                               No. 88-015
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1988


STATE OF MONTANA
                Plaintiff and Respondent,


PAUL SEYBERT and DENISE
"DUSTY" ROGERS SEYBERT,


AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA,
                Appellant.


APPEAL FROM:    District Court of the Fifth Judicial District,
                In and for the County of Madison,
                The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
      For Appellant:
             Brad L. Belke; Belke Law Center, Butte, Montana
      For Respondent:
             Honorable Mike Greely, Attorney General, Helena Montana
             Betsy Brandborg, Assistant Attorney General
             Loren Tucker, County Attorney, Virginia City, Montana


                                  Submitted on Briefs:   March 18, 1988
                                    Decided: April 19, 1988




                                  Clerk
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.


     On December 10, 1987, the Fifth Judicial Court, Madison
County, ordered American Bankers Insurance Company of Florida
to forfeit 100 percent of the surety bonds posted on behalf
of defendants Paul Seybert and Denise "Dusty" Rogers Seybert.
The American Bankers Insurance Company appealed. We affirm.
     The issue raised on appeal is whether the District Court
abused its discretion by requiring the appellant to forfeit
100 percent of the posted surety bonds when the defendants
failed to appear for the omnibus hearing and in light of
State v. Seybert (Mont. 1987), 745 P.2d 687, 44 St.Rep. 1879.
     On November 7, 1986, the defendant Paul Seybert was
arrested for multiple crimes of theft, burglary, possession
of dangerous drugs, and criminal mischief and the defendant
Denise Rogers Seybert (Rogers) was arrested for theft and
possession of dangerous drugs. The District Court eventually
set the bonds at $7,000 for Seybert and $2,500 for Rogers.
The American Bankers Insurance Company (American) posted the
bonds for each defendant.
     The District Court scheduled an omnibus hearing for
March 24, 1987 in which the defendants' presence were
required. Both defendants failed to appear for the hearing
and the court eventually ordered a forfeiture of 75 percent
of the bonds posted on behalf of each defendant. American
appealed the 75 percent forfeiture to this Court. State v.
Seybert (Mont. 1987), 745 P.2d 687, 44 St.Rep. 1879.
     In Seybert, this Court recognized that the primary
purposes of bail in a criminal case is not "to punish a
defendant or surety, nor to increase the revenue of the
State,"   Seybert, 745 P.2d at 689, 44 St.Rep. at 1882
(quoting State v. Musgrove (1980), 187 Mont. 549, 553, 610
P.2d 710, 712), but rather to honor the presumption of
innocence, to allow a defendant to prepare his case, and to
ensure the defendant's presence in the pending proceeding.
Seybert, 745 P.2d at 688, 44 St.Rep. at 1880 (citing United
States v. Skipper (5th Cir. 1981), 633 F.2d 1177).      Upon
reviewing the facts of that case, this Court concluded that
the District Court abused its discretion when it ordered the
forfeiture of 75 percent of the bonds posted on behalf of
Seybert and Rogers. Seybert, 745 P.2d at 689, 44 St.Rep. at
1882. This Court also held that when determining the amount
of forfeiture, a court is not limited to actual damages only,
but should consider, among others, the following six
factors: (1) the defendants' willful violation of bail
conditions; (2) the surety's participation in locating or
apprehending the defendants; (3) the cost, inconvenience,
and prejudice suffered by the State as a result of the
violation; (4) intangible costs; ( 5 ) the public Is interest
in   ensuring  a   defendant's  appearance; and,     (6) any
mitigating factors. Seybert, 745 P.2d at 689, 44 St.Rep. at
1882.   The District Court on remand found that the record
justified a forfeiture of 100 percent of the defendants'
bonds. American again appealed.
     On appeal, American argues that the District Court
abused its discretion in light of our recent case State v.
Seybert (Mont. 1987), 745 P.2d 687, 44 St.Rep. 1879. More
specifically, American argues that the key in that case was
that the original forfeiture of 75 percent was excessive and
therefore any forfeiture was absolutely required to be less
than 75 percent. We disagree with American's assessment of
our recent case.
     This Court's holding in Seybert, that the 75 percent
forfeiture of the posted bond was excessive, stemmed from the
lack of findings to justify such a forfeiture. The proper
task of this Court is not to determine upper limits on the
amount of forfeiture on posted bonds when little or no
findings exist to support the forfeiture, but rather, upon
review of the record, to determine whether the District Court
abused its discretion when it ordered 100 percent forfeiture
of the posted bonds. The test this Court employs for abuse
of   discretion   is whether    the   District Court    acted
arbitrarily. In re Marriage of Jensen (Mont. 1986) , 727 P. 2d
512, 515, 43 St.Rep. 1891, 1893; In re Marriage of Perry
 (Mont. 1985), 704 P.2d 41, 43, 42 St.Rep. 1101, 1104; State
v. Musgrove (1983), 202 Mont. 516, 521, 659 P.2d 285, 288.
We hold that the District Court did not abuse its discretion
when ordering 100 percent forfeiture of the bonds posted on
behalf of the defendants Seybert and Rogers.
     On remand, the District Court applied the facts of the
case to the six factors listed and found in retrospect that
the record fully justified 100 percent forfeiture of both
bail bonds. An examination of the record demonstrates that
the District Court did not act arbitrarily.      The District
Court considered the six factors and found:
     (1) The defendants willfully violated the provisions of
their bail bonds by failing to appear for the omnibus hearing
because the defendants were in the custody of federal
authorities for crimes committed after the bonds were posted.
     (2) The state of Montana and the defendants' counsel
located the defendants; the surety did not assist in the
search.    In light of the defendant Seybert's extensive
criminal record, the surety knew or should have known that he
had a propensity for flight.
     (3) No way existed to determine exactly the State's
cost, inconvenience, and the prejudice the State suffered,
however, the initial apprehension of the defendants and their
subsequent indictment was the result of an extensive
multi-county investigation which continued for over 30 days.
The county attorney's office prepared an eight page
information and undertook the burdensome task of interviewing
several witnesses scattered across a tri-county area.     The
four defendants were incarcerated in three different
counties, which necessarily required four public defenders
and three county attorneys to prepare for the pre-trial
hearings.    Hearings were conducted on motions to reduce
bonds.   Further, the State continues to be prejudiced as a
result of the subsequent death of a key witness and, with the
lapse of time, the     fading of other witnesses' memories.
      (4) The public's interest in the matter is great
because thousands of dollars in drugs, jewelry, cameras,
liquor, and miscellaneous property were stolen. Instead of
ordered restitution, the victim of the crime has nothing but
disrespect and contempt for the legal process.
     (5) No mitigating factors existed in favor of the
surety.
     (6) The previous partial forfeiture was an abuse of
discretion, and the entire bail bond should have been
forfeited initially.
     American argues that the District Court's findings are
not supported by the record. Specifically, American argues
that the record does not indicate that the defendant Seybert
had a propensity for flight; which party located the
defendants; and that the State was prejudiced by the death of
a key witness, since no evidence existed of the witness's
death and the alleged death occurred prior to any possible
trial date.
     The District Court's findings of facts demonstrate that
it considered the six factors set out in Seybert, 745 P.2d at
689, 44 St.Rep. at 1882.     Substantial evidence exists to
support the District Court's finding that forfeiture of 100
percent of the bail bonds was justified in this instance.
The lack of solid support in the record of one or more of the
six factors does not render the District Court's decision
arbitrary.
     Finally, we reaffirm our holding in Seybert that when
determining the amount of forfeiture of a bail bond, the
statute does not limit a district court's discretion to
actual damages.     Seybert, 745 P.2d at 689, 44 St.Rep.
1881-82.
     We affirm.


We Concur:
