Opinion
No. 78-553
Decided October 5, 1978.
Surety and its attorney-in-fact appealed from a judgment entered against the surety on a bail bond forfeiture.
Reversed
1. BAIL — Continue Bail Bond — After Conviction — Consent of Surety — Required — Condition in Bond — Binding Surety — "Until Final Sentence" — Unenforceable — Forfeiture — Erroneous. By statute, the trial court must obtain the consent of the surety to continue a bail bond following conviction of a defendant, and nothing in the statute authorizes or requires a surety to give advance consent for continuance of its obligations under a bail bond after conviction and until final sentence; consequently, where bail bond contained condition binding the surety to remain liable on the bond "until the final sentence" of the court, that condition was unenforceable, and forfeiture of such bond effected under that provision was erroneously entered.
Appeal from the District Court of the City and County of Denver, Honorable Susan G. Barnes, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant General, Felipe V. Ponce, Assistant Attorney General, Linda Palmieri Rigsby, Assistant Attorney General, for plaintiff-appellee.
Stanley H. Marks, Jonathan L. Olom, for sureties-appellants.
Surety Insurance Company of California (the surety) and Henry Veto (Veto) appeal from a judgment entered against the surety on a bail bond forfeiture. We reverse.
Veto, as attorney in fact for the surety, executed a $1500 appearance bond on behalf of one Charles Craig, a defendant in a criminal proceeding. The bond, a printed form furnished by the Denver County Court, provides in part as follows:
"The conditions of this obligation are such that the above-named defendant shall personally appear in the [County Court or the District Court], should action be bound over thereto, or refiled in the District Court, and from day to day and term to term, and from day to day of each term thereafter, and not depart the same without leave until the final sentence or order of the Court . . . ." (emphasis added)
After the bond was executed, an information was filed in the district court charging Craig with felony theft and conspiracy to commit felony theft. Craig appeared in response to the information and pled guilty to an amended charge of misdemeanor theft. The court accepted the plea, set a hearing date for sentencing, and continued the bond without obtaining consent of the surety. When Craig failed to appear for sentencing, the court ordered forfeiture of the bond.
Section 16-4-103(2), C.R.S. 1973, specifies that:
"The primary condition of the bail bond, and the only condition for a breach of which a surety or security on the bond may be subjected to forfeiture, is that the released person appear to answer the charge against him at a place and upon a date certain and at any place or upon any date to which the proceeding is transferred or continued."
Section 16-4-201, C.R.S. 1973, provides that:
"No bond shall be continued in effect following conviction unless the written consent of the sureties if any, are filed of record."
A conviction occurred within the meaning of the statute when the court accepted Craig's plea of guilty to the lesser offense of misdemeanor theft. See Rodriquez v. People, 191 Colo. 540, 554 P.2d 291 (1976); People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975). Further, the statutes relating to bail constitute a part of the surety's contract, and under § 16-4-201, C.R.S. 1973, the trial court must obtain consent of the surety to continue a bail bond following conviction of a defendant. Rodriquez v. People, supra.
The People argue, however, that, because the bond under consideration here expressly binds the surety until "final sentence," it contains, in effect, the advance written consent of the surety to continue its liability on the bond following the date of conviction until sentencing. We disagree.
[1] Conditions contained in a bail bond which are not specified in the statute and which enlarge the surety's obligations, are not binding on the surety. People v. Eberlie, 60 Colo. 205, 152 P. 146 (1915). Nothing in the statute authorizes or requires a surety to give advance consent for continuance of its obligations under a bail bond after conviction and until final sentence. Accordingly, the condition of the bond in this case binding the surety in advance to remain liable on the bond following conviction is unenforceable.
The judgment is reversed and the cause remanded with directions to release the surety from any liability on the bond.
JUDGE PIERCE and JUDGE RULAND concur.