State v. Ebenhack12/24/1985
Rehearing Denied January 21, 1986.
Certiorari Denied July 8, 1986.
THE STATE OF OKLAHOMA, APPELLEE,
v.
MARCUS E. EBENHACK, BONDSMAN, APPELLANT.
Appeal from the District Court of Tulsa County; Gordon D. McAllister, Jr., Trial Judge.
M. Denise Graham, Asst. Dist. Atty., Tulsa, for appellee.
William E. Lewis, Tulsa, for appellant.
AFFIRMED.
The opinion of the court was delivered by: STUBBLEFIELD, Judge (sitting by designation).
The question to be answered in this appeal is whether the trial court erred in refusing to set aside bail bond forfeitures.
I
Marcus Ebenhack, a bail bondsman, secured the release of two defendants charged in the District Court of Tulsa County. Richard Roth was charged in cases TR-84-3170 and TR-84-3171 with driving under the influence of intoxicating liquor and driving without an owner's security verification form. John William Shaffer was charged in case TR-84-3542 with the offense of driving without an owner's security verification form. Ebenhack posted bonds in Roth's cases in the amounts of $500 and $140, and posted $140 in the case against Shaffer. On June 15, 1984, defendant Shaffer failed to appear at his regularly scheduled court hearing. On June 22, 1984, Roth likewise failed to appear at his hearing. The bond in each case was ordered forfeited, with orders and judgments of forfeiture subsequently issued and mailed as provided by statute. The judgment of forfeiture was entered and mailed in the Shaffer case on June 20, 1984, and in the Roth cases on June 27, 1984.
On June 26, 1984, John William Shaffer appeared before the District Court, pled guilty, and was fined. On July 2, 1984, Richard Roth appeared, and later pled guilty and was sentenced. In each instance, the defendant's appearance was apparently as a result of the efforts of bail bondsman Ebenhack.
Bondsman filed in each case a motion to set aside the forfeiture. The identical motions were all timely filed and provided:
COMES NOW, MARCUS EBENHACK, a licensed PROFESSIONAL BONDSMAN, by and through his Attorney of Record, R.W. Byars, and asks this Honorable Court to set a date certain to hear his motion to set aside the bond forfeiture previously entered in the above styled and numbered cause, for the reason that the was returned to custody on the 29th day of June, 1984, without cost to the State.
Further, the bondsman's motion is timely filed in accordance with 59 O.S., § 1332 , as amended.
The district attorney contested the motions, which were consolidated for hearing and overruled by the trial court on August 8, 1985.
On appeal Bondsman lists three numerical propositions of error. Each of the three, however, is that the trial court erred in failing to set aside the forfeiture. The supporting rationale of the three propositions of error is that (1) forfeiture statutes must be strictly construed, (2) forfeitures may be set aside in the interest of justice, and (3) bail is not a source of revenue for the state.
II
Bondsman's proposition that forfeiture statutes are to be strictly construed is a correct statement of the law. The Oklahoma Supreme Court in State v. Nesbitt, 634 P.2d 1306, 1308 (Okla. 1981), stated: " orfeiture statutes will be strictly construed and a forfeiture will not be decreed except when required to do so by clear statutory language." Bondsman does not, however, indicate how the trial court's judgment varied from
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