STATE OF NORTH CAROLINA
v.
SHIMA LILPY TOOMER, Wilkes County
Defendant No. 05 CR 050529
and
AMERICAN RELIABLE INS. CO.,
Surety
Faw, Folger & Johnson, P.C., by Fredrick G. Johnson, for
plaintiff-appellant Wilkes County Board of Education.
No brief for defendant-appellees.
HUNTER, Judge.
The Wilkes County Board of Education (“Board of Education”)
appeals from an order of the district court granting the motion of
American Reliable Ins. Co. (“surety”) to set aside a bond
forfeiture pursuant to N.C. Gen. Stat. § 15A-544.5(b)(6). We
reverse.
The undisputed facts of this case are as follows: On 5
February 2005, the surety executed a $15,000.00 appearance bond
securing defendant's pretrial release on criminal charges thenpending in Wilkes County District Court. As a condition of his
release, defendant was to appear in district court on 6 April 2005.
When defendant failed to appear as required on 6 April 2005, the
court entered an order of forfeiture on the appearance bond and
served the surety and defendant with notice of forfeiture on 15
April 2005.
On 12 September 2005, the surety filed a motion to set aside
the bond forfeiture on the ground that “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) (2005). The Board of Education filed
an objection to the motion and notice of hearing on 21 September
2005. The court heard the surety's motion on 7 March 2006.
In its order setting aside the bond forfeiture, the district
court found that defendant was being held in the Wake County jail
on additional criminal charges at the time of his failure to appear
in Wilkes County on 8 April 2005. The court found that defendant
was convicted of the Wake County charges on 12 May 2005 and
“remained in custody in the Wake County Jail from his arrest in
that county on March 11, 2005 until his admission to the North
Carolina Department of Correction[] on May 25, 2005.” As its basis
for allowing the surety's motion to set aside the bond forfeiture
under N.C. Gen. Stat. § 15A-544.5(b)(6), the court concluded that
defendant failed to appear in Wilkes County District Court on 8April 2005 “due to his incarceration in Wake County pending trial
on charges unrelated to those pending in Wilkes County[.]”
On appeal, the Board of Education asserts that a defendant's
detention in a county jail is not a statutorily authorized ground
for relief from a bond forfeiture under N.C. Gen. Stat. § 15A-
544.5(b)(6). We agree.
“The exclusive avenue for relief from forfeiture of an
appearance bond (where the forfeiture has not yet become a final
judgment) is provided in G.S. § 15A-544.5.” State v. Robertson,
166 N.C. App. 669, 670-71, 603 S.E.2d 400, 401 (2004). In
pertinent part, the statute limits the court's authority to set
aside a forfeiture as follows:
(b) Reasons for Set Aside. -- A
forfeiture shall be set aside for any one of
the following reasons, and none other:
. . .
(6) The 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) (emphasis added). Here,
defendant was detained in the Wake County jail awaiting trial on
additional criminal charges at the time of his failure to appear on
8 April 2005. We have previously held that, for purposes of N.C.
Gen. Stat. § 15A-544.5(b)(6), “[a] county jail is a 'local
confinement facility' and not a unit of the DOC.” Robertson, 166
N.C. App. at 671, 603 S.E.2d at 402. Accordingly, althoughdefendant was subsequently convicted of the Wake County charges and
imprisoned in the Department of Correction, he was neither “in a
unit of the Department of Correction” nor “serving a sentence” at
the time of his failure to appear. Id. at 671, 603 S.E.2d at 402.
Therefore, we reverse the district court's order. Id. at 672, 603
S.E.2d at 402.
Reversed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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