State v. Ebenhack

1985 OK CIV APP 47, 748 P.2d 538, 1985 Okla. Civ. App. LEXIS 91, 1985 WL 12001
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 24, 1985
DocketNo. 62931
StatusPublished
Cited by3 cases

This text of 1985 OK CIV APP 47 (State v. Ebenhack) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ebenhack, 1985 OK CIV APP 47, 748 P.2d 538, 1985 Okla. Civ. App. LEXIS 91, 1985 WL 12001 (Okla. Ct. App. 1985).

Opinion

STUBBLEFIELD, Judge

(sitting by designation).

The question to be answered in this appeal is whether the trial court erred in refusing to set aside bail bond forfeitures.

I

Marcus Ebenhack, a bail bondsman, secured the release of two defendants charged in the District Court of Tulsa County. Richard Roth was charged in cases TR-84-3170 and TR-84-3171 with driving under the influence of intoxicating liquor and driving without an owner’s security verification form. John William Shaffer was charged in case TR-84-3542 with the offense of driving without an owner’s security verification form. Ebenhack posted bonds in Roth’s cases in the amounts of $500 and $140, and posted $140 in the case against Shaffer. On June 15, 1984, defendant Shaffer failed to appear at his regularly scheduled court hearing. On June 22, 1984, Roth likewise failed to appear at his hearing. The bond in each case was ordered forfeited, with orders and judgments of forfeiture subsequently issued and mailed as provided by statute. The judgment of forfeiture was entered and mailed in the Shaffer case on June 20, 1984, and in the Roth cases on June 27, 1984.

On June 26, 1984, John William Shaffer appeared before the District Court, pled guilty, and was fined. On July 2, 1984, Richard Roth appeared, and later pled guilty and was sentenced. In each instance, the defendant’s appearance was apparently as a result of the efforts of bail bondsman Ebenhack.

Bondsman filed in each case a motion to set aside the forfeiture. The identical motions were all timely filed and provided:

COMES NOW, MARCUS EBEN-HACK, a licensed PROFESSIONAL BONDSMAN, by and through his Attorney of Record, R.W. Byars, and asks this Honorable Court to set a date certain to hear his motion to set aside the bond forfeiture previously entered in the above styled and numbered cause, for the reason that the [sic] was returned to custody on the 29th day of June, 1984, without cost to the State.
Further, the bondsman’s motion is timely filed in accordance with 59 O.S., § 1332, as amended.

The district attorney contested the motions, which were consolidated for hearing and overruled by the trial court on August 8, 1985.

On appeal Bondsman lists three numerical propositions of error. Each of the three, however, is that the trial court erred in failing to set aside the forfeiture. The supporting rationale of the three propositions of error is that (1) forfeiture statutes must be strictly construed, (2) forfeitures may be set aside in the interest of justice, and (3) bail is not a source of revenue for the state.

II

Bondsman’s proposition that forfeiture statutes are to be strictly construed is a correct statement of the law. The Oklahoma Supreme Court in State v. Nesbitt, 634 P.2d 1306, 1308 (Okla.1981), stated: “[Forfeiture statutes will be strictly construed and a forfeiture will not be decreed except when required to do so by clear [540]*540statutory language.” Bondsman does not, however, indicate how the trial court's judgment varied from this rule. Bondsman admits that the defendants failed to appear and does not assert that the forfeiture and notice procedures were improper.

Bondsman more seriously propounds that the forfeitures should have been set aside in the interest of justice, since he was diligent in quickly bringing the defendants into custody. Unfortunately for him, this allegation does not give the trial court a cognizable ground for setting aside the forfeiture.

The pertinent statutes regarding bail forfeitures are 22 O.S.1981 § 1108 and 59 O.S.Supp.1984 § 1832. The former statute dictates a forfeiture “[i]f, without sufficient excuse, the defendant neglects to appear according to the terms or conditions of the recognizance, bond or undertaking.” Section 1108, however, provides that "if at any time before the final adjournment of court the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture to be discharged upon such terms as may be just.” (Emphasis added.)

59 O.S.Supp.1984 § 1332, also deals with forfeiture of bail bonds, specifically with the notice of forfeiture and the motion to set the forfeiture aside. This statute provides that the bondsman may file a motion to set aside the order of forfeiture, “which motion shall contain the grounds upon which it relies.” Id. at § 1332(B). Section 1332 does not specify what these grounds are, although prior to 1984 it did include some pertinent language. Prior to 1984, section 1332(3) provided:

If the defendant is surrendered to custody of the sheriff or court wherein the forfeiture has been ordered within sixty (60) days from the date of said order, the court, upon the motion of the defendant or the bondsman shall set aside the forfeiture for good cause shown and upon proof that there has been no previous forfeiture of bond in the case at issue.

59 O.S.1981 § 1332(3) (emphasis added).

This language was in subsection 3 of section 1332 which dealt with a defendant's failure to appear as a result of being in custody of some other court. It would not seem applicable to defendants whose failure to appear was premised on reasons other than being elsewhere in custody. In any event, the Oklahoma Supreme Court in Machell v. State, 481 P.2d 148 (Okla.1970), held that the language “for good cause shown” as used in section 1332 was legally the same as that used in section 1108— “satisfactorily excuse his neglect.”

The legislature in 1984 amended section 1332 and, among other changes, removed the language set forth above, including the phrase “for good cause shown.” However, no additions were made from which it could be deduced that the legislature intended to expand the grounds for vacation of a bail bond forfeiture from that required under 22 O.S.1981 § 1108.

We reach a conclusion, after this latest amendment, identical to that which this court espoused when considering the same issue several years ago.

This statute has been amended several times over the years, but none of the changes has altered defendant’s duty to appear at appointed times or the statutory requirement of showing good cause to excuse failure of appearance.

Presnell v. State, 634 P.2d 775, 776 (Okla.Ct.App.1981) (emphasis added).

Thus, the setting aside of a bond forfeiture ordered upon a defendant’s failure to appear has been and can only be premised upon satisfactorily excusing the defendant's neglect. A motion to set aside may not be premised on the fact that the failure of appearance was through no fault of the bondsman. State v. Ginter, 585 P.2d 1111, 1112 (Okla.1978). Likewise, diligence on the part of the bondsman in bringing the defendant into custody is an insufficient basis for setting aside a forfeiture. State v. York, 541 P.2d 1367, 1369-70 (Okla.Ct.App.1975).

In this case the bondsman’s motions were premised solely upon the fact that the defendants had been returned to custody without cost to the state. The motions did not, therefore, state cognizable grounds for [541]*541relief, as required by section 1332. Because of that failing, the motions were dismissable by the court, had the state chosen to move to dismiss.

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2000 OK 63 (Supreme Court of Oklahoma, 2000)
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1985 OK CIV APP 47, 748 P.2d 538, 1985 Okla. Civ. App. LEXIS 91, 1985 WL 12001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ebenhack-oklacivapp-1985.