No. 86-149 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiff and Respondent,

WAYNE EUGENE SUNDAY, and INTERNATIONALFIDELITY INSURANCE COMPANY, Defendants and Appellants.

APPEAL FROM: DistrictCourt of the Twentieth JudicialDistrict, Inand for the County of Sanders, The Honorable

### E. GardnerBrownlee,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: H. L. Garnaas; Garnaas,Hall & Pinsoneault,b is sou la, Monta.na
For Respondent: Hon. Mike Greely,Attorney General,Helena, Montana Clay R. Smith,Asst. Attorney General,Helena Claude I. Burlingame, County Attorney, Thompson Falls, Montana

Filed: Submitted on Briefs: Sept. 4, 1986 Decided: December 1.6, 1986

-,-+-- ClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court.Wayne Sunday and the International Fidelity Insurance Company appeal from an order of the District Court of the Twentieth Judicial District, in and for the County of Sanders, entering judgment on a forfeited bail bond. For the
reasons statedbelow,we affirm that judgment. Wayne Sunday, defendant and appellant, was charged in Sanders County, State of Montana, with the crime of felony theft. On December 5, 1984, Judge Beitz set bond in the amount of $2000, with an appearance set for December 11. International Fidelity Insurance Company (Surety) issued a surety bond for $2000 through its agent, Sullivan & Hunt Agency (Agent)of Missoula,Montana. The court approved the bond and released Sunday. He subsequently appeared in District Court and pled not guilty to the charge. On May 14, 1985, Sunday appeared for an omnibus hearing. He was represented by Brian Smith. Subsequently, the court set the trial date forAugust 15. However, Sunday did not appear on that date, and Smithmoved for a continuance. The court granted themotion and a new trial datewas set for September 26. On that date, Sund-ayagain failed to appear. The court granted Smith's motion for a continuance. The new trial date was set for October 22, 1985. When Sunday failed to appear at that time,the court declared thebond forfeited and issued abenchwarrant forhis arrest. On January 7, 1986, the Clerk of the District Court sent notice of the forfeiture to the Agent. The order forfeiting bond was signed by Judge McNeil on January 6. Upon receiving notice of forfeiture, the Agent, on behalf of the Surety, immediatelybegan trying to locate Sunday. After anextensive search crossing state lines and even employing the assistance of the Internal Revenue Service, Sunday could not be located. On February 18, the State moved for entry of judgment
on the forfeiture. The Surety subsequently moved for discharge of the forfeiture. On February 25, the court denied the Surety's motion and granted judgment to the State on the forfeitedbond for $2000. Two issues arepresented forour consideration: 1. Where a defendant does not appear in court for a scheduled appearance, must the court declare a forfeitureof his bond immediately or lose jurisdiction to declare a forfeiture thereafter? 2. Where a court does notmail notice of the order of forfeiture to the surety until seventy-seven days after the declaration of forfeiture, does it lose jurisdiction to enter judgmenton the forfeiture thereafter?

Appellants first contend that the District Court was required to declare the bond forfeited on the date of defendant's firstnon-appearance. Since the courtdid not declare
a forfeiture on that date, it lost jurisdiction to do so at anytime afterwards. The controlling statute on this issue is $ 46-9-503, MCA. Section (1) provides: If the accused does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. There is nothing in this statute that requires a court to declare a forfeiture immediately upon a defendant's firstnon-appearance. Furthermore, there is no provision which releases a surety from the ultimate liability on abond prior to the conditions of bail being performed and the defendant being discharged. See S 46-9-502,MCA. To require a court to declare forfeiture immediately upon a breach of a condition of bail would unnecessarily straightjacket the court by
a rule neither mandated by statute nor required by policy. FederalRule ofCriminal Procedure 46(e)(1)is substantially the same as Montana's § 46-9-503(1). That rule states: "If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail." In United States 

### v. Navarrete-Martinez (10th Cir. 1985), 776 F.2d 887, the court was faced with the same argument being raised by appellants here. In summarily dismissing the surety's contention, the courtheld: Nothing in the rule, however, requires the trial court to declare a forfeiture immediately upon thedefendant's failure to appear. Therefore this argument is withoutmerit. Navarrete-Martinez, 776 F.2d at 888. See also Appearance Bond Surety 

### v. United States (8thCir. 1980), 622 F.2d 334. Rather than being prejudiced by the court's action, as appellants contend, the Suretywas actually helped. Had the court declared forfeiture immediately, the Suretywould have been absolutely liable on the bond with only thirty days within which to locate Sunday. However, because the court continued the trial date, the Surety had more time to look fordefendant. Likewise,the Statewasbenefited because the Surety had more incentive to locate defendant prior to forfeiturethan it had afterwards. Thus,thepublic interest in obtaining the appea.ranceof the defendantwasbetter served.We hold that the District Court had jurisdi-ctionto declare forfeitureof thebond when itdid so.

The court declared the bond forfeited on October 22, 1985. However, it waited until January 7, 1986, to forward notice of the forfeiture to the Agent--a delay of seventyseven days. Appellants contend that this delay violated the requirements of S 46-9-503, MCA, because notice was not mailed "forthwith" and that the court lost jurisdiction to enter judgmenton the forfeiturebecause theproper procedure
was not followed. Appellants further contend that the Surety
was prevented from producing defendant after his first non-appearance because it was not notified of such non-appearanceby the court. Section 46-9-503 is the controlling statute on this issue also. It provides in relevantpart: (2)If such forfeiture is declared by a district court,notice of such order of forfeiture shall be mailed forthwith by the clerk of the court to the accused and his sureties at their last known address.

(3) If at any time within 30 days after the forfeiturethedefendant orhisbail appear and satisfactorily excuse his negligence or failure to complywith the conditions of the bail, the court, in its discretion, may direct the forfeiture of the bail to be discharged upon such terms asmay be just. (4) If such forfeiture is declared by a district court and if the forfeiture is not discharged as provided in this section, the court shall enter judgment for the state against the accused and his sureties for the amount of the bail and costsof theproceedings. At the outset, it should be noted that there is a distinction between forfeiture and judgment on theforfeiture. Once forfeiture of the bond is declared by the court, the surety becomes liable for payment on the bond unless,within thirty days from such declaration, the surety or the defendant appear and satisfactorily excuse the defendant's failure to comply with the conditions of bail. At that point, the surety cannot be compelled by the State to pay the bond. However, once judgment is entered on the forfeiture, it becomes binding on the surety,and the State
can seek execution of its judgment. This distinction is important when considering whether the requirements of due process have beenmet. Section 46-9-503 requires only that notice of forfeiture be mailed to an accused and his surety. It does not require a court to notify the surety of a defendant's non-appearance. Since the Surety assumed the duty of ensuring Sunday's appearance, it was presumed to know of his whereabouts. Therefore, it was not necessary for the court to notify the Surety of Sunday'snon-appearance. See United States v. Roher (5thCir. 1983), 706 F.2d 725;United States
v. Craft (11th Cir. 1985), 763F.2d 402. Appellantsbontention on thispoint iswithoutmerit. Appellants are correct, however, in their assertion that the court did not mail notice of the order of forfeiture "forthwith," as required by the statute. Upon declaring the bond forfeited, the proper procedure would have been for the court to mail notice of the order to appellants without delay. Had that been the case, the Surety or the defendant would have had thirty days to appear and excuse defendant's breach. Nevertheless, even though the court did not send notice to appellants when it should have, it did not lose jurisdiction to enter judgmenton the forfeiture. As long asthe requirements of the statute and the mandates of due process were met, the judgmentagainstappellantswas valid. Notice of forfeiturewas mailed to appellants on January 7, 1986. On February 25, 1986, the court entered judgment on the forfeiture for the State. Thus,aperiod ofmore than thirty days elapsed between notice of forfeiture and judgmenton the forfeiture. Thisprocedure substantially met the requirementsof § 46-9-503 as well as the requirementsof due process. As in the first issue, the Surety was not prejudiced by the court's action; rather, it was benefited. Ithad an extra three months within which to locatedefendant and discharge the forfeiturebefore the judgmentwas entered. Any error that resulted accrued to appellants' advantage.

We concur: