No. 88-015 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA 

Plaintiff and Respondent, 

PAUL SEYBERT and 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 of Madison, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Brad L. Belke; Belke Law Center, Butte, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena Montana 

Betsy Brandborg, Assistant Attorney General 

Loren Tucker, County Attorney, Virginia City, Montana 

Submitted on Briefs: March 18, 1988 

Decided: April 19, 1988 

Clerk 
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

On December 10, 1987, the Fifth Judicial Court, Madison 

County, ordered American Bankers Insurance Company of Florida 

to forfeit 100 percent of the surety bonds posted on behalf 

of defendants Paul Seybert and Denise "Dusty" Rogers Seybert. 

The American Bankers Insurance Company appealed. We affirm. 

The issue raised on appeal is whether the District 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 

State v. 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 of dangerous drugs. The District Court eventually 

set the bonds at $7,000 for Seybert and $2,500 for Rogers. 

The American Bankers Insurance Company (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. State v. 

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 discretion when 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 that when determining the amount 

of forfeiture, a court is not limited to actual damages only, 

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 public Is 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 case was 

that the original forfeiture of 75 percent was excessive and 

therefore any forfeiture was 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 

forfeiture of the posted bond was excessive, stemmed from the 
lack 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 the District Court 

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 Seybert and 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) The defendants willfully violated the provisions of 

their bail bonds by failing to appear for the omnibus hearing 

because the defendants were in the custody of federal 

authorities for crimes committed after the bonds were posted. 

(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 surety knew or should have known that he 

had a propensity for flight. 

(3) No way existed to determine exactly the State's 

cost, inconvenience, and the prejudice the State suffered, 

however, the initial apprehension of the defendants and 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 

information and 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 

result of the subsequent death 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 crime has nothing but 

disrespect and contempt for the legal process. 

(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 State was prejudiced by the death of 

a key witness, since no evidence existed of the witness's 

death and the alleged death occurred prior to any possible 

trial date. 

The District Court's findings of facts demonstrate that 

it considered the six factors set out in Seybert, 745 P.2d at 

689, 44 St.Rep. at 1882. Substantial evidence exists to 
support 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: