No. 88-015

INTHE SUPREME COURTOF THE STATEOF MONTANA
1988

STATE OF MONTANA Plaintiffand Respondent,

PAUL SEYBERTand DENISE "DUSTY"ROGERS SEYBERT,

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Appellant.

APPEAL FROM: District Court of the Fifth Judicial District, 

### In and for the County ofMadison, TheHonorable FrankM. Davis,Judgepresiding.
COUNSELOF RECORD:
ForAppellant: Brad L. Belke; BelkeLawCenter, Butte,Montana
ForRespondent: Honorable Mike Greely,Attorney General,Helena Montana Betsy Brandborg, AssistantAttorney General Loren Tucker, CountyAttorney,Virginia City,Montana

Submitted onBriefs: March 18, 1988 Decided: April 19, 1988

ClerkMr. JusticeWilliam E. Hunt, Sr. delivered theOpinion of the Court.

On December 10, 1987, the Fifth Judicial Court,Madison County,ordered American Bankers InsuranceCompany of Florida to forfeit 100 percent of the surety bonds posted on behalf of defendants Paul Seybertand Denise "Dusty" Rogers Seybert. The American Bankers InsuranceCompany appealed. We affirm. The issueraised on appeal iswhether theDistrict Court abused its discretion by requiring the appellant to forfeit 100 percent of the posted surety bonds when the defendants failed to appear for the omnibus hearing and in light of Statev. Seybert (Mont. 1987), 745 P.2d 687, 44 St.Rep. 1879. On November 7, 1986, the defendant Paul Seybert was arrested for multiple crimes of theft, burglary, possession of dangerous drugs, and criminal mischief and the defendant Denise Rogers Seybert (Rogers) was arrested for theft and possession ofdangerousdrugs. TheDistrictCourt eventually set the bonds at $7,000 for Seybert and $2,500 for Rogers. The American Bankers InsuranceCompany (American)posted the bonds for each defendant. The District Court scheduled an omnibus hearing for March 24, 1987 in which the defendants' presence were required. Both defendants failed to appear for the hearing and the court eventually ordered a forfeiture of 75 percent of the bonds posted on behalf of each defendant. American appealed the 

### 75 percent forfeiture to this Court. Statev. Seybert (Mont. 1987), 745 P.2d 687, 44 St.Rep. 1879. In Seybert, this Court recognized that the primary purposes of bail in a criminal case is not "to punish a defendant or surety, nor to increase the revenue of the State, 

### " Seybert, 745 P.2d at 689, 44 St.Rep. at 1882(quoting State v. Musgrove (1980), 187 Mont. 549, 553, 610 P.2d 710, 712), but rather to honor the presumption of innocence, to allow a defendant to prepare his case, and to
ensure the defendant's presence in the pending proceeding. Seybert, 745 P.2d at 688, 44 St.Rep. at 1880 (citing United States v. Skipper (5th Cir. 1981), 633 F.2d 1177). Upon reviewing the facts of that case, this Court concluded that the District Court abused its discretionwhen it ordered the forfeiture of 75 percent of the bonds posted on behalf of Seybert and Rogers. Seybert, 745 P.2d at 689, 44 St.Rep. at 1882. This Court also held thatwhen determining the amount of forfeiture, a court isnot limited to actual damagesonly, but should consider, among others, the following six factors: (1) the defendants' willful violation of bail conditions; (2) the surety's participation in locating or apprehending the defendants; (3) the cost, inconvenience, and prejudice suffered by the State as a result of the violation; (4) intangible costs; (5) the publicIs interest in ensuring a defendant's appearance; and, (6) any mitigating factors. Seybert, 745 P.2d at 689, 44 St.Rep. at 1882. The District Court on remand found that the record justified a forfeiture of 100 percent of the defendants' bonds. American again appealed. On appeal, American argues that the District Court abused its discretion in light of our recent case State v. Seybert (Mont. 1987), 745 P.2d 687, 44 St.Rep. 1879. More specifically,American argues that the key in that casewas that the original forfeiture of 75 percent was excessive and therefore any forfeiturewas absolutely required to be less than 75 percent. We disagree with American's assessment of

our recent case. This Court's holding in Seybert, that the 75 percent forfeitureof theposted bond was excessive, stemmed from thelack of findings to justify such a forfeiture. The proper task of this Court is not to determine upper limits on the amount of forfeiture on posted bonds when little or no findings exist to support the forfeiture, but rather, upon review of the record,to determine whether theDistrictCourt abused its discretion when it ordered 100 percent forfeiture of the posted bonds. The test this Court employs for abuse of discretion is whether the District Court acted arbitrarily. In re Marriage of Jensen (Mont. 1986)

## , 727 P.2d 512, 515, 43 St.Rep. 1891, 1893; In re Marriage of Perry (Mont. 1985), 704 P.2d 41, 43, 42 St.Rep. 1101, 1104; State

v. Musgrove (1983), 202 Mont. 516, 521, 659 P.2d 285, 288. 

### We hold that the District Court did not abuse its discretion when ordering 100 percent forfeiture of the bonds posted on behalf of the defendants Seybertand Rogers. On remand, the District Court applied the facts of the

case to the six factors listed and found in retrospect that the record fully justified 100 percent forfeiture of both bail bonds. An examination of the record demonstrates that the District Court did not act arbitrarily. The District Court considered the six factors and found: (1) Thedefendantswillfully violated the provisions of their bail bondsby failing to appear for the omnibus hearing because the defendants were in the custody of federal authorities for crimes committed after the bondswereposted. (2) The state of Montana and the defendants' counsel located the defendants; the surety did not assist in the search. In light of the defendant Seybert's extensive criminal record,the suretyknewor should have known thathe had apropensity for flight. (3) No way existed to determine exactly the State's cost, inconvenience, and the prejudice the State suffered, however,the initialapprehension of the defendantsand their

### subsequent indictment was the result of an extensive multi-county investigation which continued for over 30 

### days. The county attorney's office prepared an eight page informationand undertook the burdensome task of interviewing several witnesses scattered across a tri-county area. The four defendants were incarcerated in three different counties, which necessarily required four public defenders and three county attorneys to prepare for the pre-trial hearings. Hearings were conducted on motions to reduce bonds. Further, the State continues to be prejudiced as a resultof the subsequentdeath of a key witness and,with the lapse of time, the fading of other witnesses' memories. (4) The public's interest in the matter is great because thousands of dollars in drugs, jewelry, cameras, liquor, and miscellaneous property were stolen. Instead of ordered restitution, the victim of the crimehas nothing but disrespectand contempt for the legalprocess. (5) 

### No mitigating factors existed in favor of the surety. (6) 

### The previous partial forfeiture was an abuse of discretion, and the entire bail bond should have been forfeited initially. American argues that the District Court's findings are not supported by the record. Specifically,American argues that the record does not indicate that the defendant Seybert had a propensity for flight; which party located the defendants;and that the Statewasprejudicedby thedeath of a key witness, since no evidence existed of the witness's death and the alleged death occurred prior to any possible trialdate. The District Court's findings of facts demonstrate that it considered the six factors setout in Seybert, 745P.2d at 689, 44 St.Rep. at 1882. Substantial evidence exists tosupport the District Court's finding that forfeiture of 100 percent of the bail bonds was justified in this instance. The lack of solid support in the record of one or more of the six factors does not render the District Court's decision arbitrary. Finally, we reaffirm our holding in Seybert that when determining the amount of forfeiture of a bail bond, the statute does not limit a district court's discretion to actual damages. Seybert, 745 P.2d at 689, 44 St.Rep. 1881-82. We affirm.

We Concur: