State v. Hampton

• Decision Date: 12 November 1985
• Docket Number: BAKER-JOHNSON,No. 13460-4-I,13460-4-I
• Citation: 709 P.2d 1221,42 Wn.App. 130
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. William HAMPTON, Defendant, v.BAIL BOND COMPANY, Appellant.

Page 130

42 Wn.App. 130

709 P.2d 1221

STATE of Washington, Respondent, v. William HAMPTON, Defendant, v. BAKER-JOHNSON BAIL BOND COMPANY, Appellant.

No. 13460-4-I.

Court of Appeals of Washington Division 1.

Nov. 12, 1985.

Ralph G. Turco, Inc., P.S., Richard D. Smith, Tacoma, for appellant.

C. Thomas Moser, Skagit County Pros. Atty., John W. Murphy, Deputy, Mount Vernon, for respondent.

RINGOLD, Judge.

Baker-Johnson Bail Bonds appeals from an order of the superior court denying its motion to reconsider vacating a bail bond forfeiture.

In March 1982 William Hampton was charged with theft in the first degree. A bail bond in the amount of $10,000 was posted by the National Automobile and Casualty Insurance Company and by Baker-Johnson Bail Bonds (Baker) on Hampton's behalf. Hampton entered a guilty plea on May 4, 1982 and sentencing was set for June 29, 1982. On this date Hampton appeared with his attorney before the trial judge.

Although the prosecutor recommended that Hampton serve 90 days in the county jail and make restitution in the amount of $10,000, the court refused to accept this recommendation and orally sentenced Hampton to the Department of Corrections for a term of not more than 10 years, and then remanded the defendant to the custody of the Skagit County Sheriff "to be detained and transported to the reception center for confinement in such facility as the Director of the Department of Corrections shall deem appropriate."

Since the printed "judgment and sentence" form previously prepared by the prosecutor did not conform to the court's ruling, a brief recess was taken to conform the document. After reconvening, Hampton's attorney requested Utilizing information obtained by Baker during a trip to Kentucky made in pursuit of Hampton, law enforcement officials apprehended Hampton in Indiana. Baker flew to Indiana and brought Hampton back to Washington on or about February 5, 1983.

                that Hampton be allowed to begin serving his sentence on July 1, 1982.   The court, without objection, granted the request and ordered Hampton to return on July 1, 1982 for the signing of the judgment, sentence and commitment order, and to begin serving his sentence.   Hampton failed to appear.   On September 9, 1982, an order was entered forfeiting the bail bond.   Baker paid the $10,000 into the court on November 1, 1982
                

On February 8, 1983, Hampton appeared before the trial judge and the judgment and sentence committing Hampton to the Department of Corrections was signed. At this time, Baker moved the court to vacate the order forfeiting the bail bond. The court took this matter under advisement. By letter filed February 23, 1983, the court denied Baker's motion without stating reasons.

On March 16, 1983, Baker filed a motion to reconsider the refusal to vacate the order of forfeiture. In a memorandum opinion and order filed June 21, 1983, the court denied the motion for reconsideration, stating that the conditions of the bond were not met or exonerated by operation of law. This appeal follows.

TIMELINESS OF APPEAL

The State contends that the superior court denied Baker's motion to vacate the forfeiture on February 23, 1983. RAP 5.2 requires notice of appeal to be filed within 30 days of entry of the decision. Since Baker did not file a notice of appeal until July 8, 1983, the State argues the appeal was untimely.

While it is true that Baker's motion to vacate the forfeiture was denied by letter filed February 23, this is not the order that is being appealed. Baker is appealing from the court's denial of the later motion for reconsideration of the

                order.   Since this order was filed on June 21, 1983, Baker satisfied the provisions of RAP 5.2(e), which states that an appeal of a motion for reconsideration under CR 59 must be filed within 30 days after the entry of the order
                

EXONERATION OF BAIL BOND

Baker first contends that liability on the bond was discharged. Washington courts have consistently held that a bail bond is discharged when the principal is found guilty, sentenced and committed. State v. Akers, 156 Wash. 353, 355, 286 P. 846 (1930); State v. Caruso, 137 Wash. 519, 524, 243 P. 14 (1926); State v. Ransom, 34 Wash.App. 819, 822, 664 P.2d 521 (1983). Baker argues that after Hampton pled guilty, the judge sentenced and committed him, thus discharging the bond. In each of the three cases cited, the court had entered a final judgment of sentence and commitment. State v. Akers, supra, 156 Wash., at 355, 286 P. 846; State v. Caruso, supra, 137 Wash., at 522, 243 P. 14; State v. Ransom, supra, 34 Wash.App., at 820, 664 P.2d 521. In the case sub judice, however, only an oral pronouncement of sentence and commitment was rendered. Baker contends that this pronouncement, coupled with Hampton's guilty plea, should be sufficient to satisfy the test for discharge of the bond.

There is a significant legal difference between oral pronouncements and final judgments. Washington courts have long held that oral pronouncements of judgment and sentence are not conclusive or final. State v. Dailey, 93 Wash.2d 454, 458-59, 610 P.2d 357 (1980); State v. Mallory, 69 Wash.2d 532, 533-34, 419 P.2d 324 (1966) (oral decision has no final or binding effect unless formally incorporated into the findings, conclusions and judgment); State v. Sutton, 159 Wash. 307, 311-12, 293 P. 469 (1930); State ex rel. Echtle v. Card, 148 Wash. 270, 272, 268 P. 869 (1928) (oral announcements of sentence are not valid or conclusive). To extend the rationale of State v. Akers, supra, to the case at bench would require this court to afford a greater status to a court's oral pronouncements than has heretofore been recognized.

Regardless of the general rule explicated in State v. Akers, supra, the effect of the pronouncement of sentence on the liability of the surety must first be discerned from the terms of the bond itself. State v. Lewis, 35 Wash. 261, 269, 77 P. 198 (1904). "The liability of the sureties is strictly limited by the terms of the bail bond, which is in effect their contract with the state...." 8 Am.Jur.2d, Bail & Recognizance, § 101 (1980); see also United States v. Jackson, 465 F.2d 964, 965 (10th Cir.1972); People v. Calloway, 40 Colo.App. 543, 577 P.2d 1109, 1112 (Colo.Ct.App.1978); State v. Midland Ins. Co., 167 N.J.Super. 419, 400 A.2d 1222, 1224 (N.J.Super.Ct.App.Div.1979).

The bond states:

NOW, THEREFORE, if the said William A. Hampton, said defendant, shall be and appear before said Superior Court on the 12th day of March, 1982, and from day to day thereafter as ordered by said court, to answer said information and charge now pending against him in said court as aforesaid, and abide by and perform all orders and judgments of said court in the premises, and not depart from said court without leave of said court until discharged by due course of law, then this recognizance and obligation to be void, otherwise to be and remain in full force, virtue and effect.

Since the bond requires the principal to "abide by and perform all orders and judgments of said court in the premises" and "not depart from said court without leave of said court until discharged" it is properly considered a continuing bond. 8 Am.Jur.2d, Bail and Recognizance, § 104 (1980); see also State v. Corl, 58 N.C.App. 107, 293 S.E.2d 264, 267, 32 A.L.R. 4th 499 (1982); Knight v. State, 35 Okl. 375, 130 P. 282, 282 (1913). Unlike a bond that merely requires the sureties to have their principal appear in court until his case is determined, sureties on a bond conditioned upon the principal abiding the judgments of the court are not discharged by conviction or pronouncement of sentence. 8 Am.Jur.2d, Bail & Recognizance, § 110 (1980); 8 C.J.S. Bail, § 79 (1962); United States v. Miller, 539 F.2d 445, 449 (5th Cir.1976); United States Fidelity &amp Hampton violated the terms of the bond by violating the orders of the court. The obligations of Hampton and Baker pursuant to the bond were not discharged.

                Guar. Co. v. Justice Court, 99 Cal.App.2d 683, 222 P.2d 292, 295 (1950).   Here the trial judge deferred the entry of the judgment and sentence to July 1, 1983, at which time the defendant would physically be committed to the custody of the sheriff.   A bail bond such as this which provides that a defendant shall not depart the court without leave covers the period during which sentence is suspended.   8 Am.Jur.2d, Bail & Recognizance § 110 (1980);   United States v. Gonware, 415 F.2d 82, 83-84 (9th Cir.1969);  LaGrotta v. United States, 77 F.2d 673, 677, 103 A.L.R. 527 (8th Cir.1935)
                

ABUSE OF DISCRETION

RCW 10.19.105 provides that:

If a bond be given and execution stayed, as provided in RCW 10.19.100, and the person for whose appearance such recognizance was given shall be produced in court before the expiration of said period of sixty days, the judge may vacate such judgment upon such terms as may be just and equitable, otherwise execution shall forthwith issue as well against the sureties in the new bond as against the judgment debtors.

The State contends that since Baker did not seek a stay of execution under RCW 10.19.100, ¹ the court did not abuse its discretion in denying Baker's motion to vacate the forfeiture. The State would have the court read RCW 10.19.105 as stating that requesting a stay of execution under RCW 10.19.100 is a prerequisite to subsequent ability to challenge the forfeiture. RCW 10.19.100 was intended to provide the surety with temporary relief from the harshness of forfeiture. It is not a prerequisite for later relief. As was held in State v. Jackschitz, 76 Wash. 253, 136 P. 132 (1913), the provisions of RCW 10.19.105, then Rem. & Bal. Code § 2233 (P.C. 135 § 1301), are not to be construed as limiting the...