Herbertson v. People

• Decision Date: 31 May 1966
• Docket Number: No. 21193,21193
• Citation: Herbertson v. People, 415 P.2d 53, 160 Colo. 139 (Colo. 1966)
• Parties: C. J. HERBERTSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 53

415 P.2d 53

160 Colo. 139

C. J. HERBERTSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21193.

Supreme Court of Colorado, In Department.

May 31, 1966.

Rehearing Denied June 27, 1966.

Mellman, Mellman & Thorn, Denver, for plaintiff in error.

Martin P. Miller, Dist. Atty. for 18th Judicial Dist., Littleton, for defendant in error.

DAY, Justice.

This writ of error is directed to the judgment of the district court entered upon the forfeiture of a recognizance bond. Plaintiff in error was the surety. We will refer to plaintiff in error as surety. The principal for whom the recognizance was given was one Joseph E. Marand, the defendant in a criminal case, who failed to appear for trial. He will be referred to as Marand.

The chronology of certain hearing dates, continuances and court orders are recited in detail for an understanding of the basis of error committed by the trial court. It follows:

1. Surety posted bond in the district court of Arapahoe County on September 6, 1963, in the penal sum of.$1000.00. The condition of the bond was that Marand would appear in court on the 11th day of December, 1963, for trial.

2. On October 2, 1963, surety filed a 'request' with the court--whether oral or written and in what manner and form is not disclosed by the record--which prompted the court to issue the following order:

'And thereupon, upon request of Bondsman, C. J. Herbertson, it is ORDERED by the Court that Clerk of the Court issue an Alias Warrant for defendant's arrest and return to the State of Colorado; that hearing regarding Bond forfeiture be set for November 1, 1963 at 10 a.m.' (Emphasis supplied).

3. Nothing was done on November 1st, but on November 15th there is a court order vacating a hearing as of that date and resetting a 'hearing regarding bond forfeiture' to December 6, 1963.

4. When the parties appeared on December 6, 1963 the district judge who had entered all previous orders and continuances and who had set the matter for hearing was unavailable, and in his stead the county judge sitting as district judge entered the following:

'And thereupon the Court DOTH ORDER that since trial of the defendant is set for December 11, 1963, Any ruling on forfeiture of the bond shall be held in abeyance to see if defendant appears for trial. If defendant does not appear, then hearing for forfeiture shall be set for December 12, 1963, at 9 a.m.' (Emphasis supplied.)

5. On the 10th day of December, by stipulation of the district attorney and counsel for defendant, the trial date of December 11, 1963, was vacated.

6. On December 11, 1963--the date on which the trial was originally set--the district attorney and counsel for defendant both appeared in court, and it was agreed 'that matter be continued to February 4, 1964.'

7. On December 12th surety filed a paper entitled 'MOTION TO DISMISS FORFEITURE AND RELEASE SURETY OR IN THE ALTERNATIVE TO EXTRADITE THE DEFENDANT.' This was the same day on which 'hearing for forfeiture' had been previously set.

What transpired on the 12th of December, i.e., if a hearing was had, or what the nature of the proceeding actually was, does not appear from the record. There was no transcript filed by either party.

It does appear, however, that on December 12th the court entered what was denominated 'JUDGMENT ON FINDINGS' which reads:

'The Court having this day Ordered that judgment be entered herein against defendant, C. J. Herbertson, in accordance with the FINDING of the Court, now, therefore;

'It is ORDERED and ADJUDGED by the Court that bond be forfeited; that bondsmen be given additional 20-day stay of execution over and above the statutory 10-day stay.' (Emphasis supplied)

This is the only judgment that appears in the record. From its contents judgment was entered first and forfeiture thereafter ordered. What is even more glaring from the above chronology, is that neither the Colorado statutes nor the Rules of Criminal Procedure were followed in any fashion. Want of conformance to the procedure outlined by law is a violation of the surety's rights.

The procedure prescribed by C.R.S.1963, 39--2--17 and 39--2--18, and Rule 46, Colorado Rules of Criminal Procedure, and the necessity of strict compliance therewith, received considerable attention from this court in People v. Johnson, 155 Colo. 392, 395 P.2d 19. Before any judgment may issue in connection with a bond forfeiture there must be due process. When forfeiture is declared then scire facias may issue ordering the surety to show...