The trial court did not err by denying a surety's motion for relief from final judgment of
bond forfeiture under N.C.G.S. § 15A-544.5 based on the reasoning set forth under State v.
Evans, N.C. App. (Sept. 21, 2004)(No. COA03-1114).
Judge WYNN dissenting.
David Phillips, for the Cumberland County Board of Education.
Parish & Cooke, by James R. Parish, for the surety.
CALABRIA, Judge.
Robert L. McQueen (“McQueen”) appeals the trial court's denial
of his motion for relief from final judgment of bond forfeiture
.
We affirm.
On 18 October 2001, Martinez Terrell Fisher (“the defendant”)
was arrested and charged with possession with intent to sell and
deliver marijuana and cocaine (01 CRS 63255). The defendant's bond
was $2,500.00, which was posted on 19 October 2001 by McQueen. On
3 June 2002, the defendant failed to appear, and the bond was
ordered forfeited on the same date with a final judgment date of 4
November 2002. McQueen received appropriate notice.
On 15 July 2002, the defendant pled guilty pursuant to a plea
agreement.
Based upon the defendant's plea, on 8 October 2002,McQueen filed a pro se motion to set aside the bond forfeiture
pursuant to N.C. Gen. Stat. § 15A-544.5 as all the charges for
which the defendant was bonded to appear had been finally disposed
of by the court other than by the State taking a dismissal with
leave. McQueen indicated he served a copy of the motion on the
district attorney and the school board attorney by mailing a copy
to each by first class mail on 8 October 2002. However, McQueen
did not mail a copy of the motion to the school board attorney
until 17 October 2002. Based upon the delay in service, the school
board requested McQueen's motion to set aside the bond forfeiture
be denied.
On 26 November 2002, the trial court denied McQueen's motion
indicating “this case is one of nine cases on the Superior Court
calendar to be heard on this date and in each case the Cumberland
County Board of Education received notice on the 13th day after
filing.” Thus, the trial court concluded
that “the Surety's
actions do establish a pattern of conduct that is in fact denying
the statutory required period of time for response by the
Cumberland County Board of Education.
”
Though the 26 November
order was immediately appealable pursuant to N.C. Gen. Stat. § 15A-
544.5(h) (2003), McQueen filed no appeal, and the forfeiture became
a final judgment. Thereafter, McQueen initiated a new proceeding
on 31 January 2003 by filing a motion for relief from final
judgment of forfeiture.
The trial court denied said motion by
order entered 10 March 2003. From this denial, McQueen appeals.
In a related appeal, State v. Evans, ____ N.C. App. ____,
_____ S.E.2d ____ (Sept. 21, 2004) (No. COA03-1114), we addressedthe same issues raised by the parties based upon similar facts.
For the reasons stated in State v. Evans, we affirm.
Affirmed.
Judge LEVINSON concurs.
Judge WYNN dissents in a separate opinion.
WYNN, Judge dissenting.
In a related appeal, State v. Evans, ____ N.C. App. ____, ____
S.E.2d ____ (2004)(03-1114), filed 21 September 2004, this Court
addressed the same issues raised by the parties based upon similar
facts. In Evans, McQueen had surrendered the defendant to the
sheriff prior to the entry of the final judgment of bond
forfeiture. In this case, the defendant pled guilty prior to the
entry of the final judgment of bond forfeiture. Based upon the
defendant's guilty plea, McQueen sought the return of the bond
amount. As Evans and the case sub judice are substantially
similar, I respectfully dissent based upon the reasons stated in my
dissent in Evans.
Indeed, the factors for determining whether
extraordinary circumstances exist favor McQueen.
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