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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 May 2007
STATE OF NORTH CAROLINA
No. 02 CRS 52506
FRANCISCO GARCIA REYES
Appeal by sureties from judgment entered 4 April 2006 by Judge
Bradford Long in Montgomery County Superior Court. Heard in the
Court of Appeals 21 March 2007.
Gill & Tobias, LLP, by Douglas R. Gill, for Montgomery County
Board of Education appellee.
Vann Law Firm, P.A., by Christopher M. Vann, for D&D Bonding
Services, Inc. and Delapp Surety Enterprises, Inc., sureties-
Sureties appeal from the trial court's denial of their motion
to set aside forfeiture. We affirm.
On 6 November 2002, Francisco Garcia Reyes (defendant) was
arrested and charged with one count of conspiring to traffick in
cocaine and two counts of trafficking in cocaine. On 12 December
2002, a $50,000 secured bond was posted for defendant and he was
released from jail.
On 12 July 2005, defendant appeared in court when his case was
called for trial. The court took a recess for an hour. When the
proceedings resumed at 12:04 p.m., defendant had left thecourtroom. Defendant's counsel informed the trial court that
defendant left the courtroom to speak with his wife and did not
return. Defendant's counsel moved for a mistrial, which the court
denied. Then, defendant's counsel moved to continue the trial until
2:00 p.m. to give defendant an opportunity to return to court. The
trial court denied this motion and proceeded with the trial.
After the examination of the State's first witness, the court
instructed the bailiff to call out defendant's name since he had
not returned to court. When defendant did not respond, the court
entered an order of forfeiture and an order of arrest with no bond
Defendant did not return for the trial. The next day the jury
found defendant guilty of trafficking in cocaine by possession of
more than 400 grams of cocaine. On the judgment the trial court
stated, [d]efendant absconded after jury impaneled during course
of trial, therefore, prayer for judgment is continued from term to
term until defendant is taken into custody and brought before the
court for sentencing. On 3 August 2005, the trial court entered
a bond forfeiture notice pursuant to N.C. Gen. Stat. § 15A-544.4
On 27 December 2005, Delapp Surety and D&D Bonding
(sureties) filed a motion to set aside the forfeiture. On 1
March 2006, the trial court denied the motion. Sureties appeal.
Sureties contend the trial court erred by denying their motion
to set aside the forfeiture because all of the charges againstdefendant had been finally disposed of by the trial court without
dismissal with leave by the State as required by N.C. Gen. Stat.
§ 15A-544.5(b)(2) (2005). We disagree.
N.C. Gen. Stat. § 15A-544.5(b)(2) provides that a forfeiture
shall be set aside when [a]ll charges for which the defendant was
bonded to appear have been finally disposed by the court
by the State's taking dismissal with leave, as evidenced by a copy
of an official court record, including an electronic record. Id.
(emphasis added). The effect of a prayer for judgment continued
is that there is no judgment and the defendant has no right to
appeal. Florence v. Hiatt
, 101 N.C. App. 539, 541, 400 S.E.2d 118,
120 (1991). In addition, [a] defendant is entitled to appeal only
from a final judgment. State v. Pledger
, 257 N.C. 634, 638, 127
S.E.2d 337, 340 (1962). Since there is no right to appeal from a
prayer for judgment, the matter is not finally disposed of by the
We also note that the language of the bond itself recognizes
that a prayer for judgment continued does not mark the end of the
sureties' obligations under the bond. The bond itself provided
that it would be effective until entry of judgment
in the superior
court. (Emphasis added.) A prayer for judgment continued is not,
by its very terms, an entry of judgment.
Accordingly, we disagree with sureties.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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