Moreno v. People, s. 87SC407
| Decision Date | 26 June 1989 |
| Docket Number | 87SC412,Nos. 87SC407,s. 87SC407 |
| Citation | 775 P.2d 1184 |
| Parties | Fred MORENO, Surety-Petitioner, and concerning Irma Maestas, Defendant, v. The PEOPLE of the State of Colorado, Respondent. The PEOPLE of the State of Colorado, Petitioner, v. Leslie Jean STONEHART, Defendant, and concerning Dianne Wimberly, Surety-Respondent. |
| Court | Colorado Supreme Court |
Thomas A. Wallace, Denver, for surety-petitioner in No. 87SC 407.
Ralph B. Rhodes, Christopher C. Beasley, Denver, for surety-respondent in No. 87SC 412.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David L. Saine, Asst. Atty. Gen., Denver, for respondent in no. 87sc 407; for petition in No. 87SC 412.
We granted certiorari to review two decisions of the court of appeals concerning the statutory notice which must be given by a trial court after it enters an order forfeiting a bail bond. See People v. Maestas, 748 P.2d 1351 (Colo.Ct.App.1987), and People v. Stonehart, 748 P.2d 1353 (Colo.Ct.App.1987). We conclude that the court of appeals improperly created a presumption of prejudice. We reverse the court of appeals' judgment in Stonehart and affirm its judgment in Maestas.
Colorado law permits a surety to post a bond for the pre-trial release of a criminal defendant. § 16-4-104(1)(b)(III), 8A C.R.S. (1986). The purpose of the bond is to ensure that the defendant appears and "[o]nce a bond has been executed and the person released from custody thereon," the bond continues in effect "until final disposition of the case in the trial court." § 16-4-106, 8A C.R.S. (1986). If a defendant fails to appear, the court declares the defendant's bond forfeited. § 16-4-109(2), 8A C.R.S. (1986). In each of the cases now before us, the defendant failed to appear and the trial court ordered the forfeiture of the bond posted by the surety.
In Stonehart, the defendant failed to appear at a preliminary hearing on August 14, 1985 in San Miguel County District Court. His surety was Dianne Wimberly who is located in Denver but who posted this bond through the Montrose County Sheriff's Department on August 9, 1985. The bond contained Wimberly's printed and signed name but did not contain her address. The record before us does not include a copy of the show cause order issued by the district court directing Wimberly to appear and show cause why judgment should not be entered on the order of forfeiture, but the parties agree that such notice was sent to Wimberly on September 26, 1985 and received by her on September 30, 1985. On September 26 the clerk also commenced the thirty-day period within which Wimberly was able to surrender the defendant to the court pursuant to section 16-4-109(2), 8A C.R.S. (1986). Wimberly filed a response alleging that the trial court failed to give forthwith notice as required under section 16-4-109(2). She claimed that the purpose of the notification requirement was to give the surety "an immediate opportunity to locate the defendant" and that "[d]elay in notification compromises the intent of the statute."
After a continuance at the surety's request, a hearing was held and Wimberly appeared through her counsel. The evidence established that the delay in mailing the notice of the order of forfeiture occurred because Wimberly's address was not on the bond and the clerk of court had to make several efforts before she obtained the address. The trial court found that Wimberly had an obligation to provide the clerk with her address and that the clerk "made a good faith effort to acquire and obtain that address as quickly as was reasonably possible." It further found that, once the clerk obtained Wimberly's address, she immediately notified her. The trial court concluded that the notification complied with the statute and entered judgment on the order of forfeiture.
The court of appeals reversed the trial court's judgment, based on its interpretation of section 16-4-109(2) which states in relevant part:
Notice of the order of forfeiture shall be mailed forthwith by the court to the defendant and sureties, if any, at their last known address.
The court held that the notice given was not forthwith and it adopted a presumption of prejudice to the surety from the trial court's failure to give forthwith notice. It found that the presumption of prejudice was not rebutted by the facts of this case and, for that reason, it reversed the trial court's order of judgment on the forfeiture. Stonehart, 748 P.2d at 1354-55.
In the Maestas case, Fred Moreno was the surety and posted bond on November 23, 1984. The defendant Maestas failed to appear on March 14, 1985 and the bond was ordered forfeited. On April 17, 1985, a citation was issued to Moreno pursuant to section 16-4-110, 8A C.R.S. (1986), directing him to show cause why judgment should not be entered on the order of forfeiture. After a hearing, which was not transcribed, the court entered judgment on the forfeiture. In its opinion, the court of appeals held that the trial court had not given forthwith notice as required by section 16-4-109(2) and that a rebuttable presumption of prejudice to the surety had arisen. Because Moreno as the surety-appellant had failed to designate a transcript of the show cause hearing for inclusion in the record on appeal, the court of appeals interpreted the trial court's finding that Moreno had not been prejudiced as equivalent to a finding that the presumption of prejudice had been rebutted. On that basis, the court of appeals affirmed the trial court's entry of judgment on the order of forfeiture. Maestas, 748 P.2d at 1352.
The first question before us is whether the notice of forfeiture was mailed forthwith to the surety. In Stonehart, the notice was sent to the surety 43 days after the order of forfeiture was entered. In Maestas, the notice was sent 34 days after the order of forfeiture was entered. In both cases, we agree with the court of appeals that the order was not mailed forthwith.
The term "forthwith" is defined as follows:
Immediately; without delay; directly; within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch.
Black's Law Dictionary 588 (5th ed. 1979). The legislature's use of the term requires that the trial court mail the notice promptly and without unnecessary delay. The statute does not set a rigid time frame as it would, for example, if it specified that the notice must be mailed on the date on which the order of forfeiture is entered or that notice must be mailed within a certain number of days after the order is entered. The trial court is in the best position to determine initially whether the notice was mailed forthwith but it must make that determination in light of our cases which reflect a strong policy favoring expedited handling of bond forfeiture matters. In People v. Johnson, 155 Colo. 392, 398, 395 P.2d 19, 22 (1964), we stressed that such proceedings should not be delayed:
After an order has been entered declaring a bond forfeited, such an order being in the nature of a declaration of default or an interlocutory decree, steps should be promptly taken to reduce a claim in debt arising out of breach of the condition of the bond to a judgment in behalf of the People and against the persons answerable for the amount of the "penal sum" specified in the bond.
Judgment cannot be entered on the order of forfeiture until notice and an opportunity to be heard have been given to the defendant and the surety. Thus prompt mailing of the notice is important to expedite the proceeding.
In Stonehart the trial court found that the notice was mailed forthwith because the delay in mailing was explained by the surety's failure to include her address, the clerk's difficulties in obtaining the address, the limited resources of the Telluride Clerk's Office, and the infrequency of bond forfeitures arising in that jurisdiction. Once the surety's address was ascertained, the clerk promptly mailed the notice. We are not unsympathetic to the practical difficulties presented by this case, but the record indicates periods of inaction which are not consistent with the trial court's responsibility to mail the notice forthwith. Hence, we conclude that the statutory standard was not met.
In Maestas, a show cause hearing was promptly convened but, at the time of the hearing, the trial court learned that the surety had not been notified. Notice was then promptly given to the surety and a second show cause hearing was held. The effect was that the surety received notice 34 days after the order of forfeiture had been entered. We agree that this does not constitute forthwith notice under the statute. Accordingly, we find that in neither case was the notice mailed forthwith.
Under the statutory scheme regulating bail bond forfeitures, the notice requirements contained in sections 16-4-103(3), 16-4-109(2) and 16-4-110 serve several purposes. As the cases before us reflect, a single notice is sent by the trial court to accomplish the various statutory notice requirements. The notice informs all sureties that the defendant has failed to appear and allows the sureties to pursue the statutory grounds available for setting aside the forfeiture of the bond. The notice also advises all sureties of the date when a hearing pursuant to section 16-4-110 will be held so that the sureties may appear and show cause why judgment should not be entered on the order of forfeiture.
The trial court's failure to mail the notice forthwith as required by section 16-4-109(2) does not automatically require the remission of the surety's bond. Under the statute, a bond forfeiture may be set aside in three circumstances. See People v. Caro, 753 P.2d 196, 198-199 (Colo.1988). By the facts presented by these cases, the relevant statutory ground permits the bond forfeiture to be set aside only "if it appears that justice so...
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