State v. David Riggs, 81-LW-1989

Decision Date09 November 1981
Docket Number81-LW-1989,846
PartiesState of Ohio Plaintiff-Appellee, v. David Riggs Defendant-Appellant.
CourtOhio Court of Appeals

Richard G. Ward, Prosecuting Attorney, Chillicothe, Ohio, for Appellee.

Linda K. Fiely, Chillicothe, Ohio, for Appellant.

OPINION

Stephenson J.

This is an appeal from a judgment of the Ross County Court of Common Pleas overruling a motion filed by David Riggs appellant herein, seeking the return of $1500.00 previously ordered forfeited by the court in a criminal proceeding. The following errors are assigned:

I"(A) The court below having failed to declare and journalize a forfeiture of bond in compliance with Ohio Revised Code, Sec. 2937.35 and 2937.36 caused defendant-appellant to be entitled to the return of his recognizance deposits.
II(B) The court below erred in overruling defendant-appellant's motion for return of recognizance deposites because defndant-appellant was not given notice of the date he was to show cause why the recognizance funds should not be forfeited as required by Ohio Revised Code Sec. 2937.35." (Numbering by Court)

The facts pertinent to this appeal are the following: On February 19, 1974 two indictments were returned by the Ross County Grand Jury charging appellant (1) with three counts of larceny by trick in violation of R.C. 2907.21 and (2) making, uttering and delivering a check with insufficient funds in violation of R.C. 2911.111(B). An Athens County attorney was appointed as counsel.

Trial was set for April 16, 1974, which trial date was continued upon motion of appellant's counsel. In the accompanying memorandum it was averred appellant was aware of the motion and waived speedy trial mandates. On April 30, 1974, the court authorized appellant's release on bail upon the execution of two appearance bonds pursuant to Crim. R. 46(C)(3) totaling $15,000.00. The appearance bonds were executed and upon appellant furnishing the ten percent, i.e., $1500.00, he was released from custody.

On May 16, 1974®1¯ the cause was called for jury trial and neither appellant nor his counsel appeared. The court, after entering in the transcript of proceedings that both appellant and his counsel had been notifed of the trial date, stated "this court will forfeit the bond . . ." The following entry was journalized:

Footnote 1 While the transcript of proceedings reflects the trial date as May 16, 1974, however, the journal entry forfeiting the bond filed May 16, 1974 recites the trial date as May 15, 1974. The discrepancy is not material to this appeal.

"On the 15th day of May, 1974, the said David Riggs failed to appear when this case was called for trial to Jury, as he was bound to do by the conditions of his recognizance herein, and upon said failure to appear, the same became and was forfeited.
The Defendant, David Riggs, shall show cause to this Court on or before the 6th day of June, 1974 at 9:00 A.M. why judgment should not be taken against him and entered for the penalty of the recognizance . . ."

The $1500.00 was disbursed by the clerk pursuant to law, no judgment entry for the face amount of the bond was filed prior to the dismissal of the charges on September 19, 1974. On September 17, 1974 an attorney fee for appellant's counsel was allowed.

After the expiration of over four years, appellant filed a pro se motion seeking a return of the $1500.00. The motion essentially averred appellant was confined in the Athens County jail on an unrelated charge from April 30, 1974 to August 1, 1974 and did not receive notice of the trial date on May 15, 1974 nor the June 6, 1974 date as to why judgment should not be entered for the penalty of the recognizance. Subsequently, counsel entered an appearance for appellant and filed a supplemental motion essentially asserting a failure of the court to follow the forfeiture procedures delineated in R.C. 2937.35 and 2937.36.

A hearing was subsequently held on the motions. No evidence was presented by arguments advanced by counsel. At the conclusion, the court stated: "Well, your motion will be overruled and the nunc pro tunc entry will be filed. I did intend to forfeit bond on that day." The following entry was journalized:

This matter came on for hearing this 10th day of July, 1980. The court, upon careful review of the record herein and the statements and arguments of counsel finds that the defendant did not show cause why the bond forfeiture previously ordered herein should not be reduced to judgment. Therefore, it is hereby ordered and decreed that judgment be entered against the defendant in the amount of the recognizance herein effective June 6, 1974."

Crim. R. 46(K) provides with respect to any person released pursuant to Crim. R. 46 who fails to appear that "any bail given for his release shall be forfeit." Also, in effect were the following statutes:

"2937.35 Forfeit of bail.

Upon the failure of the accused or witness to appear in accordance with its terms the bail may in open court be adjudged forfeit, in whole or in part by the court or magistrate before whom he is to appear. But such court or magistrate may, in its discretion, continue the cause to a later date certain, giving notice of such date to him and the bail depositor or sureties, and adjudge the bail forfeit upon failure to appear at such later date."

2937.36 Forfeiture proceedings.

Upon declaration of forfeiture, the magistrate or clerk of the court adjudging forfeiture shall proceed as follows:
(A) As to each bail, he shall proceed forthwith to deal with the sum deposited as if the same were imposed as a fine for the offense charged and distribute and account for the same accordingly provided that prior to so doing, he may satisfy accrued costs in the case out of the fund. "

R.C. 2937.36(C) provides a procedure when a recognizance bond is forfeited, including a show cause order as to why judgment should not be entered against a surety, for the penalty stated in the bond. Since no surety was involved in the proceedings below, the statute is inapplicable here.

Although no specific rule or statute provides the procedure for the forfeiture of an appearance bond under Crim. R. 46(C)(3), we view as clear the intention of the court to order the appearance bond forfeited as of the date of trial, which forfeiture had the effect to authorize the ten percent cash deposit, herein sought to be recovered, to be treated as a fine and disbursed pursuant to R.C. 2937.36. In effect, the motion below was an exoneration proceeding which is permitted by Crim. R. 46(N) and R.C. 2937.39, and is discretionary with the court. Assuming as true that appellant was unaware of the trial date or the show cause date to judgment for the penalty of the recognizance, the failure to show that his counsel was unaware of the trial date or the show cause date, coupled with a four year delay in seeking recovery, are sufficient basis, in our view, to justify the court's refusal in its discretion to remit the forfeiture.

Accordingly, the assigned errors are overruled and the judgment affirmed.

JUDGMENT AFFIRMED

Grey, P.J., Dissents

Abele, J., Concurs

GREY P.J. DISSENTING:

I dissent.

The basic question here in whether or not failure to appear when a person is incarcerated in another county is grounds for a forfeiture. There appears to be no Ohio case directly on this issue....

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