COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69587 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION PEDRO MARTE : [Appealed by Robert Roberts, : (bondsman) and International : Fidelity Insurance Company : (surety)] : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 23, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-306205 JUDGMENT : REVERSED; FINAL JUDGMENT FOR APPELLANT. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor Suite 1016 8th Floor, Justice Center 75 Public Square 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. Bondsman Robert Roberts and surety International Fidelity Insurance Company appeal from a court order denying their motion to vacate a bond forfeiture notice. The trial court refused to vacate the forfeiture notice because it found the bondsman failed to follow established procedure for voiding bonds. The bondsman's 1 three assignments of error challenge the court's ruling. On January 18, 1994, a Cleveland Municipal Court judge set bail at $50,000 for defendant Pedro Marte, a Dominican Republic national arrested for several drug related offenses. Defendant's family engaged the bondsman to post bond. The bondsman submitted a "bond power" in lieu of cash, a document backed by a surety which guarantees payment in the event a defendant fails to appear. The bondsman signed the original copy of the bond at 8:47 p.m. and had defendant's family members deliver copies to defendant for his signature. The same evening, the municipal court judge telephoned the office of the clerk of the municipal court to raise the bond to $250,000. An employee of the clerk's office marked the form containing the $50,000 bond "VOID," and wrote in the margin, "[b]ond voided. Judge Connaly raised bond at request of Det. Escalante. 10:40 p.m." A deputy clerk's initials appeared below this notation. 1 The state has not filed a brief in this appeal, therefore we accept the statement of facts and issues as correct. See App.R. 18(C). - 3 - When defendant's family called the bondsman to tell him they could not execute the $50,000 bond, the bondsman telephoned the clerk's office. The deputy clerk on duty told the bondsman the municipal court judge voided the original bond and reset bail at $250,000. Since the municipal judge voided the original bond, the deputy clerk placed the bondsman's bond power in an envelope and left it in the office for the bondsman. The bondsman returned the $5,000 cash received from defendant's family on the original bond. On March 14, 1994, the court of common pleas issued a bond forfeiture notice to defendant, ordering him to appear in court to show cause why judgment should not be entered against him on the bond. The notice, however, stated, "NO BOND POSTED" in two separate places. When defendant failed to appear, the court forfeited defendant's recognizance and ordered the surety to appear and show cause why judgment should not render against it for the amount of the recognizance. On November 21, 1994, the court again issued a bond forfeiture notice, this time sending it to the surety and the bondsman, ordering them to show cause why judgment in the amount of $50,000 should not be entered on the recognizance. The bondsman opposed the forfeiture, arguing he had no obligation on the recognizance after the clerk's office voided the bond. The state argued the original bond was still in effect because the bondsman failed to follow established municipal court procedure for voiding bonds. Particularly, the state claimed the bondsman failed to return all - 4 - three copies of the bond executed on January 18, 1994 as required by the clerk's office. The court conducted a hearing on the matter and issued a written opinion. The court found the January 18, 1994 bond valid because the bondsman did not follow "official procedure to void a bond which requires return of the three copies released to the bondsman." Crim.R. 46 and R.C. 2937.36 generally cover bail and forfeiture of bail. Those sections do not, however, set forth procedure to be used in voiding bonds. The trial courts do, however, have discretion to set the amount of bail based upon the seriousness of the offense and the likelihood that an accused may abscond. Bland v. Holden (1970), 21 Ohio St.2d 238, 239. A collorary to this discretion to set bail must also permit the court to change the amount of bail as circumstances may warrant. At the forfeiture hearing, the state presented the testimony of the director of operations for the clerk of the Cleveland Municipal Court, Criminal Division. The director identified a memorandum written in November 1991 and addressed to all counter personnel at the clerk's office which stated: "Effective November 15, 1991, we will be instituting a new policy regarding voided bonds. When a bondsperson requests that a bond be voided you will need to fill out the Voided Bond Form (see attached). The bondsperson must return all 3 copies of the bond in order to get it voided. *** You are not to return the Bond Power or Victim Fee to the bondsperson. ***" (emphasis and parenthetical in original). - 5 - The director admitted bondsmen did not receive a copy of the memorandum, but stated they were aware of the proper procedure and that the bondsman had followed this procedure many times. The bondsman complains he cannot be held to unwritten rules of the clerk's office that contravene the authority of a judge. We agree. The undisputed facts show everyone involved, including the clerk's office, believed the original $50,000 bond had been voided, regardless whether the bondsman followed procedure. The director testified, "[o]nce [the bond is voided], it can no longer be used as a release agreement." The deputy clerk on duty the night of January 18, 1994 told the bondsman a judge voided the original bond and imposed a higher one in its place. The clerk noted this fact on the court release agreement, and wrote the word "VOID" in large letters across the document. Accordingly, the clerk returned the bondsman's bond power. That the order was in fact voided is not open to debate. The common pleas court itself treated the bond as void, as evidenced by its March 14, 1994 bond forfeiture notice which clearly states "no bond posted." That notice was sent to defendant, not the surety or bondsman. The state put into evidence a copy of the court release agreement signed by defendant and offered as proof that the bond continued in force. Interestingly, the clerk's office did not file this copy until November 18, 1994, ten months after the clerk voided the bond. Even if we could reasonably find this to be the - 6 - same bond, the director conceded the newly stamped copy did not contain a bond power as required by clerk of courts. In response to inquires why the bond appeared at that time, the director did not give any affirmative reasons for the delay, and could only say the paperwork "fell through the cracks." We believe that under the circumstances, the bondsman could properly rely on the representations of employees of the clerk's office that the bond was void due to the municipal court judge's actions, despite his knowledge of established clerk's office procedure. Indeed, the director agreed members of the public have to rely on the actions of the deputy clerks. Moreover, by obtaining his bond power back from the clerk's office, the bondsman could reasonably assume his liability on the bond expired with the bond. It is immaterial whether the deputy clerk on duty made a mistake when she returned the bond power--the fact remains the deputy clerk did release the bond power on direct instructions from a judge, and the bondsman had every right to rely on those acts regardless whether he knew established procedure. It follows that the assigned errors are sustained. The order of the trial court finding the bondsman and the surety liable on the bond is hereby reversed, and final judgment is rendered in their behalf. Judgment reversed and final judgment for appellants. - 7 - This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. O'DONNELL, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .