State v. Tate

• Decision Date: 10 April 2012
• Docket Number: No. 108,513.,108,513.
• Citation: 276 P.3d 1017,2012 OK 31
• Parties: The STATE of Oklahoma, Appellant, v. Michael Lynn TATE, Defendant, and Adrion Bradford, Jr., (Bondsman), Real Party in Interest/Appellee.
• Court: Oklahoma Supreme Court

276 P.3d 1017

2012 OK 31

The STATE of Oklahoma, Appellant,

v. Michael Lynn TATE, Defendant,andAdrion Bradford, Jr., (Bondsman), Real Party in Interest/Appellee.

No. 108,513.

Supreme Court of Oklahoma.

April 10, 2012.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. 2

¶ 0 The trial judge, Hon. Tammy Bass–LeSure, granted remitter to bail bondsman who failed to pay the order and judgment of forfeiture ninety-one (91) days after receipt of notice, as provided by 59 O.S. § 1332(D)(1). State appealed, arguing that failure to timely pay the order and judgment of forfeiture prevented the bondsman from seeking the relief of remitter provided in § 1332(D)(2). The Court of Civil Appeals affirmed and the State filed a petition for certiorari with this Court. We granted the petition for certiorari.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED.

David W. Prater, District Attorney, and David A. Cincotta, Assistant District Attorney, Oklahoma City, Oklahoma, for the Appellant.

Jeff Eulberg, Eulberg Law Offices, Oklahoma City, Oklahoma, for Appellee.

EDMONDSON, J.

¶ 1 We granted certiorari to address the first-impression question whether a bail bondsman's failure to timely pay the order and judgment of forfeiture within ninety-one (91) days after receipt of notice prevents the bondsman from seeking remitter of forfeiture proceeds after returning the defendant to custody pursuant to § 1332(D)(2). Here, the bondsman paid the judgment of forfeiture on the ninety-second day after receipt of notice of forfeiture. The facts are stipulated.

¶ 2 The defendant's bail was set at $6,500.00 and the bondsman posted a surety bond for that amount on June 1, 2009.¹ On January 25, 2010, the defendant failed to appear at a scheduled preliminary hearing and the trial judge ordered the surety bond forfeited and a warrant issued for the defendant's arrest.² The bail bondsman received a copy of the order and judgment of forfeiture on February 22, 2010. The statute provides that the bondsman shall have ninety (90) days from receipt of the order and judgment of forfeiture to return the defendant to custody, and if so returned, the forfeiture shall be vacated and the bond exonerated. 59 O.S. § 1332(C)(1)(2).

¶ 3 If the defendant is not returned to custody within ninety (90) days from receipt of the order and judgment of forfeiture and if the forfeiture has not been stayed, § 1332(D)(1) provides that the bondsman shall deposit cash or other valuable securities in the face amount of the bond with the court clerk ninety-one (91) days after receipt of the order and judgment of forfeiture. ³ The defendant was not returned to custody within ninety days, and the bondsman did not deposit cash or other securities with the court clerk on or before the ninety-first day. The bondsman posted the face amount of the bond with the court clerk ninety-two (92) days after receiving notice of forfeiture.

¶ 4 When the bondsman does not deposit cash or securities with the court clerk on or before the ninety-first day, the procedure to be followed is set out at § 1332(D)(3) and (4), which provides, in pertinent part:

3. If the additional cash or securities are not deposited with the court clerk on or before the ninety-first day after the date of service of the order and judgment of forfeiture ... then the court clerk shall notify the Insurance Commissioner by sending a certified copy of the order and judgment of forfeiture and proof that the bondsman and, if applicable, the insurer have been notified by mail with return receipt requested.

4. The Insurance Commissioner shall:

a. in the case of a surety bondsman, immediately cancel the license privilege and authorization of the insurer to do business within the State of Oklahoma and cancel the appointment of all surety bondsman agents of the insurer who are licensed by Section 1301 et seq. of this title, and

b. in the case of a professional bondsman, withdraw the face amount of the forfeiture from the deposit provided in Section 1306 of this title. The Commissioner shall then immediately direct the professional bondsman ... to make additional deposits to bring the original deposits to the required level. Should the professional bondsman, after being notified, fail to make an additional deposit within ten (10) days from the receipt of notice ... the license shall be revoked and all sums presently on deposit shall be held by the Commissioner to secure the face amounts of bonds outstanding. Upon release of the bonds, any amount of deposit in excess of the bonds shall be returned to the bondsman....

The docket reflects that on May 25, 2010, the court clerk sent notice to the Insurance Commissioner that the bond forfeiture was not timely paid. Tr. p. 37.

¶ 5 The defendant was returned to custody on June 3, 2010, and the bondsman filed a motion for remitter on June 8, 2010, asking the district court to set aside the forfeiture, exonerate the bond and remit to the bondsman the $6,500.00 deposited with the court, pursuant to § 1332(D)(2). Section 1332(D)(2) provides that after the judgment of forfeiture has been paid, the bondsman shall have one year from the date payment is due to return the defendant to custody. If the defendant is so returned, the bondsman's property shall be returned, provided that the request for remitter is made by motion filed within one year from the date payment was due.⁴ The State filed a written objection to the bondsman's motion, arguing that the bondsman must prove compliance with § 1332(D)(1), by depositing the face amount of the bond within ninety-one (91) days after receipt of notice, in order to seek remitter pursuant to § 1332(D)(2). The State also argued that under these circumstances the trial judge was without authority to vacate the forfeiture judgment and exonerate the bond.⁵

¶ 6 On July 18, 2010, the trial judge conducted a hearing at which she granted the bondsman's motion for remitter, ordered return of the money deposited and vacated the order and judgment of forfeiture. The State appealed and the Court of Civil Appeals affirmed the trial court. We granted the State's petition for certiorari to determine whether deposit of the face amount of the bond by the ninety-first day after notice of forfeiture, as required by 59 O.S. § 1332(D)(1), is a condition precedent to seeking the relief of remitter provided by 59 O.S. Supp.2008 § 1332(D)(2). We answer in the affirmative.

¶ 7 The issue presented is one of statutory construction, which is a question of law. Questions of law are reviewed de novo. State ex rel. Okla. State Dept. of Health v. Robertson, 2006 OK 99 ¶ 5, 152 P.3d 875, 877. The fundamental rule of statutory construction is to ascertain the intent of the legislature. Jackson v. Independent School Dist. No. 16, 1982 OK 74, 648 P.2d 26, 29. Words and phrases of a statute are to be understood and used not in an abstract sense, but with due regard for context, and they must harmonize with other sections of the Act.

¶ 8 In State v. Van Lear, 1991 OK CIV APP 70, 813 P.2d 555, the identical issue was presented. The bondsman deposited the amount of the bond, allegedly one day late, and argued that timely deposit of the face amount of the bond with the court clerk was not required in order to obtain remitter. The Court of Civil Appeals determined that the judgment of forfeiture was timely paid, so they did not address the issue. They held that the trial court erred by counting the day on which was notice was received. When the date of receipt was not counted, the deposit was made on the ninety-first day, as required by the statute.

¶ 9 Bond forfeiture is a statutory procedure established by the Oklahoma legislature. Since the Constitution requires that certain people charged with crimes be released on bail, it is within the powers granted the legislature to enact laws both procedural and substantive that protect, facilitate, regulate and promote appropriate enforcement of the people's right to bail. State v. Brown, 1993 OK CIV APP 82, 853 P.2d 793, 797.

¶ 10 The State argues that the Court of Civil Appeals has strictly interpreted subsection (D)(2) of § 1332 to require timely filing of the motion for remitter in order to obtain remitter, and that subsection (D)(1) should likewise be interpreted to require compliance with the time limit of ninety-one days. In State v. Wallace, 1997 OK CIV APP 28, 940 P.2d 1212, the bondsman filed a motion for remitter beyond the statutory one hundred eighty (180) days then allowed, and the Court of Civil Appeals ruled that the trial court did not have discretion to extend the statutory time limit for filing the motion. They said that the statute extends to bail bondsmen the ability, if they so choose and can meet the statutory requirements, to obtain a remitter of any assets transferred as a result of a forfeited bail bond if they act within the time limits provided by the statute.

¶ 11 In State v. Eubanks, 2006 OK CIV APP 29, 132 P.3d 641, 643, the Court of Civil Appeals described remitter as a proceeding to vacate, modify or reopen a judgment, governed by the special time limits provided for such proceedings. Where the statute is a special enactment that designates the only avenue of relief that may be sought from the prior decree or judgment, the statutory time period for seeking relief will be treated as a precondition of the court's cognizance. They held that the bondsman's opportunity to bring a proceeding to reopen a forfeiture judgment and recover money paid to satisfy the judgment is irretrievably lost unless the quest for relief is brought within the time specified.

¶ 12 In State v. Anderson, 2011 OK CIV APP 13, 247 P.3d 294,cert. denied (Jan. 24, 2011), the Court of Civil Appeals looked at the history of the bond forfeiture statute as a means of determining legislative intent. They observed that the legislature has always recognized different remedies for...