State v. Goforth

State v. Goforth
1989 OK 37
772 P.2d 911
60 OBJ 630
Case Number: 66675
Decided: 03/07/1989
Supreme Court of Oklahoma

 
THE STATE OF OKLAHOMA, APPELLANT,
v.
RANDY GOFORTH AND ORREN THOMPSON, APPELLEES.

Certiorari to the Court of Appeals, Oklahoma City Division, Trial Judge of the Oklahoma County District Court, The Honorable Jack Parr.

¶0 The trial court sustained the appellees' motion to set aside a bond forfeiture finding that 59 O.S.Supp. 1984 § 1332 should be applied to an unlicensed bondsman, because a licensed bondsman, under the same statute and circumstances, would not forfeit the bond after a plea of guilty by the defendant. The State of Oklahoma appealed, and the Court of Appeals reversed the trial court. On certiorari, we find that the Okla. Const., art. 5, § 46 requires that unlicensed bondsmen be afforded the same statutory protections concerning exoneration from liability as a licensed bondsman.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED.

Robert H. Macy, Dist. Atty., District No. 7, Winonia Griffin, Asst. Dist. Atty., Oklahoma City, for appellant.

Frank E. Walta, Coleman, Walke & Briggs, Oklahoma City, for appellees.

KAUGER, Justice.

[772 P.2d 912]

¶1 This case of first impression concerns whether a grandfather, who posts bond for his grandson, is entitled to the same statutory protections as a licensed bondsman. We find the Okla. Const., art. 5, § 46 requires the application of 59 O.S.Supp. 1984 § 1332 ,

FACTS

¶2 On November 7, 1985, Orren Thompson/grandfather-appellee, who is not a licensed bail bondsman, posted a $7,000.00 cash bond for the release of Randy Goforth/(grandson-appellee) pending his grandson's arraignment on a second degree burglary charge. The terms of the printed bond form required the grandson to appear on December 16, 1985, at 9:00 a.m. and from day to day to answer the charge against him. On March 4, 1986, the grandson appeared, plead guilty, and was sentenced to ten years in prison. At the grandson's request, sentencing was continued for thirty days. The grandfather was not present when the grandson plead guilty, and he had not agreed to remain on bond during the thirty days before formal sentencing. The grandfather would have been statutorily exonerated from liability at this point, had he been a licensed bondsman. When the grandson failed to appear on April 4, 1986, the bond was ordered forfeited.

¶3 On May 2, 1986, the grandfather filed a motion to set aside the forfeiture under the provisions of 59 O.S.Supp. 1984 § 1332 . The trial court, recognizing that a licensed bondsman would be given notice of the forfeiture and an opportunity to set the forfeiture aside,

THE OKLA. CONST. ART. 5, § 46 REQUIRES THAT THE STATUTORY PROTECTIONS CONCERNING EXONERATION FROM LIABILITY MUST BE APPLIED TO LICENSED AND UNLICENSED BONDSMEN.

¶4 The grandfather argues that at the time of these proceedings, pursuant to 59 O.S.Supp. § 1332 (D), a bondsman licensed under the Act, was exonerated upon a defendant's plea of guilty. Defendants were not entitled to remain free on bond after a plea of guilty unless the bondsman agreed, in writing, to extend the liability on the bond. The grandfather contends that the only statute applicable to him, 22 O.S. 1981 § 1108 , does not afford the same protections. The grandfather concludes that the State has an unconstitutional regulatory scheme which creates two classes - licensed bondsmen and unlicensed individuals - who in identical circumstances, are treated differently insofar as the exoneration of the bail bond is concerned.

¶5 The State counters that the statute is not unconstitutional because the cash the grandfather posted for the grandson is presumed to be the grandson's. The State also argues that the grandfather is not entitled to the protection afforded licensed bondsmen because he is not regularly engaged in the bail bond business, nor is he subject to the regulatory procedures of the Insurance Commission. The State asserts that an unlicensed bondsman is not entitled to the same privileges as licensed bondsmen because licensees are required to make private disclosures, and to pay fees which private bondsmen are not required to do.

A.

¶6 Cash bail has been subject to statutory regulation since the pre-statehood enactment of Wilson's Statutes in 1903.

¶7 Although other jurisdictions have adopted this principle,

B.

¶8 The application of bond forfeiture scheme to the grandfather is unconstitutional if we read 22 O.S. 1981 § 1108 (A) and 59 O.S.Supp. 1984 § 1332 separately. It is a well settled rule of statutory construction that a presumption of constitutionality must be applied. If a statute is susceptible of two constructions - one which will uphold the statute, and one which will strike it down - it is our duty to apply constitutional construction.

¶9 The cardinal objective of statutory construction is the determination of legislative intent.

¶10 The enactment of any special law allowing any non-uniform regulations of bond forfeiture is forbidden by the Okla. Const., art. 5, § 46 .

¶11 CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED.

¶12 HARGRAVE, C.J., and HODGES, ALMA WILSON and SUMMERS, JJ., concur.

¶13 LAVENDER, J., concurs in result.

¶14 OPALA, V.C.J., and SIMMS, J., dissent.

Footnotes:

1 Title 59 O.S.Supp. 1984 § 1332 (D) provides in pertinent part:

". . . When a defendant does appear before the court as required by law and is convicted of a crime or enters a plea of guilty to a crime, in such event the undertaking and the bondsman and insurer shall forthwith be exonerated from further liability unless approved thereafter, in writing, by said bondsman. . . ."

This provision was amended in 1988 and provides in pertinent part:

". . . When a defendant does appear before the court as required by law and is sentenced or a deferred sentence is granted as provided for in Section 991c of Title 22 of the Oklahoma Statutes, in such event the undertaking and the bondsman and insurer shall forthwith be exonerated from further liability unless approved thereafter, in writing, by said bonds-man. . . ."

2 The grandfather received actual notice that the cash bond had been forfeited when his son-in-law inquired about the return of the money. The grandfather filed his motion to set aside the forfeiture within the prescribed thirty days.

3 The forfeiture of bail statute, 22 O.S. 1981 § 1108 (A), provides:

"A. If, without sufficient excuse, the defendant neglects to appear according to the terms or conditions of the recognizance, bond or undertaking, either for hearing, arraignment, trial or judgment, or upon any other occasion when his presence in court or before the magistrate may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes, and the recognizance, bond or undertaking of bail, or the money deposited instead of bail, as the case may be, is and shall be thereupon declared forfeited. But, if at any time before the final adjournment of court the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture to be discharged upon such terms as may be just. After the forfeiture, the district attorney must proceed with all due diligence, by action against the bail upon the instrument so forfeited. If money deposited instead of bail be so forfeited, the clerk of the court or other officer with whom it is deposited, must, immediately after the final adjournment of the court, pay over the money deposited to the county treasurer."

This statute was amended in 1988, however this provision remained unchanged.

4 The cash bail provision, Wilsons Statutes of Okla. § 5774 (1903), provides:

"A deposit of the sum of money mentioned in the order admitting to bail is equivalent to bail and upon such deposit the defendant must be discharged from custody."

5 United States v. Widen, 38 F.2d 517, 519 (N.D. Ill. 1930); Mundell v. Wells, 181 Cal. 398, 184 P. 666-67, 7 A.L.R. 383, 387 (1919); People v. Castro, 119 Misc.2d 787, 464 N.Y.S.2d 650, 656 (1983); State v. Grant, 44 Or. App. 671, 606 P.2d 1166-67 (1980); State v. Wilson, 65 Ohio Abs. 422, 115 N.E.2d 193, 196 (1950). See also, Annot., "Right to Apply Cash Bail to Payment of Fine," 92 A.L.R.2d 1084, 1087 (1963).

6 United States v. Jones, 607 F.2d 687-88, 58 A.L.R.Fed. 671, 674 (5th Cir. 1979); Bridges v. United States, 588 F.2d 911-12 (4th Cir. 1978); State v. Gutierrez Barajas, 153 Ariz. 511, 738 P.2d 786, 788 (Ct.App. 1987); People v. Castro, see note 5, 464 N.Y.S.2d at p. 657, supra. See also, Annot., "Right to Apply Cash Bail to Payment of Fine," see note 5, at p. 1093, supra.

7 Title 59 O.S.Supp. 1984 § 1332 provides in pertinent part:

"A. If there is a breach of the undertaking, the court before which the cause is pending shall declare the undertaking and any money, property or securities that have been deposited as bail, forfeited. In the event of the forfeiture of a bail bond the clerk of the trial court shall notify, by mail with return receipt requested, the bondsman, the Insurance Commissioner and if applicable, the insurer, whose risk it is, and keep at least one copy on file.

B. The bondsman may file with the court, within thirty (30) days from the date of notice, a motion to set aside the order of forfeiture, which motion shall contain the grounds upon which it relies . . ."

This statute was amended in 1988, however these provisions remain substantially the same. See, 22 O.S. 1981 § 1108 (A), note 3, supra.

8 Bennett v. State, 147 Okl. 14, 294 P. 149-50 (1930); Dickinson v. Perry, 75 Okl. 25, 181 P. 504, 509 (1919), aff'd, 259 U.S. 548, 42 S. Ct. 524, 66 L. Ed. 1056 (1922).

9 Oklahoma City News Broadcasters Ass'n v. Nigh, 683 P.2d 72, 75 (Okla. 1984); Walker v. St. Louis-San Francisco Ry. Co., 671 P.2d 672-73 (Okla. 1983); Jackson v. Indep. School Dist. No. 16, 648 P.2d 26, 29 (Okla. 1982).

10 Maule v. Indep. School Dist. No. 9, 714 P.2d 198, 203 (Okla. 1985); R. Aldisert, "Hard Core Judicial Process Problems Facing Judges in the 80's", p. 34 (1982).

11 Wooten v. Hall, 442 P.2d 334, 336 (Okla. 1968); Bd. of Educ. v. State Bd., 201 Okl. 32, 200 P.2d 394, 397 (1948).

12 Maule v. Indep. School Dist. No. 9, see note 10, supra.

13 Local and special laws on certain subjects are prohibited by the Okla. Const., art 5, § 46 , which provides in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: . . .

Remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury; . . . "

14 Reynolds v. Porter, 760 P.2d 816, 822-23 (Okla. 1988); Maule v. Indep. School Dist. No. 9, see note 10, supra; Okla. City v. Griffin, 403 P.2d 463, 465 (Okla. 1965); Fenimore v. State, 200 Okl. 400, 194 P.2d 852, 854 (1948).

15 See Reynolds v. Porter, note 14, supra.