State v. Surety Insurance

622 P.2d 52, 127 Ariz. 493, 1980 Ariz. App. LEXIS 643
CourtCourt of Appeals of Arizona
DecidedNovember 4, 1980
DocketNos. 1 CA-CIV 4783, 1 CA-CIV 4787
StatusPublished
Cited by4 cases

This text of 622 P.2d 52 (State v. Surety Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Surety Insurance, 622 P.2d 52, 127 Ariz. 493, 1980 Ariz. App. LEXIS 643 (Ark. Ct. App. 1980).

Opinion

OPINION

FROEB, Presiding Judge.

The bond of appellant Surety Insurance Company (Surety) was ordered forfeited after a hearing before the trial court. The [494]*494issue on appeal is whether any condition of the bond was breached which would justify forfeiture. We find none and reverse the judgment.

Appellant Nathan J. Warren was charged with grand theft by false representation. Pursuant to court order, he was released from custody upon the filing of an appearance bond in the amount of $50,000.00. Thereafter, appellant pled guilty to bribery and conspiracy to commit bribery, both felonies occurring while appellant was released from custody under the bond.

On petition of the State, a hearing was held and judgment entered against both Warren and Surety in the amount of $50,-000.00. Following motions for new trial and motions for relief from judgment, this appeal followed.

Resolution of the appeal depends upon the interpretation of the language of the bond and the effect, if any, of the provisions regarding release set forth in former A.R.S. §§ 13-1571 — 1580 and Arizona Rule of Criminal Procedure 7.3.

The operative portion of the bond details two basic conditions and reads as follows:

We, Ned Warren, as principal, and the SURETY INSURANCE COMPANY, a California corporation, as Surety, hereby undertake that the said Ned Warren will appear and answer the charge above mentioned in whatever Court it may be prosecuted, and will at all times hold himself amenable to the orders and process of of the Court, and, if convicted, will appear for judgment, and render himself in execution thereof, or, if he fails to perform either of these conditions that he will pay to the STATE OF ARIZONA the sum of Fifty Thousand ($50,000.00) DOLLARS. (Emphasis added)

The relevant portion of the release order stated that the defendant should, during the pendency of the case:

(1) Appear to answer and submit himself to all further orders and process of the court having jurisdiction of the case;
(2) Refrain from committing any criminal offense;
(3) Not depart the state without leave of court, except to and from the state of Utah;
(4) If released during an appeal, prosecute his appeal, with due diligence.

In addition, the order provided: “The defendant will execute an appearance bond approved by the court and binding himself to pay the State of Arizona the sum of Fifty Thousand Dollars ($50,000.00) in the event that he fails to comply with its conditions.”

Arizona Rule of Criminal Procedure 7.3 reads:

a. Mandatory Conditions. Every order of release under this rule shall contain the following conditions:
(1) That the person appear to answer and submit himself to the orders and process of the court having jurisdiction of the case;
(2) That he refrain from committing any criminal offense;
(3) That he not depart the state without leave of court;
(4) If released after judgment and sentence, that he diligently prosecute his appeal.
b. Additional Conditions. An order of release may include the first one or more of the following conditions reasonably necessary to secure a person’s appearance:
(1) Execution of an unsecured appearance bond in an amount specified by the court;
(2) Placing him in the custody of a designated person or organization agreeing to supervise him;
(3) Restrictions on his travel, associations, or place of abode during the period of release;
(4) Any other condition not included in (5) or (6) which the court deems reasonably necessary;
(5) Execution of a secured appearance bond; or
(6) Return to custody after specified hours.

[495]*495Arizona Rule of Criminal Procedure 7.6(d) reads:

If at any time it appears to the court that a condition of an appearance bond has been violated, it shall require the parties and any surety to show cause why the bond should not be forfeited, setting a hearing thereon within 10 days. If at the hearing, the violation is not explained or excused, the court may enter an appropriate order of judgment forfeiting all or part of the amount of the bond, which shall be enforcible [sic] by the prosecutor as any civil judgment.

A.R.S. § 13-3968 (formerly A.R.S. § 13-1578) reads, in part, as follows:

a. Upon a verified application by the prosecuting attorney alleging that a defendant charged with a felony has wilfully violated the conditions of his release, a judicial officer may issue a warrant directing that the defendant be arrested and taken forthwith before a superior court for hearing.

b. After a hearing and upon a finding that the defendant has wilfully violated the conditions of his release, the court may impose different or additional conditions upon the defendant’s release. Upon a finding of probable cause that the defendant committed a felony during the period of release, the defendant’s release may be revoked.

Appellants argue that neither the rules nor the statute contemplate the forfeiture of an appearance bond as a consequence of a violation of the release order directing a defendant to refrain from committing a criminal offense. They argue further that no provision of the bond authorizes forfeiture on this ground. They also contend that the court may not “read into” the bond the condition of the release order regarding another criminal offense.

The State’s position, as we understand it, is that Rule 7.6(d) contemplates more than one condition in an appearance bond; that the bond has two conditions; that the first condition relates to required court appearances; and that the second condition relates to the defendant’s obedience to all orders of the court, past and future, going beyond orders relating only to appearances.

We conclude that while the commission of a crime was a ground for revoking the defendant’s release from custody, it was not a breach of the appearance bond justifying a forfeiture of the principal sum to the State.

Although not controlling, it is of some value to note that the bond it titled “Bail Bond” and is referred to in the body as “appearance bond.” Our decision rests, however, on the plain meaning of the two conditions of the bond itself and the related rules and statute.

The first condition is that the defendant will “appear and answer the charge ... in whatever court it may be prosecuted.” This is a promise for future physical appearance in accordance with the orders of the court.

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Cite This Page — Counsel Stack

Bluebook (online)
622 P.2d 52, 127 Ariz. 493, 1980 Ariz. App. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-surety-insurance-arizctapp-1980.