                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 45449

STATE OF IDAHO,                         )
                                        )
      Plaintiff-Respondent,             )
                                        )
v.                                      )
                                        )
DILLON GRANT GIBSON,                    )                   Boise, August 2018 Term
                                        )
      Defendant,                        )                   Filed: November 29, 2018
                                        )
and                                     )                   Karel A. Lehrman, Clerk
                                        )
JUDY LUIS, individually,                )
                                        )
      Surety/Real Party in Interest-    )
      Appellant.                        )
_______________________________________ )

       Appeal from the District Court of the Seventh Judicial District of the State of
       Idaho, Bingham County. Hon. Bruce L. Pickett, District Judge.

       The order of the district court is reversed.

       Blaser, Oleson & Lloyd, Chartered, Blackfoot, for appellant. Michael A. Pope
       argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Kenneth K. Jorgensen argued.
                                 _____________________

BRODY, Justice.
       This appeal arises from the district court’s denial of a motion to exonerate a cash deposit
posted as bail. Dillon Gibson was arrested for vehicular manslaughter and leaving the scene of an
accident. His mother, Judy Luis, posted a cash deposit and a property bond that collectively
enabled Gibson’s release on bail. After he pleaded guilty to felony vehicular manslaughter, but
before sentencing, Gibson was alleged to have violated his conditions of release. He was arrested
on a bench warrant, remanded to custody, and informed by the district court that additional bail
would be required and that the previous bail amount would not be forfeited. Following



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sentencing, Luis moved for release of the cash deposit, asserting that it should have been
exonerated when Gibson was remanded to custody. The district court denied the motion and
directed the clerk of the court to apply the cash deposit against Gibson’s fine, costs, and
restitution obligations pursuant to Idaho Code section 19-2908. Luis timely appealed. We reverse
the district court’s order but deny Luis’s request for attorney’s fees and costs.
                   I.    FACTUAL AND PROCEDURAL BACKGROUND
       Gibson drove drunk and crashed into a home, killing a resident. The State charged
Gibson with one felony count of vehicular manslaughter and leaving the scene of an accident.
Given Gibson’s prior record, the State initially requested a bail amount of $500,000, which the
magistrate court granted. The magistrate court later reduced the bail amount to $240,000.
Thereafter, Luis posted a cash deposit of $50,000 and a property bond for the remaining
$190,000, guaranteeing Gibson’s appearance in court when required. The magistrate court
accepted Luis’s undertaking and entered an order for Gibson’s release on bail with conditions.
       Gibson subsequently pleaded guilty to felony vehicular manslaughter, and the State
agreed to dismiss the other charges. About six weeks later, before sentencing had occurred, the
State moved to revoke Gibson’s release pursuant to Idaho Code section 19-2919, alleging that
Gibson had admitted to violations of his conditions of release by drinking alcohol and using
methamphetamine. The district court granted the State’s motion and ordered a warrant issued for
Gibson’s arrest.
       Gibson was arrested pursuant to the warrant. The next day, the magistrate court held a
brief hearing where the court informed Gibson that it was ordering additional bail in the amount
of $100,000 and that the previously posted bail would not be forfeited (the correct term is
actually “exonerated”; “forfeiture” of bail occurs when the defendant has failed to appear as
ordered). Gibson was remanded to custody and remained there until his sentencing hearing.
       About a month after he was remanded to custody, Gibson was sentenced to serve a term
of fifteen years with three years fixed. The district court entered a judgment of conviction.
Within the judgment, Gibson was ordered to pay a fine of $1,000 and court costs of $275.50. The
district court also ordered exoneration of the property bond Luis posted, but declared that the
cash deposit would be retained until resolution of the restitution issue.
       Gibson and the State subsequently stipulated to a restitution amount of $300,000. The
day the stipulation was filed, Luis, through Gibson’s counsel, moved for the “release” of the cash



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deposit (again, it is called “exoneration" under Idaho Code section 19-2905(8)). The district
court denied Luis’s motion and ordered the clerk of the court to apply the cash deposit against
any fines, court costs, and restitution pursuant to Idaho Code section 19-2908. The district court
later entered an order of restitution consistent with the parties’ stipulation. Luis timely appealed.
                               II.     STANDARD OF REVIEW
       Statutory interpretation is a question of law over which the Court exercises free review.
State v. Boren, 156 Idaho 498, 499, 328 P.3d 478, 479 (2014).
                                        III.    ANALYSIS
   A. The district court erred when it denied Luis’s motion because the cash deposit
      should have been exonerated when Gibson’s bail was revoked and he was
      recommitted to custody.
       This dispute involves various provisions of the Idaho Bail Act. In Idaho, defendants are
entitled to bail as a matter of right, subject to the limitations set forth by Idaho Code section 19-
2903. See also Idaho Const. art. I, § 6. “Admission to bail is the order of a competent court that
the defendant shall be released from actual custody of the sheriff upon posting bail.” I.C. § 19-
2906. When releasing a defendant on bail, the court has discretion to impose “conditions of
release.” I.C. § 19-2904. The term “‘conditions of release’ means any reasonable restrictions,
conditions or prohibitions placed upon the defendant’s activities, movements, associations or
residences by the court, excluding the court order requiring the defendant to appear in court.”
I.C. § 19-2905(7).
       Idaho Code section 19-2919 provides the procedural requirements for the revocation of
bail arising from the defendant’s violation of conditions of release and reads, in part:
       Upon its own motion or upon a verified petition alleging that the defendant
       willfully violated a condition of release, the court may issue a bench warrant
       directing that the defendant be arrested and brought before the court for a bail
       revocation hearing, or the court may order the defendant to appear before the
       court at a time certain.
I.C. § 19-2919(1); accord I.C.R. 46(i)(1). At a bail revocation hearing, if the court finds that the
defendant willfully violated a condition of release, “the court may revoke the bail and remand the
defendant to the custody of the sheriff.” I.C. § 19-2919(1); accord I.C.R. 46(i)(2). At any time
after such a hearing, “the court may reset bail in the same or a new amount and impose
conditions of release.” I.C. § 19-2919(1); accord I.C.R. 46(i)(1), (j). In other words, it is left to
the court’s discretion whether to allow the defendant to post new bail after he has been



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recommitted following a violation of the conditions of release. I.C. 19-2903(4); see also I.C. §
19-2905(13) (“‘Readmittance to bail’ means an order of the court allowing the defendant to post
new bail following an order of revocation.”).
       Here, the State filed a motion and affidavit alleging Gibson violated his conditions of
release and admitted those violations. The same day the motion was filed, the district court
entered an order revoking Gibson’s release and directing the issuance of a bench warrant:
              The Court having before it the Plaintiff’s Motion to Revoke Release and
       the accompanying Affidavit of Danyett Cloward, and good cause appearing:
              THEREFORE, IT IS HEREBY ORDERED, that the defendant’s release
       be revoked and a warrant be issued for his arrest.
Gibson was then arrested and appeared before the magistrate court the next morning. The minute
entry for that hearing reflects that the magistrate court ordered that the bail amount be increased
by $100,000 and that Gibson be remanded to custody in lieu of the additional bail money:
       Bond will be set at $100,000.00 cash or surety in addition to the previously posted
       bond and that bond previously posted would not be forfeited. Defendant was
       remanded to the custody of the Bingham County Sheriff’s Department in lieu of
       bond $100,000 cash or surety.
Gibson remained in custody until sentencing and is now serving his prison sentence.
       Much of Luis’s briefing on appeal focuses on arguments that the procedural requirements
of the Idaho Bail Act were not followed by the magistrate court or district court in revoking
Gibson’s bail. Regardless of any procedural missteps that might have occurred, what is important
for purposes of this appeal is the inescapable conclusion that Gibson’s bail was actually revoked
and he was recommitted to custody prior to sentencing. When bail is revoked and a defendant is
recommitted, a trial court must exonerate any bail that has been posted. I.C. § 19-2922(6).
Section 19-2922(6) states:
       The court shall order the bail exonerated in the following circumstances:
                                                ***
       (6) the court has revoked bail and has ordered that the defendant be recommitted.
I.C. § 19-2922(6) (emphasis added).
       The State argues that upon Gibson’s recommitment, the magistrate court chose to neither
exonerate nor forfeit the previously posted bail, and that therefore the $50,000 cash posted by
Luis remained on deposit at the time of sentencing. This argument is contrary to the
unambiguous mandatory language in section 19-2922(6). The statute unequivocally states that



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the court “shall order the bail exonerated” when a defendant’s bail has been revoked and he has
been recommitted. See Rangen, Inc. v. Idaho Dep’t of Water Res., 160 Idaho 251, 256, 371 P.3d
305, 310 (2016) (“When used in a statute, the word ‘may’ is permissive rather than the
imperative or mandatory meaning of ‘must’ or ‘shall.’” (quoting Rife v. Long, 127 Idaho 841,
848, 908 P.2d 143, 150 (1995))); State v. Tribe, 123 Idaho 721, 726, 852 P.2d 87, 92 (1992)
(“This Court repeatedly has construed the word ‘shall’ as being mandatory, not discretionary.”).
       In rejecting Luis’s position, the district court noted that she had not requested the
exoneration of the cash deposit at the time Gibson was remanded to custody. The State asserts a
similar idea on appeal with argument that the relevant statutes do not allow for a party to seek
“retroactive revocation of [a] bond.” Nothing in the Idaho Bail Act imposes an affirmative
requirement on parties to request exoneration of posted bail upon the defendant’s recommitment.
Exoneration of the bond is mandatory at the time bail is revoked and the defendant is
recommitted. While the trial court has discretion to “readmit” the defendant to bail pursuant to
Idaho Code section 19-2919(2), the readmission occurs only after the original bail is exonerated.
       The State also argues that most of Luis’s arguments (including her citation to Idaho Code
section 19-2922(6)) are novel on appeal, citing to State v. Garcia-Rodriguez, 162 Idaho 271,
275, 396 P.3d 700, 704 (2017). The State’s contention is overreaching. It is true that we limit our
review to evidence, theories and arguments that were presented below. The purpose of this
limitation is so that there are no unfair surprises to opponents and the trial courts can rule, thus
forming a justiciable issue. We also recognize, however, that specific arguments in support of a
position may evolve and receive additional support on appeal. Ada Cnty. Highway Dist. v.
Brooke View, Inc., 162 Idaho 138, 142 n.2, 395 P.3d 357, 361 n.2 (2017). That is what happened
here. Luis has consistently asserted that the courts below erred by failing to exonerate the posted
bail when Gibson was remanded to custody. Luis has also argued throughout the proceedings
that these errors negated any applicability of section 19-2908. Luis offers support for the same
arguments on appeal by citing to additional statutes under the Bail Act and their complementary
provisions under Rule 46 of the Idaho Criminal Rules. The substantive issue she raised with the
district court has been preserved and is not negated by her use of additional statutory support.
        In light of the foregoing, the district court’s failure to exonerate the cash deposit and its
subsequent decision to apply the cash deposit against Gibson’s outstanding restitution obligation




                                                 5
constituted error. That being the case, the district court’s denial of Luis’s motion is reversed and
the case remanded with instructions to exonerate the cash deposit.
   B. There is no legal basis for an award of attorney’s fees or costs.
       Luis requests an award of attorney’s fees on appeal pursuant to Idaho Code section 12-
117 and Idaho Appellate Rules 35(a)(5) and 41(a). She also seeks an award of reasonable costs
pursuant to Appellate Rule 40. The State responds that section 12-117 is inapplicable to this
appeal, and that therefore Luis’s requests are frivolous.
       The statute provides, in relevant part:
       Unless otherwise provided by statute, in any proceeding involving as adverse
       parties a state agency or a political subdivision and a person, the state agency,
       political subdivision or the court hearing the proceeding, including on appeal,
       shall award the prevailing party reasonable attorney's fees, witness fees and other
       reasonable expenses, if it finds that the nonprevailing party acted without a
       reasonable basis in fact or law.
I.C. § 12-117(1). We agree with the State that section 12-117 is inapplicable, but do not find that
Luis’s request is frivolous.
       First, section 12-117 applies only to an enumerated category of proceedings: “any
administrative proceeding, administrative judicial proceeding, civil judicial proceeding or
petition for judicial review,” or any appeal therefrom. I.C. § 12-117(6)(d). A forfeiture of third-
party bond money or property followed by a denial of a motion to exonerate falls within the
“civil judicial proceeding” category of section 12-117. Bail forfeitures always stem from a
criminal proceeding and are guided by Idaho Criminal Rule 46, however they are essentially a
civil proceeding. Other states with similar bond forfeiture rules have also concluded that these
proceedings are civil in nature. See State ex rel. Moore Cnty. Bd. of Educ. v. Pelletier, 168 N.C.
App. 218, 221–22, 606 S.E.2d 907, 909 (2005) (“due to the nature and function of a bond, it
stands to reason that a bond forfeiture proceeding, while ancillary to the underlying criminal
proceeding, is a civil matter.”); see also People v. Taylor, 2013 IL App (2d) 110577, ¶¶ 25-27,
985 N.E.2d 648, 652–53; 847 So. 2d 1268; State v. Letscher, 888 N.W.2d 880, 883 (Iowa 2016);
Bankers Ins. Co. v. State, 37,080 (La. App. 2 Cir. 4/11/03), 843 So. 2d 641, 644, writ
denied, 2003-1240 (La. 6/27/03), State v. Toth, 2008 MT 404, ¶¶ 22-24, 347 Mont. 184, 190–91,
197 P.3d 1013, 1017.The civil nature of bail exonerations is illustrated in State v. Rupp, where a
bail bondsman’s motion to exonerate a forfeited bond under Idaho Criminal Rule 46 was denied.
123 Idaho 1, 1–2, 843 P.2d 151, 151–52 (1992). On appeal of the denial, the State argued that


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there was no final order that could properly be appealed from, meaning there was no jurisdiction
for the Court to hear the appeal. Id. This Court disagreed and held that “[t]he trial court’s order
denying exoneration of the bond in this case was a final order in a civil action within the scope of
I.A.R. 11(a)(1).” Id. (emphasis added). Therefore, the request for an exoneration of bond by a
surety is a proceeding under section 12-117, because it properly fits the definition of a “civil
judicial proceeding” in section 12-117(6)(d).
        Additionally, Article Five, section I of the Idaho Constitution necessitates that bond
exonerations be characterized as civil actions rather than criminal. Section 1 mandates that all
“enforcement or protection of private rights or the redress of private wrongs” be denominated as
civil actions, whereas criminal actions are only “action[s] prosecuted by the people of the state as
a party, against a person charged with a public offense, for the punishment of the same”. IDAHO
CONST. art. V, § 1. A third-party seeking to exonerate a bond under Idaho Criminal Rule 46(k)(1)
is not being prosecuted by the State for a public offense, but is instead a person attempting to
protect private rights. Therefore, exonerations, or the denial thereof, of bond money by a surety
necessarily are classified as civil actions.
        Next, Idaho Code section 12-117 requires that Luis, as an individual person, be an
adverse party against either a state agency or a political subdivision. The statute defines state
agencies as any agency defined by Idaho Code section 67-5201. I.C. § 12-117(6)(f). Subsection
(2) of that statute provides:
        “Agency” means each state board, commission, department or officer authorized
        by law to make rules or to determine contested cases, but does not include the
        legislative or judicial branches, executive officers listed in section 1, article IV, of
        the constitution of the state of Idaho in the exercise of powers derived directly and
        exclusively from the constitution, the state militia or the state board of correction.
I.C. § 67-5201(2). Cities, counties, taxing districts, and health districts are considered political
subdivisions under section 12-117(1). I.C. § 12-117(6)(d).
        Luis argues that the Bingham County Prosecuting Attorney’s involvement below sets
him—individually—as an adverse party appropriate for purposes of section 12-117(1). Precedent
from this Court undermines this argument. Namely, in Hooper v. State, we rejected the idea that
a county prosecutor qualifies as either a state agency or political subdivision. 150 Idaho 497,
500, 248 P.3d 748, 751 (2011). Although that holding came outside of the specific context of
section 12-117, its logic equally applies here. First, county prosecutors are officers of the judicial
branch, which are excluded from the definition of a state agency. Hooper, 150 Idaho at 500, 248


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P.3d at 751 (citing State v. Wharfield, 41 Idaho 14, 17, 236 P. 862, 862–63 (1925)); see also
IDAHO CONST. art. V, § 18. Second, when prosecuting crime, a county prosecutor is representing
the State and its inherent sovereign power to do precisely that. Hooper, 150 Idaho at 500, 248
P.3d at 751. Given this, the prosecutor is not a political subdivision of the State and section 12-
117 does not apply. Id.
       As for costs, Rule 40 authorizes such an award to a prevailing party on appeal unless
otherwise provided by law or order of the court. I.A.R. 40(a). This Court has held that “[c]osts
are allowed against the state only where provided by statute, either expressly or by necessary
implication.” State v. Thompson, 119 Idaho 67, 70, 803 P.2d 973, 976 (1989) (quoting
Chastain’s Inc. v. State Tax Comm’n, 72 Idaho 344, 350, 241 P.2d 167, 170 (1952)). Because
section 12-117 does not apply to this case, Luis is not entitled to any costs.
                                      IV.    CONCLUSION
       In light of the foregoing, the district court’s order denying Luis’s motion is reversed and
remanded with instructions to exonerate the cash deposit.


       Chief Justice BURDICK, and Justices HORTON, BEVAN, and STEGNER CONCUR.




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