that a violation would nullify surrender of the defendant.  The Court reversed the trial court judgment forfeiting the bond and held, “We find that Financial was only required to comply with La.C.Cr.P. art. 345 in order to be removed from its bond obligation.  The trial court erred in holding that Financial was also required to comply with La. R.S. 22:1585 in order to set aside the bond forfeiture.”

In Memphis Bonding Company, Inc. v. Criminal Court of Tennessee 30th District, 2015 WL 7575093 (November 25, 2015) the plaintiff sued in the chancery court of Shelby County challenging several local Rules of the criminal court of Shelby County relating to the regulation of bail bond companies.  The chancery court found that it had jurisdiction and enjoined enforcement of one of the challenged rules.  The Criminal Court and its Judges appealed, and the Court of Appeals held that the chancery court lacked subject matter jurisdiction, vacated the injunction, and remanded for dismissal of the complaint.  The Court did not reach the merits of the plaintiff’s challenges to the Rules.  Instead, it held that the chancery court could not interfere with the orderly functioning of the criminal court and that the plaintiff’s suit would have the effect of the chancery court invading the jurisdiction of the criminal court.