MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

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STATE OF MONTANA, ) CAUSE NO. DC 95-06

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Plaintiff, ) TRIAL MEMORANDUM

vs )

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CHRIS LEROY PETERSON, )

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Respondent. )

The state anticipates that the defendant will be absent at the time of trial. The state contends that 46-16-122 M.C.A. controls, that when the defendant fails to appear at the time of trial, and is not represented by counsel, the court has the following discretion to either a) order continuance; b) order bail forfeited; c) issue an arrest warrant; or, d) proceed with the trial with the defendant absent.

When the defendant has been given notice of the trial date, has had an opportunity to retain counsel, and fails to appear at the time of trial, the state requests that pursuant to 46-16-122 M.C.A., that the Court order bail forfeited, recording a conviction, and putting a disposition on the case, when a bond has been previously posted.

The state concedes that there is no case law interpreting this particular subsection that an order of bail forfeiture can constitute a conviction and disposition. However, counsel has conferred with the Attorney General’s Office, through their prosecutors’ services staff, and it is the position of the Attorney General’s Office that the reason there is no case law is that the statute is clear on its face. That if it is a misdemeanor and the defendant fails to appear, the bail can be forfeited and this is a conviction and disposition of the case.

Although there is no case law in point, there are collateral statutes which may provide some guidance to the court. Under 20-7-505, dealing with the transmittal of proceeds from fines and other sources, the proceeds from fines and other bail forfeitures are treated the same and are dispersed in the same manner equating bail forfeitures to the same as fines, implying that this is a disposition and conviction from a criminal case. Similarly, in 44-5-103 definitions, in the definitions of “disposition” under subsection (10)(a), the term “bond forfeiture” is included as a disposition under subsection (b)(x). Also 45-5-220, the stalking statute, in determining the meaning of conviction, includes the forfeiture of bail as a previous conviction under subparagraph (5)(c).

Similarly, under 45-5-621, dealing with non-support, in determining whether a person commits the offense of non-support, under the definition of “conviction”, includes the “forfeiture of bail” as a “conviction” under subparagraph (2)(b). Additionally, under 87-1-102 M.C.A., penalties for fish and game violations, an individual may have his license and privilege to hunt, fish, or trap forfeited for either a “”conviction or forfeiture of bond or bail”. Thus, the code uniformly uses the terms “conviction” and “forfeiture of bond” interchangeably throughout the code.

Lastly, under 46-18-236, dealing with the imposition of “surcharge upon conviction or forfeiture, the defendant is found, upon either conviction of any conduct made criminal by a state statute or upon forfeiture of bond or bail a charge that is an addition to other charges”. Again, the state code uniformly and consistently uses the term of “conviction” or “forfeiture of bail or bond” interchangeably.

Therefore, in conclusion, upon the defendant’s failure to appear at trial, it is not necessary for the state to proceed to trial in absentia, and the court may simply order bail forfeited, which is both a conviction, and disposition, pursuant to the laws of the state of Montana.

RESPECTFULLY SUBMITTED this day of September, 1995.

Lee R. Kerr

Rosebud County Attorney