State v. Anderson

• Decision Date: 24 January 2011
• Docket Number: No. 106,872.,106,872.
• Citation: 2011 OK CIV APP 13,247 P.3d 294
• Parties: The STATE of Oklahoma, Plaintiff/Appellant,v.Ryan Anthony ANDERSON, Defendant,Safety National Casualty Corporation and Brian Gainey, Real Parties in Interest/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

247 P.3d 294

2011 OK CIV APP 13

The STATE of Oklahoma, Plaintiff/Appellant,

v.Ryan Anthony ANDERSON, Defendant,Safety National Casualty Corporation and Brian Gainey, Real Parties in Interest/Appellees.

No. 106,872.

Court of Civil Appeals of Oklahoma, Division No. 3.

Nov. 5, 2010.Certiorari Denied Jan. 24, 2011.

Released for Publication by Order of the Court

of Civil Appeals of Oklahoma, Division No. 3.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Jerry Bass, Judge.REVERSED.David A. Cincotta, Assistant District Attorney, Oklahoma City, OK, for Appellant.

Jeffrey L. Hatfield, Oklahoma City, OK, for Appellees.LARRY JOPLIN, Presiding Judge.

¶ 1 Plaintiff/Appellant State of Oklahoma (State) seeks review of the trial court's order vacating a bond forfeiture and directing remitter of sums paid by the Real Parties in Interest/Appellees Safety National Casualty Corporation and Brian Gainey (collectively, Bondsman). In this proceeding, State challenges the trial court's order as contrary to law and affected by an abuse of discretion.

¶ 2 By information filed December 20, 2006, State charged Defendant Ryan Anthony Anderson with three counts of obtaining property by trick or deception after former conviction of two felonies, for which Defendant was arrested and incarcerated. On January 22, 2007, Defendant appeared for arraignment, and entered pleas of not guilty. On January 26, 2007, Bondsman posted bond for the Defendant in the sum of $45,000.00, and Defendant was released from custody.

¶ 3 Defendant failed to appear for a Preliminary Hearing Conference on April 6, 2007, and a warrant issued for his arrest. By order filed April 11, 2007, the trial court declared the bond forfeit, and Bondsman received notice of the order of forfeiture the next day. Ninety (90) days after filing of the order of forfeiture, on July 12, 2007, Bondsman deposited the face amount of the bond ($45,000.00) with the Court Clerk.

¶ 4 In March 2008, an investigator with the Oklahoma Attorney General's office located Defendant in the Tulsa area, and obtained Defendant's arrest. On March 24, 2008, Bondsman filed a notice of Defendant's arrest and an Affidavit of Intent, whereby he agreed to pay all expenses of returning Defendant to Oklahoma County.

¶ 5 On August 15, 2008, Bondsman filed a motion for return of the money paid some thirteen months earlier in satisfaction of the order of forfeiture. Bondsman also filed a motion to set aside the order of forfeiture. State objected.

¶ 6 On October 20, 2008, the parties appeared for hearing. The trial court determined the forfeiture could not be set aside absent a showing of “good cause” for Bondsman's failure to return Defendant to custody within ninety days of his initial failure to appear. At a continued hearing on January 21, 2009, Bondsman presented evidence that, shortly after his failure to appear, agents had been dispatched to locate Defendant and return him to custody without success. State presented evidence showing Defendant's apprehension without assistance by Bondsman.

¶ 7 The trial court held the order of forfeiture “should be set aside, bond exonerated, and the Bondsman's property should be returned.” State appeals.

¶ 8 “The purpose of bail is to secure the appearance of the defendant before the court until judgment and sentence is pronounced.” State of Oklahoma v. Vaughn, 2000 OK 63, ¶ 18, 11 P.3d 211, 215. “The burden of showing facts warranting relief from forfeiture is on the party seeking such relief.” Vaughn, 2000 OK 63, ¶ 23, 11 P.3d at 216. Ordinarily, the trial court's decision in these cases will not be disturbed on appeal unless affected by an abuse of discretion. Vaughn, 2000 OK 63, ¶ 25, 11 P.3d at 217.

¶ 9 However, the resolution of this appeal requires the construction and application of 59 O.S. Supp.2002 § 1332, the law in effect at the time of entry of the order of forfeiture. See, e.g., State v. Fish, 1987 OK 128, ¶¶ 4–7, 747 P.2d 956, 958–959. We review the trial court's construction and application of Oklahoma law de novo, without deference to the determination of the trial court:

“[I]ssues of statutory construction ... are questions of law that we review under a de novo standard and over which we exercise plenary, independent, and non-deferential authority. We seek harmony, not confusion, in the construction of statutes. Where two acts or parts of acts are reasonably susceptible to a construction that will give effect to both, without violence to either, it should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict. The Legislature is not presumed to have done a vain or useless act in the promulgation of a statute.”State v. Tyler, 2009 OK 69, ¶ 13, 218 P.3d 510, 514. “The primary goal of statutory construction is to ascertain and follow the intent of the legislature.” Stump v. Cheek, 2007 OK 97, ¶ 9, 179 P.3d 606, 609. (Footnotes omitted.) “The words of a statute will be given their plain and ordinary meaning unless it is contrary to the purpose and intent of the statute when considered as a whole.” Id.

¶ 10 Since 1976, Oklahoma law has required the forfeiture of a bond when the defendant fails to appear as ordered. 22 O.S. Supp.1976 § 1108 ¹; 59 O.S. Supp.1965 § 1330.² Prior to 1982, in the event of a bond forfeiture, Oklahoma law granted a bondsman sixty (60) days after notice to file a motion to set aside an order of forfeiture. 59 O.S.1981 § 1332.³ If the bondsman did not timely file a motion to set aside, or the trial court denied a timely filed motion to set aside, execution issued on the judgment of forfeiture and payment became due, subject only the bondsman's right to appeal. 59 O.S.1981 § 1332(1), (2). If the defendant's failure to appear was the result of being in the custody of another court, or the defendant was surrendered to the trial court within sixty (60) days from the date of the forfeiture order, § 1332(3) authorized vacation of the order of forfeiture “for good cause shown and upon proof there has been no previous forfeiture in the case at issue.”

¶ 11 In 1982, the Legislature amended § 1332(3). Under this version, the Legislature authorized vacation of a bond forfeiture on motion of the bondsman “[i]f the defendant is surrendered to custody of the sheriff or court wherein the forfeiture has been ordered within sixty (60) days from the date of said notice of order of forfeiture,” or, “[a]fter the final judgment has been paid, upon the event the defendant is returned to custody by the bondsman, then upon proof that all expenses have been paid by the bondsman, and justice would not be served by a forfeiture of bail.” 59 O.S. Supp.1982 § 1332(3).

¶ 12 In 1984, the Legislature rewrote § 1332, incorporating what had been § 1330 into § 1332(A). By new § 1332(B), the Legislature granted the bondsman the right to “file with the court, within thirty (30) days from the date of notice, a motion to set aside the order of forfeiture, [setting forth] the grounds upon which it relies.” 59 O.S. Supp.1984 § 1332(B). If no motion was filed, or if the motion to set aside was denied, then the order and judgment of forfeiture was final and Bondsman was obligated to then pay the judgment. 59 O.S. Supp.1984 § 1332(C). Section 1332(D) then provided:

After the final judgment has been paid, upon the event the defendant is returned to custody within thirty (30) days of such final judgment, then upon proof that all expenses have been paid by the bondsman the bondsman's property shall be returned. If the defendant is returned to custody more than thirty (30) days, but within one hundred twenty (120) days, after the final judgment has been paid, the court, upon proof that all expenses have been paid by the bondsman, may order the bondsman's property returned.

59 O.S. Supp.1984 § 1332(D).

¶ 13 In 1987, the Legislature again amended § 1332. As amended, § 1332 provided in pertinent part:

C. The bail bondsman shall have ninety (90) days from receipt of the order and judgment of forfeiture from the court clerk or mailing of the notice if no receipt is made, to return the defendant to custody.

D. If the defendant is not returned to custody within ninety (90) days from receipt of the order and judgment of forfeiture from the court clerk, or mailing of the notice if no receipt is made, the bondsman shall deposit cash or other valuable securities in the face amount of the bond with the court clerk ninety-one (91) days from receipt of the order and judgment of forfeiture from the court clerk, or mailing of the notice if no receipt is made.

E. .... After the order and judgment has been paid, the bondsman may file a motion for remitter within one hundred eighty (180) days from receipt of the order and judgment of forfeiture, or mailing of the notice if no receipt is made, and upon the event the defendant is returned to custody within ninety (90) days after payment is due or upon proof to the court that the defendant is still in custody and all expenses have been paid by the bondsman, the bondsman's property shall be returned. The court shall hear the motion for remitter within thirty (30) days from filing of the motion....

59 O.S. Supp.1987 § 1332. The 1991 and subsequent versions, until 1995, did not substantially change except for numbering. See, 59 O.S.1991 § 1332(C), (D), (E)(3); 59 O.S. Supp.1994 § 1332(C)(1), (2), (D)(1), (2), (E)(1), (2).

¶ 14 Again in 1995, the Legislature rewrote § 1332(C) and (D). These sections then provided:

C. 1. The bail bondsman shall have ninety (90) days from receipt of the order and judgment of forfeiture from the court clerk or mailing of the notice if no receipt is made, to return the defendant to custody.

2. When the court record indicates that the defendant is returned to custody in the jurisdiction where forfeiture occurred, within the ninety-day period, the court clerk shall enter a minute vacating the forfeiture and exonerating the bond. If the...