 No



                                                                 No. 98-657



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 183N




STATE OF MONTANA,



Plaintiff and Respondent,



v.



JASON ROBERT NEELY,



Defendant,

v.



BEARTOOTH BAIL BONDS,



Appellant.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-657%20Opinion.htm (1 of 6)4/9/2007 10:45:59 AM
 No




APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Big Horn,

Honorable Susan P. Watters, Judge Presiding.




COUNSEL OF RECORD:



For Appellant:



John McFadden, pro se, Billings, Montana



For Respondents:



Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General, Helena, Montana



Christine Cook, County Attorney, Hardin, Montana




Submitted on Briefs: July 1, 1999




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-657%20Opinion.htm (2 of 6)4/9/2007 10:45:59 AM
 No

Decided: July 28, 1999



Filed:



__________________________________________

Clerk




Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. John McFadden, d/b/a Beartooth Bail Bonds, appeals from an order
reconfirming forfeiture of bail bond entered by the Thirteenth Judicial District
Court, Big Horn County. We affirm.

¶3. The issue is whether the District Court abused its discretion in refusing to
discharge forfeiture of bail bond.

¶4. Section 46-9-503, MCA, provides that a judge may declare bail forfeited if a
defendant fails to appear before a court as required. When Jason Robert Neely failed
to appear for a probation revocation hearing on February 2, 1998, the District Court
ordered his $2,500 bond forfeited. The propriety of that action is not in dispute.
Rather, Neely's bail bondsman, John McFadden, d/b/a Beartooth Bail Bonds, argues
that the court erred in subsequently refusing to discharge the forfeiture.

¶5. Subsection (3) of § 46-9-503, MCA, provides:


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-657%20Opinion.htm (3 of 6)4/9/2007 10:45:59 AM
 No


If at any time within 90 days after the forfeiture the defendant's sureties appear and
satisfactorily excuse the defendant's failure to appear, the judge may direct the forfeiture to
be discharged upon terms as may be just. If at any time within 90 days after the forfeiture
the defendant appears and satisfactorily excuses the defendant's failure to appear, the
judge shall direct the forfeiture to be discharged upon terms as may be just.


On February 8, 1998, McFadden located Neely and delivered him to the Big Horn County
Sheriff's department. On March 16, 1998, McFadden appeared at a hearing regarding the
forfeiture. McFadden informed the court that he was unaware of why Neely had failed to
appear, but nevertheless asked that the forfeiture be discharged. The District Court refused
to discharge the forfeiture, reasoning that McFadden had failed to offer a satisfactory
excuse for Neely's failure to appear and that forfeiture offset the State's costs and
promoted the public interest of insuring a defendant's appearance at trial.

¶6. This Court reviews a district court's decision to forfeit a bond for abuse of
discretion. The test is whether the court acted arbitrarily. State v. Seybert (1988), 231
Mont. 372, 374, 753 P.2d 325, 326.

¶7. McFadden argues that the court's refusal to discharge the forfeiture was not
based or made "upon terms as may be just" as required under the statute. Citing
State v. Musgrove (1983), 202 Mont. 516, 659 P.2d 285, he argues that it is not
necessary that a reasonable excuse be provided for the failure to appear in order to
justify discharging a forfeiture of bond. He asserts that a partial excuse is sufficient.

¶8. The statute provides for discharge of a forfeiture, upon such terms as may be
just, "[i]f . . . the defendant's sureties appear and satisfactorily excuse the
defendant's failure to appear." (Emphasis supplied.) McFadden offered no excuse
whatsoever for Neely's failure to appear. He did not meet the burden, even in part, of
satisfactorily excusing Neely's failure to appear.

¶9. If forfeiture is justified, the court's decision on the amount, if any, of the
forfeiture to be discharged must be based on consideration of six factors:

1. The willfulness of the defendant's violation of bail conditions;

2. The surety's participation in locating or apprehending the defendant;

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-657%20Opinion.htm (4 of 6)4/9/2007 10:45:59 AM
 No



3. The cost, inconvenience, and prejudice suffered by the State because of the violation;

4. Any intangible costs;

5. The public interest in ensuring the defendant's appearance; and

6. Any mitigating factors.

State v. Seybert (1987), 229 Mont. 183, 187, 745 P.2d 687, 689.

¶10. In this case, the first two factors suggest opposite results. Under the record,
there is nothing to indicate that Neely's violation of bail conditions was anything but
willful. Addressing factor 2, however, McFadden points out that he located and
produced Neely within days of Neely's failure to appear in court.

¶11. As to factor 3, McFadden argues that there was no evidence that the State had
incurred expenses of $2,500 (the court found that the State incurred expenses
"roughly equivalent" to $2,500), and that this is therefore an excessive forfeiture
under Seybert. McFadden concedes, however, that the State incurred some expenses.
In this regard, the court mentioned the costs associated with the issuance of a bench
warrant for Neely's arrest, time and costs related to the State's appearance in court
when Neely failed to appear, and the costs of motions and the hearing at which
McFadden failed to provide a satisfactory excuse for Neely's earlier failure to
appear. This Court has previously noted that the statute does not limit the court's
discretion to actual damages. Seybert, 229 Mont. at 186, 745 P.2d at 689. It must
further be remembered that in this case the court also ordered that bail be used to
pay restitution for which Neely was obligated.

¶12. McFadden argues that the court's order requiring that the forfeiture be used to
pay Neely's restitution in the amount of $1,245.91 contravenes § 46-9-512, MCA:

(1) If the court enters a judgment declaring bail to be forfeited or if the order of forfeiture
is not discharged, the court having jurisdiction may order the bail forfeited to be paid as
restitution to any victim of the offense for which the court has received bail. Whenever the
court believes that restitution may be proper, the court shall order a hearing for the
purpose of considering the nature and extent of the victim's pecuniary loss as defined by
law.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-657%20Opinion.htm (5 of 6)4/9/2007 10:45:59 AM
 No



(2) If the court finds that restitution is appropriate, the court shall order restitution in an
amount not exceeding the amount of the victim's complaint or the amount of the victim's
pecuniary loss.


McFadden asserts that the revocation hearing was related to a conviction of drinking while
driving, not the burglary conviction on which Neely owed $1,245.91 in restitution. But as
the State points out, the record reflects that the court received bail because Neely violated
probation on his burglary conviction. Accordingly, the court did not act improperly in
ordering that the proceeds of bond forfeiture be used for restitution.

¶13. The public interest in ensuring the defendant's appearance is a factor weighing
for forfeiture. Finally, as a mitigating factor, McFadden asks why he, an honest
businessman, should be "punished" by the court's decision that Neely's restitution be
repaid from the bail bond. One answer to that question is that when he guaranteed
bail for Neely, McFadden assumed a business risk that bond could be forfeited if his
client failed to appear in court.

¶14. After reviewing the facts of this case, we conclude that the District Court did not
abuse its discretion in refusing to discharge the bail forfeiture. We affirm the
decision of the District Court.

/S/ J. A. TURNAGE

We concur:


/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-657%20Opinion.htm (6 of 6)4/9/2007 10:45:59 AM
