Opinion
April 1, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 359
Frank G. E. Tucker, Dist. Atty., James H. Moore, Deputy Dist. Atty., Ninth Judicial District, Aspen, for plaintiff-appellee.
T. Peter Graven, Glenwood Springs, for surety-appellant.
COYTE, Judge.
Joseph R. Maynard seeks reversal of a judgment against him arising from the forfeiture of bail upon which he was the surety.
One Patrick Norman Joss was arrested for several narcotics violations. When arrested, he had a pickup truck and $21,000 in cash which were taken into police custody. Bond was set at $10,000, and, on November 12, 1972, Maynard, a licensed professional bondsman, posted the bond after an interview with Joss in jail. On November 17, 1972, when Joss failed to appear on the bond return date, the prosecutor asked that a citation be issued to Maynard to show cause why the bond should not be forfeited. On that date the court issued a document in the general form of a contempt of court citation to Maynard, but judgment against him was not entered. In a separate proceeding, the prosecutor moved to confiscate the truck and the cash as a public nuisance under s 16--13--301 et seq., C.R.S.1973. On January 24, 1973, Joss was divested of all his rights in the assets.
An evidentiary hearing was held on September 28, 1973, on the issue of forfeiture of the bond. At this hearing, it was discovered that the forfeiture procedures mandated by Crim.P. 46 and s 16--4--109, C.R.S.1973 (C.R.S.1963, 39--4--109) had not been followed. The prosecutor then requested an order of forfeiture and issuance of citation to Maynard, using the proper procedure. This was done and another hearing set. After this hearing on October 30, 1973, the court entered a judgment of $10,000 against Maynard in favor of the State, but remitted $2,500 of this for Maynard's expenses in attempting to find Joss. Joss had never been found and brought to trial. We affirm the judgment.
Maynard was a licensed bondsman who had conducted over 200 interviews relative to writing bonds. He was aware that bonding is a high risk business. When he had satisfied himself as to Joss' reliability, he wrote the bond. United States v. Kelley, 38 F.R.D. 320 (D.Colo.) states:
These factors must be considered in determining the merits of Maynard's several closely-related arguments.
The first issue is whether the irregularities in the bond forfeiture proceedings operated to deprive Maynard of his rights. As stated in Herbertson v. People, 160 Colo. 139, 415 P.2d 53: 'Before any judgment may issue in connection with a bond forfeiture there must be due process.' The proper procedure is described in People v. Johnson, 155 Colo. 392, 395 P.2d 19, which applies statutes reenacted as s 16--4--101 et seq., C.R.S.1973 (C.R.S.1963, 39--4--101 et seq.) and Crim.P. 46.
The present case is similar to those described in Murray v. People, 49 Colo. 109, 111 P. 711; And Higgins v. People, 2 Colo.App. 567, 31 P. 951, where irregularities in the bond form were declared immaterial. Here, Maynard was not prejudiced by the improper forfeiture procedure that
was initially followed. He had immediate notice that Joss had failed to appear and that there was a possibility he might be responsible on his bond. He started searching for Joss the day he failed to appear. Judgment was not entered until October 30, 1973, after the statutory time had elapsed after forfeiture, and Maynard had almost one year from the time Joss disappeared to find Joss and relieve himself of the obligation. He himself had requested some of the continuances. The bond was properly declared forfeit; any delay operated to surety's benefit.
Once the bond is determined to be forfeited, as it was here on September 28, 1973, certain conditions will excuse the surety from payment. Besides the conditions excusing forfeiture set out in Crim.P. 46(a)(7)(I), People v. Jaramillo, 163 Colo. 39, 428 P.2d 67 provides additional reasons for relief from forfeiture as follows:
Also, by Crim.P. 46(a)(8)(III):
By virtue of several related facts, Maynard urges that he falls under one or more of these provisions excusing forfeiture. First, he contends that the nuisance action wherein the truck and money of Joss were confiscated was an act of law which would relieve his obligation. This argument is without merit. The nuisance action was a separate proceeding under s 16--13--301 et seq., C.R.S.1973. A surety is not relieved of his obligation because the state was more than repaid the amount of the bail bond by its seizure of the truck and the cash. The purpose of the bail bond is not to enrich the treasury of the state but to make sure a defendant appears at the specified time. Section 16--4--103(2), C.R.S.1973, and Crim.P. 46(a)(2)(II). See also Western Surety Co. v. People, 120 Colo. 357, 208 P.2d 1164.
Next Maynard contends that the law enforcement officers had taken Joss' truck and money and that the officers had determined that they would not prosecute him. Whether the officers had decided not to prosecute Joss was an issue of fact to be determined by the court. The court found that there had been no refusal, implied or explicit, to prosecute Joss. There was substantial evidence that the activities of the law enforcement authorities were not intended as a dismissal of the case. While Maynard testified as to his efforts to locate Joss, he did not present any evidence of a disinclination on the part of the authorities to apprehend and prosecute Joss. Thus, we will not disturb the findings of the trial court on this issue. See Tanquary v. People, 25 Colo.App. 531, 139 P. 1118.
Maynard states that he was relying, in part, on Joss' ownership of the truck and cash to secure Joss' obligation, but this was more properly at issue when Maynard attempted to intervene in the nuisance suit. He did not appeal the decision that he could not appear as an intervenor and the matter is not at issue here. Accordingly, we will not consider it.
Finally, Maynard asserts that he expended considerable time and money trying to find Joss and that the cost to him of paying the amount ordered will bankrupt him. Therefore, he argues that full remission of the amount of his obligation under the bond should be ordered. However, these factors are for the trial court's consideration only. 'Remission is not a matter of right but is permissive only.' People v. Young, 29 Colo.App. 522, 487 P.2d 817. As stated in United States v. Kelley Supra:
The trial court did not abuse its discretion in allowing remission of only $2,500 and entering judgment for $7,500. See People v. Johnson, Supra; and Southard v. People, 74 Colo. 67, 219 P. 218.
Judgment affirmed.
SILVERSTEIN, C.J., and VAN CISE, J., concur.