Opinion
No. 76-277
Decided February 17, 1977. Rehearing denied March 10, 1977. Certiorari granted May 2, 1977.
Criminal defendant jumped bond and bond was ordered forfeited. Defendant returned some nine months later and bondsman sought return of the bond. People stipulated that no legal rights had been forfeited, expenses relative to the defendant's absence were nil, and that payment would be an extreme hardship on defendant's mother, guarantor of the obligation. Trial court, however, refused to remit bond, and bondsman appealed.
Affirmed
1. BONDS — Bail — Remission of Forfeiture — Trial Court Discretion. Where a bail bond has been forfeited, the trial court may order remission of a forfeited bond "if it appears that justice so requires," but the decision not to order remission may be reversed only if it appears that the trial court has abused its discretion.
2. Bail — Remission of Forfeiture — Discretion of Trial Court — Factors for Consideration — Stated. In exercising its discretion as to whether forfeiture of bail bond should be remitted, the trial court may consider whether the defendant has been produced within a reasonable time after forfeiture, whether the People have lost any rights against the defendant, whether the defendant's failure to appear was willful, and whether a forfeiture will subject the surety to an extreme hardship.
3. Bail — Remission of Forfeiture — Circumstances — Stated — Denial of Remission — Not Abuse of Discretion. Although, in proceedings seeking remission of forfeited bail bond, it was conceded that People had not forfeited any rights, and that the State had incurred only nominal expense in circulating the bench warrant, nevertheless, defendant's failure to appear necessitated additional proceedings before the court, and in light of other factors, including determination that defendant's nine-month absence from Colorado showed both a willful failure to appear and an unreasonable delay together with fact that after 60-day jail sentence defendant could assume obligation to bondsman, thereby alleviating hardship on his mother, the trial court's denial of remission did not constitute an abuse of discretion.
Appeal from the District Court of Rio Grande County, Honorable Donald G. Smith, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, E. Ronald Beeks, Assistant Attorney General, for plaintiff-appellee.
Trujillo Bieda, Michael L. Bieda, for surety-appellant.
Kenneth Owens, the bondsman, appeals from a judgment forfeiting a bond filed to insure the appearance of defendant, Randolph Schliesser, for a hearing relative to a probation violation. We affirm.
The record reflects that during December 1974, defendant was arrested pursuant to the complaint of his probation officer and the bondsman posted a $2,500 surety bond for the defendant's appearance. On March 7, 1975, defendant failed to appear and an order of forfeiture was entered. All parties were notified of the order and were given 30 days to show cause why the judgment of forfeiture should not be entered.
On April 7, the bondsman requested and the trial court granted a 10-day extension. Apparently the bondsman had no success in locating the defendant, and thus on April 17, the bondsman appeared before the trial court and paid the bond.
On May 28, the court issued a bench warrant for defendant's arrest, but the defendant was not located. However, on December 8, 1975, the defendant returned to the state of Colorado and informed the bondsman of his return, whereupon the bondsman presented the defendant to the sheriff.
The bondsman moved to vacate the judgment forfeiting the bond and the district attorney agreed to full remission. The district attorney stipulated that the People had forfeited no legal rights against defendant because of his absence, that the only expense incurred by the State was processing the bench warrant, and that payment of the bond was an extreme hardship on defendant's mother, as guarantor of the bondsman's obligation. The bondsman therefore contends that the trial court's failure to order remission was error.
[1] Assuming, arguendo, that the appeal of the bondsman on behalf of the guarantor is properly before this court, we conclude that the trial court's action was proper. Under § 16-4-109(3), C.R.S. 1973, and Crim. P 46(a)(8)(III), the trial court may order remission of a forfeited bond "if it appears that justice so requires," but the decision not to order remission may be reversed only if it appears that the trial court has abused its discretion. People v. Johnson, 155 Colo. 392, 395 P.2d 19 (1964); People v. Young, 29 Colo. App. 522, 487 P.2d 817 (1971).
[2] As noted in People v. Johnson, supra, in exercising its discretion, the trial court may consider whether the defendant has been produced within a reasonable time after forfeiture, whether the People have lost any rights against the defendant, whether the defendant's failure to appear was willful, and whether a forfeiture will subject the surety to an extreme hardship.
[3] The findings of fact and conclusions of law entered by the trial court in this case reflect consideration of the factors set forth in People v. Johnson, supra. While the district attorney conceded that the People had not forfeited any rights and that the State had incurred only nominal expense in circulating the bench warrant, this concession overlooks the fact that defendant's failure to appear necessitated additional proceedings before the court: (1) To order forfeiture of the bond; (2) to issue a bench warrant; and (3) to consider the motion for remission of the bond proceeds. The additional burden placed upon the court is a proper consideration in terms of the orderly administration of justice, especially in an era when the dockets of the trial court are overcrowded and the litigation explosion continues. See State Court Administrator, Annual Statistical Report of the Colorado Judiciary (July 1, 1975 to June 30, 1976), pp. 6 and 69. In addition, the court determined that defendant's employment in another state during the nine months he was absent from Colorado demonstrated both a willful failure to appear and an unreasonable delay in returning to this jurisdiction. The court therefore concluded that the need to promote the orderly administration of justice outweighed the hardship to defendant's mother. See People v. Johnson, supra; People v. Young, supra. Finally, defendant was sentenced to only 60 days in jail for the violation of his terms of probation, and no reason appears in the record before us as to why he could not thereafter assume the obligation to the bondsman in the place of his mother. In view of the foregoing, it does not appear that the decision to deny remission of the forfeiture was an abuse of discretion.
Judgment affirmed.
JUDGE ENOCH concurs.
JUDGE COYTE dissents.