People v. Caro

• Decision Date: 14 March 1988
• Docket Number: No. 86SA312,86SA312
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Cesar CARO, Defendant, and concerning Marta Caro, Surety-Appellee.
• Court: Colorado Supreme Court

Page 196

753 P.2d 196

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Cesar CARO, Defendant and concerning Marta Caro, Surety-Appellee.

No. 86SA312.

Supreme Court of Colorado En Banc.

March 14, 1988.

Rehearing Denied April 4, 1988.

Norman S. Early, Jr., Dist. Atty., Second Judicial Dist., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

Gary Lozow, Lozow, Lozow and Elliott, Denver, for surety-appellee.

MULLARKEY, Justice.

The People appeal from the district court's order remitting part of the defendant's bail bond to the appellee, Marta Caro. We reverse the order and remand the matter to the district court with directions to deny the appellee's motion for remission.

I.

In 1982, the defendant, Cesar Caro, was arrested and charged with unlawful possession of cocaine. On August 13, 1982, he was released on a $200,000 bail bond; pursuant to a court order, he paid $100,000 in cash and the remaining $100,000 was a personal recognizance bond. The defendant's mother, Sorita Caro, provided the $100,000 in cash by mortgaging property she owned in Colombia, South America, but his sister, Marta Caro, signed the bond as the surety. ¹

On October 5, 1982, the defendant failed to appear for the second day of his criminal trial. The district court judge ordered the bond to be forfeited and ordered the defendant and the surety to appear in court on December 6, 1982, to show cause why judgment should not be entered against them on the forfeiture. The trial continued in the defendant's absence, and he was convicted. On December 6, 1982, neither the defendant nor the surety appeared in court for the show cause hearing, and the district court entered judgment for $100,000 against the surety.

During July of 1984, the defendant was apprehended in St. Louis, Missouri, by the Federal Bureau of Investigation. On July 25, 1984, the Denver sheriff's office returned the defendant to Colorado. He was sentenced on October 23, 1984. On May 12, 1986, the surety moved for remission of the bond. Although the defendant's mother actually had posted the defendant's bail bond, she did not move to intervene in the remission proceedings. ² After a hearing at which the defendant's mother was the only witness, the district court ordered that the bond be remitted to the surety and that the surety pay a $15,000 fine and slightly over $1,000 in costs which the Denver sheriff's department had incurred when it returned the defendant to Colorado. A check for $83,974.76, made payable to the surety and her attorney, was issued to the surety's attorney for placement in an interest-bearing account until further order of the court. The People appealed. We have jurisdiction of the appeal pursuant to section 16-12-102(1), 8A C.R.S. (1986), and C.A.R. 4(b)(2).

II.

When a surety has posted bond, as Marta Caro did, the surety is exonerated and her money is returned if the accused person satisfies the condition or conditions of the bond which, in this case, required Cesar Caro to appear for trial. § 16-4-108(1)(a), 8 C.R.S. (1978); ³ Crim.P 46(a)(7)(I)(A). ⁴ If the accused fails to appear at the set time, the court (1) immediately should order the bond to be forfeited and (2) should order both the accused and the surety to show cause why judgment on the forfeiture should not be entered against them. See §§ 16-4-109(2), 16-4-110, 8 C.R.S. (1978); Crim.P. 46(a)(8)(II), (9); see also People v. Johnson, 155 Colo. 392, 398, 395 P.2d 19, 22 (1964) (prosecutor should request forfeiture promptly, because delay "may well leave with defendants and sureties the impression that bonds are of minor importance and [may] be ignored with slight danger of any appreciable adverse effect on them."). As noted, the statute plainly distinguishes between forfeiture and the entry of final judgment on the forfeiture.

If the accused fails to appear in accordance with the terms of the bail bond, the surety can obtain the return of the money she posted only by one of three methods. First, at any time before judgment is entered against her on the forfeiture of the bond, she will be exonerated if she surrenders the defendant into custody and pays all costs occasioned by the defendant's failure to appear at the set time. § 16-4-108(1)(c), 8 C.R.S. (1978); Crim.P. 46(a)(7)(I)(C). Second, if, within thirty days of the forfeiture, the defendant either surrenders or satisfies the court that "appearance and surrender by the defendant is impossible and without his fault," judgment need not be entered against the surety. § 16-4-109(2), 8 C.R.S. (1978); Crim.P. 46(a)(8)(II); see also Allison v. People, 132 Colo. 156, 286 P.2d 1102 (1955) (for example, when appearance of accused is made impossible by physical or mental illness or incarceration, justice does not require that judgment be entered against surety). Finally, "[t]he court may order that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice so requires." § 16-4-109(3), 8 C.R.S. (1978); Crim.P. 46(a)(8)(III). If none of these methods is used successfully, judgment on the forfeiture is entered. Once judgment has entered, the statute provides no method to set it aside.

III.

In this case, the district court promptly sent notice to the defendant and the surety that the bond had been forfeited and ordered them to show cause why judgment should not be entered. Because the surety did not surrender the defendant into custody prior to entry of judgment on the forfeiture, she was not entitled to be exonerated pursuant to section 16-4-108(1)(c) and Crim.P. 46(a)(7)(I)(C). Neither the defendant nor the surety appeared for the hearing on the order to show cause, and neither submitted any written response. Accordingly, nothing in the record suggested that the defendant's appearance was impossible for reasons not his fault, and relief pursuant to section 16-4-109(2) and Crim.P. 46(a)(8)(II) was unavailable.

The surety relied solely on the third method described above, that a district court can set aside a forfeiture if justice so requires. § 16-4-109(3); Crim.P. 46(a)(8)(III). However, the relevant versions of the rule and statute only authorize the setting aside of a forfeiture prior to judgment, not the remission of the bond after a final judgment is entered on the forfeiture. By its terms section 16-4-109(3) refers only to setting aside a forfeiture; no reference is made to setting aside a judgment on a forfeiture. The statutory structure, as indicated by the titles of the sections, deals with forfeitures in section 16-4-109 and with judgments on forfeitures in section 16-4-110. Given this separate treatment, there is no basis to read a reference to setting aside a judgment on a forfeiture into section 16-4-109(3).

The history of the rule and statute also refutes the surety's contention that section 16-4-109(3) should be read to include authority to set aside a judgment on a forfeiture. The People correctly note that prior to April 1, 1974, the Colorado Rules of Criminal Procedure permitted the court to order remission after entry of judgment if it appeared that justice did not require enforcement of the forfeiture. See Crim.P. 46(e)(4) (1963); cf. Fed.R.Crim.P. 46(e)(4) (authorizing remission of bail after entry of judgment). When the legislature revised the bail statute in 1972, it followed the 1963 version of Crim.P. 46 in large part. For example, it explicitly provided for exoneration of a surety prior to judgment in language almost identical to that in former Crim.P. 46(f). See Ch. 44, sec. 1, § 39-4-108(1), 1972 Colo.Sess.Laws 190, 207 (now codified, with only minor changes, at section 16-4-108(1)). It also authorized courts to set aside forfeitures prior to judgment in terms similar to former Crim.P. 46(e)(2). See Ch. 44, sec. 1, § 39-4-109(3), 1972 Colo.Sess.Laws 190, 208 (now codified at section 16-4-109(3)). Finally, it adopted the language of Crim.P. 46(e)(3) to provide for enforcement when a forfeiture was not set aside. See Ch. 44, sec. 1, § 39-4-110, 1972 Colo.Sess.Laws 190, 208 (now codified, with only minor changes, at section 16-4-110). However, it failed to authorize any postjudgment remission of bonds similar to that which had been available under Crim.P. 46(e)(4). Accordingly, in 1974, we amended Crim.P. 46 and deleted the section which had authorized postjudgment relief.

The fact that the relevant versions of the Colorado rule and statute no longer provide for any method of postjudgment remission is critical. We simply cannot read back into the rule and statute language which has been removed deliberately. There is nothing from which we can infer an intent to allow district courts to vacate judgments on the forfeiture in a wider range of circumstances than those in which they can vacate other types of judgments. Cf. Mass.Gen.Laws Ann. ch. 276, §§ 76, 81 (West 1972) (allowing review after judgment has been entered when the defendant has surrendered or been recaptured, or for sufficient cause which could not have been ascertained prior to judgment). Hence, we find no basis in the rule or statute for allowing postjudgment relief.

IV.

As the surety notes, the district court is a court of general jurisdiction. However, once it has entered a final judgment, it has jurisdiction to vacate that judgment only under very limited circumstances, such as when a timely motion is filed pursuant to Crim.P. 35, C.R.C.P. 59, or C.R.C.P. 60. Cf. People v. Canaccini, 52 Ill.App.3d 811, 10 Ill.Dec. 647, 368 N.E.2d 133 (1977) (because bail statute did not provide a mechanism for setting aside judgments on forfeitures, civil rules applied and trial court lost jurisdiction thirty days after judgment was entered).

The district attorney, citing C.R.C.P. 60, concedes that a trial court would have jurisdiction to set aside this kind of judgment in a proper case. ⁵ He correctly observes that the standards for relief under that rule are different...