[Cite as State v. Baker, 2019-Ohio-3828.]

                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY



STATE OF OHIO,                                   :

       Appellee,                                 :

                                                 :
    - vs -                                              CASE NO. CA2018-09-185
                                                 :
                                                               OPINION
MOLLIE BAKER,                                    :              9/23/2019

       Defendant,                                :

    - and -                                      :

JEFF BROWN BAIL BONDS, INC.,                     :

       Appellant.                                :



               CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT
                               Case No. CRB1501832



Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Mark J. Keller, One Oakwood Avenue, Suite 484, Dayton, Ohio 45409, for appellant



        RINGLAND, P.J.

        {¶ 1} Appellant, Jeff Brown Bail Bonds, Inc. ("JBBB"), appeals the decision of the

Butler County Area III Court ordering forfeiture of bond.

        {¶ 2} On December 28, 2015, Mollie Baker was arrested and charged with petty theft

in violation of R.C. 2913.02. The trial court set Baker's bond at $10,000 cash or surety.
                                                                          Butler CA2018-09-185

Baker posted a surety bond issued by JBBB and was released on January 4, 2016.

          {¶ 3} Following her release, Baker never again appeared before the trial court.

Baker's arraignment was continued until February 2, 2016. Baker's arraignment was then

continued five more times until August 16, 2016 when the trial court issued a warrant for her

arrest.

          {¶ 4} On August 18, 2016, the trial court ordered JBBB to produce Baker on or

before October 4, 2016 or show cause why the bond should not be forfeited. JBBB

subsequently requested, and was granted, additional extensions of time. In memoranda to

the trial court, JBBB alleged that Baker was in California and JBBB was working with her

family to get her to return to Ohio.

          {¶ 5} On November 17, 2016, JBBB moved to be released from the bond, claiming

that Baker was incarcerated in Los Angeles County Jail pending a misdemeanor case. The

trial court denied JBBB's request.

          {¶ 6} The matter was continued several more times until November 22, 2017, when

the trial court issued another show cause order and scheduled a hearing for December 5,

2017. JBBB did not appear for that hearing.

          {¶ 7} Nearly seven months later, and more than two and one-half years after Baker

was released on bond, the trial court entered a decision on July 24, 2018, ordering the bond

forfeiture. The trial court noted that JBBB failed to appear at the December 5, 2017 hearing

and had "ample opportunity" to secure Baker's presence. JBBB now appeals, raising a

single assignment of error for review:

          {¶ 8} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE

SURETY'S MOTION TO BE RELEASED FROM DEFENDANT'S BOND AND SUBSEQUENT

FORFEITURE.

          {¶ 9} In its sole assignment of error, JBBB argues the trial court abused its discretion
                                                 -2-
                                                                         Butler CA2018-09-185

by denying its motion to be released from the surety bond and ordering forfeiture. Following

review of the limited record before this court, we find this appeal should be dismissed

because the trial court's July 24, 2018 entry was not a final appealable order.

       {¶ 10} The purpose of a bail bond is to insure the appearance of the defendant at all

stages of the criminal proceedings. State v. Hughes, 27 Ohio St. 3d 19, 20 (1986), citing

Crim.R. 46(A). If the defendant fails to appear, R.C. 2937.35 provides for bond forfeiture.

Pursuant to that provision:

              Upon the failure of the accused or witness to appear in
              accordance with its terms the bail may in open court be adjudged
              forfeit, in whole or in part by the court or magistrate before whom
              he is to appear. But such court or magistrate may, in its
              discretion, continue the cause to a later date certain, giving
              notice of such date to him and the bail depositor or sureties, and
              adjudge the bail forfeit upon failure to appear at such later date.

R.C. 2937.35.

       {¶ 11} Following declaration of forfeiture, R.C. 2937.36 sets forth the relevant

procedure. In pertinent part, as to recognizances under R.C. 2937.36(C), the magistrate or

clerk "shall notify the accused and each surety within fifteen days after the declaration * * * of

the default of the accused and the adjudication of forfeiture and require each of them to show

cause on or before a date certain to be stated in the notice * * * why judgment should not be

entered against each of them for the penalty stated in the recognizance." Continuing, R.C.

2937.36(C) then provides:

              If good cause by production of the body of the accused or
              otherwise is not shown, the court or the magistrate shall
              thereupon enter judgment against the sureties or either of them,
              so notified, in such amount, not exceeding the penalty of the
              bond, as has been set in the adjudication of forfeiture, and shall
              award execution therefor as in civil cases. The proceeds of the
              sale shall be received by the clerk or magistrate and distributed
              as on forfeiture of cash bail.

       {¶ 12} Based on the evidence before this court, the trial court's July 24, 2018 entry is


                                               -3-
                                                                                 Butler CA2018-09-185

the first time the record shows that the trial court declared bond forfeiture.1 Although there is

an October 7, 2016 scheduling entry that purports to set bond forfeiture proceedings under

R.C. 2937.36, the scheduling entry does not state that there has been an adjudication of

forfeiture. See R.C. 2937.36 (Forfeiture proceedings) ("magistrate or clerk shall notify the

accused and each surety within fifteen days after the declaration of forfeiture * * * of the

default of the accused and the adjudication of forfeiture * * *.") In fact, there is no indication

that bond forfeiture was declared either prior to or within the scheduling entry. Thus, we find

that the July 24, 2018 entry constitutes the declaration of bond forfeiture and proceedings

shall continue pursuant to R.C. 2937.36. This conclusion is further supported by the fact that

the July 24, 2018 entry does not "enter judgment against" JBBB as contemplated in R.C.

2937.36, which states that:

                [t]he court or magistrate shall thereupon enter judgment against
                the sureties or either of them, so notified, in such amount, not
                exceeding the penalty of the bond, as has been set in the
                adjudication of forfeiture, and shall award execution therefor as
                in civil cases.

        {¶ 13} As a result, the trial court's July 24, 2018 entry does not constitute a judgment

against the surety, nor is it a final appealable order for purposes of appellate review. It is

well-established that an appellate court lacks jurisdiction over an order that is not final and

appealable. Barber v. Ryan, 12th Dist. Butler No. CA2010-01-006, 2010-Ohio-3471, ¶ 6.

Therefore, this appeal is dismissed. R.C. 2505.02; See State v. Rarden, 12th Dist. Butler No.

CA2019-02-039, 2019-Ohio-3227, ¶ 11.

        {¶ 14} Appeal dismissed.


        PIPER and M. POWELL, JJ., concur.



1. We note that the trial court has provided JBBB with ample opportunity to produce the defendant. Following
several continuances, and after being provided with more than two years to produce the defendant, JBBB failed
to attend the December 5, 2017 hearing for which it was properly noticed.
                                                    -4-
