Dep't of Liquor Control v. Calvert

Decision Date02 September 2011
Docket NumberNo. S–10–055.,S–10–055.
Citation2011 -Ohio- 4735,195 Ohio App.3d 627,961 N.E.2d 247
PartiesDEPARTMENT OF LIQUOR CONTROL, Appellee, v. CALVERT, Appellant.
CourtOhio Court of Appeals

OPINION TEXT STARTS HERE

Robert Hart, for appellee.

Loretta Riddle, Sandusky, for appellant.

YARBROUGH, Judge.

[Ohio App.3d 629] {¶ 1} Appellant, Holly P.J. Mayo, a bondswoman doing business as Mayo Bail Bond & Surety, appeals from a judgment ordering Mayo to pay on a forfeited recognizance within 30 days from the judgment. For the following reasons, we reverse the judgment of the trial court and remand this case for proceedings consistent with this decision.

{¶ 2} On July 4, 2010, Vernon Calvert was arrested and charged with one count of underage under the influence, a misdemeanor of the first degree, and one count of persistent disorderly conduct, a fourth-degree misdemeanor. Calvert's total bail was set for $1250. Mayo posted a surety bond in the same amount, and Calvert was released from jail.

{¶ 3} Calvert appeared in court on July 6, 2010, pleaded no contest to both charges and was found guilty by the trial court. The court then ordered a presentence investigation, and Calvert's sentencing hearing was continued to August 10, 2010.

{¶ 4} Calvert subsequently failed to appear at sentencing. As a result, in an entry journalized on August 10, 2010, the trial court issued a bench warrant for Calvert's arrest and ordered a bond-revocation hearing to be held within ten days. The trial court set the hearing for August 24, 2010, and mailed notice to Calvert, Mayo Bail Bond, and the prosecutor. On August 24, 2010, the parties failed to appear and the court ordered forfeiture of the bond. Notice of the forfeiture order was sent to Mayo and Mayo Bail Bond.

{¶ 5} On September 20, 2010, the trial court ordered that copies of the August 10 and August 24, 2010 journal entries be sent to Mayo by certified mail. Included in this mailing was notice that the trial court had scheduled a review hearing for October 1, 2010. Mayo Bail Bond and the prosecutor were also notified. Mayo signed the certified mail return receipt on September 22, 2010. [Ohio App.3d 630] However, neither the defendant nor Mayo appeared at the October 1, 2010 hearing.

{¶ 6} On October 5, 2010, the trial court issued a judgment entry in which it ordered that a bond-revocation hearing be held in 30 days, pursuant to R.C. 2937.36. The court also ordered Mayo to be notified per statute. The court scheduled the hearing for November 9, 2010, and sent notice by ordinary mail to Mayo at Mayo Bail Bond, on October 25, 2010. Notice was also sent to Calvert, Mayo Bail Bond, and the prosecutor.

{¶ 7} On November 9, 2010, the trial court issued the judgment entry from which this appeal is taken. The judgment entry states: [N]either [Calvert] nor bondsperson appeared—bond ordered forfeited per statute—notify bondsperson to pay in bond [within] 30 days.”

{¶ 8} Appellant now asserts the following assignment of error:

{¶ 9} “When the magistrate or clerk of courts fails to follow R.C. § 2937.36, a municipal court lacks jurisdictin [sic] and abuses its discretion when the court orders a bondswoman to pay a forfeited bond when a defendant failed to appear prejudicing the rights of the bailbondswoman.”

{¶ 10} Initially, we must clarify the difference between “bail” and “bond,” since the parties and the trial court use the terms interchangeably. R.C. 2937.22(A) defines “bail” as “security for the appearance of an accused to appear and answer to a specific criminal or quasi-criminal charge in any court or before any magistrate at a specific time or at any time to which a case may be continued, and not depart without leave. It may take any of the following forms: * * * (1) The deposit of cash by the accused or by some other person for the accused; * * * (3) The written undertaking by one or more persons to forfeit the sum of money set by the court or magistrate, if the accused is in default for appearance, which shall be known as a recognizance.”

{¶ 11} In short, bail is a form of security that can be in the form of cash or a recognizance. The purpose of bail is to ensure that the accused appears at all stages of the criminal proceedings. State v. Hughes (1986), 27 Ohio St.3d 19, 20, 27 OBR 437, 501 N.E.2d 622; State v. Rich, 6th Dist. No. L–04–1102, 2004-Ohio-5678, 2004 WL 2390085, ¶ 14. Crim. R. 46(A)(3) permits courts to accept a surety bond, a form of recognizance, as bail. “A surety bond is a contract in which the surety promises the court that it will pay a monetary penalty if the accused who is released on the bond posted by the surety fails to appear in court when ordered.” State v. Scherer (1995), 108 Ohio App.3d 586, 590, 671 N.E.2d 545.

{¶ 12} Should the accused fail to appear in court when ordered, the trial court can then take two separate actions regarding bail: (1) order the bail forfeited, in [Ohio App.3d 631] whole or in part, or (2) continue the case to a later date and give notice of the date to the accused and the bail depositor or sureties and adjudge the bail forfeited upon the accused's failure to appear at the later date. R.C. 2937.35.

{¶ 13} If the bail forfeited is a recognizance such as a surety bond, the court must take additional action, outlined in R.C. 2937.36 (January 1, 1960),1 which states:

{¶ 14} “Upon declaration of forfeiture, the magistrate or clerk of the court adjudging forfeiture shall proceed as follows: * * * (C) As to recognizances he shall notify accused and each surety by ordinary mail at the address shown by them in their affidavits of qualification or on the record of the case, of the default of the accused and the adjudication of forfeiture and require each of them to show cause on or before a date certain to be stated in the notice, and which shall be not less than twenty nor more than thirty days from date of mailing notice, why judgment should not be entered against each of them for the penalty stated in the recognizance. If good cause by production of the body of the accused or otherwise is not shown, the court or magistrate shall thereupon enter judgment against the sureties or either of them, so notified, in such amount, not exceeding the penalty of the bond, as has been set in the adjudication of forfeiture, and shall award execution therefor as in civil cases * * *.” (Emphasis added.)

{¶ 15} Thus, once the court orders the bail forfeited and if the posted bail was in the form of a surety bond, the court must notify the accused and the surety 2 and give them a date at least 20 days from the date of the mailing, but not more than 30 days,3 to show cause why a judgment should not be entered for the penalty stated in the recognizance. If no good cause is shown, then the court or magistrate must enter judgment against the surety, in an amount not exceeding the penalty of the bond as set in the adjudication of forfeiture. See also State v. Martin, 2d Dist. No. 21716, 2007-Ohio-3813, 2007 WL 2164151, ¶ 32 (Grady, J. dissenting).

{¶ 16} Having distinguished between bail and bond, we must next address the state's argument that this appeal is not timely filed and should therefore be dismissed. Appellee asserts that the trial court's forfeiture order of [Ohio App.3d 632] August 24, 2010, is the order from which this appeal lies. We disagree. In pending criminal cases, an order to forfeit bail is not final and appealable. State v. McLaughlin (1997), 122 Ohio App.3d 418, 420, 701 N.E.2d 1048, citing State v. Bevacqua (1946), 147 Ohio St. 20, 33 O.O. 186, 67 N.E.2d 786; State v. Williams (1973), 40 Ohio App.2d 310, 69 O.O.2d 280, 319 N.E.2d 223. These cases, however, deal with whether an accused can appeal a forfeiture order or an order with excessive bail. We must determine whether a surety can appeal from a bail-forfeiture order.

{¶ 17} Ohio law is well established that [c]ourts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *.” Section 3(B)(2), Article IV, Ohio Constitution. However, appellate courts have no jurisdiction over orders that are not final and appealable. State v. Steigerwald, 6th Dist. Nos. L–10–1104 and L–10–1105, 2011-Ohio-1398, 2011 WL 1086589, ¶ 15, citing State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 6.

{¶ 18} R.C. 2505.02 defines “final and appealable order” as [a]n order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial.” See also Sabrina J. v. Robbin C. (Jan. 26, 2001), 6th Dist. No. L–00–1374, 2001 WL 85157.

{¶ 19} An order of bail forfeiture adjudicated pursuant to R.C. 2937.35, where a surety bond is posted as bail, is not final and appealable but is interlocutory in nature because the court must take additional action for the recovery of the amount stated in the bail bond. Once an order of forfeiture is adjudicated pursuant to R.C. 2937.35, and if the posted bail is in the form of a surety bond, the court must enter judgment against the surety, through the procedure set forth in R.C. 2937.36. Therefore, the August 24, 2010 order of forfeiture was not final and appealable, because the posted bail was in the form of a surety bond and further action by the court was required pursuant to R.C. 2937.36.

{¶ 20} Rather, the trial court's judgment against the surety, rendered on November 9, 2010, is final and appealable. In deciding this, we look at the intent of the trial court to determine whether the entry was meant to be the final judgment in the matter. See Millies v. Millies (1976), 47 Ohio St.2d 43, 44, 1 O.O.3d 26, 350 N.E.2d 675. “This intent can be...

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