STATE OF NORTH CAROLINA
v. Craven County
No. 00 CRS 51951
ROBBIE DEAN NIXON
HUNTER, Judge.
Craven County Board of Education (“the Board”) appeals from an
order allowing the surety's petition to remit bond. The Board is
a judgment creditor and appellant in the present action by virtue
of its opportunity to be heard pursuant to N.C. Gen. Stat. §
15A-544 (1999) (repealed Jan. 1, 2001).
The facts relevant to this appeal are as follows: On 16
August 2000, Robbie Dean Nixon was arrested on charges of obtaining
property by false pretenses. On 10 December 2000, Mazel S. Boston,
the surety, posted an appearance bond in the amount of $5000.00 and
Nixon was released. On 23 January 2001, an Order of Bond
Forfeiture and Notice was entered when Nixon failed to appear incourt. Judgment was entered upon the bond on 2 July 2001, and a
writ of execution was entered on 3 July 2001. On 8 July 2001,
Boston surrendered Nixon to the custody of the State. On 9 July
2001, Boston paid $5007.67 to satisfy the judgment.
On 10 July 2001, Boston filed a petition seeking to have the
bond remitted. The Board opposed remission of the bond. On 8
August 2001, nunc pro tunc 16 July 2001, the superior court allowed
Boston's petition to remit bond. The court stated that “[t]he
surety, having made a diligent effort to bring the defendant before
the Court for trial, constitutes extraordinary circumstances . . .
and in the Court's discretion entitles the surety to the relief
prayed for in its Petition.” The Board appeals. We affirm.
The Board's sole argument on appeal is that the trial court
abused its discretion by remitting the bond. Specifically, the
Board contends that Boston's petition to remit bond failed to
allege specific facts upon which any relief could be granted. The
Board notes that N.C. Gen. Stat. § 15A-544(h) provides for bond
remission for extraordinary cause. Here, however, the Board
asserts that Boston merely prays for bond remission without
alleging any facts to support the remission. Thus, the Board
argues that the petition should have been dismissed. Furthermore,
even if Boston had alleged facts in its petition to support
remission of the Bond, the Board contends that “making a diligent
effort to bring the Defendant to Court is not 'extraordinary
circumstances' required by G.S. 15A-544(h).” Accordingly, the
Board requests that the Court vacate the order remitting bond andorder that bond be forfeited and paid over to them in accordance
with N.C. Gen. Stat. § 115C-437 (1999).
N.C. Gen. Stat. § 15A-544(e) states in pertinent part that:
At any time within 90 days after entry of the
judgment against a principal or surety, the
principal or surety, by verified written
petition, may request that the judgment be
remitted in whole or in part, upon such
conditions as the court may impose, if it
appears that justice requires the remission of
part or all of the judgment.
Id. Here, judgment was entered upon the bond on 2 July 2001, and
Boston petitioned for remission of the bond on 10 July 2001. Thus,
N.C. Gen. Stat. § 15A-544(e) is the applicable statutory provision,
not N.C. Gen. Stat. § 15A-544(h). In State v. Horne, 68 N.C. App.
480, 315 S.E.2d 321 (1984), this Court stated that the decision by
the trial court whether or not to remit bond pursuant to N.C. Gen.
Stat. § 15A-544(e)
is a discretionary one. We review only for an
abuse of discretion. In order to exercise
judicial discretion in a manner favorable to a
surety, the judge must determine in his
discretion that justice requires remission.
Id. at 483, 315 S.E.2d at 323 (emphasis added). In the case sub
judice, the trial court found that the surety made “diligent”
efforts, and that in its discretion the surety was entitled to
remission. We find no abuse of discretion. Accordingly, we
affirm.
Affirmed.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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