1. Bail and Pretrial Release--bond forfeiture--motion to set aside_-constructive notice
The trial court did not err by denying a professional bail bondsman's motion to set aside
forfeiture of an appearance bond he posted on behalf of defendant for the purpose of securing
defendant's appearance in court to answer charges of driving while license revoked and failure to
appear, because: (1) N.C.G.S. § 15A-544.5(f) does not require that a surety or bail agent have
actual, rather than constructive, notice that a defendant has failed to appear on two or more prior
occasions before the surety is precluded from having the forfeiture set aside; (2) a professional
bondsman should reasonably be expected to understand an “OFA/FTA” notation on a release
order as standing for “order for arrest/failure to appear,” and the bondsman could have
discovered the earlier bond forfeiture notices, arrest warrants and arrest orders by exercising
proper diligence; and (3) the professional bondsman had a duty of inquiring further into the
background of this matter before executing the appearance bond at issue.
2. Bail and Pretrial Release--bond forfeiture--motion to set aside_-prior failures to
appear
The trial court did not err in a driving while license revoked and failure to appear case by
finding that defendant had two prior failures to appear and by denying a professional bail
bondsman's motion to set aside the bond forfeiture on this basis even though the bondsman
contends that defendant's failure to appear on 25 September 1995 by citation instead of under a
bond should not count as a “failure to appear on two or more prior occasions” for purposes of
N.C.G.S. § 15A-544.5(f), because: (1) the plain language of N.C.G.S. § 15A-544.5(f) provides
only that the State must prove that defendant had already failed to appear on two or more prior
occasions before forfeiture of the bond becomes absolute; and (2) even though the bondsman
correctly notes that the subsection title of the statute states “No More Than Two Forfeitures May
Be Set Aside Per Case,” the language of the title of a statute is not permitted to control
expressions in the body of a statute that conflict with it.
Aaron E. Michel for bondsman-appellant.
David K. Holley for appellee Alamance-Burlington Board of
Education.
ELMORE, Judge.
In this appeal we must determine whether the trial court erred
by denying professional bail bondsman Tim Mathis' (Mathis) motion
to set aside forfeiture of an appearance bond Mathis posted on
behalf of Jeffrey Craig Poteat (Poteat) for the purpose of securing
Poteat's appearance in court to answer charges of driving while
license revoked and failure to appear. Because we conclude that
the trial court correctly denied Mathis' motion, we affirm the
trial court's order.
The underlying facts are as follows: on 29 August 1995, a
North Carolina State Highway Patrol officer cited Poteat for
driving while license revoked, a misdemeanor, on Interstate 40 near
Burlington, North Carolina. The citation directed Poteat to appear
in Alamance County District Court to answer the charge on 25
September 1995. After Poteat failed to appear in court on 25
September 1995, a warrant for his arrest for failure to appear as
directed by the citation was issued on 4 October 1995, with bond
set at $200.00 secured. On 5 November 1995, this warrant was
returned unexecuted because the North Carolina State Highway Patrol
was unable to locate Poteat.
Thereafter, on 30 September 1997, a new warrant for Poteat's
arrest was issued based on the same facts and circumstances stated
in the 4 October 1995 arrest warrant, with bond increased to
$400.00 secured. As with the earlier arrest warrant, this warrant
was returned unexecuted on 15 October 1997, this time by the
Alamance County Sheriff's Department. The arrest warrant for
failure to appear was reissued on 8 June 2001, and Poteat was
arrested the same day. Poteat was released from jail later thatday after Adean McBroom (McBroom), Poteat's mother, became surety
for Poteat by posting an appearance bond for pretrial release in
the amount of $400.00. Pursuant to a release order executed by an
Alamance County Magistrate, Poteat was ordered to appear in
Alamance County District Court on 11 June 2001.
On 11 December 2001, the Alamance County Clerk of Superior
Court issued an order for Poteat's arrest after Poteat failed to
appear in court on that date as directed.
(See footnote 1)
The record on appeal
does not contain a release order directing Poteat to appear in
court on 11 December 2001, although the 11 December 2001 order for
Poteat's arrest states Poteat “has been arrested and released from
custody and has failed to appear on 12/11/01 as required by the
release order.” On 31 December 2001, a bond forfeiture notice was
entered notifying McBroom that the appearance bond she posted as
surety for Poteat had been ordered forfeited due to Poteat's
failure to appear in court on 11 December 2001. Meanwhile,
Alamance County sheriff's deputies were unable to locate Poteat,
and the 11 December 2001 order for his arrest was returned unserved
on 20 February 2002.
In May 2002, a writ of execution was issued against Poteat,
and McBroom as surety, seeking recovery by the State of North
Carolina of the $400.00 appearance bond which had been forfeited by
Poteat's failure to appear on 11 December 2001. This writ of
execution was returned on 3 June 2002 because appellee Alamance-Burlington Board of Education (School Board) refused to advance the
required levy fees.
(See footnote 2)
On 6 September 2002, a Mecklenburg County sheriff's deputy
arrested Poteat after receiving the 11 December 2001 order for
Poteat's arrest. A release order issued 6 September 2002 in
Mecklenburg County set Poteat's bond at $9,200.00 secured and
ordered him held in the Mecklenburg County jail for “pick-up by
Alamance County.” The portion of the release order entitled
“Offense(s)” contained the following entries: “DWLR” for “driving
while license revoked,” and what appears to be “OFA/FTA,” which,
while somewhat difficult to read on the copy contained in the
record, appears to stand for “order for arrest/failure to appear.”
Appellant Mathis, a professional bail bondsman from Monroe,
North Carolina who testified that he writes most of his bonds in
Mecklenburg and Union counties, first became involved in these
proceedings on 12 September 2002, when he entered into an
appearance bond for Poteat's pretrial release in the amount of
$9,200.00. On 30 September 2002, the Alamance County Clerk of
Superior Court issued another order for Poteat's arrest, stating
again that Poteat “has been arrested and released from custody and
has failed to appear on 12/11/01 as required by the release order.”
The Alamance County Clerk's office then issued a second bond
forfeiture notice, this time to Mathis as surety, indicating “Date
of Forfeiture” as 30 September 2002, “Date of Notice Given” as 12October 2002, and “Final Judgment Date” as 11 March 2003. Thus, it
appears from the record that following Poteat's release on the
appearance bond executed by Mathis on 12 September 2002, Poteat was
directed to appear in court on 30 September 2002, and that Poteat
failed to appear, for a third time, on that date.
On 10 March 2003, one day before the “Final Judgment Date” as
indicated on the bond forfeiture notice served upon Mathis in
October 2002, Mathis moved to set aside forfeiture of the $9,200.00
appearance bond he entered into as surety for Poteat on 12
September 2002. The School Board filed an objection to Mathis'
motion on 20 March 2003. The trial court heard arguments on
Mathis' motion on 21 April 2003 and denied the motion, on the
grounds that Mathis had notice of Poteat's two prior failures to
appear before entering into the 12 September 2002 appearance bond
for Poteat's pretrial release. From this order, Mathis now
appeals.
The issues are whether the trial court erred by (1) denying
Mathis' motion to set aside the bond forfeiture where he had
constructive notice of Poteat's two prior failures to appear, and
(2) finding that Poteat had two prior failures to appear and
denying Mathis' motion to set aside the bond forfeiture on this
basis.
[1] By his first assignment of error, Mathis contends that
N.C. Gen. Stat. § 15A-544.5(f) should be construed as requiring
that a surety or bail agent have actual, rather than constructive,
notice that a defendant has failed to appear on two or more prioroccasions before the surety is precluded from having the forfeiture
set aside. We disagree.
N.C. Gen. Stat. § 15A-544.5(f) provides as follows:
(f) No More Than Two Forfeitures May Be Set Aside Per
Case. _ In any case in which the State proves that the
surety or the bail agent had notice or actual knowledge,
before executing a bail bond, that the defendant had
already failed to appear on two or more prior occasions,
no forfeiture of that bond may be set aside for any
reason.
N.C. Gen. Stat. § 15A-544.5(f)(2003) (emphasis added).
The record in the present case clearly shows that Poteat
failed to appear in court as directed on at least two occasions,
those being 25 September 1995 and 11 December 2001, before Mathis
executed an appearance bond securing Poteat's appearance on 30
September 2002, and that Poteat subsequently failed to appear in
court on that date as well, resulting in forfeiture of the bond
executed by Mathis. Because Mathis maintains that he was not aware
of these two prior failures to appear before he executed the
appearance bond at issue herein, we must determine whether the type
of “notice” contemplated by N.C. Gen. Stat. § 15A-544.5(f) includes
constructive notice. We conclude that it does.
In defining “notice,” Black's Law Dictionary provides that
“notice” may be either “actual, which brings the knowledge of a
fact directly home to the party[,]” or “constructive,” which is
defined as “information or knowledge of a fact imputed by law to a
person (although he may not actually have it), because he could
have discovered the fact by proper diligence, and his situation wassuch as to cast upon him the duty of inquiring into it.” Black's
Law Dictionary 1061-62 (6th ed. 1990).
“The cardinal principle of statutory construction is that the
intent of the legislature is controlling.” Nationwide Mutual Ins.
Co. v. Mabe, 342 N.C. 482, 494, 467 S.E.2d 34, 41 (1996). Adopting
Mathis' interpretation of N.C. Gen. Stat. § 15A-544.5(f) as
requiring only actual notice would render the statute's language
concerning “actual knowledge” redundant and superfluous, and it is
“a well settled principle of statutory construction that words of
a statute are not to be deemed merely redundant if they can
reasonably be construed so as to add something to the statute which
is in harmony with its purpose.” In Re Watson, 273 N.C. 629, 634,
161 S.E.2d 1, 6-7 (1968). “The purpose of [N.C. Gen. Stat. § 15A-
544] is to regulate the forfeiture of bonds in criminal proceedings
and to establish 'an orderly procedure for forfeiture.'” State v.
Cox, 90 N.C. App. 742, 744, 370 S.E.2d 260, 261 (1988) (quoting
State v. Moore, 57 N.C. App. 676, 678, 292 S.E.2d 153, 155 (1982).
We conclude that construing the term “notice” in N.C. Gen.
Stat. § 15A-544.5(f) to include constructive, as well as actual,
notice is in harmony with this statute's purpose. In the present
case, when Mathis executed the appearance bond for Poteat in
Mecklenburg County on 12 September 2002, the release order issued
on 6 September 2002 upon Poteat's arrest in Mecklenburg County was
available for Mathis' review as part of Poteat's Mecklenburg County
court file. As noted above, this release order contained the
notations “DWLR” and “OFA/FTA” in the section of the release order
labeled “Offense(s).” A professional bondsman such as Mathisshould reasonably be expected to understand an “OFA/FTA” notation
on a release order as standing for “order for arrest/failure to
appear.” Mathis, especially in light of his status as a
professional bondsman, could have discovered the 6 September 2002
release order by exercising proper diligence. Further, upon
discovering that Poteat had at least one prior failure to appear,
Mathis through the exercise of proper diligence could have readily
discovered the earlier bond forfeiture notices, arrest warrants,
and orders for Poteat's arrest, any of which would have indicated
that Poteat had a second prior failure to appear. These are all
public documents and were all part of Poteat's Alamance County
court file. Mathis' situation as a professional bondsman, albeit
one who writes bonds primarily in Mecklenburg and Union counties,
cast upon him the duty of inquiring further into this matter's
Alamance County background before executing the appearance bond at
issue. Mathis' first assignment of error is overruled.
[2] By his second assignment of error, Mathis asserts that
because Poteat was directed to appear in court on 25 September 1995
by citation and was not then under bond, his failure to appear on
that date should not count as a “fail[ure] to appear on two or more
prior occasions” for purposes of N.C. Gen. Stat. § 15A-544.5(f).
Mathis argues that the statute is only intended to cover failures
to appear which occur upon forfeiture of a bond. However, the
statute's plain language states only that the State must prove that
the defendant “had already failed to appear on two or more prior
occasions” before forfeiture of the bond becomes absolute. See
N.C. Gen. Stat. § 15A-544.5(f). When construing a statute, thewords are to be given their ordinary meaning, unless it appears
from the context that they should be used in a different sense.
Jordan v. Central Piedmont Community College, 124 N.C. App. 112,
116, 476 S.E.2d 410, 412 (1996), disc. review denied, 345 N.C. 753,
485 S.E.2d 53-54 (1997). Mathis correctly notes that the
subsection title of N.C. Gen. Stat. § 15A-544.5(f) is “No More Than
Two Forfeitures May Be Set Aside Per Case[;]” however, our Supreme
Court has stated that “the language of the title is not permitted
to control expressions in the body of a statute that conflict with
it.” State v. Bell, 184 N.C. 701, 707, 115 S.E. 190, 193 (1922).
Mathis' second assignment of error is overruled.
Affirmed.
Judges MCCULLOUGH and BRYANT concur.
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