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In re Bond Forfeiture in Cochise County Cause No. CR201100916

Court of Appeals of Arizona, Second Division, Department B

June 28, 2013

IN RE BOND FORFEITURE IN COCHISE COUNTY CAUSE NO. CR201100916

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CR201100916 Honorable John F. Kelliher, Jr., Judge.

T.S. Hartzell Tucson Attorney for Appellant Azteca Bail Bonds, LLC

Edward G. Rheinheimer, Cochise County Attorney By Roger H. Contreras Bisbee Attorneys for Appellee State of Arizona

OPINION

VIRGINIA C. KELLY, Judge

¶1 Appellant Azteca Bail Bond, LLC, (Azteca) challenges the trial court's judgment forfeiting a $75, 000 appearance bond it had posted on behalf of a criminal defendant. Azteca argues the trial court erred by ordering forfeiture because the bond was void and unenforceable under article II, § 22 of the Arizona Constitution. We affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the court's ruling. In re Bond Forfeiture in Pima Cnty. Cause No. CR-20031154, 208 Ariz. 368, ¶ 2, 93 P.3d 1084, 1085 (App. 2004). In December 2011, Dane Kendrick was arrested and indicted on eight felony charges. Neither the state nor the court was aware at Kendrick's initial appearance that he had been on release for felony charges in Pima County at the time he allegedly committed the Cochise County offenses. The magistrate determined Kendrick was eligible for release and set an appearance bond of $75, 000.

¶3 In January 2012, surety Azteca posted the bond. After Kendrick failed to appear at pre-trial conferences in March and April, the trial court issued a warrant for his arrest. The court also issued an order to show cause why the bond should not be forfeited to the state. Azteca filed a motion to exonerate the bond, arguing it was void because the court had "ignored the mandate" of article II, § 22 and had been without authority to order Kendrick's release. After a hearing, the court denied Azteca's motion, finding that the state "has the discretion to pursue a request that no bail be afforded an accused" and that "Kendrick's release on bail was not without authority." It ordered the $75, 000 bond forfeited. This appeal followed.

Discussion

¶4 Azteca argues the trial court erred as a matter of law by ordering the $75, 000 bond forfeited. It contends, as it did below: (1) the court exceeded its authority, as limited by article II, § 22 of the Arizona Constitution, when it set bail for Kendrick without first determining whether he was on release, and (2) the court erred by concluding the state did not have a duty to notify the court of Kendrick's release status prior to bond being set. As a result, Azteca contends the bond in this case was "void and unenforceable."

¶5 We review a trial court's order forfeiting an appearance bond for an abuse of discretion. Bond Forfeiture in Pima Cnty. Cause No. CR-20031154, 208 Ariz. 368, ¶ 2, 93 P.3d at 1085. But we review its legal conclusions de novo, including the interpretation of constitutional language. State v. Lee, 226 Ariz. 234, ¶ 9, 245 P.3d 919, 922 (App. 2011); City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 27, 181 P.3d 219, 229 (App. 2008). We interpret constitutional provisions by determining the "'intent of the electorate that adopted it.'" See Lee, 226 Ariz. 234, ¶ 9, 245 P.3d at 922, quoting Heath v. Kiger, 217 Ariz. 492, ¶ 9, 176 P.3d 690, 693 (2008). The plain language of the provision is the best reflection of that intent. Id

¶6Article II, § 22 provides, in relevant part:

A. All persons charged with crime shall be bailable by sufficient sureties, except:
2. For felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the ...

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