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State v. Jackson12/19/1995
LANKFORD, Judge
In this case, we hold that the procedures for forfeiture of a bail bond are governed by Arizona Rule of Criminal Procedure ("Ariz. R. Crim. P.") 7.6(d) and not by Ariz. Rev. Stat. Ann. ("A.R.S.") section 13-3973. We also hold that appellant Jackson ("A-Jax Bond Company") has failed to establish that the failure to set a forfeiture hearing within the time required by Rule 7.6(d) warrants reversal of the trial court's forfeiture judgment.
A-Jax issued a $10,000 bail bond to secure the appearance of criminal defendant Paul Allen Bowling, who is not a party to this appeal. Bowling failed to appear for his arraignment on November 12, 1994. At the State's request, the trial court immediately issued a bench warrant for Bowling's arrest and ordered the clerk to send a copy of its minute entry order to A-Jax. Two and one-half months later, on January 26, 1994, A-Jax filed a motion to exonerate the bond. In response, the State filed a motion for bond forfeiture. The court initially set a hearing on the motions for February 14, 1994, but later postponed it to April 19, 1994. After considering memoranda and oral argument of counsel, the trial court ordered the bond forfeited. We have jurisdiction over the appeal by A-Jax pursuant to A.R.S. section 12-2101(B).
Rule 7.6(d), Arizona Rules of Criminal Procedure, effective September 1, 1973, provides:
Forfeiture. If at any time it appears to the court that a condition of an appearance bond has been violated, it shall require the parties and any surety to show cause why the bond should not be forfeited, setting a hearing thereon within 10 days. If at the hearing, the violation is not explained or excused, the court may enter an appropriate order of judgment forfeiting all or part of the amount of the bond, which shall be enforceable by the prosecutor as any civil judgment.
A.R.S. section 13-3973 provides:
If at any time it appears to the court that a condition of the appearance bond has been violated, the court shall require the parties and any surety to appear and show cause why a warrant should not issue for the arrest of the defendant, setting a hearing on the alleged violation within ten days. If at the hearing, the violation is not explained or excused, the court may issue a warrant for the arrest of the defendant and shall set a date not less than ninety nor more than one hundred eighty days thereafter for a forfeiture hearing.
A-Jax contends that section 13-3973 is controlling, and that because the trial court failed to follow the statutory procedure, the court lacked jurisdiction to forfeit the bonds.
We agree that the superior court did not follow the statutory procedure in issuing the arrest warrant and in forfeiting the bond. The statute contemplates a hearing within ten days, at which time the surety may appear to show cause why a warrant should not issue for the defendant's arrest. If the defendant's violation is not explained or excused, the court may issue a warrant and must set a forfeiture hearing on a date not less than 90 nor more than 180 days from the show cause hearing. Here the trial court issued a bench warrant immediately instead of setting a hearing within ten days. Also, the court did not set a date for the forfeiture hearing after issuing the arrest warrant but waited for nearly three months to set a forfeiture hearing.
However, we need not address the effect of noncompliance with the statute on the trial court's forfeiture order because we conclude that Rule 7.6(d), and not the statute, governs
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