Converted WP file 061151-1

Appeal by surety from orders entered 11 January 2006 and 10 May 2006 by Judge Philip F. Howerton, Jr. in District Court, Mecklenburg County. Heard in the Court of Appeals 9 May 2007.

David Q. Burgess for Maurice D. Hunter, Sr., Surety-Appellant.

James, McElroy & Diehl, P.A., by Adam L. Horner and Sarah M. Brady, for Mecklenburg County Board of Education, Appellee.

McGEE, Judge.

    Surety Maurice D. Hunter, Sr. (Hunter) appeals the trial court's order denying his motion to set aside forfeiture in 05 CR 243178, and the trial court's orders denying his motions for relief from final judgments of forfeitures in 05 CR 243178, 04 CR 250368, and 04 CR 246840. We dismiss Hunter's appeal of the order denying his motion to set aside forfeiture. We affirm the trial court's orders denying his motions for relief from final judgments of forfeitures.
    Rodney Laron Beasley (Defendant) was arrested for several criminal offenses. In 04 CR 246840, Defendant was arrested in Mecklenburg County for driving while his license was revoked on 13 October 2004. Defendant was released on an appearance bond butfailed to appear for his scheduled court appearance on 14 March 2005. As a result, an order for Defendant's arrest and a bond forfeiture notice were issued. Defendant was arrested again on 10 June 2005 and was released the same date on another appearance bond. Defendant again failed to appear for his scheduled court appearance on 12 September 2005. Another order for Defendant's arrest and another bond forfeiture notice were issued.
    In 04 CR 250368, Defendant was arrested in Mecklenburg County on a charge of driving while his license was revoked on 5 November 2004, and he was released the same date on an appearance bond. Defendant failed to appear for his 14 March 2005 scheduled court appearance, and an order for his arrest and a bond forfeiture notice were issued. He was again arrested on 10 June 2005 and was released on an appearance bond. Defendant failed to appear for his scheduled court appearance on 1 August 2005 and another order for his arrest and a bond forfeiture notice were issued.
    In both of the above cases, Defendant was arrested on 14 September 2005 and was released from custody on 25 September 2005 on an appearance bond executed by Hunter. In both cases, Defendant's next scheduled court appearance was 7 November 2005.
    In 05 CR 243178, Defendant was arrested in Mecklenburg County on a charge of resisting, delaying, or obstructing a public officer in the discharge of a duty of his office on 14 September 2005. Defendant was released from custody on 25 September 2005 on an appearance bond executed by Hunter. Defendant was required to appear in court on this charge on 10 November 2005.     Defendant was arrested on additional, unrelated charges in Gaston County on 1 October 2005. Hunter executed a "Surrender of Defendant by Surety" on 10 October 2005 for each charge of driving while licensed revoked, and for the charge of resisting, delaying, or obstructing a public officer in the discharge of a duty of his office. A deputy with the Gaston County Sheriff's department acknowledged that Defendant was in the Sheriff's custody. Defendant did not appear at either of his scheduled court appearances in Mecklenburg County on 7 November 2005 and 10 November 2005. As a result, orders for Defendant's arrest and bond forfeiture notices were issued in all three Mecklenburg County criminal cases.
    Hunter filed a motion on 1 December 2005 to set aside forfeiture on the charge of resisting, delaying, or obstructing a public officer in the discharge of duty. Hunter also filed motions on 5 December 2005 to set aside forfeiture on the two charges of driving while license revoked. Each motion was based on the ground that Defendant "was incarcerated in a unit of the Department of Correction and [was] serving a sentence or [was] in a unit of the Federal Bureau of Prisons located within the borders of the state at the time of the failure to appear." The trial court denied each of Hunter's motions on 11 January 2006. Hunter filed motions for relief from final judgment in each case on 7 April 2006. Hunter based his motions on the ground that he had terminated Defendant's bond on 10 October 2005. The trial court denied Hunter's motions on 10 May 2006.    Hunter brings forward two assignments of error relating to his motion to set aside the bond forfeiture on the charge of resisting, delaying, or obstructing a public officer in the discharge of a duty of his office. Although the trial court entered an order denying Hunter's motion on 11 January 2005, Hunter's notice of appeal was not filed until 1 June 2006. Hunter now asserts that this order was interlocutory and that he was permitted to delay his appeal in order to promote judicial economy. We conclude that the order was immediately appealable, and Hunter's failure to immediately appeal renders this portion of his current appeal untimely.
    N.C. Gen. Stat. § 15A-544.5 (2005) governs motions to set aside bail bond forfeitures; subsection (h) of the statute provides that:
        An order on a motion to set aside a forfeiture is a final order or judgment of the trial court for purposes of appeal. Appeal is the same as provided for appeals in civil actions.

N.C.G.S. § 15A-544.5(h). This statute explicitly provides that, for purposes of appeal, the order Hunter attempts to classify as an interlocutory order is a final order. Our Court has also held that an order denying a motion to set aside forfeiture is immediately appealable. State v. Evans, 166 N.C. App. 432, 601 S.E.2d 877 (2004), aff'd per curiam, 359 N.C. 404, 610 S.E.2d 198 (2005). In Evans, we stated that the surety's failure to appeal orders denying his motions to set aside the forfeitures "divested him of the right to appellate review of their merits." Id. at 435, 601 S.E.2d at 879.     In the present case, because the order denying Hunter's motion to set aside the forfeiture was a final order, Hunter had thirty days in which to file his notice of appeal. N.C.R. App. P. 3(c) ("In civil actions and special proceedings, a party must file and serve a notice of appeal . . . within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure[.]"). Hunter's notice of appeal was not filed within thirty days and we therefore dismiss the assignments of error pertaining to his motion to set aside the forfeiture.
    Hunter also appeals the trial court's orders denying his motions for relief from final judgments made pursuant to N.C. Gen. Stat. § 15A-544.8. Hunter argues that he surrendered Defendant to the Gaston County Sheriff prior to Defendant's failure to appear, and that fact constitutes extraordinary circumstances entitling him to relief under this provision. We disagree and affirm the trial court's decision.
    N.C. Gen. Stat. § 15A-544.8 (2005) permits a trial court to grant relief from final judgment upon a showing of extraordinary circumstances. In the bond forfeiture setting, our Court has defined extraordinary circumstances as "'going beyond what is usual, regular, common, or customary . . . of, relating to, or having the nature of an occurrence or risk of a kind other than what ordinary experience or prudence would foresee.'" State v. Vikre, 86 N.C. App. 196, 198, 356 S.E.2d 802, 804 (1987) (quoting Webster's Third New International Dictionary (1968)). "Whether togrant relief pursuant to N.C. Gen. Stat. § 15A-544.8 is entirely within the discretion of the court[.]" State v. Lopez, 169 N.C. App. 816, 819, 611 S.E.2d 197, 199, disc. review denied, 359 N.C. 855 (2005). Therefore, we review the trial court's decision only for abuse of discretion.
    In Evans, the surety argued that his motions for relief from final judgments were erroneously denied on the ground that the trial court improperly denied his motions to set aside forfeitures. Evans, 166 N.C. App. at 434, 601 S.E.2d at 878. This Court refused to equate "an arguably erroneous denial of a motion to set aside forfeiture with 'extraordinary circumstances' under N.C. Gen. Stat. § 15A-544.8." Id. at 435, 601 S.E.2d at 879. As stated above, the surety in Evans failed to appeal the trial court's denial of his motions to set aside the forfeitures, and we held that the surety was unable to revive those arguments in an appeal based upon N.C.G.S. § 15A-544.8. Id. at 435, 601 S.E.2d at 879. We explicitly stated that N.C.G.S § 15A-544.8 did not provide a surety with the opportunity
        to re-capitulate to the trial court arguments concerning the alleged fulfillment of one of the statutory events which would mandate the setting aside of a forfeiture after those arguments were rejected and the motion was denied under N.C. Gen. Stat. § 15A-544.5.

Id. at 434, 601 S.E.2d at 878.
    In State v. Edwards, 172 N.C. App. 821, 616 S.E.2d 634, disc. review denied, 360 N.C. 69, 623 S.E.2d 776 (2005), the surety made an argument similar to Hunter's argument in the present case. In Edwards, the surety contended that apprehension and surrender ofthe defendant constituted extraordinary circumstances pursuant to N.C.G.S. § 15A-544.8 as a matter of law. Id. at 824, 616 S.E.2d at 636. We rejected that argument and stated the following:
        In authorizing the trial court to set aside final judgments of forfeitures in limited circumstances, see G.S. § 15A-544.8(b), the General Assembly did not expressly provide that a surety's efforts, which result in the capture and return of the defendant, always constitute "extraordinary circumstances." In contrast, the legislature mandated that, before a final judgment of forfeiture has been entered, a forfeiture "shall" be set aside where the defendant is surrendered. See G.S. § 15A-544.5(b)(3). We can safely infer, then, that the legislature consciously chose, in adopting more stringent requirements for setting aside final judgments of forfeiture, that [a surety's] surrender of the accused would not, as a matter of law, constitute a basis upon which judgments would automatically be set aside. As we stated in Evans, "[a]ccepting [surety's] argument would be tantamount to holding that the trial court, as a matter of law, abuses its discretion by failing to equate the statutory criteria for setting aside a forfeiture listed in N.C. Gen. Stat. § 15A-544.5(b)(1-6)(2003), with 'extraordinary circumstances' for purposes of obtaining relief from final judgment under N.C. Gen. Stat. § 15A-544.8(b)(2)." Evans, 166 N.C. App. at 434, 601 S.E.2d at 878.

Id. at 826, 616 S.E.2d at 637.
    In the present case, even if we assume arguendo that Hunter properly surrendered Defendant, Hunter has not shown that the trial court abused its discretion by denying his motions for relief from final judgments of forfeitures. Hunter did not apprehend Defendant. The record shows only that Hunter filled out a surrender form at the Gaston County Sheriff's department, but took no further steps. As noted above, Hunter also failed to appeal thetrial court's denial of his motions to set aside the forfeitures until almost six months after the orders were entered. Therefore, we affirm the trial court's orders.
    Hunter has failed to present any argument in support of his remaining assignments of error and we therefore deem them abandoned. N.C.R. App. P. 28(b).
    Dismissed in part and affirmed in part.
    Judges LEVINSON and JACKSON
    Report per Rule 30(e).

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