9.2 Bond Forfeiture: Declaration, Notice, and the Show-Cause Period
Key Takeaways
- When the accused fails to appear, bail may be adjudged forfeit in open court in whole or in part, or the court may continue the case to a later date certain with notice to the accused and sureties (ORC 2937.35).
- Forfeited cash bail is handled as if it were a fine for the offense, after accrued costs may be satisfied (ORC 2937.36(A)).
- Deposited securities may be sold after notice, but the depositor can stop the sale within 10 days of mailing by producing the defendant in open court or posting the bail in cash (ORC 2937.36(B)).
- For recognizances, the clerk or magistrate must notify the accused and each surety by ordinary mail within 15 days after the declaration of forfeiture (ORC 2937.36(C)).
- The notice requires a showing of cause on a date not less than 45 nor more than 60 days after the notice is mailed, by producing the accused or otherwise (ORC 2937.36(C)).
From Missed Date to Forfeiture
The outline's bond forfeiture topic (3.8) lists motion, notice to defendant and sureties, judgment, dispersal of funds, time limits for appeals, and arrest after forfeiture. This section covers the first two. Section 9.3 covers the rest.
Declaring Forfeiture (ORC 2937.35)
"Upon the failure of the accused ... to appear in accordance with its terms the bail may in open court be adjudged forfeit, in whole or in part, by the court or magistrate before whom he is to appear."
Key points:
- In open court. The forfeiture is a judicial act on the record. In practice, it is often made on the prosecutor's oral motion after the defendant's name is called, or on the court's own motion, and it is then journalized.
- In whole or in part. The court may forfeit less than the full bond.
- Discretion to continue instead. The court "may, in its discretion, continue the cause to a later date certain, giving notice of such date to him and the bail depositor or sureties, and adjudge the bail forfeit upon failure to appear at such later date." This gives the defense and surety a short chance to bring the defendant in.
Ohio's pretrial statute confirms the link between nonappearance and forfeiture: "any bail given for the defendant's release may be forfeited" when a defendant fails to appear (ORC 2937.011(K)).
Defects That Do Not Defeat Forfeiture (ORC 2937.42)
Forfeiture is not barred, and a judgment is not reversed, merely because someone neglected to note or record the default, or because of a defect in the form of the recognizance. This holds as long as the recognizance shows which court the party was bound to appear before, and that the court or officer taking it was authorized to do so.
Minority Is No Defense (ORC 2937.38)
A minor admitted to bail cannot use minority as a defense to judgment against principal or surety, or against sale of securities or transfer of cash bail, upon forfeiture.
What Happens to Each Form of Bail (ORC 2937.36)
"Upon declaration of forfeiture, the magistrate or clerk of the court adjudging forfeiture shall proceed as follows":
| Form of bail | Procedure |
|---|---|
| (A) Cash | Handled "as if the same were imposed as a fine for the offense charged," distributed and accounted for accordingly. The magistrate or clerk may first satisfy accrued costs in the case from the fund |
| (B) Securities | Sold at a public sale advertised like a chattel execution sale, or through a bank over the counter. Before the sale, the clerk mails ordinary-mail notice to the depositor. The sale does not proceed if, within 10 days of mailing, the depositor redeems the securities by producing the defendant in open court or posting the recognizance amount in cash |
| (C) Recognizances (surety bonds) | Notice and show-cause procedure below |
Notice to the Accused and Sureties (ORC 2937.36(C))
For recognizances, the magistrate or clerk shall:
- Notify the accused and each surety within 15 days after the declaration of forfeiture;
- by ordinary mail;
- at the address shown in their affidavits of qualification or on the record of the case;
- informing them of the default of the accused and the adjudication of forfeiture; and
- requiring each of them to show cause on or before a date certain, stated in the notice, not less than 45 nor more than 60 days from the date of mailing, why judgment should not be entered against each of them for the penalty stated in the recognizance.
Jurisdiction: Mailing this notice is what attaches the court's jurisdiction over the surety's person, even if the surety is outside the court's territory (ORC 2937.37).
Keep addresses current. Notice goes to the address on the record or in the affidavits. An agent who moves without updating the court clerk (ORC 3905.89) risks missing the notice and the show-cause date.
Timeline Example
- June 2: The defendant misses a pretrial, and the court adjudges the bond forfeit.
- By June 17: The clerk must mail notice (within 15 days).
- Suppose the clerk mails on June 10. The show-cause date must fall between July 25 (45 days) and August 9 (60 days).
Showing Cause
The statute says judgment is entered "if good cause by production of the body of the accused or otherwise is not shown."
- Production of the body is the classic answer: the surety locates the defendant and returns them to custody or court before the show-cause date. The apprehension must comply with ORC 2927.27 (Section 9.1).
- "Or otherwise" leaves room for other good-cause showings. Whether a particular excuse is enough is up to the court. Bring documented proof, such as certified records showing where the defendant is being held.
What the Surety Should Do in the Window
- Calendar the notice date, the 45-to-60-day show-cause date, and the court.
- Investigate: contact the indemnitors, check the jails, and review the file for leads.
- Recover lawfully: use authorized persons with a written contract naming the principal, and notify local law enforcement first.
- Surrender: deliver the defendant into open court or to the sheriff. Obtain the entry and the sheriff's return.
- Collateral: if you may need to convert collateral, send the 10-day certified-mail notice of intent to the principal and the person who gave it (ORC 3905.92(D)).
- Appear on or before the show-cause date with evidence.
After a court adjudges a recognizance forfeit, within what time and by what method must the clerk notify the accused and each surety under ORC 2937.36(C)?
The clerk mails a forfeiture notice on September 1. Under ORC 2937.36(C), which show-cause date is permissible?
A defendant misses a hearing, and the judge wants to give him one more chance before forfeiting the bond. What does ORC 2937.35 allow?
A depositor posted U.S. Treasury bonds as bail, and the bail was forfeited. The clerk mails notice of intent to sell them. How can the depositor stop the sale under ORC 2937.36(B)?