State v. Seybert

No. 87-342

I N THE SUPREME COURT OF THE STATE OF MONTANA

1987

STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,
-vs-

PAUL SEYBERT and D E N I S E "DUSTY"
ROGERS SEYBERT,

Defendants.
-vs-
AMERICAN BANKERS INSURANCE COMPANY
OF F L O R I D A ,

Appellant.

APPEAL FROM: D i s t r i c t C o u r t of t h e F i f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of M a d i s o n ,
T h e H o n o r a b l e F r a n k D a v i s , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For A p p e l l a n t :

B r a d L. Belke, B u t t e , Montana

For R e s p o n d e n t :

H o n . Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
Betsy Brandborg, Asst. Atty. General, Helena
Loren Tucker, County Attorney, V i r g i n i a C i t y , Montana

S u b m i t t e d on B r i e f s : Oct. 1 6 , 1.987
Decided: November 1 9 , 1 9 8 7

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Appellant American Bankers Insurance Company of Florida
(American) appeals the judgment of the District Court of the
Fifth Judicial District, Madison County, partially forfeiting
the Seyberts' bond for failure to appear. We reverse.
The issue before the Court is whether the forfeiture
constituted a clear abuse of direction.
The Seyberts were arrested in connection with two
burglaries of McAlear's Pharmacy and Store in Twin Bridges.
The District Court eventually set bail in the amount of
$7,000 for Paul Seybert and $2,500 for Denise Seybert. Bail
was subsequently posted by American, through its agent,
Charles Condo. Condo had posted bail on behalf of the
Seybert's on prior occasions without mishap.
An omnibus hearing was set by the court for March 24,
1987. The Seyberts were ordered to personally appear at that
time. They failed to do so, however. On March 31, 1987, the
court ordered total forfeiture of the Seybert's bond.
Following the Seyberts' failure to appear, Condo
immediately began efforts to locate them. He eventually
discovered that the Seybert's had been in federal custody in
Salt Lake City, Utah, at the time of the omnibus hearing.
Counsel for American explained that: "While released on
bail, they went traveling, apparently went down to Mexico and
got married. And on the way back, in Salt Lake, decided to
increase the funds available to them and robbed a bank in
Salt Lake City somewhere."
On April 10, 1987, American moved to set aside the
forfeiture order on the grounds that the Seyberts' arrest and
detention by federal authorities was a satisfactory excuse
for the Seyberts' failure to appear and that American was
without remedy to secure the Seyberts' appearance in Montana.
Following a hearing on the matter, the District Court ordered
the forfeiture of 75% of the bail "as adequate [compensation]
... for all costs incurred in the prosecution of the action
against the Defendants." The transcript does not reveal, nor
does the order specify, the costs incurred by the state,
however.
The primary purpose of bail in a criminal case is to
honor the presumption of innocence and to allow a defendant
to prepare his case, while insuring the defendant's presence
in the pending proceeding. The forfeiture of bail is a
device designed to insure the defendant's presence. United
States v. Skipper (5th Cir. 1981), 633 F.2d 1177. If a
defendant fails to appear, the entire amount of bail shall be
forfeited. Section 46-9-503, MCA, provides, in pertinent
part :
Conditions not performed--forfeiture. (1) 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.

(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 forfeiture of the
bail to be discharged upon such terms as may be
just.
Consistent with the purpose of insuring a defendant's
presence, subsection (33 of S 46-9-503, MCA, mitigates the
harshness of strict forfeiture in situations of excusable
negligence or failure to comply with the terms of bail.
However, the defendant or surety has the burden of
demonstrating a "satisfactory excuse" before any discha-rge
may be ordered. State v. Musgrove (1983), 202 Mont. 516,
519, 659 P.2d 285, 287 (Musgrove -11).
In the instant case, American contends that the
Seybert.sl arrest and detention by federal authorities is a
"satisfactory excuse" which suspends the surety1s
responsibility except for actual costs incurred in returning
the Seyberts' to Montana. We disagree. The Seyberts '
incarceration in Utah, which prevented their appearance, is a
direct result of their own criminal acts. They cannot avail
themselves of their own wrong to escape the accounting with
the State. See State v. Nelson (Utah 1968), 436 P.2d 792;
State v. Superior Court (Ariz. 1965) , 407 P. 2d 943. Nor can
the surety avail itself of an excuse not available to the
defendants. We hold that incarceration by a foreign
sovereign is not per se a satisfactory excuse.
However, the statute does not require a complete, as
opposed to partial, excuse. Musgrove - 202 Mont. at 520,
11,
659 P.2d at 287. The Seyberts' incarceration is a factor for
the District Court to consider in determining discharge on
such terms as may be just.
American also contends that the State has a duty to seek
the Seyberts' return to Montana. We disagree. "The state is
not the surety's surety." Umatilla County v. Resolute
Insurance Co. (Or. 1972), 493 P.2d 731, 733. Consequently,
the State does not have a duty to remedy the surety's breach
of contract. The State need only refrain from obstructing or
interfering with the surety's efforts. Here, the State's
refusal to seek extradition did not interfere with the
surety's obligation. State v. Honey (Neb. 19571, 86 N.W.2d
187. The Seyberts' compliance with the conditions of bail is
solely the responsibility of American. We hold the State's
failure to seek extradition does not excuse the surety's
liability.
 Finally, it is alleged that the District Court
improperly failed to make specific findings as to actual
costs incurred. American wrongly assumes that an order of
forfeiture can only be supported by evidence of actual
damage. The statute does not limit the court's discretion to
actual damages.
The statute directs the court to order discharge
"upon such terms as may be just." In making this
determination the court should consider not only
evidence relating to damage but also the other
factors and circumstances peculiar to each case.
As one court stated:
" [nlo clear rule can be set down which will guide
the trial court in every case since the facts and
circumstances of each individual case must be
considered in their totality. No one factor will
be determinative in all cases." Owens 5 People
(1977), 194 Colo. 389, 572 P.2d 837, 838.
Musgrove - 202 Mont. at 522, 659 P.2d at 288.
11,
However, "it is not the purpose of bail to punish a
defendant or surety, nor to increase the revenue of the
state.'' State v. Musgrove (1980), 187 Mont. 549, 553, 610
P.2d 710, 712 (Musgrove - I). Under the facts and
circumstances of this case, we find the excessive forfeiture
constituted an abuse of discretion. We therefore reverse and
remand.
On remand, the District Court is not strictly limited to
a dollar-for-dollar assessment of the State's loss. When
examining the facts and circumstances of this case, the court
should consider, among other factors:
1. The willfulness of the defendants' 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. Any intangible costs;
5. The public interest in ensuring a defendant's
appearance; and,
6. Any mitigating factors.

We Concur: -A
.