concurring.
I concur in the result of the majority opinion, but write separately to address concerns over the application of Rule 33.141 to forfeit a cash bond in a case such as this, where the defendant never failed to appear when directed to do so.
A. Background
The facts are clear. In December 2005, the defendant’s father posted a $100,000.00 cash bond so that his son could be released from jail pending the resolution of the charges against him.2 The bond required the defendant to attend all court hearings set by the trial court or any court to which his case was transferred or appealed. The bond also imposed special conditions on the defendant, including a requirement that he “shall obey all laws and ordinances.”
The defendant never failed to appear when directed. Nevertheless, on March 22, 2006, the state filed a motion seeking revocation of the defendant’s right to remain free on bond and forfeiture of the cash bond. The state alleged in this motion that the defendant had not complied with the special conditions of bond because he committed multiple law violations over a four-month period.
The court sustained the state’s motion to revoke and forfeit the cash bond on April 13, 2006. On this same date, defense counsel moved that the forfeiture of the bond funds be set aside, requesting release of the $100,000.00 cash that the father had posted. The court took that motion under advisement. The defendant remained in jail until his jury trial nine months later in January 2007. After defendant’s sentencing took place on March 6, 2007, approximately one year after the state filed its motion to revoke and forfeit the cash bond and after the defendant had been confined for almost as long, the court denied defendant’s motion to set aside forfeiture of the bond, making a finding that “justice requires” the forfeiture of the defendant’s bond.
B. “Justice” under Rule 33.14 Cannot Require or Allow the Forfeiture of the $100,000.00 Bond in this Case
It was certainly appropriate for the trial court to revoke the defendant’s right to remain free on bond based on the state’s allegations that defendant committed multiple law violations. But the forfeiture of *348the $100,000.00 cash in this case was not. At the time of the forfeiture, the defendant had already been sentenced to serve a lengthy term in the Department of Corrections, and did not pose a present threat to the public.
Almost a year before sentencing, the defendant moved that the forfeiture of the bond funds be set aside. The court took that motion under advisement, and denied it after sentencing. Rule 33.14 addresses a trial court’s decision to set aside a forfeiture, stating that the court may direct that a forfeiture be set aside “if it appears that justice does not require the enforcement of the forfeiture.” There is very little about the forfeiture in this case that feels or looks like “justice.” Unlike the defendant in State v. Echols, 850 S.W.2d 344 (Mo. banc 1993), the only case cited in the majority’s analysis that is binding precedent, the defendant in this case never failed to appear. Moreover, it looks very much like the defendant has been required to pay a $100,000.00 fíne by the Circuit Court of Lewis County because of an allegation he committed crimes that are not the subject of this case.3
I agree with the due process concerns raised in footnote 6 of the majority opinion. But I would also hold, in a case such as this where the defendant never failed to appear as required but violated only special conditions of his release on bond, that “justice” cannot require — or allow — the forfeiture of a cash bond. Revocation of the defendant’s right to remain free on bond was warranted and understandable in this case. The taking of the $100,000.00 posted by his father was not.
. All references to Rules are to Missouri Supreme Court Rules (2008).
. Although the practice of requiring one who posts a cash bond to sign a form declaring the cash to be the property of the defendant from that point forward — seemingly a statement by the trial court that a third party cannot actually post the bond unless he is willing to call it a gift to the defendant — is troublesome, my concerns do not rest with the approval of such a practice by the majority.
. Defense counsel should use caution when advising those considering posting bond for a defendant in a criminal case. Based on the majority opinion, the question "Can I lose the money I post as bond?” can no longer be answered with a simple, "Not if the defendant appears for all his court dates.” A bond posted to secure the appearance of a defendant in a criminal case now also seems to serve as an assurance that the defendant will not violate any special conditions imposed on a bond, which may include a requirement that the defendant "obey all laws and ordinances.”