Bail Bond Agent Blog

In City of Xenia v. Diaz, 2003 WL 22972039 (Ohio App. December 19, 2003) the court treated a cash deposit made by a third party as a cash bond by the defendant and not as a surety bond. The defendant was subject to an INS detainer, and even though bond was posted he never was released from custody. It appears the City did not try to have him returned for trial. The court held that the appellant who furnished the cash was not entitled to the statutory pre-forfeiture notice and an opportunity to show why the bond should not be forfeited which a surety would have been entitled to receive. It held, however, that he was entitled to a post forfeiture hearing to try to show that performance of the obligation was impossible (i.e., that the defendant was in federal custody). This case ought to give pause to anyone considering posting cash bail instead of a surety recognizance in Ohio. It is clear that the procedural protections extended to the surety will be lost if cash bail is provided.

In State v. Delgado, 2004 WL 41404 (Ohio App. January 9, 2004) the trial court granted two extensions of time for the bail bond surety to apprehend the defendant but refused to remit any portion of the forfeiture when the defendant was returned shortly after forfeiture. The trial court’s only reasoning was that the nature of the surety’s business was to assume the risk that the defendant would not appear. The Court of Appeals reversed and remanded holding that the trial court had to consider a number of factors including the delay and cost to the state in obtaining the defendant and preparing for trial a second time, the surety’s efforts to return the defendant, and any other factors the court finds to be relevant. The trial court has discretion but must exercise it in light of the purpose of bail to assure that the defendant appears at all stages of the proceeding.

In State v. Hardin, 2003 WL 23167301 (Ohio App. December 31, 2003) motions for remission of bond forfeitures were filed without requesting a hearing or setting forth any factual basis for relief. The trial court denied the motions without a hearing. The court of appeals affirmed, in a 2-1 decision, even though there was no basis in the record to review whether the trial court considered the various factors governing requests for remission of forfeiture. If the sureties had asked for a hearing and alleged facts entitling them to relief, the opinion suggests they would have been entitled to a hearing.

Jones v. Bea, 2004 WL 442876 (Ohio App. March 12, 2004) is a very strange case. The defendant’s father testified he obtained a $15,205 cashiers check payable to the Clerk of Court to pay a 10% cash bond plus fees to the clerk (he would have been liable for the balance of the $120,000 bond if his son failed to appear) but the bail agent waylaid him at the clerk’s office and insisted on signing the bond for the balance as surety, and they agreed that when the $15,000 was returned the bail agent would give the father $8,000 of the $15,000 and keep the rest as his fee. The defendant did not appear for sentencing and the bond was forfeited. The father then sued the bail agent for converting the cashiers check and won. The Court of Appeals reversed and held that since there was no refund there was no obligation to return anything.

In State v. Harshman, 2004 WL 491410 (Ohio App. March 15, 2004) the trial court ordered that cash bail deposited by the defendant and his mother be applied to court costs and restitution. The Court of Appeals held that this was improper. The Court first noted that the Ohio Supreme Court has held that the purpose of bail is the appearance of the defendant and reasons for forfeiture must be related to nonappearance. The State argued that the form signed when the bail was deposited consented to its application to costs and restitution, but the Court held that the consent was invalid because the availability of bail was conditioned on signing the form.

In State v. Rich, 2004 WL 2390085 (Ohio App. October 22, 2004) the surety (Capital Bonding Corp.) appealed denial of its motions to remit bond forfeitures in two cases in which it surrendered the defendants after forfeiture was entered. In the two cases the trial court made identical findings, including that the surety was negligent in writing the bond because the defendant had failed to appear on prior occasions. The Court of Appeals first held that the 30 day period to appeal ran from the date the clerk entered the defendant’s sentence, not the date the bond was forfeited or the date the motion for remission was denied. The Court also held that the trial court did not abuse its discretion in one of the cases because the record supported its findings but that in the other case there was no evidence the defendant had failed to appear on a prior occasion or that the state was inconvenienced by the failure to appear. In the latter case, the Court reversed and remanded for a determination of how much of the forfeiture should be remitted.

State v. Owens, 2004 WL 2526412 (Ohio App. November 9, 2004) held that the trial court abused its discretion in ordering forfeiture of the defendant’s cash bond. The trial court failed to consider the brief delay between the defendant’s breach and her voluntary appearance and the lack of any cost or inconvenience to the state. Rather than remand for consideration in light of these factors, however, the Court of Appeals directed that the bond money be released.

In Maloney v. Ohio Department of Insurance, 2004 WL 2590952 (Ohio App. October 4, 2004) the Court affirmed the Department’s denial of a bail bondsman’s license to a convicted felon. Ohio R.C. 3905.14 specifically provides that the superintendent of insurance may deny an application based on such a conviction, and there was no abuse of discretion in doing so in this case.

In City of Willoughby v. Beckwith, 2005 WL 880220 (Ohio App. April 15, 2005) the surety filed a motion to vacate forfeiture of its bond and a motion for reconsideration of the denial of the motion to vacate. It then appealed denial of the motion for reconsideration. The Court dismissed the appeal on the grounds that the surety could have appealed the original order of forfeiture or the order denying its motion to vacate the forfeiture, but that a motion for reconsideration of a final order, and any decision on such a motion, are nullities from which no appeal can be taken. Therefore, the appeal was untimely and was dismissed.

Castle Bail Bonds, Inc. v. Stoneman, 2005 WL 1005276 (Ohio App. April 28, 2005) affirmed summary judgment for the surety against the indemnitors (the parents of the defendant) based on a promissory note and indemnity agreement they signed. The court rejected the indemnitors’ argument that they should not be liable because they did not read what they signed or no one explained it to them.

State v. Sheldon, 2005 WL 1283681 (Ohio App. May 27, 2005) held that a bail bond can be revoked for violation of conditions other than appearance, but that a forfeiture could be entered only if the defendant failed to appear. The defendant’s presence at the hearing to show cause why the bond should not be forfeited prevented the trail court from entering a partial forfeiture, and the trial court’s judgment was reversed.

State v. Stoneman, 2005 WL 1384662 (Ohio App. June 9, 2005) denied the surety’s motion to remit all or part of the bond forfeiture. The defendant fled, and the surety was unable to recover him in spite of several time extensions. After the bond was forfeited, the defendant was captured by law enforcement authorities in Canada and returned to Ohio. The court refused to remit any part of the forfeiture and held that the surety’s small expense in trying to locate the defendant weighed against the major, successful efforts of law enforcement personnel fully justified the trail court’s denial of any remittitur.

Smith v. Leis, 835 N.E.2d 5 (Ohio 2005) held that cash only bail violated the provision of the Ohio Constitution guarantying that “all persons shall be bailable by sufficient sureties . . . .” Prior to 1998, the Court had held in several cases that the sufficient sureties clause barred cash only bail, but in 1998 the Constitution was amended, and the issue before the Court was whether the amendments changed that result. In a 4-3 decision, the Court held that it did not. The purpose of the amendment was to allow pre-trial detention, under certain circumstances, of defendants charged with less than a capital offense. Among other things, the amendment added the following to Section 9, Art. I, “the court may determine at any time the type, amount, and conditions of bail.” The Court thought that reading Section 9 as a whole, the added language did not give the court an option to prohibit bail by sufficient sureties.

In State v. Hodge, 2005 WL 2936283 (Ohio App. November 7, 2005) the defendant posted a $50,000 cash bond and fled to Florida. She was arrested there and returned. The state incurred costs of about $6,000 to transport her back to Ohio. The Court affirmed denial of her motion for partial remission of the forfeiture. Her failure to appear was willful, and she was apprehended in Florida and involuntarily returned. The factors to be considered in a request for remission are the cost and inconvenience to the state, the willfulness of the violation and such other factors as the trail court finds relevant. The court properly balanced the relevant factors and denial of the defendant’s motion was not arbitrary, unreasonable or unconscionable.

In State v. Carter, 2005 WL 3337733 (Ohio App. December 9, 2005) the defendant had failed to appear in court 66 times in the past including at least three times in this case. Nevertheless, the bail agency provided a bond, the defendant did not appear, and the bond was forfeited. After the police arrested the defendant, the bail agency moved to remit the forfeiture. The trial court denied the motion, and the Court of Appeals affirmed. Remission is within the discretion of the trial court, and none of the factors to be considered favored remission. The Court noted the defendant’s history and stated, “A company engaged in the bail bond business is ultimately engaged in the business of guaranteeing attendance of the defendant at court hearings.”

In State ex rel. D & D Bonding, Ltd. v. Johnston, 2005 WL 3497709 (Ohio App. December 13, 2005) a bail bond agency and its owners and employees sought writs of Prohibition and mandamus to compel the Judge and Clerk of the Jackson County Municipal Court to accept bail bonds from them. The Court denied all relief. The facts are somewhat muddled, but on January 1, 2004, the Judge issued a bail bond schedule that permitted only cash bonds. On January 23 she withdrew that schedule and issued a replacement that permitted either 100% surety bonds or 10% cash bonds. The plaintiffs did not challenge the disparate treatment of surety bonds and cash bonds. The Court denied as moot the request for an order directing the Judge to accept surety bonds.

The plaintiffs also alleged that the Judge instructed the Clerk not to accept their bonds, but the proof did not support the allegation. The Court also stated that the Judge would have been within her discretion to order the clerk’s office to refuse bonds from an agency if she had doubts about the agent’s authority or intention to pay forfeitures.

State v. Warden, 2005 WL 3507844 (Ohio App. December 23, 2005) held that cash bail deposited by someone other than the defendant could not be used to pay the defendant’s fine. The Court stated that a bail bond can be forfeited only for failure to appear and that cash or securities deposited by anyone other than the defendant cannot be used to pay the defendant’s legal obligations except with the consent of the person making the deposit.

In State v. Hancock, 2006 WL 827386 (Ohio App. March 31, 2006) the defendant failed to appear and the bond was forfeited. The defendant appeared before the hearing to show cause, however, and the court reinstated the bond without notice to the surety or the surety’s consent. The defendant eventually pled guilty but did not appear for sentencing. The trial court forfeited the bond and in due course entered judgment against the surety. The Court of Appeals vacated the judgment because Ohio law permits forfeiture of bonds and remission of forfeitures, but it does not permit reinstatement of a forfeited bond. Once the bond is forfeited, if the defendant appears the court must require a new bond and consider remission of the forfeiture. In this case, the bond was forfeited the first time the defendant failed to appear, and on remand the trial court was directed to consider remission of that initial forfeiture.

Tags: Bail Bond Case Law //