STATE OF NORTH CAROLINA
v
.
Nash County
No. 00 CRS 06820
EDDIE LEE SILVER, JR.,
Defendant
Valentine, Adams & Lamar, L.L.P., by L. Wardlaw Lamar and
Lewis W. Lamar, Jr., for appellant Nash-Rocky Mount Board of
Education.
No brief for appellee Jannet B. Pugh.
MARTIN, Judge.
On 5 June 2000, Eddie Lee Silver, Jr., (defendant) was
released from jail pursuant to an appearance bond in the amount of
$1,000.00. After defendant was called in open court and failed to
appear on 3 January 2001, the trial court issued a bond forfeiture
notice.
On 6 March 2001, the surety (appellee), Jannet B. Pugh, filed
a motion to set aside the forfeiture because “defendant was
incarcerated in a unit of the Department of Correction and is
serving a sentence or in a unit of the Federal Bureau of Prisons
located within the borders of the state at the time of the failure
to appear.” In support of the motion, appellee attached a letterdated 19 December 2000 from the Winchester Regional Adult Detention
Center in Winchester, Virginia. The letter stated defendant had
“been incarcerated in our facility from July 21, 2000 to the
present date.” The Nash-Rocky Mount Board of Education (appellant)
filed an objection and notice of hearing on 13 March 2001.
Appellant pointed out in its objection and notice that appellee's
evidence failed to show defendant was incarcerated on 3 January
2001. Appellee's evidence also did not show defendant was
incarcerated in either the Department of Correction or a unit of
the Federal Bureau of Prisons located within North Carolina.
Upon finding that appellee had “established one or more of the
reasons specified in G.S. 15A-544.5 for setting aside that
forfeiture[,]” the trial court allowed appellee's motion and set
aside that forfeiture on 5 April 2001. From the trial court's
order, appellant appeals.
Appellant contends the trial court erred by setting aside the
forfeiture because appellee failed to present a legally sufficient
reason under G.S. § 15A-544.5 (2000 Interim Supplement) (effective
1 January 2001). It argues the evidence in the supporting letter
presented by appellee did not show defendant was incarcerated
either “in a unit of the Department of Correction . . . or in a
unit of the Federal Bureau of Prisons located within the borders of
the State at the time of the failure to appear.” N.C. Gen. Stat.
§ 15A-544.5(b)(6). We agree.
“There shall be no relief from a forfeiture except as provided
in this section. The reasons for relief are those specified insubsection (b) of this section.” N.C. Gen. Stat. § 15A-544.5(a).
Subsection (b) states that “[a] forfeiture shall be set aside for
any one of the following reasons, and none other[.]” N.C. Gen.
Stat. § 15A-544.5(b). Appellee relied upon the sixth reason in her
motion to set aside the forfeiture, that “[t]he defendant was
incarcerated in a unit of the Department of Correction and is
serving a sentence or in a unit of the Federal Bureau of Prisons
located within the borders of the State at the time of the failure
to appear.” N.C. Gen. Stat. § 15A-544.5(b)(6).
Appellee's supporting letter in the record states that
defendant “has been incarcerated in [a Virginia detention center]
from July 21, 2000 to the present date [19 December 2000].”
However, defendant's failure to appear occurred on the later date
of 3 January 2001. In addition, defendant's place of incarceration
did not come within the correctional facilities specified in G.S.
§ 15A-544.5(b)(6). As a result, appellee's evidence was
insufficient to support the trial court's finding that she had
“established one or more of the reasons specified in G.S. 15A-544.5
for setting aside that forfeiture.” Accordingly, the trial court's
order is reversed and remanded.
Reversed and remanded.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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