2021 Colorado Code
Title 16 - Criminal Proceedings
Article 4 - Release From Custody Pending Final Adjudication
Part 1 - Release on Bail
§ 16-4-111. Disposition of Security Deposits Upon Forfeiture or Termination of Bond

1. 1. If a defendant is released upon deposit of cash in any amount or upon deposit of any stocks or bonds and the defendant is later discharged from all liability under the terms of the bond, the clerk of the court shall return the deposit to the person who made the deposit.
   2. 1. If the depositor of the cash bond is the defendant and the defendant owes court costs, fees, fines, restitution, or surcharges at the time the defendant is discharged from all liability under the terms of the bond, the court may apply the deposit toward any amount owed by the defendant in court costs, fees, fines, restitution, or surcharges if the defendant voluntarily agrees in writing to the use of the deposit for such purpose. A defendant shall not be required to agree to apply the deposit toward any amount owed by the defendant as a condition of release. If any amount of the deposit remains after paying the defendant's outstanding court costs, fees, fines, restitution, or surcharges, the court shall return the remainder of the deposit to the defendant. (b) (I) If the depositor of the cash bond is the defendant and the defendant owes court costs, fees, fines, restitution, or surcharges at the time the defendant is discharged from all liability under the terms of the bond, the court may apply the deposit toward any amount owed by the defendant in court costs, fees, fines, restitution, or surcharges if the defendant voluntarily agrees in writing to the use of the deposit for such purpose. A defendant shall not be required to agree to apply the deposit toward any amount owed by the defendant as a condition of release. If any amount of the deposit remains after paying the defendant's outstanding court costs, fees, fines, restitution, or surcharges, the court shall return the remainder of the deposit to the defendant.
      2. If the depositor of the cash bond is not the defendant, but the defendant owes court costs, fees, fines, restitution, or surcharges at the time the defendant is discharged from all liability under the terms of the bond, the court shall not apply the deposit toward the amount owed by the defendant in court costs, fees, fines, restitution, or surcharges. The court shall return the deposit to the depositor.
      3. A depositor of a cash bond who is not the defendant may deposit bond funds directly with the jail. The depositor shall not be required to pay any additional fees, costs, or surcharges other than the bond amount and bond processing fee. The depositor shall not be required to apply bond funds to the defendant's inmate account for payment of the bond and shall not be required to deposit money in the defendant's name.

2. 1. Upon satisfaction of the terms of the bond, the clerk of the court shall execute, within fourteen days after such satisfaction, a release of any deed of trust given to secure the bond and an affidavit that states that the obligation for which the deed of trust had been recorded has been satisfied, either fully or partially, and that the release of such deed of trust may be recorded at the expense of the record owner of the property described in such deed of trust.
   2. If there is a forfeiture of the bond pursuant to this section, and if the forfeiture is not set aside pursuant to subsection (4) of this section, the deed of trust may be foreclosed as provided by law.
   3. If there is a forfeiture of the bond pursuant to this section, but the forfeiture is set aside pursuant to subsection (3) of this section, the clerk of the court shall execute a release of any deed of trust given to secure the bond and an affidavit that states that the obligation for which the deed of trust had been recorded has been satisfied, either fully or partially, and that the release of such deed of trust may be recorded at the expense of the record owner of the real estate described in such deed of trust.

3. When the defendant has been released upon deposit of cash or property, upon an unsecured personal recognizance bond with a monetary condition pursuant to section 16-4-104 (1)(a) or (1)(b), or upon a surety bond secured by property, if the defendant fails to appear in accordance with the primary condition of the bond, the court shall declare a forfeiture. Notice of the order of forfeiture shall be mailed by the court to the defendant, all sureties, and all depositors or assignees of any deposits of cash or property if such sureties, depositors, or assignees have direct contact with the court, at their last-known addresses. Such notice shall be sent within fourteen days after the entry of the order of forfeiture. If the defendant does not appear and surrender to the court having jurisdiction within thirty-five days from the date of the forfeiture or within that period satisfy the court that appearance and surrender by the defendant is impossible and without fault by such defendant, the court may enter judgment for the state against the defendant for the amount of the bond and costs of the court proceedings. Any cash deposits made with the clerk of the court shall be applied to the payment of costs. If any amount of such cash deposit remains after the payment of costs, it shall be applied to payment of the judgment.
4. The court may order that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice so requires.
5. If, within one year after judgment, the person who executed the forfeited bond as principal or as surety effects the apprehension or surrender of the defendant to the sheriff of the county from which the bond was taken or to the court which granted the bond, the court may vacate the judgment and order a remission less necessary and actual costs of the court.
6. The provisions of this section shall not apply to appearance bonds written by compensated sureties, as defined in section 16-4-114 (2)(c), which bonds shall be subject to the provisions of section 16-4-114.
7. On and after July 1, 2008, all moneys collected from payment toward a judgment entered for the state pursuant to paragraph (b) of subsection (1) of this section shall be transmitted to the state treasurer for deposit in the judicial stabilization cash fund created in section 13-32-101 (6), C.R.S.

History. Source: L. 2013: Entire part R&RE,(HB 13-1236), ch. 202, p. 832, § 2, effective May 11. L. 2014: (3) amended,(SB 14-212), ch. 397, p. 2000, § 7, effective July 1. L. 2019: (1)(b) amended,(SB 19-191), ch. 288, p. 2668, § 2, effective August 2.

Annotator's note. Since § 16-4-111 is similar to § 16-4-109 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.

There must be due process before any judgment may issue in connection with a bond forfeiture, and want of conformance to the procedure outlined by law is a violation of the surety's rights. Herbertson v. People, 160 Colo. 139 , 415 P.2d 53 (1966).

“Forthwith” means promptly and without unnecessary delay. Notices of orders of forfeiture which were mailed to sureties 34 days and 43 days after the entry of such orders did not comply with the “forthwith” standard. Moreno v. People, 775 P.2d 1184 (Colo. 1989).

A trial court's failure to give surety “forthwith” notice does not result in a presumption of prejudice to the surety. Moreno v. People, 775 P.2d 1184 (Colo. 1989).

Forfeiture of a bond based on a defendant's failure to appear is not disfavored. Moreno v. People, 775 P.2d 1184 (Colo. 1989).

Judgment cannot be entered same day as forfeiture. In a bail bond forfeiture proceeding at a hearing to determine whether the principal is in default, judgment against the surety cannot be entered on the same day. Herbertson v. People, 160 Colo. 139 , 415 P.2d 53 (1966).

Section does not authorize setting aside a judgment on a forfeiture; it only authorizes setting aside a forfeiture prior to judgment. People v. Caro, 753 P.2d 196 (Colo. 1988).

Judgment for penal sum or costs allowed. When it appears that the defendant was pursued, apprehended, and returned by the state, without any assistance from those answerable for his appearance, judgment should be entered for the penal sum of the bond, unless the court, in light of all of the circumstances surrounding defendant's failure to appear in the exercise of its sound discretion may see fit to enter judgment for a lesser amount. In no event should judgment be entered for an amount less than the full amount of costs occasioned by the defendant's failure to appear. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).

A judgment based on forfeiture of a criminal recognizance is final. Van Gilder v. City & County of Denver, 104 Colo. 76 , 89 P.2d 529 (1939).

Surety should act promptly where recognizance forfeited. A surety on a criminal recognizance which has been forfeited who wishes to obtain relief from liability should act promptly and while evidence against the defendant is still available. Van Gilder v. City & County of Denver, 104 Colo. 76 , 89 P.2d 529 (1939).

Acts of God, of the state, or of law relieve a surety from liability. A trial court has no jurisdiction to relieve the surety from liability on a bail bond except on grounds generally recognized by the law as excusing the performance of the undertaking, and such grounds exist only when the appearance of accused is made impossible by an act of God, an act of the state which is the beneficiary of the bond, or an act of law. Where the principal in a bail bond dies before the day of performance or is prevented by illness from appearing, the case is within the first category. Where the principal in a bail bond is in prison within the state, pursuant to a judgment of a court of competent jurisdiction of the state, the case comes within the second category. Where the party has been turned over to the federal court within the state by a prior bondsman and is serving a sentence by that court, or if the party has been arrested in the state where the obligation is given and sent out of the state by the governor upon requisition from another state or foreign jurisdiction, the case falls within the third category. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).

Where the defendant in a criminal case is imprisoned in another state at the time his case is called for trial and cannot appear pursuant to the conditions of his bond, and the surety thereon offers to defray the costs and expenses involved in returning the defendant to Colorado upon completion of the imprisonment which prevented his attendance in the trial court, the surety is relieved from a forfeiture. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).

Where the defendant is not produced at all, or turns up only after a long lapse of time, the courts will ordinarily deny remission without regard to the mitigating factors asserted in connection with his nonappearance, except in cases of death, insanity, or imprisonment. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).

Defendant who is transferred from the state's custody to a federal agency pursuant to a detainer has never been released into the legal custody of the surety who is consequently discharged from any liability on the bond. People v. Gonzales, 745 P.2d 263 (Colo. App. 1987).

Hospitalization is valid excuse for failure to appear. The defendant's hospitalization following an automobile accident is a valid excuse for his failure to appear at a scheduled hearing. People v. Smith, 673 P.2d 1026 (Colo. App. 1983).

The standard in subsection (3) is essentially an appeal to the conscience of the court. No clear rule can be set down which will guide the trial court in every case since the facts and circumstances of each individual case must be considered in their totality. No one factor will be determinative in all cases. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).

And court has discretion to relieve forfeiture for other reasons. Following the rule that the discretion is in the court to do as it sees fit about forfeiting a bond, matters which would appeal to the sympathy of the ordinary individual, even if not to a judge, should be put in evidence. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).

The decision as to whether or not a forfeited bond should be remitted is entrusted to the trial court's discretion by subsection (3) of this section and Crim. P. 46. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).

Trial court abused its discretion where the sureties made substantial efforts to locate, seize, and surrender defendant to authorities, and defendant was in custody in the adjoining county due principally to the efforts of the sureties. People v. Mendez, 708 P.2d 126 (Colo. App. 1985).

Forfeiture proceeding not to enrich public treasury. The enriching of the public treasury is not part of the object at which a forfeiture proceeding is aimed. People v. Campbell, 633 P.2d 509 (Colo. App. 1981).

Effect of material increase of risk to bondsman. When a bondsman enters into a surety agreement, he undertakes a calculated risk, so that events which materially increase that risk have the effect of terminating the obligation. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).

Court not required to notify surety of defendant's permitted absence. Neither the case law nor subsection (2) imposes a duty on the court to give a surety notice of the permitted absence of a defendant from a hearing. People v. Smith, 673 P.2d 1026 (Colo. App. 1983).

By approving defendant's departure from state without notice to surety, the court terminates any control the surety might have had over the defendant and the court's action discharges the surety from any obligation under a bail bond. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).

Words “without leave” in the bond do not include departure from the jurisdiction of the court. But where the defendant given permission to absent himself only from the court and not from the court's jurisdiction, the court complies with the existing conditions of the bond contract, rather than changing them, materially or otherwise. People v. Smith, 673 P.2d 1026 (Colo. App. 1983).

Considerations in determining whether to order remission of forfeited bond. In exercising its discretion as to whether to order remission of a forfeited bond, the trial court may consider whether the defendant has been produced within a reasonable time after forfeiture, whether the people have lost any rights against the defendant, whether the defendant's failure to appear was wilful, and whether a forfeiture will subject the surety to an extreme hardship. People v. Schliesser, 39 Colo. App. 54, 563 P.2d 377, rev'd on other grounds sub nom. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).

Such as hardship to surety. When state incurred no expenses and lost no legal rights due to defendant's nonappearance and guarantor of bond was subjected to extreme hardship due to monthly payments on the bond, the trial court abused its discretion in denying a motion for return of the forfeited bond. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).

The only factor which the courts of this state have considered as basis for remission where the principal disappears is whether the surety will thereby suffer extreme hardship, such hardships as will cause destitution to a family, deprive children of support and education, or creditors of their just debts. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).

Where defendant is produced within reasonable time after forfeiture, remission will be granted to a surety if the people have not lost any rights as a result of his nonappearance, especially if his failure to appear was other than deliberate and wilful. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).

Where the accused had not been returned to custody at the time of the hearing on the motion to remit the bond, and where the guarantor did not establish that he would suffer extreme hardship as a result of the forfeiture, the trial court did not abuse its discretion by denying the motion for reimbursement. People v. Gossett, 680 P.2d 1323 (Colo. App. 1984).

One of the functions of a bond is to relieve state of burden of securing appearance in court by giving bondsman a strong incentive to insure such attendance. Where person posting bond made money available to the court and did all that could be expected in attempting to secure defendant's attendance in court, purposes of bond were served and state will not be penalized by bond's remittance. People v. Saviano, 677 P.2d 414 (Colo. App. 1983).

Setting aside of bond forfeitures not warranted by this section where the defendant, released on bail after posting of bond, failed to appear at her hearing because police had told her that she would be arrested on another charge as soon as the arrest warrant for her was located. People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979).

Limitation on reversal of decision not to order remission. The decision not to order remission of a forfeited bond may be reversed only if it appears that the trial court has abused its discretion. People v. Schliesser, 39 Colo. App. 54, 563 P.2d 377, rev'd on other grounds sub nom. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977); People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979); People v. Saviano, 677 P.2d 414 (Colo. App. 1983).

Determination of “material increase of risk” to bondsman dependent upon terms of bond agreement. The court must look to the bond agreement to determine whether a trial court's action in allowing withdrawal of a guilty plea materially increases the risk of the bondsman and terminates the bondsman's surety obligation. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976); People v. Tyler, 797 P.2d 22 (Colo. 1990).

Failure of district attorney to seek international extradition of defendant does not exonerate surety from liability where the defendant, a Mexican national, is located by surety in Mexico and it is known that Mexico does not extradite its nationals. People v. Bustamante-Payan, 856 P.2d 42 (Colo. App. 1993).

Applied in People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 (Colo. 1984).