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| William B. Carmichael |
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Here is the most recent bail related case summary provided courtesy of Edward Gallagher and The Surety & Fidelity Association of America. Please remember to always consult an attorney prior to using the information provided in any legal action.
Sincerely,
William B. Carmichael
President & CEO
American Surety Company
In Jones v. State, Case No. 04-10-526-CV (Tex.App. - Austin February 9, 2011) the defendant failed to appear for arraignment and a judgment nisi was entered. The surety was served with notice of the hearing and filed an answer but did not appear at the hearing. The trial court took judicial notice of the court file, including a copy of the bond, and entered judgment against the surety. The surety appealed arguing that service of the notice was defective and the bond was not introduced into evidence. The Court rejected both arguments and affirmed the judgment. By filing an answer the surety waived any defects in service and the bond was before the trial court as part of the court's file.
In Commonwealth v. Gomez, 2011 WL 61886 (Mass.App. January 11, 2011) the defendant was released on his own recognizance with a cash deposit of the bail amount. He failed to appear for the second day of his trial because he had been arrested on an unrelated charge. His presence was secured the following day, but the trial court reasoned that he had set the sequence of events in motion by committing the unrelated crime and his bail should be forfeited. On appeal the Court of Appeals reversed. The Court thought that under G.L. c. 276, §70 a surety would have been exonerated because the act of the Government prevented surrender of the defendant. The Court held that the statute should not be limited to a surety, and a defendant released on his own recognizance with a cash deposit should be treated as "bail" under §70.
Surety Bail Bondsmen of Oklahoma, Inc. v. Insurance Commissioner
The Oklahoma Supreme Court reversed the Court of Appeals and District Court in a 5-2 decision. The court found the power of attorney confers only the authority of the professional and they "cannot circumvent Title 59, Section 1320(B) by employing a surety bondsman." The court also found "the Commissioner's construction of Title 59, Section 1320 (B) negates its legislative limitations and is erroneous in that it is inconsistent with section 1320's legislative history."
Click here to read the entire decision.
In People v. Seneca Insurance Co., No. A126642 (Cal.App. January 31, 2011) the defendant was charged with possession of cocaine base and released on bond in July, 2008. He failed to appear for a preliminary hearing in October, 2008, and notice was mailed to the surety. The surety filed a timely motion to set aside the forfeiture and exonerate the bond because the defendant had been arrested on another charge, turned over to immigration authorities and deported. The surety submitted evidence that he was deported to Honduras on November 26, 2008. The trial court granted the surety's motion, and the People appealed.
The Court of Appeal agreed with the surety that the defendant was unable to appear within the appearance period because he was detained by civil authorities within the meaning of Penal Code §1305(d). The Court acknowledged that the mere fact of deportation does not amount to detention by civil authorities, but here the charge against him would prevent his legal return to the United States. The Court cited federal authority for the proposition that an alien known to have been an illicit drug trafficker is ineligible for entry. The Court noted that the law abhors a forfeiture, and the surety therefore had a relatively low threshold of proof. The Court held that the trial court did not abuse its discretion in granting the surety's motion. The Court also rejected the People's argument that the surety had to submit all of its proof within the appearance period. The surety had to make its motion for relief prior to the expiration of the period, and the motion had to be heard within 30 days of the end of the period, but the evidence could be presented at the hearing as long as it was proof of facts that existed during the appearance period. [Not published].
In State v. Bejar, 2010 WL 844769 (Tenn.Crim.App. March 10, 2010) the defendant failed to appear in 1996 and the surety paid the forfeiture in 1997. The defendant was not recovered, and in 2007 the State entered a nolle prosequi to close the case. The surety then moved for return of its forfeiture payment. The trial court denied relief, and the surety appealed. The Court rejected the surety's argument that no written order of forfeiture had been entered because the court's minutes clearly showed that the forfeiture was ordered. The Court also held that dismissing the case in 2007 did not entitle the surety to return of its payment. The surety argued that the dismissal prevented it from recovering the defendant, returning him to custody and seeking remission of the forfeiture. The surety proffered no facts that it was still trying to locate the defendant or had any realistic prospect of returning him to custody. The Court held that dismissal of the case, and thus cancelation of the warrant for the defendant, did not entitle the surety to return of its payment. The Court noted that if the surety were entitled to any relief it would be that the warrant be reinstated, not that the forfeiture payment be returned, but held that the Legislature did not intend to require that old, unprosecutable criminal cases remain on the court's docket forever.
State v. Guiles, 2010 WL 851421 (Tex.App. - Ft. Worth March 11, 2010) affirmed summary judgment against an individual surety. The State submitted a certified copy of the bond and the judgment nisi. The surety submitted his own affidavit that "to his knowledge, the Bailiff did not call" the defendant's name at the Courthouse door on the day the defendant failed to appear. The affidavit, however, did not include facts to show that the surety was present or had personal knowledge of the events. The affidavit did not raise an issue of fact, and the State's evidence established that it was entitled to judgment.
In People v. Hovanesian, 2010 WL 852151 (Cal.App. March 12, 2010) the original complaint was amended to add new charges. The defendant continued to appear as required. At one point, an order indicated that the amount of bail was increased and the defendant was committed to custody, but in fact he remained free on the original bond and the court's minute orders did not mention any increase in the bail amount. The defendant eventually pleaded guilty but failed to appear for sentencing. The bond was forfeited and notices mailed. Several months later a different judge entered a minute order in chambers that the amount of the bail was increased effective as of the date of the order increasing the amount. The State agreed that if the bail amount had actually been increased and the defendant taken into custody, it would have discharged the bond. In fact, however, these events did not happen. Even if the bond amount were increased, that alone would not discharge the existing bond. The Court also rejected the surety's argument that the amended complaint with added charges increased the surety's risk and discharged the bond. The bond guaranteed that the defendant would appear to answer any charge in any complaint based on the acts supporting the original complaint. The surety contemplated that the complaint could be amended and more charges added. The Court found that the surety was not prejudiced by the amendment because the defendant continued to appear and eventually pled guilty to only six counts. The Court stated, "Bankers has not shown that at the time the bond was forfeited at sentencing, the risk remained increased from when Bankers executed the bond." [Not published].
In State v. Two Jinn, Inc., 2010 WL 890449 (Idaho App. March 15, 2010) the defendant failed to appear at a pretrial conference and the bond was forfeited. Four months later, the defendant was arrested in another state and returned to Idaho by law enforcement. The surety moved to set aside the forfeiture and exonerate the bond. The case was controlled by the law prior to the Idaho Bail Act of 2009. The applicable statute and court rule conflicted. The statute provided for exoneration if the defendant had a sufficient excuse for not appearing or if the person who provided the bail returned him to custody within 180 days. The Rule provided for exoneration if the defendant was returned within 180 days. The Court held that the statute and rule were in conflict and that the statute controlled because the right involved was substantive not procedural. The Court, therefore, affirmed denial of the surety's motion because the conditions of the statute were not met. The defendant did not have a sufficient excuse for failing to appear, and surety did not return him to custody.
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