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1. Bail and Pretrial Release_failure to appear_relief from forfeiture_no extraordinary circumstance
The trial court did not abuse its discretion by denying surety's motion under N.C.G.S. § 15A-544.8 for relief from final judgment of a bond forfeiture based on the conclusion that no extraordinary circumstances existed to grant relief, because: (1) the trial court is not required to set aside a judgment of forfeiture where the surety surrenders defendant; (2) in authorizing the trial court to set aside final judgments of forfeiture in limited circumstances, the General Assembly did not expressly provide that a surety's efforts which result in the capture and return of defendant always constitute extraordinary circumstances, but instead mandated that before a final judgment of forfeiture has been entered it shall be set aside where defendant is surrendered; (3) defendant had not been surrendered by the surety prior to the final judgment of forfeiture entered 29 December 2003, but instead defendant was apprehended by surety's agents and surrendered to the sheriff's department on 14 April 2004; (4) surety presented no evidence of any efforts by its agents to secure the presence of defendant in court on 2 July 2003, but instead presented evidence of efforts to apprehend defendant following receipt of the notice of forfeiture; and (5) assuming arguendo that surety's efforts to apprehend defendant could be characterized as diligent, diligence alone will not constitute extraordinary circumstances since due diligence by a surety is expected.
2. Bail and Pretrial Release_failure to appear_relief from forfeiture--findings of fact
The trial court did not err by denying surety's motion to set aside the judgment of forfeiture of a bond based on the trial court's failure to set forth findings of fact enumerated in State v. Coronel, 145 N.C. App. 237 (2001), because that case is not controlling when many of the considerations in that case relate to cases where the accused has died.
Judge HUNTER concurring.
Daughtry, Woodard, Lawrence & Starling, by James R. Lawrence,
Jr. and Woodruff, Reece & Fortner, by Gordon C. Woodruff and
Michael J. Reece, for Johnston County Board of Education.
Andresen & Vann, by Kenneth P. Andresen and Christopher M. Vann, for surety appellant.
Aegis Security Insurance Co. (surety) appeals from an order entered 20 May 2004 denying its motion for relief from final judgment of forfeiture. We affirm.
On 8 July 2002 defendant was indicted by a grand jury for feloniously transporting marijuana in violation of N.C.G.S. § 90- 95(h)(1). On 30 June 2003 surety posted defendant's bond to secure his release. Defendant failed to appear in court 2 July 2003. Notice of bond forfeiture was mailed to surety 1 August 2003. The final judgment of forfeiture was entered 29 December 2003. On 14 April 2004 surety surrendered defendant to the Johnston County Sheriff's Department and, on 19 April 2004, filed a motion under N.C.G.S. . 15A-544.8 for relief from final judgment of forfeiture.
The evidence presented at the hearing is summarized as follows: Surety presented two affidavits of its agent, Timothy Fitzpatrick. According to Fitzpatrick, he received the notice of forfeiture on or about 6 August 2003 and began making inquiries to determine defendant's whereabouts. Fitzpatrick ran a computer check of the Johnston County jail records and spoke with the Johnston County Clerk of Court by telephone. He mailed correspondence on 7 August 2003 alerting all indemnitors that defendant failed to appear in court. Fitzpatrick attempted to locate defendant by searching credit records and checking telephone numbers. Fiztpatrick also worked with two outside recovery agents. In January 2004 Fitzpatrick discovered the address of defendant's mother. In April 2004 a recovery agent learned defendant wasstaying with his mother and apprehended him in her home. Defendant was returned to the custody of the Johnston County Sheriff's Department on 14 April 2004. Fitzpatrick affirmed that monies were expended in efforts to apprehend defendant, including payments made to the recovery agent and payments for attorneys fees.
On 20 May 2004 the trial court entered an order denying surety's motion for relief from final judgment. The order included, in pertinent part, the following findings of fact:
12. That there was no evidence, except speculation and argument of counsel as to the amount of the fees paid by the surety or what they specifically went to pursuant to apprehending the defendant.
13. That there was no evidence presented by affidavit or present in the file as to what steps the surety took in maintaining contact with the defendant while he was out on bond pending his court appearance in Johnston County, nor was there any evidence presented as to what actions the surety took himself to secure the defendant['s] appearance in court prior to July 2, 2003.
14. That the only evidence of the defendant['s] whereabouts in the file was noted on the bond forfeiture notice that gave the name and mailing address of the defendant as 487 St. Johns Place, 313, Brooklyn, NY, 11238.
15. That no where [sic] in the petitioner['s] motion for relief from judgment was there any allegation of extraordinary circumstance under the statute to justify remission of the said bond.
16. That no witnesses were presented by the petitioner as to any fact or circumstance that would exhibit extraordinary circumstance underNorth Carolina General Statute 15A-544.8 that would entitle the petitioner to relief.
HUNTER, Judge, concurring.
I agree with the majority's conclusion that the trial court did not abuse its discretion in failing to find that extraordinary circumstances existed to allow surety relief from the judgment of forfeiture in this case.
However, I write separately to suggest that while our past jurisprudence has not established a requirement that the trial court grant relief from a forfeiture judgment when a surety returns a defendant after the judgment has been entered, such a factor should weigh heavily in the trial court's consideration ofextraordinary circumstances which entitle the surety to some relief under N.C. Gen. Stat. § 15A-544.8 (2003).
Our courts have long recognized that [t]he goal of the bonding system is the production of the defendant[.] State v. Locklear, 42 N.C. App. 486, 489, 256 S.E.2d 830, 832 (1979); see also State v. Pelley, 222 N.C. 684, 688, 24 S.E.2d 635, 638 (1943) (stating [t]he very purpose of the bond was . . . to make the sureties responsible for the appearance of the defendant at the proper time); State v. Coronel, 145 N.C. App. 237, 247, 550 S.E.2d 561, 568 (2001) (stating the court system's paramount concern is ensuring the return of the criminal defendant for prosecution).
Our system of bail bonds places the surety as custodian of the accused, and provides the surety great discretion in regaining custody in the event an accused escapes from such custody, in order to effectuate the purpose of returning the criminal defendant for prosecution. See State v. Gonzalez-Fernandez, 170 N.C. App. 45, 50, 612 S.E.2d 148, 152 (2005) (citation omitted) (stating that a surety 'may pursue [the accused] into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. . . . It is likened to the rearrest by the sheriff of an escaping prisoner'). Further, our courts have recognized that [s]ureties must be assured that if they expend money, time, and effort to recover criminal defendants, they have viable remedies for the return of forfeited bond money. Coronel, 145 N.C. App. at 247, 550 S.E.2d at 568. Finally, our courts have stated that recovery efforts which result in the principal'sdetention need not be dramatic to constitute extraordinary circumstances sufficient to grant relief from a forfeiture judgment. Locklear, 42 N.C. App. at 489, 256 S.E.2d at 832.
Given these established principles, a trial court should give great weight to the actual return of the accused into custody in considering relief from a forfeiture judgment, as failure to due so may discourage sureties from continued attempts to apprehend the accused and undermine the paramount concern of ensuring the return of the criminal defendant for prosecution. Pelley, 222 N.C. at 688, 24 S.E.2d at 638. Return of the accused into custody within the 150 day period after entry of forfeiture is preferable, as recognized by the automatic set aside of a specific forfeiture for a return to custody in that time period. See N.C. Gen. Stat. § 15A-544.5(b)(3) (2003). However, in order to effectuate the foremost goal of the bond system to produce the defendant in court in order to stand trial, Gonzalez-Fernandez, 170 N.C. App. at 50, 612 S.E.2d at 152, there must be some continued incentive to assure sureties (individuals as well as corporate) that a viable remedy for the return of forfeited bond money exists if they expend money, time, and effort to recover criminal defendants. Coronel, 145 N.C. App. at 247, 550 S.E.2d at 568.
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