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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1619


Filed: 20 November 2007


    v.                        Lincoln County                                         No. 03 CRS 1047

    Appeal by Lincoln County Board of Education from order entered 16 August 2006 by Judge J. Gentry Caudill in Lincoln County Superior Court. Heard in the Court of Appeals 15 October 2007.

    Roberts & Stevens, P.A., by K. Dean Shatley, II, for plaintiff-appellant.

    No brief filed for defendant-appellee.

    MARTIN, Chief Judge.

    The trial court granted Edward Massey's (“surety's”) Motion for Relief from Final Judgment of Forfeiture, entered against him as surety on the appearance bond of his son, Jonathan David Massey (“defendant”). The Lincoln County Board of Education (“Board of Education”) appeals from the court's order.
    In 2003 defendant was arrested and charged with felony larceny and felony possession of stolen goods. On 2 July 2003, defendant was released from custody before trial on a surety appearance bond of $5,000 executed by his father. Defendant failed to appear in Superior Court on 10 October 2005, and an order for his arrest was issued. The Lincoln County Clerk of Court served a bond forfeiture notice on surety on 24 October 2005, notifying him that theforfeiture would be made final on 23 March 2006 and could be set aside upon satisfactory evidence of one of several statutory reasons listed in the notice. Surety failed to move the court to set aside the bond forfeiture within the 150-day statutory period. The forfeiture became a final judgment on 23 March 2006, and a writ of execution was entered for surety's property in Iredell County. Subsequently, surety paid the Lincoln County Clerk of Court $5,303 in April 2006 to avoid foreclosure of his property. On 18 July 2006, surety filed a Motion for Relief from Final Judgment of Forfeiture, asking the court to refund the $5,303 in light of the extraordinary circumstances of defendant's failure to appear, including defendant's incarceration in South Carolina and surety's notification of that fact to the district attorney's office. The court allowed surety's motion to remit forfeiture, and the Board of Education, an aggrieved party as beneficiary of the forfeiture funds under Article IX, Section 7, of the North Carolina Constitution, appealed. See N.C. Const. art. IX, § 7.

    The Board of Education contends the trial court erred in granting defendant's Motion for Relief from Final Judgment of Forfeiture on the basis that extraordinary circumstances existed under N.C.G.S. § 15A-544.8. Although the trial court's written order did not make an express conclusion of law that extraordinary circumstances existed to set aside the final judgment, the court orally concluded, after finding as fact that defendant was in custody at the time the order for arrest was issued and that suretynotified “the appropriate court officials,” that such facts are “circumstances that amount to extraordinary circumstances.” The order from the bench is sufficient for us to review the merits of surety's assignment of error.
    The trial court's decision in this case to grant the surety's motion to remit forfeiture after final judgment for extraordinary circumstances falls within its discretion; therefore, we review the court's decision for abuse of discretion. State v. Coronel, 145 N.C. App. 237, 243, 550 S.E.2d 561, 566 (2001). “An abuse of discretion results when an act is . . . done without reason.” State v. McCarn, 151 N.C. App. 742, 745, 566 S.E.2d 751, 753 (2002) (internal quotation marks omitted).
    Section 15A-544.8(b) provides for two limited circumstances under which relief from a final judgment of forfeiture may be granted:
        The court may grant the defendant or any surety named in the judgment relief from the judgment, for the following reasons, and none other:

         (1) The person seeking relief was not given notice as provided in G.S. 15A-544.4.

         (2) Other extraordinary circumstances exist that the court, in its discretion, determines should entitle that person to relief.

N.C. Gen. Stat. § 15A-544.8(b) (2005). The trial court clearly based its grant of the motion on surety's argument that extraordinary circumstances existed to warrant relief from the judgment. A review of our case law reveals that neither of the factual bases relied upon by the trial court to support itsconclusion in this case can support a conclusion that extraordinary circumstances exist to set aside a final judgment of forfeiture.
    The court first indicates that extraordinary circumstances may exist when the defendant's failure to appear arises from his incarceration in another jurisdiction. This Court has clearly held that a defendant's incarceration outside of North Carolina “is not an extraordinary circumstance justifying [the surety] relief from the bond forfeiture.” State v. Gonzalez-Fernandez, 170 N.C. App. 45, 52, 612 S.E.2d 148, 154 (2005).
    The court alternatively indicates that surety's notification to “appropriate court officials” that defendant was incarcerated in South Carolina rises to the level of an extraordinary circumstance. Based upon this Court's prior interpretation of the term extraordinary circumstances, such a conclusion cannot be upheld. This Court has defined extraordinary circumstances in terms of the surety's efforts to bring a defendant to North Carolina to appear in court. See Gonzalez-Fernandez, 170 N.C. App. at 53, 612 S.E.2d at 154 (“A surety's efforts to bring a defendant to North Carolina to appear in court are not extraordinary if it was foreseeable that the surety would have to expend those efforts to produce the defendant in court.”); State v. Vikre, 86 N.C. App. 196, 199, 356 S.E.2d 802, 804 (1987) (“[T]he efforts made by the sureties in the present case did not lead to Vikre's appearance in Beaufort County Superior Court, the primary goal of the bonds. Thus, we cannot say, as a matter of law, that the sureties' evidence conclusively demonstrates extraordinary cause justifying remission of the bonds. . . .” (citation omitted)); State v. Locklear, 42 N.C. App. 486, 489, 256 S.E.2d 830, 832 (1979) (In considering whether extraordinary cause was present, this Court noted “[t]he efforts of the bondsman, while not dramatic, did result in the principal's detention on the charge for which the bond had secured the principal's appearance.”).   (See footnote 1)  It is incumbent on the surety to make efforts to bring defendant to court because “sureties become custodians of the principal and are responsible for the bond if the principal fails to appear in court when required.” Vikre, 86 N.C. App. at 199, 356 S.E.2d at 805.
    In the present case, no evidence was presented of any effort made by surety to bring defendant to court in North Carolina. Notification of court officials of defendant's incarceration in another jurisdiction alone does not demonstrate any effort on behalf of the surety to regain custody of the defendant and bring him to court in North Carolina. Because the court made no findings to support a conclusion that extraordinary circumstances existed to entitle surety to relief, the order granting relief of the bond forfeiture must be reversed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
     Although these earlier cases refer to “extraordinary cause” instead of the language “extraordinary circumstances” appearing in the amended statute effective 1 January 2001, this Court has treated these cases as instructive in interpreting the amended statute. Gonzalez-Fernandez, 170 N.C. App. at 49 n.1, 612 S.E.2d at 152 n.1.

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