Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge; Hon. John T. Hawley, Jr., Magistrate.
The opinion of the court was delivered by: Lansing, Chief Judge
District court‟s appellate decision affirming magistrate court‟s order denying motion to exonerate bond, affirmed.
This is an appeal by Two Jinn, Inc., a bail bond company, from the district court‟s appellate decision affirming a magistrate court order that denied Two Jinn‟s motion to set aside a bail bond forfeiture after the bonded defendant was deported.
Rosendo Arriago Navarro was arrested for driving without privileges and was released from custody on a $500 bail bond posted by Two Jinn, Inc., dba Aladdin Bails Bonds/Anytime Bail Bonds. Navarro pleaded guilty, and sentencing was scheduled for August 15, 2007. When Navarro failed to appear for his sentencing hearing, the magistrate immediately entered an order of bond forfeiture and issued a bench warrant for Navarro‟s arrest.
On February 6, 2008, 175 days after the order of forfeiture, Two Jinn filed a motion to set aside the forfeiture and exonerate it from liability on the bond. Two Jinn contended that because Navarro had been deported to Mexico, it was entitled to relief under the contract law doctrine of impossibility of performance and, in the alternative, that the forfeiture should be set aside under former Idaho Criminal Rule 46(e)(4), which authorized such action where "justice does not require enforcement of the forfeiture."
The magistrate court denied the motion, primarily on the ground that Two Jinn had provided insufficient and unreliable evidence in support of its motion. Two Jinn appealed to the district court. At the conclusion of the appellate briefing, the district court determined that it needed further evidence and sua sponte ordered a trial de novo on one limited issue. At the subsequent district court hearing, new evidence was presented. The district court eventually issued a decision affirming the magistrate court‟s denial of Two Jinn‟s motion.
Two Jinn now further appeals.
A. This Court Will Not Consider the New Evidence Presented to the District Court
When there has been an intermediate appeal from the magistrate division to the district court, this Court ordinarily directly reviews the district court‟s appellate decision. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008). We also ordinarily examine the magistrate‟s record to determine whether there is substantial and competent evidence to support the magistrate‟s findings and whether the magistrate‟s conclusions of law follow from those findings. Id. When the district court has appropriately determined to conduct a trial de novo on appeal, however, we would consider the factual record made in the district court. Gilbert v. Moore, 108 Idaho 165, 168-69, 697 P.2d 1179, 1182-83 (1985). As we shall explain below, in this case the district court‟s trial de novo order was not authorized by law, and we therefore restrict our review to the evidentiary record made in the magistrate division.
The only evidence presented to the magistrate court by Two Jinn in support of its motion for exoneration of the bond was an affidavit of its employee, David Gann, and attached documents. The affidavit said that on August 20, 2007, five days after the bond forfeiture order was entered, Gann was assigned to the case. It said that on August 29 Gann telephoned a friend of Navarro‟s, who said that Navarro had been deported to Mexico, and that over a month later on October 9, 2007, Gann telephoned the United States Immigration and Customs Enforcement (I.C.E.) and spoke to a man named Adam. According to the affidavit, Adam told Gann that Navarro had been deported on August 28, 2007, approximately two weeks after his failure to appear for sentencing. The Gann affidavit also interpreted the content of an attached Ada County jail booking sheet, averring that this record showed that "the Defendant was in the custody of the Ada County Sheriff on July 27, 2007 through August 1, 2008, when he was released to I.C.E." In its order denying the motion, the magistrate held that "the record in this case does not conclusively show Defendant was actually deported"; rather, the magistrate said, the Gann affidavit with its attached documents "indicates" that Navarro "may have been" deported and that Navarro "may have been" in the custody of the Ada County jail at the time specified. It appears that the magistrate found Two Jinn‟s hearsay evidentiary showing to be less than convincing and that the magistrate declined to rely upon Gann‟s explanation of the content of an ambiguous jail record attached to his affidavit.
In its appeal to the district court, Two Jinn attached to its appellant‟s brief three I.C.E. documents indicating that Navarro had been deported on August 27, 2007. These documents had not been submitted to the magistrate, however, because they apparently were obtained after the magistrate‟s decision. The State, in its briefing and argument below, did not object to this impermissible procedure.*fn1
At the conclusion of the appellate briefing to the district court, the district court determined that it needed further evidence and sua sponte ordered a trial de novo on one limited issue, saying:
The Court intends to take additional evidence on one point only--how and why the Defendant, Navarro, was taken into the Ada County Jail on July 27, 2007. More specifically, the Court orders the parties to present a witness from Ada County Jail Inmates Record personnel regarding the item "Charge: S LE-403-F" and what that charge means. The Court ...