North Carolina Case Laws
Click on the below to read North Carolina Case Laws for the following years:
2012
2011
2010
2009
2008
2007
2006
2005
2004
North Carolina Case Law 2012
In State v. Adams, Case No. COA11-988 (N.C.App. May 1, 2012) the release order gave the surety notice that the defendant had twice failed to appear in the case. The defendant again failed to appear and the bond was forfeited. The surety moved to set aside the forfeiture, and the trial court denied the motion based on Gen.Stat. §15A-544.5(f) forbidding relief if the surety is on notice when it writes the bond of two prior failures to appear in the case. The surety appealed and argued that one of the prior failures to appear did not occur. The Court found otherwise and affirmed the forfeiture. The court file indicated the defendant had not appeared, and it was not necessary that the court issue an order for the defendant’s arrest. At that point there was already an outstanding order for his arrest from his first failure to appear.
In State v. Chandler, Case No. 11-1328 (N.C.App. March 20, 2012) the trial court set aside forfeiture of the bond and the Board of Education appealed. The surety relied on N.C. Gen.Stat. §15A-544.5(b)(7) which grants relief from forfeiture if the defendant was incarcerated at the time of the failure to appear. The surety presented evidence that the defendant was in jail in Virginia, but only that he was in jail at some time after his failure to appear. The Court held, “There was no competent evidence to support the trial court’s finding that defendant was incarcerated at the time he failed to appear in court. Therefore, the trial court erred by setting aside the forfeiture.”
In State v. Marquez, Case No. COA11-729 (N.C.App. February 21, 2012) the defendant failed to appear on January 4, 2010. On August 17, 2010, the court ordered forfeiture of the bond, and the clerk mailed notice of the forfeiture to the surety. The notice, therefore, was sent 225 days after the defendant failed to appear instead of within 30 days as required by N.C. Gen. Stat. §15A-544.4(e). Prior to entry of final judgment on the bond, the surety moved to set aside the forfeiture. The trial court denied the motion, entered final judgment, and, based on a lack of prejudice, denied relief from the final judgment. The surety appealed.
The Court held that late notice was not a ground to set aside a forfeiture pursuant to N.C. Gen. Stat. §15A-544.5(b), therefore the trial court correctly denied the surety’s motion. The proper procedure was to move pursuant to N.C. Gen. Stat. §15A-544.8(b) for relief from the final judgment. The surety had not made such a motion in this case because its motion was filed before the final judgment had been entered. Therefore, the trial court erred in denying relief from the final judgment when the surety had not requested such relief. The Court affirmed the trial court’s refusal to set aside the forfeiture, but vacated the portion of the trial court’s order denying relief from the final judgment and remanded the case.
In State v. Williams, 2012 WL 375877 (N.C.App. February 7, 2012) the defendant failed to appear and the bond was forfeited. The forfeiture became a final judgment, and the surety paid it, on August 19, 2010 (150 days after notice was sent to the surety). That evening at 9:40 p.m. the surety surrendered the defendant to the sheriff, and the next morning the surety filed a motion to set aside the forfeiture and for remission. The trial court granted partial remission, and the surety appealed. The Board of Education did not file a cross appeal. The Court held that even though the court was closed on August 19 at the time the defendant was surrendered, the Legislature knew courts close for the day and did not make any exception to allow the surety to file a motion on the 151st day. By contrast, time periods expiring on weekends or holidays are extended. Thus, there was no basis to treat the motion filed on August 20 as timely. The Court declined to review the surety’s objection to only a partial remission because the surety cited no authority for its argument that full remission must be granted unless the trial court makes findings supporting a partial remission. Similarly, the Court refused to consider the Board of Education’s objection to the partial remission as not supported by a finding of extraordinary circumstances because the Board did not file a cross appeal.
North Carolina Case Law 2011
In State v. Harrison, 2011 WL 6039932 (N.C.App. December 6, 2011) the defendant and the State entered into a deferred prosecution agreement. The defendant subsequently failed to appear, and the trial court sent the surety a forfeiture notice. The surety moved to set aside the forfeiture based on an Administrative Order issued by the Senior Resident Superior Court Judge that the obligation of the surety on a pretrial release bond terminated upon the State and the defendant entering into a Deferred Prosecution Agreement. The district court judge refused to follow the Order and denied the surety’s motion. The surety appealed. The Court of Appeals rejected the School Board’s argument that the Oder did not apply because the bond had already been forfeited when it was entered. The Court thought that the operative date was the final judgment of forfeiture, and it was after the Order. The Court found, however, that the record did not show that the Senior Resident Superior Court Judge had complied with N.C. Gen.Stat. §15A-535(a) by consulting with the chief district court judge before issuing the Order. The Court held that the Order was, therefore, not binding and the district court did not err in refusing to follow it. The Court affirmed the judgment forfeiting the bond.
State ex rel. Guilford County Board of Education v. Herbin, Case No. COA10-1178 (N.C.App. September 6, 2011) held that a bail agent appointed by a corporate surety can prepare motions to set aside bond forfeitures as part of his or her duties for the surety company. The agent also can appear at hearings on such motions pro se if he or she was obligated to indemnify the surety. Such activities would not be unlicensed practice of law. If the corporate surety wants to appear at the hearing in court, however, it would have to be represented by a licensed attorney.
In State v. Cortez, Case No. COA10-474 (N.C. App. April 19, 2011) the sureties moved to set aside forfeiture of their bonds because the defendant allegedly was, or soon would be, in custody in Mexico. Neither the School Board nor the District Attorney filed an opposition, and the clerk granted the sureties’ motion. The School Board moved for relief from the clerk’s order and appealed when relief was denied. The sureties argued that the School Board had to file a direct appeal not a motion for relief from the order, but the Court thought that Civil Rule 60(b) applied and the School Board could seek relief from the clerk’s order. The Court held that notwithstanding the lack of any opposition, the clerk was without jurisdiction to grant the sureties’ motion to set aside the forfeiture because the motion did not allege facts within any of the exclusive grounds for relief enumerated in N.C. Gen. Stat. §15A-544.5(b). Therefore, the trial court erred in failing to set aside the clerk’s order. The Court reversed the judgment for the sureties and remanded the case.
North Carolina Case Law 2010
In State v. Bonner, 2010 WL 916110 (N.C.App. March 16, 2010) the defendant appeared and pled guilty. The court ordered him to remain in his residence 24 hours a day and not to have a cell phone or pager. The court then continued the Prayer for Judgment for a month. The defendant failed to appear at the continued hearing. The court forfeited the bond but set the forfeiture aside on the surety’s motion. The School Board appealed, and the Court of Appeals held that house arrest and no cell phone or pager was “punishment” sufficient to finally dispose of the charges and thus discharge the surety. Directing the defendant to obey all laws or pay court costs would not be “punishment,” but here the conditions went beyond obeying all laws and constituted punishment. Accordingly, the order was a final judgment and the surety had no further obligation to secure the defendant’s appearance.
North Carolina Case Law 2009
In State v. Lynch, 2009 WL 367771 (N.C.App. February 17, 2009) the defendant failed to appear and the clerk mailed a bond forfeiture notice which the surety received. The bond listed the defendant as “Danielle A. Lynch” and the release order named “Danielle Antwane Lynch,” but the other court documents and the notice said “Daniel Antwane Lynch.” The surety moved for relief from the judgment, to require the clerk to mail a corrected notice, and to extend the final judgment date to 150 days for the mailing of the corrected notice. The surety did not show any prejudice from the inconsistency in the names and knew the notice was for its bond. The Court held that the notice contained the name and address of the defendant as required by N.C.Gen.Stat. §15A-544.3 and affirmed judgment against the surety.
In State v. Hollars, 2009 WL 678692 (N.C.App. March 17, 2009) the defendant failed to appear and the trial court entered a judgment of forfeiture. The surety moved to set aside the forfeiture because the defendant was incarcerated in Tennessee. The trial court denied the motion, and the denial was affirmed on appeal. The surety then moved for relief from the judgment and the trial court granted that motion. On appeal, the Court held that the surety established extraordinary circumstances justifying relief from the judgment. The surety acted diligently, located the defendant and enabled his return and eventual conviction. The Court also rejected the Board of Education’s contentions that the hearing on the surety’s motion was not scheduled within a reasonable time and that denial of the earlier motion to set aside the forfeiture was res judicata and barred the later motion for relief from the judgment. The Court also held that the three year time period in which to seek relief from the judgment was tolled while the earlier motion to set aside the forfeiture was not yet final including while execution on the judgment was stayed during pendency of the appeal.
In State v. Largent, 2009 WL 1658456 (N.C.App. June 16, 2009) the defendant was incarcerated in Tennessee at the time he failed to appear. He was subsequently released and then re-incarcerated in the same county in Tennessee, and the surety gave the district attorney the notice required by N.C. Gen. Stat. §15A-544.5(b)(7). The trial court refused to set aside forfeiture of the bond, and the surety appealed. The issue of first impression was whether the incarceration had to be continuous or there could be a break as long as the defendant was in custody when he failed to appear and again when the notice as given and for 10 days thereafter. The statute required that the forfeiture be set aside if the defendant was incarcerated “at the time of the failure to appear, and the district attorney for the county in which the charges are pending was notified of the defendant’s incarceration while the defendant was still incarcerated and the defendant remains incarcerated for a period of 10 days following the district attorney’s receipt of notice.” The Court held that “still” meant one continuous period of incarceration beginning at the time of the failure to appear and continuing through at least 10 days after the district attorney was notified. The Court therefore affirmed the trial court’s denial of the surety’s motion to set aside the forfeiture.
In State v. Dunn, 2009 WL 3617504 (N.C.App. November 3, 2009) the defendant was charged with possession of drug paraphernalia. After first being released, he failed to appear. The bond forfeiture was set aside, he pled guilty, and he was placed on probation. After violating his probation, he was arrested and released on a second bond. After he failed to appear, that bond forfeiture was set aside and he was released on a third bond. He again failed to appear. Eventually, his probation was revoked and he served the original sentence. The trial court granted the surety’s motion to set aside forfeiture of the third bond, and the State appealed. The issue was whether N.C. Gen.Stat. §15A-544.5(f) applied. That statute forbid setting aside forfeiture of a bond if the surety or agent was aware when the bond was written that the defendant had already failed to appear on two or more prior occasions. The Court held that the probation revocation proceeding was a new case that focused on the probation violation not the underlying criminal conduct. Therefore, the defendant’s failure to appear on the drug paraphernalia charge did not count as a prior failure to appear in the probation revocation case. The Court affirmed the trial court’s order setting aside the contested bond forfeiture.
North Carolina Case Law 2008
In State v. Credle, 2008 WL 1723438 (N.C.App. April 15, 2008) the defendant failed to appear and the surety was sent notice of forfeiture. The defendant was re-arrested shortly thereafter and the charges resolved. If the surety had filed a timely motion to set aside the forfeiture, the motion would have been granted. The surety did not file a motion, however, and after the 150 day period expired the court entered a final judgment of forfeiture. The surety moved to set aside the judgment on the grounds of “extraordinary circumstances” and the court granted partial remission of the bond. The State appealed, and the Court of Appeals held that the trial court had not made findings of fact or conclusions of law to justify any “extraordinary circumstances.” The trial court’s findings would have justified setting aside the forfeiture had a timely motion been filed, but they did not explain any extraordinary circumstances to justify setting aside the final judgment. The Court vacated the trial court’s order and remanded the case for the trial court to make appropriate findings of fact and conclusions of law.
In State v. Lazaro, 660 S.E.2d 618 (N.C.App. 2008) and State v. Rodrigo, 660 S.E.2d 615 (N.C.App. 2008) the defendants failed to appear and notices of forfeiture were timely sent to the surety. In each case the defendant was arrested and held in the county jail prior to entry of final judgment against the surety. The surety asserted that the defendants were released to the federal government and deported. The trial court granted relief from the forfeitures, and the School Board appealed. The Court reversed the trial court and held that under N.C. Gen. Stat. §15A-544.5(b), prior to its amendment in 2007, incarceration in the county jail and deportation by federal authorities were not grounds for relief from forfeiture. Since the defendants’ failures to appear were not excused by any of the statutory grounds, final judgments should have been entered on the bonds.
North Carolina Case Law 2007
In State v. Toomer, 643 S.E.2d 84 (N.C.App. 2007) the defendant failed to appear because he was incarcerated in another county. The surety was granted relief from forfeiture of its bond, and the School Board (the recipient of forfeitures in North Carolina) appealed. The Court held that the surety was not entitled to relief because under N.C.Gen.Stat. §15A-544.5 the defendant has to be incarcerated in a unit of the state Department of Corrections or a federal prison in North Carolina, and a county jail does not qualify. This ludicrous result was also reached in State v. Robertson, 603 S.E.2d 400 (N.C. App. 2004).
In State v. Reyes, 2007 WL 1247088 (N.C.App. May 1, 2007) the defendant fled during trial. The court forfeited bail and issued a bench warrant, but it also continued with the trial, and the jury found the defendant guilty. The court then continued the “prayer for judgment” until the defendant was returned. The surety moved to set aside the forfeiture pursuant to N.C.Gen.Stat. §15A-544.5(b)(2), which provides for setting aside a forfeiture if the charges have been “finally disposed by the court.” The Court of Appeals held that continuing the case was not an appealable, final judgment, therefore the case had not been finally disposed of and the statute did not apply. It also pointed out that the bond itself provided that it would remain in effect until entry of judgment, and that had not yet occurred. The Court affirmed the trial court’s denial of the surety’s motion.
In State v. Beasley, 2007 WL 1745889 (N.C.App. June 19, 2007) the defendant was arrested on a series of traffic offenses and released on personal appearance bonds. In each instance he failed to appear and warrants were issued. He was also arrested on another charge and released on surety bonds for the traffic offenses and other charge. Before his appearance dates, he was arrested in another county on an unrelated charge, and the surety executed a “Surrender of Defendant by Surety.” He failed to appear in the cases in which the surety had issued bonds, and forfeitures were entered. The surety filed motions to set aside the forfeitures on the grounds that the defendant was incarcerated. The trial court denied the motions, and the surety did not appeal. Instead, the surety filed motions for relief from the judgments on the grounds that the surety had surrendered the defendant and terminated the bonds prior to the appearance dates. The trial court also denied the motions for relief from judgment.
On appeal, the Court held that the initial denials of the surety’s motions to set aside the forfeitures were final, appealable judgments, and that the failure to appeal barred any further relief as to those motions. On the motions for relief from judgment, the surety failed to show the required “extraordinary circumstances” to justify relief, and the trial court did not abuse its discretion in denying the motions. The Court stated that events that would have required setting aside a forfeiture before final judgment were not automatically “extraordinary circumstances” to justify post-judgment relief.
In State v. Bakri, 651 S.E.2d 266 (N.C.App. 2007) the surety located the defendant in another state after final judgment forfeiting the bond had been entered. The surety’s agents took the defendant to local law enforcement officials, but the North Carolina warrant was not in the NCIC database. A warrant from New Jersey was, however, and he was extradited to New Jersey and sentenced to a lengthy prison term. The surety offered to pay the costs to bring him from New Jersey to North Carolina, but the District Attorney did not request extradition. The surety applied for relief from the judgment, which the trial court denied. The only issue on appeal was whether the surety established “extraordinary circumstances” entitling it to relief. The surety argued that the District Attorney’s Office had agreed to seek extradition and its breach of that promise qualified. The Court of Appeals thought that the record did not establish such a promise and, in any case, the trial court did not abuse its discretion in finding no extraordinary circumstances.
In State v. Escobar, 652 S.E.2d 694 (N.C.App. 2007) the defendant failed to appear, notice was given to the surety, and a final judgment of forfeiture entered after expiration of the statutory 150 day period. The surety and its agents determined that the defendant had been deported to Mexico, returned to the United States illegally under an alias, and was incarcerated in another state. The surety provided this information to the prosecutor, and the defendant was eventually returned to North Carolina. The surety moved for relief from the forfeiture for “extraordinary circumstances” under N.C. Gen. Stat. §15A-544.8. The trial court denied relief, and the surety appealed.
The existence of extraordinary circumstances is within the discretion of the trial court, and the Court of Appeals reviewed for abuse of discretion. Due diligence or the mere return of the defendant is not automatically extraordinary circumstances because due diligence is expected of the surety. The trial court found that the surety knew the defendant was born in Mexico, did not determine his immigration status, and did not diligently monitor him prior to his deportation. The surety did not cause his arrest after he failed to appear. The surety only located him after he had been arrested by law enforcement authorities in another state. The Court of Appeals held that on these facts denial of relief from the judgment of forfeiture was not an abuse of discretion.
State v. Massey, 2007 WL 4105554 (N.C.App. November 20, 2007) held that the trial court abused its discretion in returning the forfeited bond amount. After final judgment was entered and the surety, the defendant’s father, paid the forfeiture, the surety moved for relief because of extraordinary circumstances. The defendant was incarcerated in another state at the time of his arrest warrant, and the surety notified the district attorney’s office of his location. The trial court found that these facts constituted extraordinary circumstances and remitted the forfeiture. The Court of Appeals reversed because incarceration in another state is not an extraordinary circumstance and the surety did not return the defendant to North Carolina. Merely notifying the district attorney of the defendant’s location is not sufficient to constitute extraordinary circumstances.
North Carolina Case Law 2006
In State v. Hernandez, 2006 WL 389643 (N.C.App. February 21, 2006) the defendant failed to appear and the bond was forfeited. The clerk, however, did not mail notice of the forfeiture until five months later. North Carolina Gen. Stat. §15A-544.4 required that notice be mailed within 30 days, and on the surety’s motion the trial court entered an Order that set aside the forfeiture, directed that no enforcement of the forfeiture be undertaken, the Department of Insurance not be notified, and that the surety be exonerated from all further liability. No appeal was taken from this Order, but the state noticed another appearance in the case and had a new forfeiture entered when the defendant again failed to appear. The surety moved to vacate this second forfeiture on the ground that the bond had been exonerated and no longer secured the defendant’s appearance. The trial court granted the motion, and the Board of Education appealed. The Court of Appeals thought that exoneration of the bond because of the clerk’s failure to mail timely notice was of doubtful validity because late notice is not one of the statutory grounds for exoneration, but it held that the Board’s failure to appeal the trial court’s Order exonerating the bond made that Order final and conclusive. It therefore affirmed the trial court’s granting of the surety’s motion to vacate the second forfeiture.
State v. Hollars, 2006 WL 537481 (N.C.App. March 7, 2006) affirmed denial of the surety’s motion to set aside forfeiture of the bond. The defendant failed to appear and the surety was given notice. Before the final judgment date, the defendant was arrested in Tennessee, and the surety’s agent appeared in Tennessee and “surrendered” the defendant to the sheriff there. The surety moved to set aside the forfeiture. The Court held that when N.C. Gen. Stat. §15A-540(b) says “a surety may surrender a defendant who is already in custody of any sheriff by appearing in person and informing the sheriff that the surety wishes to surrender the defendant” it means any sheriff in North Carolina.
State v. Walker, 2006 WL 997856 (N.C.App. April 18, 2006) held that the professional bondsman knew or should have known that the defendant had failed to appear at least twice prior to the time the bond was written and, therefore, under N.C. Gen. Stat. 15A-544.5(f) forfeiture of the bond could not be set aside for any reason. The Court of Appeals reversed the trial court and reinstated the forfeiture even though the bondsman showed that the charges were resolved. The bond showed the charge as failure to appear, and with that notice the bondsman could have found the other failures to appear from the court record. The Court stated, “with notice that Walker had a prior failure to appear, Trogdon [the bondsman] could have discovered through the exercise of proper diligence that Walker had a second prior failure to appear.” The statute requires notice or actual knowledge of two prior failures to appear, but the Court essentially waters that down to notice or actual knowledge of one failure to appear with the second supplied by what the agent or surety could have found in the court record.
In State v. Teague, 2006 WL 998083 (N.C.App. April 18, 2006) the Court dismissed the School Board’s appeal of a decision to remit forfeiture of the bond because the trial court did not enter its decision via a written order.
State v. Ramirez-Marciano, 2006 WL 2807206 (N.C.App. October 3, 2006) dismissed the surety’s appeal because there was nothing in the record to show that the trial court entered the judgments from which the appeals were taken. The surety recovered the defendant after final judgment and filed motions for relief. The trial court’s oral judgment was to grant relief for only $3,000 of the $13,500 of forfeitures, but that decision apparently was not reduced to writing and filed in the record. The surety nevertheless filed a notice of appeal. The Court of Appeals held that entry of judgment requires a written order signed by the judge, and since the surety did not demonstrate that had occurred, the Court of Appeals lacked jurisdiction.
State v. Pickering, 2006 WL 2807210 (N.C.App. October 3, 2006) dismissed the surety’s appeal for lack of jurisdiction because no judgment was entered in the trial court. This case is identical to State v. Ramirez-Marciano, 2006 WL 2807206 (N.C.App. October 3, 2006) except for the name of the defendant and amount of the bond.
North Carolina Case Law 2005
In State v. Saunders, 2005 WL 14108 (N.C. App. January 4, 2005) the clerk delayed for 18 months in mailing the surety notice of the defendant’s failure to appear and entry of the order of forfeiture, but the judgment was not entered until more than the required 60 days after the notice was given. The court found that the surety was not prejudiced by the delay; indeed if the surety had been monitoring the case it would have had a substantial additional period to locate and return the defendant. The court also held that the statute in effect at the time the bond was issued controlled, and that the addition of a street address above the surety’s post office box did not make mailing of the notice defective.
State v. Moore County Board of Education, 2005 WL 90939 (N.C. App. January 18, 2005) held that post judgment proceedings challenging an order granting relief from forfeiture was subject to the civil rules of procedure, and therefore the Board of Education’s motion for reconsideration of the order was timely and should have been decided on its merits. The Court did not consider whether granting the surety relief from the forfeiture was proper. The case was remanded to consider the Scholl Board’s motion on its merits.
State v. Belton, 610 S.E.2d 283 (N.C. App. 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk’s office and a certificate of mailing in the file. The surety filed an affidavit of one of its employees that the notice was not received, but the Court held that there was sufficient evidence to support the trial court’s finding of fact that the notice was mailed. The court refused to consider two other arguments because they were not included in the assignments of error in the appeal.
State v. Banuelos, 2005 WL 756893 (N.C. App. April 5, 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk’s office, a certificate of mailing in the file and the undeliverable returned envelop sent to the defendant and kept in the court file. An employee of Capitol Bonding Corporation testified that the notice was not received. The court noted that she admitted she had filed seven to ten affidavits claiming that notices from various other counties in North Carolina had not been received. The Court held that there was sufficient evidence to support the trial court’s finding of fact that the notice was mailed. The court refused to consider several other arguments because they were not included in the assignments of error or not addressed in the surety’s brief. This appeal is virtually identical to State v. Belton decided on the same day.
State v. Paulino, 2005 WL 756890 (N.C. App. April 5, 2005) is almost identical to State v. Belton, 2005 WL 756621 and State v. Banuelos, 2005 WL 756893 decided by the same court on the same day. In each case, Aegis Security Insurance Company appealed denial of relief from bond forfeiture on the ground that notice of the forfeiture was not properly mailed. In each case, the same employee of Capitol Bonding Corporation testified the notice was not received. In each case the Court affirmed the trial court based on the court clerk’s description of the standard procedure to mail the notices and the contents of the record in the case file.
State v. Lopez, 2005 WL 887270 (N.C. App. April 19, 2005) and State v. Rodriguez, 2005 WL 892475 (N.C. App. April 19, 2005) are two more cases in which the Court affirmed forfeiture of bonds in spite of testimony by an employee of Capital Bonding that notice of the forfeiture was not received. The trial court held a hearing, and the state’s only evidence was the certificates of mailing from the court files. The Court of Appeals held that this was sufficient to support a finding that the notices were mailed as required by the statute.
State v. Ferrer, 611 S.E.2d 881 (N.C. App. 2005) is another appeal by Aegis based on testimony by the same Capitol Bonding employee that notice of forfeiture was not received. Two deputy court clerks testified on the procedures to mail forfeiture notices (one of them also remembered mailing the notice), and the trial court found that the notice was mailed. The Court of Appeals affirmed refusal to vacate the forfeiture judgment.
State v. Ochoa, 2005 WL 1018070 (N.C. App. May 3, 2005); State v. Landaver, 2005 WL 1018073 (N.C. App. May 3, 2005) and State v. Flores, 2005 WL 1018153 (May 3, 2005) are three more appeals by Aegis Security Insurance Co. of denials of motions to set aside bond forfeitures for lack of evidence of mailing and the alleged unconstitutionality of the bond forfeiture statute. In each case, the Court affirmed the trial court citing State v. Ferrer.
State v. Edwards, 2005 WL 1949517 (N.C. App. August 16, 2005) held that recovery of the defendant after the final judgment of forfeiture had been entered did not constitute “extraordinary circumstances” entitling the surety to relief from the judgment as a matter of law. If the defendant had been returned before final judgment, the court pursuant to G.S. §15A-544.5(b)(3) “shall” set the forfeiture aside. Once the judgment is entered, however, G.S. §15A-544.8 controls and the judgment can be set aside only if proper notice of the forfeiture was not given or the court, in its discretion, finds “extraordinary circumstances” entitling the surety to relief. In this case, the trial court denied relief, and the Court of Appeals affirmed. From the discussion, it seems likely that if the trial court had granted relief, that also would have been affirmed. The concurring judge noted that without a reasonable hope of relief, there is no reason for the surety to spend time and money trying to apprehend the defendant once a judgment is entered.
In State v. Sanchez, 623 S.E.2d 780 (N.C.App. 2005) the defendant failed to appear and the court directed that a warrant be issued and the bond forfeited. The clerk, however, did not mail notice of the forfeiture until 36 days later. N.C. Gen. Stat. §15A-544.4(e) provides that the notice must be mailed not later than the thirtieth day after the date on which the forfeiture is “entered.” The surety moved to set aside the forfeiture, and the trial court denied the motion. The surety appealed, and the parties argued whether the forfeiture was “entered” when the court declared the forfeiture or when the clerk prepared the bond forfeiture notice and keyed the information into the Civil Case Processing System. The Court of Appeals refused to decide the issue because it thought that under N.C. Gen. Stat. §15A-544.5 relief from a forfeiture can be granted for only certain enumerated reasons, and late notice is not one of them. Late notice is a grounds to grant relief from a final judgment of forfeiture under N.C. Gen. Stat. §15A-544.8. In effect, the Court of Appeals held that the surety would have to wait until a judgment was entered and then appeal that as the only way to gain review of the late notice issue.
North Carolina Case Law 2004
In State v. Evans, 601 S.E.2d 877 (N.C. App. 2004) , affirmed 610 S.E.2d 198 (N.C. 2005) the surety surrendered the defendant before expiration of the 150 day period at the end of which the forfeiture would become final. The surety also filed a timely motion to set aside the forfeiture, but the surety did not actually mail the motion until 9 days after the date he certified he had mailed it. Such delay in mailing seemed to be this surety’s pattern of behavior and had the effect of reducing the Board of Education’s time to respond to the motion. The trial court denied the motion based on the delayed mailing (by statute the surety was entitled to have the forfeiture set aside when he surrendered the defendant, so the motion should have been granted if addressed on its merits). The surety did not appeal that denial but several months later filed a motion for relief from the judgment. In a 2-1 decision, the Court of Appeals held, in effect, that being right was not a sufficient “extraordinary circumstance” mandating relief from a final judgment. The dissent disagreed and thought that precedent established the post-judgment relief should have been granted.
State v. Robertson, 603 S.E.2d 400 (N.C. App. 2004) is a case which cries out for legislative correction. The defendant was incarcerated in a county jail on a fugitive warrant on the day he was supposed to appear. The surety timely moved for relief from forfeiture. The trial court granted the surety relief, and the court of appeals reversed. The court applied the relevant statute, G.S. §15A-544.5, literally and held that since the defendant was not incarcerated in a “unit of the Department of Corrections and is serving a sentence” no relief could be granted. The surety argued that it met the spirit if not the letter of the law. The court’s answer was that “This argument, however, is for the General Assembly to address. We are bound by the statute.” Presumably the School Boards in North Carolina, which receive the money from bond forfeitures, will now start opposing any relief based on the fact that the defendant was incarcerated if he or she was not in a state Department of Corrections unit and also serving a sentence.