Opinion
No. 75-020
Decided October 9, 1975. Rehearing denied November 13, 1975. Certiorari granted January 19, 1976.
Trial court entered judgment against bondsman for amount of bond when criminal defendant for whom bond was posted failed to appear for dispositional hearing. Bondsman appealed.
Affirmed
1. BAIL — Bonds — Terms Of — Failure to Appeal — Forfeiture. Where, at a hearing, defendant pled guilty to criminal trespass, and bond previously set for two unrelated charges of grand theft and conspiracy was scheduled to be dismissed at a subsequent dispositional hearing on the trespass charge, defendant's failure to appear at the dispositional hearing constituted a breach of the bond, and thus judgment against bondsman for amount of bond was proper.
Appeal from the District Court of the County of Adams, Honorable Abraham Bowling, Judge.
Floyd Marks, District Attorney, Brian T. McCauley, Deputy District Attorney, for plaintiff-appellee.
Epstein, Lozow Preblud, P.C., Gary Lozow, for defendant-appellant.
Division II.
On February 11, 1974, the appellant, John Wimberly, posted bond for Ernestine Rae Rodriquez, who was charged in an information with two felony counts, attempted grand theft and conspiracy. At a hearing on May 6, 1974, an additional count, second degree criminal trespass, was added. Defendant who had previously entered pleas of not guilty entered a plea of guilty to this new charge. Defense counsel thereupon advised the court that the District Attorney had agreed that upon the final disposition of the trespass count, the first two counts, the charges upon which the appellant had agreed to act as surety on defendant's bond, would be dismissed.
Defendant was granted leave to apply for probation, and a hearing was set for June 12, 1974. Bond was continued to that date. Defendant failed to appear on June 12, and the court ordered forfeiture of defendant's bond and directed that a citation issue to appellant requiring him to show cause why judgment should not enter against him on the bond. On August 30, 1974, appellant filed a motion for exoneration or permanent stay of execution on forfeiture. The trial court on September 3, after hearing on appellant's motion, denied the same and entered judgment against Wimberly for the amount of the bond. We affirm that judgment.
[1] The bond executed by appellant provided for forfeiture if the defendant failed to appear in court "from day to day and term to term and not depart the court without leave," and "to answer unto . . . certain charge[s] therein pending against the said Defendant." There has been no disposition of these charges, either by conviction or dismissal. Defendant's plea of guilty was to a charge which was wholly unrelated to those for which the bond had been executed. The May 6th order of the trial court had the effect of requiring defendant to appear on June 12, not only for a hearing on her application for probation as to the trespass count, but for further appropriate action on the two original counts. Her failure to appear was therefore a breach of the bond which she and Wimberly had executed. When defendant violated the terms of the bond, her surety became liable on its penal amount.
Although the parties have raised the issue, the result we here reach makes unnecessary any discussion of whether consent of a surety to remain on a bond is required after a plea of guilty.
Judgment affirmed.
JUDGE RULAND and JUDGE KELLY concur.