Guam § 40 - Procedure Upon Forfeiture of Bail.

§ 40. Procedure Upon Forfeiture of Bail.

(a) Upon the declaration of a forfeiture pursuant to § 40.90,

the clerk of the court shall mail notice of the forfeiture to any

surety or depositor, other than the person required to appear. The

clerk shall execute an affidavit of mailing and place it in the

court's file in the case.

(b) The surety or depositor may, not later than thirty days

after the mailing of the notice of forfeiture, apply by noticed

motion to have the forfeiture set aside. After hearing, the court

may set aside the forfeiture, upon such conditions as it may

impose, if it appears that justice does not require enforcement of

the forfeiture.

(c) If after thirty days from the mailing of the notice of

forfeiture, the forfeiture has not been set aside and no motion to

set aside is pending, the court shall on motion of the prosecution

attorney enter a judgment of default and execution may issue

thereon. Payments made in satisfaction of a judgment entered

pursuant to this Section shall be deposited in the general fund of

the Territory. By entering into a bond a surety submits to the

jurisdiction of the court and irrevocably appoints the clerk of the

court as his agent upon whom any papers affecting his liability

may served. His liability may be enforced on motion without the

necessity of an independent action. The motion and such notice

of the motion as the court prescribes may be served on the clerk

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of the court, who shall forthwith mail a copy to the surety to his

last known address.

(d) Where money deposited with the clerk is declared

forfeited pursuant to § 40.90, the clerk with whom it is deposited

shall, upon entry of a judgment of default pursuant to this

Section, pay the money deposited into the general fund of the

Territory.

(e) At any time after entry of judgment pursuant to

Subsection (c), the court may remit it in whole or in part upon

application by the judgment debtor on noticed motion and a

showing that justice does not require endorsement of the

judgment.

NOTE: Section 40.95 is based on former Rule 46(f) and §§ 1305-1307.

However, former Rule 46 provided no time limits for setting aside a

forfeiture while former §§ 1305 and 1306 had very narrow limits (10

days). Section 40.95 increases the initial period to 30 days during which

the surety or depositor may move to have the declaration of forfeiture set

aside and, like the federal law, places no time limits on a motion seeking

remission of a judgment. As under prior law, no attempt is made here to

specify precise grounds for setting aside a forfeiture or remitting a

judgment. Section 40.95 permits such action simply as justice requires. It

should be noted, however, that unlike under former § 1305, there is no

requirement that the person who was required to appear, actually appear.

Reasons that the court might consider include death, illness, or detention

by other authorities. Compare Cal. Pen. Code § 1305. However, these

reasons are neither exhaustive nor necessarily compelling. Similarly, the

effect, if any, of a dismissal of the charge after nonappearance is left to

the judgment of the court. Compare former § 1306.

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