In Re Application of N.W. Bail Bonds

2002 WY 102, 50 P.3d 313, 2002 Wyo. LEXIS 108, 2002 WL 1466495
CourtWyoming Supreme Court
DecidedJuly 10, 2002
DocketNo. 01-56
StatusPublished
Cited by6 cases

This text of 2002 WY 102 (In Re Application of N.W. Bail Bonds) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Application of N.W. Bail Bonds, 2002 WY 102, 50 P.3d 313, 2002 Wyo. LEXIS 108, 2002 WL 1466495 (Wyo. 2002).

Opinions

LEHMAN, Justice.

[¶ 1] This is an appeal from the partial forfeiture of a surety bond. We reverse and remand.

ISSUES

[¶ 2] Appellant Northwest Bail Bond, Inc. (Northwest) states the issue as follows:

Whether the District Court's decision to forfeit $5,000.00 of the $7,500.00 surety bond ... constituted an abuse of discretion.

Appellee State of Wyoming (State) phrases the issue in this manner:

Did the district court patently abuse its discretion in partially granting Northwest's motion to set aside the bail bond forfeiture?

FACTS

[¶ 3] Kristopher Bull (Bull) was scheduled to attend a probation revocation hearing in the district court at 8:80 a.m. on January 18, 2001. He overslept and failed to show up at the hearing. The district court responded by issuing a bench warrant for Bull's arrest and by ordering the forfeiture of his appearance bond issued by Northwest. Bull, however, did appear at the district court before 1:30 pm. on the same day where, upon the advice of counsel and Northwest, he turned himself in to the authorities.

[¶ 4] On February 1, 2001, Northwest filed a Motion to Set Aside Forfeiture of Bond. A hearing on that motion took place a month later. Interestingly enough, no evidence was adduced at the hearing. The district court relied on the factual assertions of counsel made during argument. The relevant factual assertions included: (1) Bull was aware of the scheduled hearing; (2) Bull missed the hearing because he "slept in"; (8) within an hour of missing the hearing, Bull contacted his attorney and Northwest, both of whom instructed him to turn himself in; (4) Bull and his attorney appeared at the district court later on the same day to attempt to have the hearing, but there was no time on the district court's schedule to do so; (5) Bull then turned himself in for arrest on the bench warrant; (6) there was no evidence of a specific pecuniary expense to the State occasioned by Bull's failure to appear; and (7) this was Bull's second failure to appear for a hearing in this case, his bond having been forfeited for the previous failure.

[¶ 5] In its oral summation before ordering partial remission of the forfeited bond, the district court noted (1) there was a previous failure to appear and consequent forfeiture of bond; (2) while there was no "big financial loss," the district attorney, the clerk of court, the court reporter, and defense counsel had all appeared for the scheduled hearing, and rescheduling the hearing was an involved process; (8) all this created quite an inconvenience for the district court; (4) Northwest had entered into an agreement to pay the district court if Bull failed to appear; and (5) Northwest "should have been aware" that the bond was set as high as it was because of Bull's previous failure to appear. After considering these facts, the district court determined that $2,500.00 of the forfeited amount should be set aside.

STANDARD OF REVIEW

[¶ 6] An appellate court will not interfere with a trial court's discretionary rulings absent a clear abuse of discretion. Semler v. Semler, 924 P.2d 422, 424 (Wyo.1996). This general rule applies to decisions on motions to set aside a bond forfeiture. "[Thhe decision to grant or deny a remission is a discretionary one that will only be overturned on appeal for a patent abuse of discretion amounting to arbitrary and capricious action." Application of Allied Fidelity Ins. Co., 664 P.2d 1322, 1325 (Wyo.1983). Assessing whether there has been an abuse of discretion involves determining whether the evidence was sufficient to support the district [315]*315court's decision. Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995). One factor in that assessment is whether the district court's "conclusions [were] drawn from objective criteria." Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The burden is upon the appellant to show an abuse of discretion. Blake v. State, 933 P.2d 474, 477 (Wyo.1997).

DISCUSSION

[¶ 7] Northwest contends that under the established law with respect to forfeiture of bonds, the district court abused its discretion when it refused to set aside the entire amount of the bond forfeiture. In support of this position, Northwest points out:

1. While Bull was aware of the hearing, his failure to appear was not willful; he simply overslept.
2. Northwest urged Bull to turn himself in immediately.
3. The State endured no direct financial cost as a result of Bull's failure to appear.
4. There was little inconvenience to the State, since the other participants had to be in court for other cases, regardless of Bull's failure to appear.
5. There was little inconvenience or delay in getting the matter rescheduled.

In response, the State emphasizes:

1. This was Bull's second failure to appear in this case.
2. Northwest should bear some liability as the "guarantor" of Bull's appearance.

[¶ 8] It is important to note the procedural context of a contested bond forfeiture. W.R.Cr.P. 46(f)(1) provides that "Hlf there is a breach of condition of a bond, the court shall declare a forfeiture of the bail." (Emphasis added.) Use of the word "shall" indicates that this decision is mandatory rather than discretionary. LePage v. State, Dep't of Health, 2001 WY 26, ¶¶ 11, 12, 18 P.3d 1177, ¶¶ 11, 12 (Wyo.2001). The bail must be forfeited. The discretion of the district court is exercised under W.R.Cr.P. 46(F)(2):

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 subsequent ly surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.

These rules being structured as they are, the issue comes to the district court not by way of a motion from the State to forfeit the bail, but by way of a motion from the appellant to set aside the forfeiture. The intent and effect of this structure is to place the burden on the surety to show why the forfeiture should be set aside. State v. Martinez-Gonzales, 145 Ariz. 300, 701 P.2d 8, 10 (Ariz.App.1985); Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147, 149 (2000); State v. Hedrick, 204 W.Va. 547, 514 S.E.2d 397, 403 (1999).

[¶ 9] Application of Allied Fidelity Ins. Co. recited both general principles and specific factors that a judge should consider when faced with a motion to set aside a bail bond forfeiture. The general principles include:

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Bluebook (online)
2002 WY 102, 50 P.3d 313, 2002 Wyo. LEXIS 108, 2002 WL 1466495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-application-of-nw-bail-bonds-wyo-2002.