State v. Costello, 91-1408

• Citation: 489 N.W.2d 735
• Decision Date: 23 September 1992
• Docket Number: No. 91-1408,91-1408
• Parties: STATE of Iowa, Appellee, v. Charles COSTELLO, Defendant, and American Bonding Company, Appellant.
• Court: United States State Supreme Court of Iowa

Page 735

489 N.W.2d 735

STATE of Iowa, Appellee, v. Charles COSTELLO, Defendant, and American Bonding Company, Appellant.

No. 91-1408.

Supreme Court of Iowa.

Sept. 23, 1992.

Amanda Potterfield, Johnston, Larson, Potterfield, Zimmermann & Nathanson, Cedar Rapids, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., Denver Dillard, County Atty., and Jeffrey Clark, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, NEUMAN, and ANDREASEN, JJ.

ANDREASEN, Justice.

The surety, American Bonding Company, appeals from the district court's forfeiture and judgment upon defendant's $2600 bail bond. The appellant maintains that the district court abused its discretion in forfeiting defendant's bail bond, where the defendant was in custody before the surety received notice of the bail forfeiture, and that the forfeiture violated the statutory notice requirement in Iowa Code section 811.6(1) (1991). Finding no abuse of discretion or statutory violation, we affirm the district court's forfeiture and judgment against the surety, American Bonding Company, for the amount of the bail.

I. Background.

Defendant, Charles Costello, was arrested and charged with theft in the third degree, an aggravated misdemeanor. The court appointed legal counsel for him and set time for arraignment. He was released from custody on his own recognizance. Costello could waive arraignment and enter a plea of not guilty by executing and filing a written arraignment form. Iowa R.Crim.P. 8(1). He did not file an arraignment form. He failed to appear for arraignment on February 28, 1991. The court rescheduled arraignment and ordered him to appear personally. When, on March 15, Costello again failed to appear for arraignment or to file a written arraignment form, the court issued a warrant for his arrest and set bail at $1200.

On March 19, Costello was arrested. On the following day he was released from custody after he posted a bail bond with International Fidelity Insurance Company as surety. Costello's arraignment was rescheduled for March 29 and he was so advised. Costello again failed to appear for arraignment or to file a written arraignment form. The court made a record of his failure to appear and forfeited his bail. The court ordered a ten days' notice be given to the defendant and the defendant's surety, International Fidelity. The court again issued a warrant for Costello's arrest. Notice of forfeiture was served upon the surety, International Fidelity.

On April 2, Costello was arrested. Bail was set at $2600 and Costello was again released from custody after he posted bail with American Bonding Company as surety. Costello filed a written arraignment and pleaded not guilty to the criminal charge. Trial was set for June 17, 1991, and a pretrial conference was set for June 5. The order issued by the court required Costello to personally appear at the pretrial conference.

On April 12, attorney David Nadler filed an appearance on behalf of International Fidelity and a resistance to the entry of judgment on the bail bond forfeiture. A hearing upon the resistance was held on May 16. The court rescinded the forfeiture of the bond previously posted by International Fidelity contingent upon payment of fifteen dollars court costs. The court exonerated the bond, noting Costello had since appeared and posted bond with another surety.

On June 5, Costello failed to appear in person for his pretrial conference. The court paged him throughout the courthouse without response. The sheriff was directed to give ten days' notice to the defendant and to the surety to appear and show cause, if any, why judgment should not be entered for the amount of the bail. The notice to the surety was mistakenly given to attorney Nadler.

On June 6, approximately thirty-six hours after a warrant for his arrest had been issued, Costello was arrested. On June 12, he entered a plea of guilty and was sentenced on the lesser included offense of theft in the fourth degree, a serious misdemeanor.

On June 10, Nadler entered an appearance for the surety and requested hearing on the bail bond forfeiture. The hearing was scheduled for June 21 at which time judgment was entered against American Bonding in the amount of $2600.

On July 1, the court discovered the notice to the surety concerning the bond forfeiture was given to attorney Nadler and not to the surety, American Bonding. The court then ordered a ten days' notice be given to American Bonding. Legal counsel for American Bonding entered an appearance and filed a resistance to the forfeiture. The resistance urged that the defendant had been arrested before American Bonding had an opportunity to learn of the defendant's failure to appear and the issuance of the arrest warrant, that the defendant had satisfied all of his obligations to the court, and that no party had been prejudiced by the defendant's failure to appear. No procedural or constitutional issues were raised by the surety in its resistance. The court set the matter for hearing.

Following hearing, the court on August 13 vacated the erroneous June 21 judgment against American Bonding. The court then overruled the resistance and entered judgment against American Bonding for $2600. American Bonding filed a motion to expand the court's findings pursuant to Iowa Rule of Civil Procedure 179(b). The court granted the motion, expanded its findings and conclusions, and affirmed the judgment against American Bonding for the amount of the bail. The surety appealed.

II. Forfeiture of Bail.

All defendants are bailable by sufficient surety, or subject to release upon condition or on their own recognizance, except for those defendants specifically ineligible under our pretrial release-bail statutory provisions. Iowa Code § 811.1. If a defendant fails to appear as lawfully required, the defendant's bail may be forfeited and judgment entered for the amount of the bail. Iowa Code § 811.6.

We interpret the forfeiture of bail provision in light of several well-established principles as set forth in State v. Zylstra, 263 N.W.2d 529 (Iowa 1978). In Zylstra, we stated:

A court admits a defendant to bail in order to assure his appearance in court. In assuming the position of bail the surety becomes obligated to produce the accused in open court when his presence is required. Stated otherwise, when the State releases a defendant from confinement it commits him to the exclusive custody of his surety, who becomes "the jailer of his own choosing."

If the surety fails to produce its principal at the appointed time, a judgment shall be entered by the court. These proceedings for forfeiture of bail and judgment therein are civil actions, which may only be enforced in strict compliance with the statute.

Zylstra, 263 N.W.2d at 531 (citations omitted). It is with this background we review the court's forfeiture and judgment.

Under Iowa Code section 811.6(1):

If the defendant fails to appear...