Lead Opinion
{¶ 2} "THE TRIAL COURT ERRED IN NOT GIVING DEFENDANT/SURETY *2 DUE PROCESS NOTICE TO SHOW CAUSE WHY JUDGMENT SHOULD NOT BE ENTERED AGAINST THEM FOR THE FULL AMOUNT STATED IN THE RECOGNIZANCE."
{¶ 4} "Upon declaration of forfeiture, the magistrate or clerk of the court adjudging forfeiture shall proceed as follows:
{¶ 5} "(C) As to recognizances he shall notify accused and each suretyby ordinary mail at the address shown by them in their affidаvits ofqualification or on the record of the case, of the default of theaccused and the adjudication of forfeiture and require each of them toshow cause on or before a date certain to be stated in thе notice, andwhich shall be not less than twenty nor more than thirty days from dateof mailing notice, why judgment should not be entered against each ofthem for the penalty stated in the recognizance. If good cause by production of the body of the accused or otherwise is not shown, the court or magistrate shall thereupon enter judgment against the sureties or either of them, so notified, in such amount, not exceeding the penalty of the bond, as has been set in the adjudication of forfeiture, and shall award execution therefor as in civil cases. The proceeds of sale shall be received by the clerk or magistrate and distributed as on forfeiture of cash bail." (Emphasis ours).
{¶ 6} Akbar contends that the trial court entered judgment without complying with the notice requirements of R.C.
{¶ 8} Akbar contends in his brief that he first became аware of the pending forfeiture May 11 when he was contacted by telephone by the trial court and told to produce Martin by June 16 or face forfeiture of the bond. Akbar states that he contacted Fairmont with this information on May 14, and аppeared before the trial court May 17 to request more time to produce Martin. Although these contentions do not appear of record, they are in all material respects consistent with the record.
{¶ 9} The trial cоurt's June 19 "Judgment on Forfeited Recognizance," from which this appeal is prosecuted, states:
{¶ 10} "The Court finds that the Defendant has failed to appear before the Court as required, in default of the conditions of a recognizance given into (sic) this case.
{¶ 11} "On May 16, 2006, the Court, in open session and upon the record, discussed the issue with Gary N. Akbar, bondsman for Defendant.
{¶ 12} "At that time, the Court granted said bondsman until June 16, 2006, at 9:00 a.m., to produce said Defendant or the bond would be ordered forfeitеd.
{¶ 13} "As of the date of this entry, said bondsman has failed to produce the Defendant and said recognizance is hereby adjudged forfeited.
{¶ 14} "Therefore, it is Ordered, Adjudged and Decreed that judgment herein be entered *4 and execution awarded jointly and severally against said Principal, Dontae L. Martin; said Surety, Gary N. Akbar; and Fairmont Specialty Insurance Company in the amount of Five Thousand dollars ($5,000.00)."
{¶ 16} In State v. Ward (1978),
{¶ 17} "This 19th day of December, 1975 the court finds that the defendant herein entered a plea of guilty as charged in the indictment and was thereby convicted as to count No. 2 of the indictment on July 16, 1975. The court further finds that on September 8, 1975, a judgment entry was filed revoking thе defendant's bond for the reason that the whereabouts of the defendant was unknown and said defendant was unable to be located for the purpose of sentencing. At the same time, the court issued a bench warrant for the arrest of the defendant.
{¶ 18} The court further finds that judgment in the amount of $2,500.00 should be awarded in favor of the State of Ohio and against Charles Ward, defendant herein, and the Midland Insurance Company. *5
{¶ 19} "It is therefore ordered that judgment be awarded in favor of the State of Ohio and against the defendant Charles Ward and against the Midland Insurance Company, surety herein, in the sum of $2,500.00. It is further ordered that the surety herein shall produce the body of the said defendant within 20 days of this date or said judgment shall be final."
{¶ 20} The surety failed to produce Ward within the twenty days provided for in the order. Ward was apprehended in February, 1976, and sentenced two months later, prompting the surety's motion to vacate the forfeiture order.
{¶ 21} We find the procedure in this case remarkаbly similar to that employed in Ward. In Ward, the judgment of December 19, 1975, was conditional and the surety was given twenty days to produce Ward before the judgment became final. Here, the trial court personally advised the bondsman on May 16 that bond would be forfеited if he did not produce Martin by June 16.
{¶ 22} The sweep of R.C.
{¶ 23} While it is clear that the trial court failed to provide the statutory notices, such was also the situation in Ward. Nothing of record or in Akbar's brief suggests that Akbar was *6
actually prejudiced by the court's noncompliance with R.C.
{¶ 24} Should Akbar at some point produce Martin for the court, he may seek relief under R.C.
{¶ 25} The assignment of error is overruled.
DONOVAN, J., concurs.
Dissenting Opinion
{¶ 27} The majority misapplies R.C.
{¶ 28} Courts are authorized by Crim.R. 46(A) to release an accused upon the posting of an amоunt and type of bail set by the court. "Bail" is a form of security such as cash or a bond. Black's Law Dictionary (Seventh Ed.). Crim.R. 46(A)(3) authorizes the court to accept a surety bond as bail. "A surety bond is a contract in which the surety promises the court that it will рay a monetary penalty if the accused who is released on the bond posted by the surety fails to appear in court when ordered." State v. Scherer (1995),
{¶ 29} Forfeiture of bail is governed by R.C.
{¶ 30} "Upon the failure of the accused or witness to appear in accordance with its terms the bail may in open court be adjudged forfeit, in whole or in part by the court or magistrate *7 before whom he is to appear. But such court or magistrate may, in its discretion, continue the cause to a later date certain, giving notice of such date to him and the bail depositor or sureties, and adjudge the bail forfeit upon failure to appear at such later date."
{¶ 31} R.C.
{¶ 32} R.C.
{¶ 33} From the foregoing, several facts are clear, or should be. A "bail" conditions a defendant's release, but it is not the bond. A surety's bond instead secures the bail. Also, it is the "bail" that is forfeited, not the bond. Rather, after a bail forfeiture, a judgment is entered on *8 the bond against the surety as a penalty, in the amount of the bail that was ordered forfeit. The majority's anаlysis ignore those distinctions, leading it to misconstrue the law applicable to them.
{¶ 34} In the present case, when the Defendant failed to appear as ordered on March 16, 2006, the court notified the surety by letter that the Defendant's aрpearance was continued to June 15, 2006, and that a forfeiture would then be ordered if the Defendant failed to appear. That is a procedure contemplated by R.C.
{¶ 35} In State v. Ward, the court ordered a bail forfeit for the accused's nonappearance, and two months later entered judgment against the surety on its bond. The court failed to provide the surety the prior notice and opportunity mandated by R.C.
{¶ 36} The surety in Ward failed to produce the body of the accused within the time provided. On appeal from the judgment on its bond, the surety argued that the court's failure to provide the prior notice and opportunity required by R.C.
{¶ 37} Ward stands for the proposition that a surety's right to avoid a judgment on its bond following a bail forfeiture which is conferred by R.C.