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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1022


Filed: 1 May 2007

     v .                              Montgomery County
                                     No. 02 CRS 52506

    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- appellants.

    McCULLOUGH, Judge.

    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 allowed.
    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 (2005).
    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 other than 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 court.
    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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