Colorado § 16-4-110 - Exoneration from bond liability.

§ 16-4-110. Exoneration from bond liability.

(1) Any person executing a bail bond as principal or as surety shall be exonerated as follows:

(a) When the condition of the bond has been satisfied; or

(b) When the amount of the forfeiture has been paid; or

(c) (I) When the surety appears and provides satisfactory evidence to the court that the defendant is unable to appear before the court due to such defendant's death or the detention or incarceration of such defendant in a foreign jurisdiction if the defendant is incarcerated for a period in excess of ninety-one days and the state of Colorado has refused to extradite such defendant; except that, if the state extradites such defendant, all costs associated with such extradition shall be borne by the surety up to the amount of the bond.

(II) For the purposes of this paragraph (c), "costs associated with extradition" shall be calculated as and limited to the round-trip mileage between the Colorado court of jurisdiction and the location of the defendant's incarceration at the rate allowed for reimbursement pursuant to section 24-9-104, C.R.S., up to the amount of the bond.

(d) Upon surrender of the defendant into custody at any time before a judgment has been entered against the sureties for forfeiture of the bond, upon payment of all costs occasioned thereby. A surety may seize and surrender the defendant to the sheriff of the county wherein the bond is taken, and it is the duty of the sheriff, on such surrender and delivery to him or her of a certified copy of the bond by which the surety is bound, to take the person into custody and, by writing, acknowledge the surrender. If a compensated surety is exonerated by surrendering a defendant prior to the initial appearance date fixed in the bond, the court, after a hearing, may require the surety to refund part or all of the bond premium paid by the defendant if necessary to prevent unjust enrichment.

(e) After three years have elapsed from the posting of the bond, unless a judgment has been entered against the surety or the principal for the forfeiture of the bond, or unless the court grants an extension of the three-year time period for good cause shown, upon motion by the prosecuting attorney and notice to surety of record.

(f) (I) When the surety provides satisfactory evidence to the court that the defendant has been removed from the country. The court shall exonerate the bail bond if all of the following occur:

(A) The surety files a motion requesting exoneration of the bail bond;

(B) The surety files an affidavit along with the motion stating that the surety has received information from the United States department of homeland security, the United States immigration and customs enforcement, or a foreign consulate that the defendant has been detained or removed from the United States. If the surety is unable to obtain such information from the above sources, the surety must file an affidavit that is signed under penalty of perjury by a person with personal knowledge that the defendant has been detained or removed from the United States.

(C) The district attorney does not object.

(II) If the court exonerates the liability on the bail bond pursuant to subsection (1)(f)(I) of this section and the bond premium has been paid, any collateral securing the bail bond is released.

(2) If, within fourteen days after the posting of a bond by a defendant, the terms and conditions of the bond are changed or altered either by order of court or upon the motion of the district attorney or the defendant, the court, after a hearing, may order a compensated surety to refund a portion of the premium paid by the defendant, if necessary and supported by factual findings, to prevent unjust enrichment. If more than fourteen days have elapsed after posting of a bond by a defendant, the court shall not order the refund of any premium.

(3) Upon entry of an order for deferred prosecution as it existed before August 7, 2013, a diversion authorized by section 18-1.3-101, C.R.S., or deferred judgment as authorized in sections 18-1.3-101 and 18-1.3-102, C.R.S., sureties upon any bond given for the appearance of the defendant shall be released from liability on such bond.

Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 831, § 2, effective May 11; (3) amended, (HB 13-1156), ch. 336, p. 1957, § 3, effective August 7. L. 2014: (2) amended, (SB 14-212), ch. 397, p. 1999, § 6, effective July 1. L. 2017: (1)(f) added, (HB 17-1369), ch. 379, p. 1949, § 2, effective June 6.

Cross references: For the short title ("Bond Surety Protection Act") in HB 17-1369, see section 1 of chapter 379, Session Laws of Colorado 2017.

ANNOTATION

Law reviews. For note, "One Year Review of Colorado Law-1964", see 42 Den. L. Ctr. J. 140 (1965).

Annotator's note. Since § 16-4-110 is similar to § 16-4-108 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.

For compensated sureties, the framework for forfeiture proceedings is provided by § 16-4-112 and not this section. People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).

An accused person released on bail, is, in contemplation of law, in the custody of his sureties. People v. Loomis, 60 Colo. 202, 152 P. 143 (1915).

In the case of exoneration of a surety, the common law considers the principal to be within the custody of the surety. Vaughn v. District Court, 192 Colo. 348, 559 P.2d 222 (1977).

When surety can avail himself of section. The surety has the right to avail himself of the exoneration provisions of the statute for any reason sufficient to himself. Vaughn v. District Court, 192 Colo. 348, 559 P.2d 222 (1977).

Where denial of motion for exoneration deemed error. Where a defendant fails to appear at a scheduled hearing, then, through the surety's efforts, is located, apprehended, and taken into custody in another state, but, through the failure of the states, the defendant is not extradited and returned to custody in Colorado, a trial judge abuses his discretion in denying the surety's motion for exoneration. People v. Campbell, 633 P.2d 509 (Colo. App. 1981).

Surety not entitled to exoneration where the defendant was temporarily in the state's custody on later charges but was not surrendered into custody on the earlier charges for which the bond was posted and he was not prevented from making the appearances required on those charges. People v. Soto-Gallegos, 953 P.2d 946 (Colo. App. 1997).

No requirement of actual or threatened breach of bail conditions in requirements for exoneration. Vaughn v. District Court, 192 Colo. 348, 559 P.2d 222 (1977).

Subsection (1)(b.5) does not apply to postjudgment motions for exoneration from bond liability. People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).

There is no prior notice requirement for exoneration of the surety when the principal is surrendered in open court. Vaughn v. District Court, 192 Colo. 348, 559 P.2d 222 (1977).

When sureties may seize and surrender. Sureties may seize and surrender an accused person to the sheriff of the county in which the recognizance was taken, at any time before forfeiture and execution is ordered against them. If, at the same time, a certified copy of the recognizance is delivered to the sheriff, it is his duty to take the accused into custody, and, in writing, acknowledge the surrender. People v. Loomis, 60 Colo. 202, 152 P. 143 (1915).

Surety who surrenders his principal before final judgment is exonerated under this section. Scott v. People ex rel. Bd. of Comm'rs, 64 Colo. 396, 172 P. 9 (1918).

No common law bonding agent's privilege. Based on the requirement in § 18-1-103 (1) that all defenses to defined offenses must be codified, the common law bonding agent's privilege has been abrogated by the general assembly in the general provisions of the criminal code and the burglary statutes. Oram v. People, 255 P.3d 1032 (Colo. 2011); Weinstein v. People, 255 P.3d 1057 (Colo. 2011).

Surrender effective before final disposition of the case. A surety on a criminal recognizance may be released from liability thereon by the surrender of the principal, even after forfeiture and judgment against him on the bond, if he acts before final disposition of the case, extending to a review on error. Van Gilder v. City & County of Denver, 104 Colo. 76, 89 P.2d 529 (1939).

But appearance for trial is not a surrender. The appearance of the defendant in a criminal case in court for trial is not equivalent to a surrender of his person by a surety on his bond. Van Gilder v. People, 75 Colo. 515, 227 P. 386 (1924).

Nor is incarceration after appearance date. The rule that incarceration of a principal on the return date of his bond permits relief from forfeiture of the bond has no application where the principal was at large and was not imprisoned until 30 days after the date he was to appear in Colorado, and the surety, through its agent, had the opportunity to return the principal to Colorado before judgment was entered and thus be absolved under our statutes of any liability other than costs incurred by the people by reason of the principal's failure to appear. Union Benefit Fire Ins. Co. v. People, 160 Colo. 211, 416 P.2d 368 (1966).

However, surety not liable if principal is arrested and jailed for another offense. Under this section where, after forfeiture but before judgment against the sureties, their principal was arrested and placed in the jail of the county under a different charge than that for which the bond was given, the sureties were entitled to a discharge from liability upon their formal offer to surrender and the payment of the costs, although they did nothing towards the rearresting and returning to custody of the prisoner. And they were not liable for costs incurred in arresting and returning their principal under a different charge than the one in which the bond was given. Huston v. People ex rel. Collins, 12 Colo. App. 271, 55 P. 262 (1898).

Or if a cause brought by the state is in fact abandoned by the state, by reason of which the presence of the accused in court is no longer required or desired for trial or matters incident thereto, the purpose of the bail bond has been served, its function fulfilled and performed, and it should thenceforth be regarded as functus officio and the formal discharge of defendant and of his sureties therefrom should be entered upon application. Herbertson v. People, 160 Colo. 139, 415 P.2d 53 (1966).

Surety needs not personally accomplish the seizure and surrender. Where defendant was stopped for a traffic offense and was taken into custody by sheriff's deputies on the outstanding warrant, surety was entitled to exoneration under this section. People v. Madison, 909 P.2d 551 (Colo. App. 1995).

The term "costs", as used in this section, includes whatever the law officers may legitimately pay out, or have a right to charge, in connection with the return of the criminal for trial. Ayres v. People, 3 Colo. App. 117, 32 P. 77 (1893).

Liability of surety for costs. Sureties must pay the expenses incurred by the county in procuring the return of their principal from another state upon a requisition. Ayres v. People, 3 Colo. App. 117, 32 P. 77 (1893).

To accomplish the purpose of giving bail, courts have been liberal in vacating judgments entered on bail bonds, exercising always a broad discretion and in proper cases preserving the equities of the public by deducting such costs and expenses as may have been incurred by the state. To hold otherwise would discourage the giving of bail and defeat the manifest purpose of the statute. Allison v. People, 132 Colo. 156, 286 P.2d 1102 (1955).

When court may require return of premium. A court has the discretion to require a surety to return all or a portion of the premium paid for a bail bond where the bond is terminated by court order. People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 (Colo. 1984) (decided prior to enactment of subsection (1)(d) in 1985).

Subsection (1)(c) takes precedence over bond provisions. The language of subsection (1)(c) protecting against unjust enrichment takes precedence over, and nullifies, a provision in a bond purporting to make a bond premium nonrefundable. People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 (Colo. 1984) (decided prior to enactment of subsection (1)(d) in 1985).

Subsection (1.5) is broader than the rule in Yording in that it permits a refund under circumstances other than an error of law, subject to the time limitation. People v. Goldsmith, 955 P.2d 561 (Colo. App. 1997).

This section does not grant authority to the court to refund a bond premium to a defendant whose surrender occurred after the defendant's required initial appearance. Under subsection (1)(d), a court may order return of the premium to prevent unjust enrichment only if the surrender occurred prior to a defendant's initial appearance. People v. Fallis, 2017 COA 131M, 488 P.3d 291.

Reincarceration of the defendant on separate charges is not included among the additional grounds for exoneration of the surety. People v. Goldsmith, 955 P.2d 561 (Colo. App. 1997).

Even though both subsections (1)(c) and (1.5) were inapplicable, court had common law authority to order bond premium refund where the bond at issue did not involve a defendant, but rather a nonparty, and surety would have been unjustly enriched if allowed to retain the bond premium. People v. Gonzales, 28 P.3d 967 (Colo. App. 2001).

The 30-day limitation referred to in subsection (1.5) applies only to the interval between the posting of the bond and any changes in its terms or conditions, and not to the time within which an order for refund of bond premium must be entered. People v. Perse, 750 P.2d 923 (Colo. App. 1988).

Determination of amount of premium refund due to defendant in case of conversion of bond into release on personal recognizance. The determination of the amount of premium refund due to the defendant is a matter within the trial court's discretion, and the court may not be reversed absent an abuse of discretion. People v. Anderson, 789 P.2d 1115 (Colo. App. 1990).

"Appearance date", as used in this subsection (1)(c), includes appearance up to the date of conviction. Thus, surety was required to refund a bond premium to a defendant whom surety surrendered prior to such date. People v. Carrethers, 867 P.2d 189 (Colo. App. 1993).

Trial court correctly entered judgment of forfeiture of bond posted by surety where, even if the notice of order of forfeiture was mailed several days late, nothing in the record indicated that surety suffered any resulting prejudice or that surety asserted any grounds under this section or § 16-4-109 for setting aside the order of forfeiture or vacating the judgment. People v. King, 924 P.2d 1092 (Colo. App. 1996).