Criminal Law

Chantalle Forgues
Assistant Professor of Business Law at
Plymouth State University

No. 2017-0557
February 13, 2018

  •     Whether the trial court can order a forfeiture of a bond only when a defendant fails to appear for a court date and not for a violation of other bail conditions

The petitioner, a corporate surety, posted a $10,000 bond for the defendant to be released from jail on certain conditions, including that he live in Epping and refrain from the use of controlled drugs. Two weeks later, law enforcement found the defendant passed out in a vehicle containing drugs and suitcases. After reviving they revived the defendant with Narcan, the defendant explained that he was moving to the Carolinas. The trial court issued an arrest warrant for the defendant and revoked his bail for violating his bail conditions.

At the show cause hearing, the petitioner argued that the court should not have declared the bond forfeited because the petitioner had only agreed to an “appearance bond” and the defendant had not missed any court dates. The trial court concluded that a surety can be held responsible for a defendant’s failure to comply with conditions of bail other than appearance in court.

The petitioner filed an appeal as a mandatory appeal under Supreme Court Rule 7. The Supreme Court, however, found that a surety does not have the right to file a direct appeal in the pertinent underlying criminal case. Accordingly, consistent with past practice, the Court accepted the appeal as a petition for a writ of certiorari, which is the proper remedy for a non-party surety who seeks to appeal a bail bond forfeiture.

The Court then, for the first time, articulated that the applicable standard for appellate review for trial court decisions regarding bail and recognizances is the deferential unsustainable exercise of discretion standard. In applying this standard, the Court upheld the trial court’s decision forfeiting the defendant’s bail because the express terms of the bond made it clear that breach of any conditions could result in proceedings against the corporate surety for forfeiture of the bond. The trial court also acted within its discretion to forfeit the entire amount of the bond, particularly because the petitioner, who is engaged in an entrepreneurial venture, made no effort to ensure the defendant complied with his bail terms.

The Supreme Court was mindful of the practical implications of this decision for both defendants and corporate sureties, but declined to address the pertinent public policy issues.


Joseph Prieto (on the brief) of Prieto Law, and Andrew S. Winters (orally) of Cohen & Winters Law Office, for the petitioner. Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. James Castine, the defendant, filed no brief.