                                       No. 86-149
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1986




STATE OF MONTANA,
                Plaintiff and Respondent,


WAYNE EUGENE SUNDAY, and
INTERNATIONAL FIDELITY INSURANCE
COMPANY,
                Defendants and Appellants.




APPEAL FROM:    District Court of the Twentieth Judicial District,
                In and for the County of Sanders,
                The Honorable E. Gardner Brownlee, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                H. L. Garnaas; Garnaas, Hall           &   Pinsoneault, b is sou la,
                Monta.na

         For Respondent :
                Hon. Mike Greely, Attorney General, Helena, Montana
                Clay R. Smith, Asst. Attorney General, Helena
                Claude I. Burlingame, County Attorney, Thompson Falls,
                Montana




                                          Submitted on Briefs: Sept. 4, 1986
                                            Decided:   December 1.6,    1986


Filed:




                              -,-+--



                                          Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
       Wayne Sunday and the International Fidelity Insurance
Company appeal from an order of the District Court of the
Twentieth Judicial District, in and for the County of Sand-
ers, entering judgment on a forfeited bail bond.         For the
reasons stated below, we affirm that judgment.
       Wayne Sunday, defendant and appellant, was charged in
Sanders County, State of Montana, with the crime of felony
theft.     On December 5, 1984, Judge Beitz set bond in the
amount of $2000, with an appearance set for December 11.
International Fidelity Insurance Company       (Surety) issued a
surety bond     for $2000 through its agent, Sullivan     &   Hunt
Agency (Agent) of Missoula, Montana.    The court approved the
bond and released Sunday.     He subsequently appeared in Dis-
trict Court and pled not guilty to the charge.
         On May 14, 1985, Sunday appeared for an omnibus hear-
ing.     He was represented by Brian Smith.     Subsequently, the
court set the trial date for August 15.       However, Sunday did
not appear on that date, and Smith moved for a continuance.
The court granted the motion and a new trial date was set for
September 26.     On that date, Sund-ay again failed to appear.
The court granted Smith's motion for a continuance.      The new
trial date was set for October 22, 1985.      When Sunday failed
to appear at that time, the court declared the bond forfeited
and issued a bench warrant for his arrest.
         On January 7, 1986, the Clerk of the District Court
sent notice of the forfeiture to the Agent.       The order for-
feiting bond was signed by Judge McNeil on January 6.         Upon
receiving notice of forfeiture, the Agent, on behalf of the
Surety, immediately began trying to locate Sunday.      After an
extensive search crossing state lines and even employing the
assistance of the Internal Revenue Service, Sunday could not
be located.
       On February 18, the State moved for entry of judgment
on the forfeiture.     The Surety subsequently moved for dis-
charge of the forfeiture.      On February 25, the court denied
the Surety's motion and granted judgment to the State on the
forfeited bond for $2000.
       Two issues are presented for our consideration:
       1.   Where a defendant does not appear in court for a
scheduled appearance, must the court declare a forfeiture of
his bond immediately or lose jurisdiction to declare a for-
feiture thereafter?
       2.   Where a court does not mail notice of the order of
forfeiture to the surety until seventy-seven days after the
declaration of forfeiture, does it lose jurisdiction to enter
judgment on the forfeiture thereafter?




       Appellants first contend that the District Court was
required to declare the bond forfeited on the date of defen-
dant's first non-appearance.    Since the court did not declare
a forfeiture on that date, it lost jurisdiction to do so at
anytime afterwards.
       The controlling statute on this issue is     $   46-9-503,
MCA.   Section (1) provides:
            If the accused does not comply with the
            conditions of the bail bond, the court
            having jurisdiction shall enter an order
            declaring the bail to be forfeited.
There is nothing in this statute that requires a court to
declare a     forfeiture immediately upon a defendant's first
non-appearance.         Furthermore, there is no provision which
releases a surety from the ultimate liability on a bond prior
to the conditions of bail being performed and the defendant
being discharged.        See S 46-9-502, MCA.      To require a court
to declare forfeiture immediately upon a breach of a condi-
tion of bail would unnecessarily straightjacket the court by
a rule neither mandated by statute nor required by policy.
      Federal Rule of Criminal Procedure 46 (e)(1) is substan-
tially    the    same   as Montana's    §   46-9-503(1).    That rule
states:    "If there is a breach of condition of a bond, the
district court shall declare a forfeiture of the bail."             In
United States v. Navarrete-Martinez            (10th Cir.   1985), 776
F.2d 887, the court was faced with the same argument being
raised by       appellants here.       In summarily dismissing the
surety's contention, the court held:
            Nothing in the rule, however, requires
            the trial court to declare a forfeiture
            immediately upon the defendant's failure
            to appear.   Therefore this argument is
            without merit.
Navarrete-Martinez, 776 F.2d at 888.             See also Appearance
Bond Surety v. United States (8th Cir. 1980), 622 F.2d 334.
      Rather than being prejudiced by the court's action, as
appellants contend, the Surety was actually helped.            Had the
court declared forfeiture immediately, the Surety would have
been absolutely liable on the bond with only thirty days
within which to locate Sunday.           However, because the court
continued the trial date, the Surety had more time to look
for defendant.      Likewise, the State was benefited because the
Surety had more incentive to locate defendant prior to for-
feiture than it had afterwards.         Thus, the public interest in
obtaining the appea.rance of the defendant was better served.
        We hold that the District Court had jurisdi-ction to
declare forfeiture of the bond when it did so.




        The court declared the bond forfeited on October 22,
1985.    However, it waited until January 7, 1986, to forward
notice of the forfeiture to the Agent--a delay of seventy-
seven days.     Appellants contend that this delay violated the
requirements of     S 46-9-503, MCA,     because     notice was     not
mailed "forthwith" and that the court lost jurisdiction to
enter judgment on the forfeiture because the proper procedure
was not followed.    Appellants further contend that the Surety
was   prevented    from   producing   defendant    after     his   first
non-appearance     because    it   was   not    notified      of   such
non-appearance by the court.
        Section 46-9-503 is the controlling statute on this
issue also.     It provides in relevant part:
              (2) If such forfeiture is declared by a
              district court, notice of such order of
              forfeiture shall be mailed forthwith by
              the clerk of the court to the accused
              and his sureties at their last known
              address.
            (3) If at any time within 30 days after
            the forfeiture the defendant or his bail
            appear and satisfactorily excuse his
            negligence or failure to comply with the
            conditions of the bail, the court, in
            its discretion, may direct the forfei-
            ture of the bail to be discharged upon
            such terms as may be just.
            (4) If such forfeiture is declared by a
            district court and if the forfeiture is
            not discharged as provided in this
            section, the court shall enter judgment
            for the state against the accused and
            his sureties for the amount of the bail
            and costs of the proceedings.
        At the outset, it should be noted that there is a
distinction     between    forfeiture    and      judgment    on    the
forfeiture.     Once forfeiture of the bond is declared by the
court, the surety becomes liable for payment on the bond
unless, within thirty days from such declaration, the surety
or the defendant appear and satisfactorily excuse the defen-
dant's failure to comply with the conditions of bail.             At
that point, the surety cannot be compelled by the State to
pay the bond.          However, once judgment is entered on the
forfeiture, it becomes binding on the surety, and the State
can seek execution of its judgment.             This distinction is
important when considering whether the requirements of due
process have been met.
         Section 46-9-503 requires only that notice of forfei-
ture be mailed to an accused and his surety.            It does not
require    a   court    to   notify   the   surety of a defendant's
non-appearance.        Since the Surety assumed the duty of ensur-
ing Sunday's appearance, it was presumed to know of his
whereabouts.     Therefore, it was not necessary for the court
to notify the Surety of Sunday's non-appearance.          See United
States v. Roher (5th Cir. 1983), 706 F.2d 725; United States
v. Craft (11th Cir. 1985), 763 F.2d 402.         Appellantsbonten-
tion on this point is without merit.
      Appellants are correct, however, in their assertion
that the court did not mail notice of the order of forfeiture
"forthwith," as required by the statute.          Upon declaring the
bond forfeited, the proper procedure would have been for the
court to mail notice of the order to appellants without
delay.     Had that been the case, the Surety or the defendant
would have had thirty days to appear and excuse defendant's
breach.     Nevertheless, even though the court did not send
notice to appellants when it should have, it did not lose
jurisdiction to enter judgment on the forfeiture.        As long as
the requirements of the statute and the mandates of due
process were met, the judgment against appellants was valid.
      Notice of forfeiture was mailed to appellants on Janu-
ary 7, 1986.   On February 25, 1986, the court entered judg-
ment on the forfeiture for the State.     Thus, a period of more
than thirty days elapsed between notice of forfeiture and
judgment on the forfeiture.     This procedure substantially met
the requirements of   §   46-9-503 as well as the requirements of
due process.   As in the first issue, the Surety was not
prejudiced by the court's action; rather, it was benefited.
It had an extra three months within which to locate defendant
and discharge the forfeiture before the judgment was entered.
Any error that resulted accrued to appellants' advantage.




We concur:
