February 26, 2010; withdrawn and opinion filed March 4, 2010
Appeal from the District Court of the Third Judicial District, State of Idaho, Payette County. Hon. Stephen W. Drescher, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Order denying motion to set aside forfeiture and exonerate bond, reversed and case remanded.
Two Jinn, Inc. appeals from the district court's denial of its motion to set aside forfeiture and exonerate bond. For the reasons set forth below, we reverse and remand.
On December 4, 2007, Two Jinn, Inc. d/b/a Aladdin Bail Bonds/Anytime Bail Bonds (Two Jinn) posted a $5,000 bond for Larry Grant Dana, Jr. who had been charged with failure to register as a sex offender in violation of Idaho Code § 18-8309. When Dana did not appear at his January 23, 2008, pretrial hearing, his attorney advised the district court that Dana was coming from out of town and had encountered transportation problems. The court then issued a notice of forfeiture of the bond and a bench warrant, but stayed execution of the warrant until February 12, 2008, when the jury trial was to commence. Notice of the forfeiture, including an indication that the bench warrant had been stayed, was mailed to Two Jinn on January 25.
After receiving the forfeiture notice, Two Jinn employed Northwest Surety Investigators, Inc. (NSI) to locate Dana. According to an affidavit filed by an NSI employee, the case was initially assigned to the "pre-investigations unit" which "conducted court calls, jail checks and completed preliminary investigation by attempting to contact the Defendant's family, friends, employers, and co-signor and by following up on secondary leads generated off of the original application." The employee further averred that because the bench warrant had been stayed, the case was not assigned to an NSI investigator until February 4.
When Dana again failed to appear in court on February 12, the court ordered execution of an active bench warrant, setting bond at $50,000. On July 21, 2008, 180 days after the notice of forfeiture was issued, Two Jinn filed a motion to set aside forfeiture and exonerate bond, contending that the court failed to issue a bench warrant at the time of forfeiture as required by statute and interfered with Two Jinn's ability to locate and surrender Dana. The state filed an objection to the motion and after holding a hearing, the district court denied the motion. Two Jinn now appeals.
Two Jinn contends that the district court abused its discretion in denying its motion to set aside the bond forfeiture where the interests of justice required the exoneration of the bond. More specifically, Two Jinn argues that the district court breached the bond contract by deviating from the statutory requirement that it issue an active bench warrant at the time it forfeited the bond and that Two Jinn was prejudiced by this action.
At the time Two Jinn's motion to set aside forfeiture and exonerate bond was at issue, I.C. § 19-2927 and Idaho Criminal Rule 46 governed the forfeiture, relief from forfeiture, and exoneration of bail.*fn1 In relevant part, I.C. § 19-2927 stated:
If, without sufficient excuse, the defendant neglects to appear before the court upon any occasion when his presence has been ordered the court must immediately direct the fact to be entered upon its minutes, order the forfeiture of the undertaking of bail, or the money deposited instead of bail, as the case may be, and order the issuance of a bench warrant for the arrest of the defendant. The clerk shall mail written notice within five (5) days of the forfeiture for failure to appear to the last known address of the person posting the undertaking of bail. A failure to give timely notice shall exonerate the bail or undertaking. If at any time within one hundred eighty (180) days after such entry in the minutes, the defendant appears and satisfactorily excuses his neglect, the court shall direct the forfeiture of the undertaking or the deposit to be exonerated.
If, within one hundred eighty (180) days of the date of forfeiture, a person, other than the defendant, who has provided bail for the defendant, surrenders the defendant to any Idaho peace officer, the ...