Georgia Case Laws
Click on the below to read Georgia Case Laws for the following years:
2012
2011
2010
2009
2008
2007
2006
2004
2003
Georgia Bail Case Law 2012
In Powell v. State, 2012 WL 89834 (Ga.App. January 12, 2012) the defendant failed to appear, and the surety was timely served with notice of an execution hearing on the bond. The notice, however, set the hearing for a date only 115 days after the failure to appear instead of within the statutory period of not less than 120 or more than 150 days after the failure to appear. At the hearing, the State asked to continue the hearing and gave the surety a new notice. The hearing was held on the new date (within the statutory period) and the trial court forfeited the bond. On appeal, the surety argued that the original notice, which she received within the 10 day period permitted by statute, did not comply with the statute because it set a hearing date less than 120 days after the failure to appear and the second notice was defective because it was not served within the permitted 10 day period. The Court thought the surety’s “argument would lead to the absurd result that the state could never seek a continuance of an execution hearing, because notice of the new hearing date would not fall within the ten-day period . . .” The Court declined to render such an “absurd” construction of the statute and instead held that the original, timely notice was not invalidated by the continuance.
Georgia Case Laws 2011
In Don Johnson Bonding Company, Inc. v. State, 2011 WL 1137328 (Ga.App. March 30, 2011) the Court held that the 2009 amendment to OCG §17-6-71(a) applied and relieved the surety of liability on the bond. The defendant failed to appear before the effective date of the amendment and the trial court did not forfeit the bond. Instead it kept continuing the trial date. The amendment was effective on May 5, 2009. At the continued trial date on May 26, 2009, the defendant failed to appear and the court set a new trial date. The court did not forfeit the bond, set an execution hearing or notify the surety. After several more continued trial dates, the trial court forfeited the bond in October, 2009, and set an execution hearing. The Court of Appeals held that the failure to comply with the amended statute in May, 2009, relieved the surety of liability. The Court reversed the order forfeiting the bond.
In Northeast Atlanta Bonding Co. v. State, 2011 WL 923962 (Ga.App. March 18, 2011) the court failed to give the surety notice of a scheduled hearing at which the defendant’s presence was required. When the defendant did not appear, the court declared the bonds forfeited but failed to set a date for a hearing on the forfeiture and failed to give the surety notice of the hearing within ten days of the failure to appear. The State later realized that the surety had not been given notice of the appearance date and had a new one set with proper notice to the surety. The defendant again failed to appear and this time the proper procedures were followed. The surety argued, however, that failure to give it the ten days notice following the first forfeiture barred forfeiture of the bonds for the defendant’s failure to appear on any later dates. The Court recognized that the 2009 amendments to OCG §17-6-71(a) changed existing law and meant that if the defendant failed to appear and the court did not give the surety notice of the hearing on the bond forfeiture within ten days of the failure to appear the court could not forfeit the bond for a later failure to appear. In this case, however, the defendant’s appearance at the first hearing was not required because the surety had not been given the pre-hearing notice. Therefore, the bond could not be forfeited for his failure to appear, therefore there could be no post-forfeiture execution hearing and the court had nothing about which to notify the surety. In effect, the first hearing was a nullity, and the bond could be forfeited for the defendant’s failure to appear at the properly noticed second hearing.
Georgia Case Laws 2010
In A.A. Professional Bail v. Perdue, 2010 WL 3548460 (Ga.App. September 14, 2010) the court served notice of the bond forfeiture hearing on the surety 21 days after the defendant failed to appear. O.C.G. §17-6-71(a) required notice within 10 days. Nevertheless, the trial court found that the State had substantially complied with the notice requirement and the surety had not established prejudice. The trial court granted the State’s motion for bond forfeiture and the surety appealed. The Court of Appeals held that 2009 amendments to §17-6-71(a) were intended to change existing law and that it was no longer sufficient for the State to show substantial compliance and that the surety need no longer establish prejudice. The amendments required that the 10 day notice provision “shall be adhered to strictly” and that if the notice is not served as specified the surety “shall be relieved of liability.” The Court reversed the judgment of the trial court.
Georgia Case Law 2009
In Gomez-Ramos v. State, 2009 WL 607345 (Ga.App. March 11, 2009) the defendant was released on bond but turned over to Immigration and Customs Enforcement which deported her. She failed to appear for arraignment, the bond was forfeited, and judgment ultimate was entered on the bond. The defendant and surety appealed. The Court of Appeals found that the defendant’s failure to appear was not caused by any of the reasons for which the statute provided relief such as confinement in a penal institution or pursuant to court order in a mental institution. The Court rejected Constitutional arguments based on equal protection and the supremacy clause and affirmed the judgment.
In First Choice Bonding Co. v. State, 2009 WL 1608591 (Ga.App. June 10, 2009) the bond was posted on February 13, 2005. The State’s accusations against the defendant were filed on July 31, 2007, he failed to appear for arraignment, and the trial court forfeited the bond. The Court held that under O.C.G. §17-6-31(e) the surety is relieved of liability on the bond if the case has not been tried within two years (one year for a misdemeanor) of the date the bond was posted unless the failure to try the charges was the defendant’s fault. Here the State conceded that there was no evidence the delay was attributable to the defendant, and the Court held the surety was discharged.
In Anytime Bail Bonding, Inc. v. State, 2009 WL 2357159 (Ga.App. August 3, 2009) the defendant was arrested and the bond posted. Several months later he was indicted but failed to appear for arraignment. The trial court issued a bench warrant and scheduled a show cause hearing on forfeiture of the bond. As a result of irregularities in the indictment, a new indictment was issued, and the following day the first indictment was nol prossed. The defendant again failed to appear for arraignment and a bench warrant and show cause order were again issued. The surety’s motion for discharge from liability as to the first indictment was granted but a judgment of forfeiture was entered as to the second indictment. The surety appealed and argued that either nol prossing the first indictment or the order discharging it as to the first indictment exonerated the bond. The Court relied on the facts that the bond and both indictments were for the same offense based on the same facts and that there never was a period when the defendant was not under indictment. The second indictment was returned before the first was nol prossed, The trial court’s order relieving the surety of liability in “this case” had only the case number of the first indictment and recited the procedural history of only the first indictment. The Court affirmed the judgment of forfeiture.
In State v. Anytime Bail Bonding, Inc., 2009 WL 5154056 (Ga.App. December 31, 2009) the trial court set aside forfeiture of the bond, and the State appealed. The defendant had furnished a false name when he was arrested, and the surety argued that pursuant to O.C.G. §17-6-31(d)(2) it was entitled to be released from liability on the bond. The statute provided that the surety could be released if it acted with due diligence unless it knew or should have known of the false name. Here the evidence supported the trial court’s finding that the surety acted diligently and did not have actual or constructive knowledge of the false name. The trial court therefore did not abuse its discretion in setting aside the forfeiture.
Georgia Case Law 2008
In Troup Bonding Company, Inc. v. State, 663 S.E.2d 734 (Ga. App. 2008) the defendant failed to appear and the court issued a bench warrant. The court did not, however, immediately forfeit the bond or give notice to the surety. Instead, it set the case for a “bench warrant calendar” several months later. When the defendant again failed to appear, an execution hearing was set and notice sent to the surety pursuant to O.C.G. §17-6-71(a). The statute, however, required that the execution hearing be scheduled at the end of the day the defendant failed to appear and notice of the hearing mailed to the surety within ten days of the failure to appear. The surety objected to the court’s failure to comply with the statute when the defendant first did not appear, but did not proffer evidence of any actual prejudice from the delay. The Court interpreted the statute to apply to any day on which the defendant failed to appear and so his non-appearance at the “bench warrant calendar” could trigger the statutory requirements anew. The Court held that in any case, even if there was error, it was harmless because the surety did not prove that it suffered any prejudice from the delay.
Northeast Atlanta Surety Co. v. Perdue, 668 S.E.2d 508 (Ga.App. 2008) held that notice mailed to the surety 22 days after the defendant failed to appear was substantial compliance with the requirement of OCG §17-6-71(a) that the notice be given “within ten days of such failure.” The Court affirmed forfeiture of the bond. The surety did not establish actual prejudice from the delay.
Georgia Case Law 2007
Joe Ray Bonding Company, Inc. v. State, 2007 WL 925896 (Ga.App. March 29, 2007) held that the surety was not entitled to remission under O.C.G. §17-6-72(d)(1) because the surety did not play any role in the recovery or prosecution of the defendant. The bond was forfeited and the surety paid the judgment. Several months later, the defendant was arrested on the court’s bench warrant and incarcerated in the same county where the charge was pending. The surety applied for a 50% remission under §17-6-72(d)(1), but the court interpreted the statute to require the surety either to recover the defendant or to identify a defendant already in custody or otherwise facilitate bringing the defendant to justice.
In State v. Free At Last Bail Bonds, 647 S.E.2d 402 (Ga.App. 2007) the defendant failed to appear and a forfeiture judgment was entered and paid by the surety. Approximately five months after payment of the judgment, the surety located the defendant and surrendered him to the Sheriff. The surety then applied for remission of 50% of the forfeiture pursuant to O.C.G. §17-6-72(d)(1). The trial court granted the request, and the State appealed on the ground that the application for remission had to be filed within 120 days from payment of the judgment.
While the first part of the statute required application within 120 days of payment, the last part said that if the defendant were recovered within two years of the judgment, the surety was entitled to 50% remission and the application “shall be filed no later than 30 days following the expiration of the two-year period following the date of judgment.” The surety’s application was filed after the 120 day period but within the two years plus 30 days, so the Court had to resolve the apparent contradiction in the statute. The Court looked to the purpose of the statute and its legislative history and concluded that for a 50% remission following recovery of the defendant, the latter time period controlled and the surety’s application was timely. The Court affirmed the 50% remission.
Georgia Case Law 2006
A.A. Professional Bail v. State, 630 So.2d 620 (Ga.App. 2006) held that the State’s failure to try the defendant within one year of the date he was released on bail required exoneration of the bond pursuant to OCGA §17-6-31(e). The statute contains an exception if the delay is due to the defendant’s “fault,” but an action that the defendant has a legal right to take is not “fault.” In this case, the trail was not even scheduled until almost two years after the defendant’s release, and the State conceded that forfeiture of the bond should be set aside.
In Confidential Bonding Company v. State of Georgia, 2006 WL 1529326 (Ga.App. June 6, 2006) the bail agent paid 5% of the amount of the bonds and sought remission of the remaining 95%. In each of four cases, law enforcement authorities had re-arrested the defendants, apparently without help from the bail agent or surety. The Court of Appeals held that under O.C.G. §17-6-72(d) the surety can seek remission or reduction within 120 days of forfeiture only if it either pays the entire forfeiture and shows the defendant is in custody of the Sheriff (“if the surety locates the defendant in the custody of the sheriff”) or itself surrenders the defendant or locates the defendant in custody in another jurisdiction. In this case the bail agent did neither and so was entitled to no relief. If the bail agent had paid the amount of the bonds, it would probably have been entitled to 95% back, but because it paid only 5% it lost the entire amount.
In State v. A 24 Hour Bail Bonding, 634 S.E.2d 99 (Ga.App. 2006) the trial court granted relief from forfeiture pursuant to O.C.G. §17-6-31(d)(2) which gives the court discretion to release the surety if the defendant used a false name when bound over and the surety establishes that it acted diligently. The Court decided several evidentiary issues adversely to the bail agent and then reversed the judgment because there was no evidence the defendant used a false name.
Georgia Case Law 2004
A.A. Professional Bail v. State, 592 S.E.2d 866 (Ga. App. 2004) held that the surety was discharged because the state failed to try the defendant within one year of the date the bond was posted as required by OCGA §17-6-31(e). The statute contains an exception if the failure to prosecute is the defendant’s fault. The delay in the case was caused by the defendant’s demand for a jury trial, but the court held that was exercise of a right not “fault.” Note that this case involved a misdemeanor and that the statutory period for trial of a felony is two years.
Skandalakis v. Geeslin, 2004 WL 43165 (M.D. Ga. January 5, 2004) held that the Eleventh Amendment to the Constitution bars a purported contempt proceeding by an individual bail bond surety against the state district attorney for allegedly violating the automatic stay of the Bankruptcy Code by attempting to collect on a forfeited bail bond after the surety filed for bankruptcy.
Georgia Case Law 2003
In Reliable Bonding Co. v. State, 2003 WL 21544201 (Ga. App. July 10, 2003) the surety received notice to appear and show cause why a judgment of forfeiture should not be entered but no notice of the actual judgment. The court refused to set the judgment aside finding no statutory right to notice of entry of the judgment.
In Re Geeslin, 2003 WL 21756072 (Bankr. M.D. Ga. July 17, 2003) found that a professional bail bondsman’s bond obligation was discharged in his bankruptcy proceeding. The state attempted to collect on the forfeited bond, and the bankruptcy court held that it was in violation of the automatic stay, §362 of the Bankruptcy Code, and of the injunction against collecting discharged debts. The court suggested that the result might be different if the bondsman was himself the criminal defendant or a friend or close relative of the defendant.