Statewide Bail Bonding v. Honorable Charlene Barlow

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 54
_________________________________________________________
THE UTAH COURT OF APPEALS
STATEWIDE BAIL BONDING,
Petitioner,
v.
THE HONORABLE CHARLENE BARLOW,
Respondent.
Opinion
No. 20130452-CA
Filed March 6, 2014
Original Proceeding in this Court
Randall T. Gaither, Attorney for Petitioner
Brent M. Johnson, Attorney for Respondent
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN concurred. SENIOR JUDGE
RUSSELL W. BENCH dissented, with opinion.1
VOROS, Judge:
¶1 This case arises from the interaction of two provisions of the
Bail Surety Act. Subject to stated conditions, one provision directs
the court to order forfeiture of the bail bond on the prosecutor’s
motion if the surety fails to produce the defendant within six
months after her nonappearance. The other provision directs the
court to exonerate the bond if the surety produces the defendant
before judgment. Here, the surety produced the defendant after the
six months had run but before judgment. Accordingly, one
provision seemed to require that the bond be forfeited, the other

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 2 2014 UT App 54
that the bond be exonerated. The district court granted the
prosecutor’s motion to forfeit the bond. The surety now seeks an
extraordinary writ directing the district court to exonerate the
bond. We grant the writ and direct the district court to exonerate
the bond.
BACKGROUND
¶2 The operative facts are brief and uncontested. Pursuant to a
$2,500 bail bond posted by Statewide Bail Bonding, the jail released
a defendant who was awaiting trial on an assault charge. The
defendant later missed a scheduled hearing. The district court
informed Statewide of that fact and issued a warrant for failure to
appear. Over six months later, Statewide delivered the defendant
to jail for booking. The next day Statewide filed a motion to
exonerate the bond. Nine days later the prosecutor filed a motion
to forfeit the bond. The district court granted judgment of forfeiture
without a hearing and then, after a hearing, denied Statewide’s
motion to set that judgment aside.
ISSUE AND STANDARD OF REVIEW
¶3 Statewide seeks an extraordinary writ reversing the district
court’s order declaring the bail bond forfeited. The question before
us is whether the Bail Surety Act mandates automatic forfeiture of
a bail bond when a surety does not deliver a defendant within six
months of the defendant’s nonappearance. See Utah Code Ann.
§§ 77-20b-101 to -105 (LexisNexis 2012).
¶4 Extraordinary relief may be granted where a lower court
“has exceeded its jurisdiction or abused its discretion.” Utah R. Civ.
P. 65B(d)(2); see also Utah R. App. P. 19. The misapplication of a
statute is an abuse of discretion warranting extraordinary relief. See
State v. Barrett, 2005 UT 88, ¶¶ 26, 47, 127 P.3d 682. The Utah
Supreme Court has “consistently held that the proper

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 3 2014 UT App 54
interpretation of a statute is a question of law that should be
reviewed for correctness.” Id. ¶ 14. Therefore, where a petition for
extraordinary relief “presents purely legal questions, we afford the
district court’s conclusions no deference.” Gordon v. Maughan, 2009
UT App 25, ¶ 4, 204 P.3d 189.
ANALYSIS
¶5 We begin by analyzing the “plain language” of the Bail
Surety Act. Davis v. Provo City Corp., 2008 UT 59, ¶ 13, 193 P.3d 86.
“[W]e assume the legislature used each term advisedly and in
accordance with its ordinary meaning.” Id. We also “read the plain
language of the statute as a whole” and “interpret its provisions in
harmony with other statutes in the same chapter and related
chapters.” Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592. “Our
overall goal is to give effect to the legislative intent, as evidenced
by the [statute’s] plain language, in light of the purpose the statute
was meant to achieve.” In re Adoption of Baby E.Z., 2011 UT 38, ¶ 15,
266 P.3d 702 (alteration in original) (citation and internal quotation
marks omitted).
¶6 Under the Act, if a defendant who has posted bond fails to
appear, the court shall issue a bench warrant and “direct that the
surety be given notice of the nonappearance.” Utah Code Ann.
§ 77-20b-101(1). The court may thereafter exonerate the bond or
order it forfeited.
¶7 The Act describes a process for exoneration of the bond. If
the defendant is arrested and booked or if the surety delivers the
defendant for booking, the court must—absent countervailing good
cause—exonerate the bond:
(c) If the defendant is arrested and booked into a
county jail booking facility pursuant to a warrant for
failure to appear on the original charges and the

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 4 2014 UT App 54
court is notified of the arrest, . . . the court shall
exonerate the bond.
(d) Unless the court makes a finding of good cause
why the bond should not be exonerated, it shall
exonerate the bond if:
(i) the surety has delivered the defendant to
the county jail booking facility in the county
where the original charge is pending . . . .
Id. § 77-20b-101(4)(c), (d). However, the surety may obtain
exoneration of the bond only before judgment:
The surety is entitled to obtain the exoneration of its
bond prior to judgment by providing written proof
to the court and the prosecutor that:
(1) the defendant has been booked for failure
to appear regarding the charge for which the
bond was issued . . . .
Id. § 77-20b-105. No motion, hearing, or findings are required; the
surety is entitled to obtain the exoneration simply by providing
written proof of booking to the court and the prosecutor. See id.
¶8 The Act also describes a process for bond forfeiture. If the
surety has not delivered the defendant for booking within six
months of her nonappearance, the prosecutor may seek forfeiture
of the bond:
If notice of nonappearance has been mailed to a
surety under Section 77-20b-101, the surety may
bring the defendant before the court or surrender the
defendant into the custody of a county sheriff within
the state within six months of the date of
nonappearance, during which time a forfeiture action
on the bond may not be brought.

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 5 2014 UT App 54
Id. § 77-20b-102(1). The court may, upon request, extend the six-
month delivery window for sixty days. Id. § 77-20b-102(2), (3).
When a surety fails to produce the defendant within the delivery
window, “the prosecuting attorney may request the forfeiture of
the bail.” Id. § 77-20b-104(1). The prosecutor does this by filing a
motion with the court and mailing a copy to the surety. Id. The
court is then required to order forfeiture of the bond if it finds that
four conditions are met, including that the surety failed to produce
the defendant within the delivery window:
A court shall enter judgment of bail forfeiture
without further notice if it finds by a preponderance
of the evidence:
(a) the defendant failed to appear as required;
(b) the surety was given notice of the
defendant’s nonappearance in accordance
with Section 77-20b-101;
(c) the surety failed to bring the defendant to
the court within the six-month period under
Section 77-20b-102; and
(d) the prosecutor has complied with the
notice requirements under Subsection (1).
Id. § 77-20b-104(2).
¶9 Here, the sequence of events unfolded as follows: the
defendant failed to appear; the six-month delivery window expired
without having been extended; Statewide delivered the defendant
to the jail for booking; Statewide moved for exoneration of the
bond; and the prosecutor moved for forfeiture of the bond. Faced
with competing motions, the district court construed the Bail
Surety Act to mean that “the bond was forfeit when the six months’
time expired and [Statewide] had neither produced [the defendant]
to the court or the county sheriff nor filed a motion to extend.”
Because the defendant “was not arrested within the time limit
established by statute,” the district court ordered the bond
forfeited.

Statewide Bail Bonding v. Hon. Charlene Barlow
2. The Honorable Charlene Barlow granted judgment of forfeiture
and denied Statewide’s motion to set that judgment aside. To
distinguish between Judge Barlow’s role as district court judge and
as her role as a party before this court, we refer to her as
Respondent when we relate her arguments in this case. The State
made no appearance in this original writ proceeding.
3. We do so mindful that “legislation is rarely a result of an attempt
to advance a single cause at all costs, and is almost always a
balance of competing objectives.” Hughes Gen. Contractors, Inc. v.
(continued...)
20130452-CA 6 2014 UT App 54
¶10 Relying on the exoneration provisions, Statewide contends
that it was entitled to exoneration of the bond: having delivered the
defendant for booking before judgment and given notice to the
court and the prosecutor, Statewide was “entitled to obtain”
exoneration. Indeed, Statewide argues, the statute directs that,
under these circumstances, the court “shall exonerate the bond.” Id.
§ 77-20b-101(3)(c). But Respondent, relying on the forfeiture
provisions, contends that she was required to order forfeiture of
the bond. Statewide failed to bring the defendant to court within2
the statutory period. Under the statute, the court was then bound
to “enter judgment of bail forfeiture without further notice.” Id.
§ 77-20b-104(2).
¶11 Both readings of the Act are plausible. “When viewing the
act as a whole does not eliminate duplicative yet plausible
meanings, the statute is ambiguous . . . .” R & R Indus. Park, LLC v.
Utah Prop. & Casualty Ins. Guar. Ass'n, 2008 UT 80, ¶ 26, 199 P.3d
917 (citation and internal quotation marks omitted). “When a
statute is ambiguous, we use extrinsic interpretive tools such as
policy and legislative intent to guide our analysis.” Id. ¶ 25. As
stated above, in interpreting statutes we seek to effectuate the
statute’s plain language “in light of the purpose the statute was
meant to achieve.” In re Adoption of Baby E.Z., 2011 UT 38, ¶ 15, 266
P.3d 702 (citation and internal quotation marks omitted).3

Statewide Bail Bonding v. Hon. Charlene Barlow
3. (...continued)
Utah Labor Comm’n, 2014 UT 3, ¶ 28; see also Stewart v. Bova, 2011 UT
App 129, ¶¶ 10–15, 256 P.3d 230 (considering both a statute’s
“ultimate goal” and its “method by which that goal is to be
obtained” when analyzing its purpose).
20130452-CA 7 2014 UT App 54
¶12 The Bail Surety Act establishes procedures for apprehending
defendants who jump bail. As explained, these procedures include
mechanisms for both exoneration and forfeiture of bail bonds. But
we agree with both parties here that the central purpose of the Act
is to secure the appearance of those accused of crime. “Utah has a
strong interest in seeing that fugitives from its criminal justice
system are apprehended . . . .” Lee v. Thorpe, 2006 UT 66, ¶ 20, 147
P.3d 443. While the Act also provides a means to forfeit bail bonds
to the State, forfeiture serves the ancillary purpose of inducing
sureties to advance the central purpose of the Act: apprehending
those accused of crime.
¶13 This fundamental legislative purpose is served by allowing
the exoneration of a bail bond even if the surety delivers the
defendant after the statutory period has run, so long as judgment
has not been entered and the prosecutor has not moved for
forfeiture. This reading allows the prosecutor to extend the period
for apprehending the absconder by neither seeking forfeiture nor
moving the prosecution to judgment. On the other hand, reading
the statute to effect automatic forfeiture after the expiration of the
delivery window, without more, would eliminate any incentive for
the surety to continue its pursuit of the defendant.
¶14 Under our interpretation, the six-month period is less a
limitations period for the surety than a waiting period for the
prosecutor. After a defendant jumps bail, the surety has at least six
months to apprehend her, during which time the prosecutor may
not seek forfeiture. Thus, in the race to exonerate or forfeit the
bond, the surety is given a six-month head start.

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 8 2014 UT App 54
¶15 Moreover, extending the apprehension period until
judgment—so long as the prosecutor cooperates by not seeking
forfeiture—furthers the Act’s purpose because a defendant booked
before judgment can still be prosecuted in the pending action. The
six-month period thus makes more sense when read as the earliest
date on which the prosecutor can seek forfeiture of the bond rather
than the latest date on which the surety can seek exoneration of the
bond.
¶16 Respondent counters that under section 104, “[e]ntering a
judgment of forfeiture is essentially a formality after several events
have elapsed” and that in this case “the bond was immediately
forfeit and the judgment simply formally recognized the forfeiture
that had occurred.”
¶17 We do not read section 104 as merely a directive for the
court to formally recognize a forfeiture effectively accomplished by
operation of law. Such a reading overlooks the roles of the
prosecutor and the court in the forfeiture process. Section 104 states
that the prosecutor “may request the forfeiture of the bail” by filing
a motion and serving the surety. Utah Code Ann. § 77-20b-104(1)
(LexisNexis 2012). The word may implies that the prosecutor
alternatively may not move for forfeiture. If the legislature intended
the running of the statutory period to work a near-automatic
forfeiture of the bond, this implied grant of prosecutorial discretion
would be illusory. See In re M.M., 2003 UT 54, ¶¶ 7–8, 82 P.3d 1104
(interpreting a statute so as to avoid rendering terms illusory).
¶18 In addition, section 104 permits forfeiture only after the
court “finds by a preponderance of the evidence” certain facts. See
Utah Code Ann. § 77-20b-104(2). We agree with Respondent that
as a matter of practice those facts will rarely be contested and
forfeiture will typically occur as a matter of course. We thus also
agree that, having found the necessary facts, the court enjoys little
or no discretion to deny forfeiture. Nevertheless, the statutory
requirement that specified facts be found by a preponderance of
the evidence demonstrates that the court plays a necessary

Statewide Bail Bonding v. Hon. Charlene Barlow
4. Respondent also contends that the wording of the relevant
statutes suggests greater discretion on the court’s part in ordering
exoneration than in ordering forfeiture. Specifically, section 77-20b-
101(4)(c) states that if the court makes the requisite factual findings
it “shall” order forfeiture of the bond, whereas section 77-20b-105
states that if the defendant has been booked prior to judgment the
surety “is entitled to obtain the exoneration of its bond.” We do not
agree that this difference in wording is decisive.
20130452-CA 9 2014 UT App 54
adjudicative role in the forfeiture process. In sum, forfeiture is not
automatic.4
¶19 Because the district court applied the Bail Surety Act in a
plausible but ultimately incorrect manner, Statewide qualifies for
extraordinary relief. Nevertheless, Respondent urges us to exercise
our discretion to deny relief.
¶20 “The decision to grant or deny a petition for extraordinary
writ is discretionary.” Krejci v. City of Saratoga Springs, 2013 UT
74, ¶ 10. “Unlike a party filing a direct appeal, a petitioner
seeking . . . extraordinary relief has no right to receive a remedy
that corrects a lower court’s mishandling of a particular case.
Rather, whether relief is ultimately granted is left to the sound
discretion of the court hearing the petition.” State v. Barrett, 2005
UT 88, ¶ 23, 127 P.3d 682. “In sum, if a petitioner is able to establish
that a lower court abused its discretion, that petitioner becomes
eligible for, but not entitled to, extraordinary relief.” Id. ¶ 24.
¶21 We see no reason to deny relief here. By delivering the
defendant for booking and requesting exoneration of its bond,
Statewide fully performed before judgment and even before the
prosecutor moved for forfeiture. Yet its bond was forfeited.
Consequently, Statewide lost the bond amount notwithstanding
having completed the performance for which the bond served as
security. Conversely, the prosecutor ended up with the defendant
in one pocket and the bond money in the other. This misallocation

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 10 2014 UT App 54
of benefits and burdens convinces us that extraordinary relief is
appropriate here.
CONCLUSION
¶22 For the foregoing reasons, we grant the writ. We vacate the
district court’s order granting forfeiture and direct it to exonerate
the bond.
BENCH, Senior Judge (dissenting):
¶23 In denying the surety’s motion to set aside the judgment of
forfeiture, the respondent judge issued a thirteen-page Ruling.
Because I agree with the rationale of that Ruling, I quote the major
parts of it as follows:
To decide whether forfeiture or exoneration of
the bond is appropriate in this case requires the court
to first review the plain language of the statute, then
if the language is not plain the Court will look
outside the language to the legislative history and
policy of the statute. The Bail Surety statutory
scheme reflects that the purpose of the statutory
scheme is to provide a procedure to follow when a
defendant fails to appear. A bench warrant issues, a
surety has notice of defendant’s failure to appear,
and the surety is given time to find and produce
defendant to the court or county sheriff before the
bond is forfeit. The statutory scheme sets forth
benchmarks for when certain acts of the court, the
surety, and the prosecutor are required. For example,
the clerk of the court must send the surety notice of
defendant’s failure to appear within 30 days, and the
prosecutor cannot file a motion for bail forfeiture
until six months after defendant’s failure to appear or

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 11 2014 UT App 54
after an extension has expired. At issue here is the
timing the surety has to produce the defendant to
qualify for exoneration of the bond.
The Surety claims it has until judgment is
entered to produce the defendant and file its motion
for exoneration based upon § 77-20b-10, titled
“Revocation of bond,” which states:
The surety is entitled to obtain the
exoneration of its bond prior to judgment by
providing written proof to the court and the
prosecutor that:
(1) the defendant has been booked for
failure to appear regarding the charge for
which the bond was issued; or
(2) the defendant is in custody and the
surety has served the defendant’s bond
revocation on the custodial authority.
At first blush, the “prior to judgment”
language appears to be inconsistent with the rest of
the statute. However, upon closer review, the Court
found that the plain language of the statute sets forth
a clear process for the forfeiture and exoneration of
bonds that is internally consistent; therefore, the
Court need look no further to harmonize the sections
of the statute.
The statutory scheme of the Bail Surety sets
benchmarks for when certain acts of the court, the
surety, and the prosecutor are required before bail is
forfeit. Section 77-20b-101 requires the court to give
the surety notice of defendant’s failure to appear
within 30 days and the prosecutor may do so within
37 days, but if the surety is not mailed such notice
then a surety is “relieved of further obligation.”

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 12 2014 UT App 54
The next section, Utah Code § 77-20b-102
provides that if the surety has been mailed the notice
of defendant’s nonappearance, the surety’s duty “to
bring defendant before the court or surrender the
defendant into the custody of a county sheriff within
six months of the date of nonappearance” is
triggered. Utah Code § 77-20b-102. The same section
also provides that the surety may request an
extension by filing a motion prior to the expiration of
the six months, but the court may not grant an
extension for more than 60 days and there must be
good cause to do so. Id. This section further provides
that the prosecutor cannot file a motion for bail
forfeiture until six months after defendant’s failure to
appear or after an extension has expired.
The following section, Utah Code § 77-20b-
103, provides that if a surety discovers the defendant
is in the custody of authorities of another jurisdiction,
then the surety shall notify the court and the
prosecutor, which triggers the prosecutor’s duty to
decide whether to extradite the defendant within 60
days, and the exoneration of the bond.
The next section, Utah Code § 77-20b-104,
provides the circumstances where the bond is forfeit,
including:
(1) If a surety fails to bring the defendant
before the court within the time provided in
Section 77-20b-102, the prosecuting attorney
may request the forfeiture of the bail by:
(a) filing a motion for bail forfeiture
with the court, supported by proof of notice to
the surety of the defendant’s nonappearance;
and
(b) mailing a copy of the motion to the
surety.

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 13 2014 UT App 54
If the prosecutor files a motion for bail
forfeiture, then § 77-20b-104 states:
(2) A court shall enter judgment of bail
forfeiture without further notice if it find[s] by
a preponderance of the evidence:
(a) the defendant failed to appear as
required;
(b) the surety was given notice of the
defendant’s nonappearance in accordance
with Section 77-20b-101;
(c) the surety failed to bring the
defendant to the court within the six-month
period under Section 77-20b-102; and
(d) the prosecutor has complied with
the notice requirements under Subsection (1).
If no motion is filed by either the Surety or the
prosecutor prior to judgment, then Utah Code § 77-
20-9 provides the process for disposition of
forfeitures.
To interpret the Bail Surety statutory scheme
as argued by Surety would be to isolate the phrase
“prior to judgment” and improperly ignore or nullify
portions of the statutory scheme. “Under our rules of
statutory construction, we must give effect to every
provision of a statute and avoid an interpretation
that will render portions of a statute inoperative.”
Thayer v. Washington County School District, 2012 UT
31, ¶ 12, 285 P.3d 1142 . . . . If Surety had up until
judgment to find and produce defendant to the court
or the county sheriff, then there would be no purpose
for either § 77-20b-102(1), (2) and (3), and § 77-20b-
104(1). Section 77-20b-102(1), (2) and (3) provides that
a surety has six months to produce defendant and
may request an extension of up to sixty days prior to
the six months expiring. If the surety had until
judgment to produce defendant then there would be

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 14 2014 UT App 54
no purpose for either the six month limit, or the
ability to request an extension, and there would be
no need to limit the extension to be “not more than
sixty days.” Section 77-20b-104(1) provides the
prosecutor may file a motion for forfeiture of bond
after the time given under § 77-20b-102 has passed,
which is six months or as extended up to 60 days. If
the surety had until judgment to produce defendant
then there would be no purpose for the prosecutor to
file a motion for forfeiture of bond because Utah
Code § 77-20-9 sets forth the automatic process for
forfeiture of the unclaimed bond upon judgment. To
interpret the “prior to judgment” language in § 77-
20b-105 so broadly would ignore other language of
the statute and would be against the plain language
of the statute. The “prior to judgment” language is
specific to the time the Surety has to provide
written proof to the court and the
prosecutor that:
(1) the defendant has been booked for
failure to appear regarding the charge for
which the bond was issued; or
(2) the defendant is in custody and the
surety has served the defendant’s bond
revocation on the custodial authority.
If the Surety fails to file written proof as required,
then the bond is forfeit and disposed of pursuant to
§ 77-20-9. The Surety’s time to find and produce the
defendant to the court or the county sheriff is six
months from the time of the nonappearance, or if the
Surety timely files a motion to extend then as
extended by the court up to 60 days.
¶24 I agree with the respondent judge’s analysis of the relevant
statutes. Therefore, I could not conclude that she exceeded her
jurisdiction or abused her discretion in the context of this petition
for extraordinary relief. See Utah R. Civ. P. 65B(d). But even if her

Statewide Bail Bonding v. Hon. Charlene Barlow
20130452-CA 15 2014 UT App 54
interpretation is flawed, I would not exercise this court's discretion
to grant extraordinary relief given the ambiguous nature of the
statute and the reasonableness of the competing interpretations at
issue in this case. See State v. Barrett, 2005 UT 88, ¶ 26, 127 P.3d 682
(recognizing that "the egregiousness of the alleged error is a factor
that should be considered when the court reviewing the petition
[for extraordinary relief] assesses the propriety of exercising its
discretion to grant relief"). And if the statutory scheme must be
fixed, that should be done by the legislature and not by this court.
¶25 I therefore respectfully dissent. I would deny the petition for
extraordinary relief.