State v. Fry

• Decision Date: 08 September 1994
• Docket Number: No. 20935,20935
• Citation: 910 P.2d 164,128 Idaho 50
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Steven A. FRY, Defendant, and Pioneer Bail Bonds, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 164

910 P.2d 164

128 Idaho 50

STATE of Idaho, Plaintiff-Respondent, v.Steven A. FRY, Defendant andPioneer Bail Bonds, Defendant-Appellant.

No. 20935.

Court of Appeals of Idaho.

Sept. 8, 1994.

Johnson, McLean, Riccelli & Devlin, Coeur d'Alene, for appellant.J. Scott Miller argued.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.Michael A. Henderson argued.

PERRY, Judge

In this case, we are asked to decide whether incarceration in another jurisdiction is a "sufficient excuse" to avoid bond forfeiture under I.C. § 19-2927andI.C.R. 46(e).We hold that such incarceration is not, per se, sufficient excuse to prevent forfeiture, but is merely one factor, among many, that a court may consider in making its discretionary decision whether to forfeit bail.

FACTS AND PROCEDURE

The underlying facts of this case are not in dispute.A criminal complaint was filed in Kootenai County against Steven Fry on February 16, 1993, charging him with burglary.Following his arrest, Fry's bail was set at $5,000.Fry made arrangements with Pioneer Bail Bonds (Pioneer) for the posting of the bail and was released.Fry appeared for his arraignment in March of 1993 and pled not guilty.A jury trial was then scheduled to commence on August 16, 1993.

At a pretrial conference on July 30, 1993, Fry's attorney notified the district court that Fry would not be present because he was incarcerated in the Spokane County Jail on an outstanding warrant issued in the state of Washington.In response, the district court vacated the August trial date and immediately issued a bench warrant for Fry's arrest.

On August 4, 1993, the clerk of the district court issued to Pioneer a notice of forfeiture of the bond.On September 29, 1993, Pioneer filed a motion to vacate the bond forfeiture.The motion was heard on October 29, 1993, and was denied by the district court.Pioneer now appeals the forfeiture and subsequent denial of its motion to set aside the forfeiture.Pioneer argues that Fry's incarceration in the Spokane County Jail was a "sufficient excuse" for his failure to appear under I.C. § 19-2927andI.C.R. 46(e) so that bond forfeiture is not permissible.Additionally, Pioneer argues that the actions of the district court violated Fry's constitutional rights concerning bail and that the district court failed to issue a written order forfeiting the bond.

ANALYSIS

We first review the question of whether incarceration in another jurisdiction constitutes a "sufficient excuse" under I.C. § 19-2927 or I.C.R. 46(e).Our standard of review regarding this issue will be directly tied to the underlying decision we are asked to make.If we decide that, as a matter of law, incarceration in another jurisdiction always constitutes a sufficient excuse or may never constitute a sufficient excuse, then we freely review the district court's application of law to the facts as found below.Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 613, 826 P.2d 1322, 1325(1992).If, on the other hand, we decide that incarceration in another jurisdiction is only one factor to be considered by the district court in making its discretionary decision whether to forfeit bond, then we will employ an abuse of discretion standard.Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000(1991).

The decisions in various jurisdictions regarding the determination of whether incarceration in another jurisdiction should excuse bond forfeiture follow three different lines of authority.SeeLee R. Russ, Annotation, Bail: Effect on Surety's Liability Under Bail Bond of Principal's Incarceration in Other Jurisdiction, 33 A.L.R.4th 663(1984).In some states, incarceration in another jurisdiction is not a valid excuse for avoidance of bond forfeiture.Other jurisdictions have held that such an excuse is valid and should allow forfeiture to be avoided.A third line of authority suggests that incarceration in another jurisdiction is but one of a number of factors that may be considered in the trial court's discretion when making a bond forfeiture determination.

The first line of authority, that incarceration in another jurisdiction does not provide a valid excuse to avoid bond forfeiture, began with the United States Supreme Court's decision in Taylor v. Taintor, 83 U.S. 366, 21 L.Ed. 287(1872).In Taylor, the Court ruled, "It is the willing act of the [the defendant] which creates the obstacle, and the legal effect is the same as of any other act of his, which puts performance out of his power."Id. at 370, 21 L.Ed. 287.Thus, a surety had no claim for avoiding the forfeiture of bond because "what will not avail [the defendant] cannot avail his sureties."Id. at 374, 21 L.Ed. 287.More recent cases have followed this line of reasoning.In State v. Fields, 137 N.J.Super. 76, 347 A.2d 810(Ct.App.Div.1975), the New Jersey court stated that the "mere fact that defendant is imprisoned in Florida is not sufficient to relieve the forfeiture in whole or in part, especially if he left New Jersey without permission, or is jailed for a new crime."Id., 347 A.2d at 811.Likewise, an Alabama appellate court has held, "The rule is well established that the incarceration in another state of the principal in a bail bond arrangement made in this state does not relieve the sureties on that bond of their obligation to produce the principal at the appointed place and time in Alabama."Johnson v. State, 401 So.2d 118, 118-19(Ala.Civ.App.1981).

In contrast with this view is the position that incarceration in another jurisdiction should work to excuse a surety from liability.This position was also first advanced in Taylor v. Taintor, 83 U.S. 366, 21 L.Ed. 287(1873), albeit in the dissenting opinion of Justice Field.Justice Field reasoned that all the laws of the various states work together and that the excusal of bond forfeiture for an "act of law" should be read to encompass all the laws of the various states.This reasoning has also been followed more recently by state case authority.Finding that "incarceration at the time of the forfeiture in any penal institution within the United States ... is a 'wholly sufficient ground' to strike a forfeiture," the Maryland appellate court held that a lower court judge had abused his discretion in failing to rule that the defendant's incarceration sufficiently excused the bond forfeiture.Irwin v. State, 17 Md.App. 518, 302 A.2d 688, 692(Ct.Spec.1973).

The third position is that incarceration in another jurisdiction is one factor, among many, that may be taken into consideration when a trial court exercises its discretionary decision whether to forfeit the bond.In State v. Amador, 98 N.M. 270, 648 P.2d 309(1982), the New Mexico court weighed the various policy considerations at play in the entire bond and bail process, finding, "Strict application of forfeiture statutes discourages bondsmen from giving bail or producing the defendant."Id., 648 P.2d at 313.Reading New Mexico statutes, which are similar to Idaho's, the court in Amador held, "Each of the provisions establishes a standard requiring the court to exercise its discretion in determining whether to order forfeiture of the entire amount of the bond."Id., 648 P.2d at 312.

Similarly, the Montana court held that "incarceration by a foreign sovereign is not per se a satisfactory excuse [under M.C.A. 46-9-503] ... incarceration is a factor for the District Court to consider in determining discharge on such terms as may be just."State v. Seybert, 229 Mont. 183, 745 P.2d 687, 689(1987).

In Idaho, it has long been held that the "fixing of bail and release from custody are matters traditionally within the discretion of the courts.We believe that these matters are most wisely left to the trial judge."State v. Currington, 108 Idaho 539, 541, 700 P.2d 942, 944(1985)(citations omitted).The statute and rule applicable to this case also lead to the conclusion that the forfeiture of a bond or the setting aside of such a forfeiture are discretionary decisions.

Idaho Code § 19-2927 provides that:

If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes and the undertaking of bail, or the money deposited instead of bail, as the case may be, is thereupon declared forfeited.The clerk shall mail written notice within five (5) days of the forfeiture for failure to appear to the last known address of the person posting the undertaking of bail.A failure to give timely notice shall exonerate the bail or undertaking.If at any time within ninety (90) days after such entry in the minutes, the defendant appears and satisfactorily excuses his neglect, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.

If within ninety (90) days of the date of forfeiture, a person, other than the defendant, who has provided bail for the defendant, brings the defendant before the court, the court shall direct that the forfeiture of the undertaking or deposit be discharged.

Also applicable at the time the district court made the decision to forfeit Fry's bond was I.C.R. 46(e).The rule, as it read prior to its 1994 revision, ¹ stated:

(e) Forfeiture and enforcement of bail bond.The court which set the amount of a bail bond may order the forfeiture and enforcement of the bail bond in any of the following manners:

(1) In the event a person fails to appear before the court at the time required as a condition to bail, the court may ex parte forfeit the bail or bail bond and issue a bench warrant for the arrest of such person, and the court shall determine the amount of bail, if any, upon the arrest of such person under the...