Bail Bond Laws and Decisions
In People v. Ranger Insurance Co., 2006 WL 979247 (Cal.App. April 14, 2006) the bail agent filed a timely motion to extend the 180 day appearance period. The court scheduled a hearing within 30 days. The motion was supported by a detailed affidavit, and the State neither filed an opposition nor appeared at the hearing. Prior to the hearing, however, the defendant was incarcerated in another county, and at the hearing the surety presented a letter showing the incarceration and that a hold had been placed against the defendant. The court exonerated the bond without first extending the appearance period. The State later moved to set aside the order exonerating the bond on the ground that the original 180 day appearance period had expired, no extension was granted, and so the court lacked jurisdiction to exonerate the bond. The court agreed, set aside its exoneration order and entered summary judgment against the surety. The Court of Appeals reversed the trial court and reinstated the exoneration order. The proper procedure would have been to extend the appearance period and then exonerate the bond, but since on the record it would have been an abuse of discretion to refuse to extend the appearance period the Court deemed the extension to have been granted. The trial court did not lack jurisdiction over the bond, and reconsideration of its order exonerating the bond was error.
In State v. Ramee, 2006 WL 1228942 (La.App. May 9, 2006) the defendant failed to appear and the bond was forfeited. Several months later, but within the six month appearance period, the defendant was incarcerated for two days in another Parish. The Court held that La.C.Cr.P. 345 did not provide relief because the defendant was released. The Court interpreted section 345 to apply only if the surety was unable to return the defendant because the defendant was incarcerated and was still incarcerated. Presumably the Court meant still incarcerated at the time the surety's motion was filed. The Court disagreed with the trial court that denied the surety's motion to set aside the forfeiture because the surety did not tender transportation costs pursuant to section 345 but nevertheless affirmed the result because section 345 did not apply at all. The Court also noted that La.R.S. 15:87 provides relief to the surety if the defendant's original failure to appear was because of incarceration on the appearance date.
State v. Walker, 2006 WL 997856 (N.C.App. April 18, 2006) held that the professional bondsman knew or should have known that the defendant had failed to appear at least twice prior to the time the bond was written and, therefore, under N.C. Gen. Stat. 15A-544.5(f) forfeiture of the bond could not be set aside for any reason. The Court of Appeals reversed the trial court and reinstated the forfeiture even though the bondsman showed that the charges were resolved. The bond showed the charge as failure to appear, and with that notice the bondsman could have found the other failures to appear from the court record. The Court stated, "with notice that Walker had a prior failure to appear, Trogdon [the bondsman] could have discovered through the exercise of proper diligence that Walker had a second prior failure to appear." The statute requires notice or actual knowledge of two prior failures to appear, but the Court essentially waters that down to notice or actual knowledge of one failure to appear with the second supplied by what the agent or surety could have found in the court record.
In State v. Teague, 2006 WL 998083 (N.C.App. April 18, 2006) the Court dismissed the School Board's appeal of a decision to remit forfeiture of the bond because the trial court did not enter its decision via a written order.
In People v. Ranger Insurance Co., 2006 WL 979247 (Cal.App. April 14, 2006) the bail agent filed a timely motion to extend the 180 day appearance period. The court scheduled a hearing within 30 days. The motion was supported by a detailed affidavit, and the State neither filed an opposition nor appeared at the hearing. Prior to the hearing, however, the defendant was incarcerated in another county, and at the hearing the surety presented a letter showing the incarceration and that a hold had been placed against the defendant. The court exonerated the bond without first extending the appearance period. The State later moved to set aside the order exonerating the bond on the ground that the original 180 day appearance period had expired, no extension was granted, and so the court lacked jurisdiction to exonerate the bond. The court agreed, set aside its exoneration order and entered summary judgment against the surety. The Court of Appeals reversed the trial court and reinstated the exoneration order. The proper procedure would have been to extend the appearance period and then exonerate the bond, but since on the record it would have been an abuse of discretion to refuse to extend the appearance period the Court deemed the extension to have been granted. The trial court did not lack jurisdiction over the bond, and reconsideration of its order exonerating the bond was error. [Not published.]
In State v. Hancock, 2006 WL 827386 (Ohio App. March 31, 2006) the defendant failed to appear and the bond was forfeited. The defendant appeared before the hearing to show cause, however, and the court reinstated the bond without notice to the surety or the surety's consent. The defendant eventually pled guilty but did not appear for sentencing. The trial court forfeited the bond and in due course entered judgment against the surety. The Court of Appeals vacated the judgment because Ohio law permits forfeiture of bonds and remission of forfeitures, but it does not permit reinstatement of a forfeited bond. Once the bond is forfeited, if the defendant appears the court must require a new bond and consider remission of the forfeiture. In this case, the bond was forfeited the first time the defendant failed to appear, and on remand the trial court was directed to consider remission of that initial forfeiture.
In State v. McLaurin, 2006 WL 782849 (La.App. March 28, 2006) the bond contained an appearance date, but the date was changed. The court attempted unsuccessfully to give the defendant notice of the new date by personal service, but did not give the surety notice. The defendant appeared on the original date and filled out a form to change her address. The record does not show whether she was given notice of the new date, but she failed to appear on the new date, and the court forfeited the bond and denied the surety's motion to set the forfeiture aside. The Court of Appeals reversed because the surety was not given notice of the new appearance date as required by La.C.Cr.P. art. 344. The Court held, "a judgment of bond forfeiture is only to be rendered upon proof of delivery or mailing of notice of the appearance date to the surety, when that date has been changed from the one listed on the appearance bond." The Court did not reach the problem with notice to the defendant, but expressed skepticism that it would have supported a forfeiture judgment.
People v. Accredited Surety and Casualty Co., Inc., 2006 WL 772876 (Cal.App. March 28, 2006) held that the trial court abused its discretion in refusing to extend the 180 day appearance period. Pursuant to Penal Code §1305.4, the surety timely moved to extend the time to vacate forfeiture of the bond and submitted an affidavit of the bail agent describing attempts to recover the defendant. The trial court denied the motion. The Court of Appeals discussed the factors to be considered and concluded, "The good cause showing under section 1305.4 is a low threshold for the movant. If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion." Since the defendant was arrested within the 180 day extension period that the surety should have been granted, the Court directed exoneration of the bond.
In re Lopes, 2006 WL 695748 (Bankr. S.D.N.Y. March 21, 2006) rejected the professional bail bond agency's objections to the dischargeability of its claim against the debtor. The debtor was an indemnitor on a bail bond written for her husband. The husband failed to appear, and the bond agency paid the forfeiture. The indemnitor then filed for bankruptcy. The bond agency argued that the debt should be non-dischargeable pursuant to 11 U.S.C. §523(a)(7) as a fine, penalty or forfeiture payable to or for the benefit of a governmental unit that is not compensation for an actual pecuniary loss. The court held that the debt was a simple contractual obligation owed to a private party and was to compensate the bond agency for its pecuniary loss in paying the forfeiture. The court recognized that if the debtor had been the principal on the bond, and therefore directly obligated to the government, the bond agency could have been subrogated to the government's rights and argued that the money owed on the bond was a penalty and not compensation for a pecuniary loss.
In Kubosh v. State, 2006 WL 560186 (Tex.App. - Houston March 9, 2006) the State asked the trial court to take judicial notice of the bond and the judgment nisi in the court file and rested its case. The surety agreed the court could take judicial notice of its own file but objected to admission of the bond into evidence. The trial court entered judgment in favor of the State and the surety appealed on the ground that the evidence was not sufficient to support the judgment. The Court of Appeals held that the trial court could take judicial notice of the documents, that the surety's evidentiary objections were not raised on appeal, and that the bond and judgment nisi were sufficient evidence to meet the State's burden of proof. The Court of Appeals affirmed the judgment.
State v. Hollars, 2006 WL 537481 (N.C.App. March 7, 2006) affirmed denial of the surety's motion to set aside forfeiture of the bond. The defendant failed to appear and the surety was given notice. Before the final judgment date, the defendant was arrested in Tennessee, and the surety's agent appeared in Tennessee and "surrendered" the defendant to the sheriff there. The surety moved to set aside the forfeiture. The Court held that when N.C. Gen. Stat. §15A-540(b) says "a surety may surrender a defendant who is already in custody of any sheriff by appearing in person and informing the sheriff that the surety wishes to surrender the defendant" it means any sheriff in North Carolina.
In County of Orange v. Ranger Insurance Co., 2006 WL 1330337 (Cal.App. May 16, 2006) the defendant was charged on a fugitive warrant from another state. He failed to appear and the proper procedures were followed to forfeit the bond and enter summary judgment. The surety moved to set aside the summary judgment because the bond form used was not for a fugitive charge. That is, the bond form was an ordinary appearance bond rather than a fugitive bond. The Court noted that the bond was conditioned on the defendant's failure to appear, which is what happened, and that the statute on fugitive warrants does not call for a particular form. The Court affirmed the trial court's denial of the surety's motion. [Not published].
City of Dodge City v. Reyes, 2006 WL 1359192 (Kan.App. May 19, 2006) held that an appearance bond in connection with an appeal to the district court was valid even though the defendant did not sign it within the time required. The surety's agent signed the bond on the proper form, and the court held that was sufficient.
In Louisiana Bail Bonds, Inc. v. State, 2006 WL 1329693 (La.App. May 17, 2006) the defendant failed to appear, and the court issued a bench warrant and forfeited the bond. No written order of forfeiture was signed, however, and no notice of forfeiture was mailed. Several months later, the court recalled the bench warrant and set aside the forfeiture. The defendant again failed to appear, and the bond was forfeited properly and notice sent to the surety. The surety and bail agent argued that the bond was released because no notice was mailed within 60 days of the original failure to appear as required by La. R.S. 15:85. The Court held that the notice requirement applied only if there was a written forfeiture order. Since in this case there was no written order for the first forfeiture, the 60 day period to mail notice did not apply and the trial court was free to set aside the forfeiture and start over. The Court affirmed judgment against the surety.
Lass v. Wright, 2006 WL 1330984 (Mo.App. May 17, 2006) affirmed judgment on a promissory note. The defendant was convicted of second degree murder, and the court set bond at $1 million. The fee for the bond was $90,000, and the defendant's father paid $2,000 and signed a note for the balance. Several months later, the court of appeals ruled that someone convicted of second degree murder was not eligible for release on bond, revoked the bond and incarcerated the defendant. The bondsman sued for the balance owed on the note, and the father counterclaimed for what he had paid on account. The father argued that the bond was illegal and so the note was not collectible. The Court noted that the bondsman was properly licensed and the defendant was released for several months. The Court refused to cancel the note and affirmed judgment for the bondsman.
In United States v. Mena, 2006 WL 1294623 (S.D.N.Y. May 10, 2006) the defendant was released on a personal recognizance bond co-signed by his wife and two others. The defendant did not appear for sentencing and is a fugitive. The wife moved to set aside or reduce the amount of the bond. The court noted that hardship on the surety was not grounds to reduce the bond and denied her motion.
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