Bail Bond Agent Blog

Pantazes v. State of Maryland, 2003 WL 22453793 (Md. App. October 30, 2003) held that the court’s delay in forfeiting the bond was not grounds to grant the bail bondsman any relief. The defendant failed to appear for sentencing and the court “revoked” his bail status but did not enter an order forfeiting the bond. Some months later, the administrative judge corrected the error and entered an order forfeiting the bond and giving the surety 90 days to produce the defendant (by statute the 90 days is supposed to run from the date the defendant failed to appear, but the judge’s action foreclosed an argument that the belated forfeiture deprived the surety of its 90 days to recover the defendant.) The bail bondsman presented no evidence of his actions to monitor or recover the defendant. The court rejected arguments that prejudice resulted from the “cold” trail to find the defendant or that the “revoked” bond could no longer be forfeited.

The court then went on to lecture the bail bondsman that he was not a central party to the case which was really between the state and the defendant and that the bond was just a form of security posted by the defendant and that the business risk assumed by the bondsman was that the defendant would not appear in court. The defendant did not appear, and the court showed little sympathy for the bail bondsman’s attempts to escape the financial consequences.

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In State v. Futch, 2004 WL 626204 (La. App. March 31 2004) the surety moved to set aside a bond forfeiture because the record did not show that the defendant was given notice of the date he was to appear. The Court affirmed denial of the motion because Art. 344 of the La. Code of Criminal Procedure requires notice after the initial appearance only to the surety, agent or bondsman not to the defendant. Since notice was given to the surety, the forfeiture was correct.

In State v. Ainsworth, 2004 WL 1459356 (La. App. June 29, 2004) the surety had two grounds to set aside forfeiture of the defendant’s bond. The surety argued that the state did not give the defendant the required notice of the appearance date and that the defendant was incarcerated in another jurisdiction on the appearance date. The Court held that under Louisiana statutes some defenses must be raised within 60 days and some within six months. The alleged lack of notice is a 60-day defense, and it was first raised by motion filed more than 60 days after the notice of forfeiture was mailed. In addition to being untimely, the defense failed on its merits because the state tried to serve notice of the appearance date on the defendant at the false address he gave.

The incarceration is a six-month defense, but the surety did not raise it in its motion or in any amended motion. It was first raised the morning of the hearing which was more than six months after the date the notice of forfeiture was mailed. The statute also requires an affidavit from a public official that the defendant was incarcerated, and the surety provided only an unsworn letter. The Court, therefore, affirmed the trial court’s denial of the surety’s motion to set aside the forfeiture.

Reading between the lines of this case, it appears that the way things have routinely been done has not complied with the applicable statutes and the Court of Appeals is giving notice that it will require strict compliance in the future. [Published].

In State v. Harris, 2004 WL 2072040 (La. App. September 17, 2004) the defendant failed to appear and the bail agent asked the Sheriff to enter the resulting bench warrant in the National Crime Information Center Registry and tendered the $25 fee. The Sheriff refused to enter the warrant, and when the bail agent’s representatives later seized the defendant in another state the local police refused to hold him because there was no confirmation of the warrant in the Registry. The court held that the bond was exonerated pursuant to Art. 345G of the La. Code of Crim. Proc. The court said that it relied on the fact that the $25 was accepted and did not express an opinion on whether the Sheriff could have refused the fee and not entered the warrant. A concurring opinion, however, argues that the Sheriff was obligated to accept the fee and enter the warrant and to refuse would border on malfeasance. Under the terms of the cited statute, it appears that mere refusal to enter the warrant should discharge the surety, and the fact that the defendant was later located, and released because of the Sheriff’s failure, was not essential to the holding.

State v. Timberlake, 2004 WL 2290500 (La. App. October 12, 2004) refused to consider the merits of the surety’s motion to set aside forfeiture of its bond because the motion was filed after the expiration of six months from the date notice of the judgment of bond forfeiture was mailed. The motion was, therefore, untimely, pursuant to La. R.S. §15:85. The Court also noted several other avenues of relief that the surety failed to pursue.

State v. Campbell, 889 So.2d 1030 (La. App. 2004) refused to consider the merits of the surety’s appeal from the forfeiture of two bonds. The surety argued that the defendant was not served with notice of the court date upon which she failed to appear and that she was incarcerated in another Parish within six months of the mailing of the notice of bond forfeiture. The surety’s original motion to set aside the forfeiture was based on only the lack of proper notice defense. The Court refused to consider it because it was not filed within 60 days of the mailing of the notice of bond forfeiture as required by La. R.S. §15:85(5). That statute allows six months to assert a defense based on incarceration of the defendant, but the surety did not raise that defense until the hearing on its motion, which was after expiration of the six month period.

State v. McCoy, 889 So.2d 1026 (La. App. 2004) reversed a judgment vacating a bond forfeiture. La. C. Cr. P. Art. 345 allows the surety six months from the mailing of notice of bond forfeiture in which to surrender the defendant. The surety moved to extend the period, the state withdrew its opposition to the motion, and the trial court granted an extension. The surety surrendered the defendant one day after expiration of the extended period. The Court of Appeals held that the trial court did not have discretion to extend the surrender period, and even if the state’s acquiescence legitimized the extension, the surrender was not within the extended period. In addition, the various statutory procedures to obtain relief from the forfeiture were not followed.

In State v. Turner, 2004 WL 2806466 (La. App. December 8, 2004) the criminal falsely identified himself as his younger brother. The Sheriff’s office did nothing to verify his identity. The bond was issued in the name of the brother in reliance on the false identification. The defendant failed to appear and a warrant was issued in the brother’s name. Eventually, the mistake was discovered and corrected. The surety moved to set aside the forfeiture more than six months after the notice of forfeiture was mailed. Nevertheless, both the trial court and the Court of Appeals held that the surety should not be penalized for failing to produce the defendant because that failure was caused by reasonable reliance on false information provided by the state.

State v. Rivera, 894 So.2d 496 (La. App. 2005) affirmed denial of the surety’s motion to set aside forfeiture of its bond. The defendant was a native of Mexico and was voluntarily deported immediately after his release. He did not appear for arraignment and the bond was forfeited. Notice of forfeiture was mailed to the surety and agent. Deportation is not one of the grounds for non-forfeiture enumerated in La. R.S. §15:87 (which can be raised within six months of mailing the notice), and therefore the surety could proceed only by summary proceeding in the criminal case under La. R.S. §15:85. However, such summary proceedings must be brought within the 60-day period following mailing of the notice, and the surety’s motion was untimely.

In State v. Gibson, 2005 WL 675664 (La. App. March 24, 2005) the clerk mailed notice of the judgment of bond forfeiture to the surety and to the defendant, but the envelop to the defendant had the wrong zip code. The rest of the address was correct, and there was no allegation that the notice was not received or that the surety was prejudiced by the error. The surety moved to set aside the judgment, which was denied, and the surety appealed. The Court of appeals affirmed. The statute required mailing to the address on the bond, but does not define address. The court suggests, over a dissent, that the zip code should not be considered part of the address, but the judges agreed that the intent of the statute is to provide notice and that in this instance notice was provided and no prejudice suffered, therefore, in this instance, failure to include the correct zip code did not render the address invalid.

United States v. Green, 2005 WL 1400426 (E.D. La. June 6, 2005) charged a Louisiana district court judge in Jefferson Parish with accepting, and Bail Bonds Unlimited and Norman Bowley with giving, bribes in return for various favors related to bail bonds.

Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.

Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.

In State v. Melancon, 2005 WL 2320037 (La. App. September 23, 2005) the defendant failed to appear and the court issued a bench warrant and signed a judgment of bond forfeiture. Some time later the defendant went with a representative of the surety to the sheriff’s office. Upon being informed by the sheriff that she was in his office, the court recalled the warrant. The Court held that her appearance at the sheriff’s office was an “appearance” under La. R.S. 15:85 (that is, “appearance” does not mean just an appearance in court) and the surety was entitled to relief from the forfeiture judgment. [Published].

State v. Davis, 2005 WL 2374722 (La. App. September 28, 2005) affirmed judgment of forfeiture against the surety. The Court rejected the surety’s argument that statutory notice of the court appearance was not given to the defendant. Notice was sent by certified mail and attempted personal delivery to the address the defendant gave on the bond. It turned out to be a vacant house, and the surety argued that actual notice was required. The Court held that the defendant had the obligation to file any change of address, and that notice sent to the address of record in the case was sufficient.

Williams v. City of Jeanerette, 2005 WL 3113024 (W.D.La. November 21, 2005) denied the surety’s motion for summary judgment in a suit based on alleged torts of a bounty hunter. The surety argued that the bounty hunter was an independent contractor, but the court held that there were genuine issues of fact.

In State v. Murphy, 2005 WL 3417332 (La. App. December 14, 2005) the defendant failed to appear and the trial court ordered the bond forfeited and a bench warrant issued, but no judgment of forfeiture was signed. Five months later, the forfeiture was set aside, the warrant recalled, and the defendant ordered to appear on a new date. He again did not appear, and this time a judgment forfeiting the bond was signed and timely notice mailed to the surety and bail agent. The surety argued that because notice was not mailed within 60 days of the original failure to appear and forfeiture, the bond was released. The Court held that the 60 days in which the clerk must mail notice of forfeiture runs from the date of nonappearance that results in a signed forfeiture order. If there is no signed judgment, even though there was a failure to appear, there is no final judgment and no duty to mail the notice. The Court affirmed the trial court’s denial of the surety and agent’s motion to set aside the forfeiture judgment.

In State v. Wilson, 2005 WL 3416282 (La. App. December 14, 2005) Bossier City charged the defendant with theft, and he was ordered to appear in the Bossier City Court. The obligee of the Bond was the Mayor of Bossier City, and the power of attorney stated that it was not transferable to another court except for change of venue under La. C. Cr. P. Art. 626. The Sheriff sent a letter to the defendant telling him to appear to answer the theft charge in the Bossier Parish District Court. The Court held that the bond was discharged because the change of venue procedures of La. C. Cr. P. Articles 621 – 627 were not followed and the power of attorney clearly limited the bond to appearance in the Bossier City court. The Court rejected the state’s argument that the power of attorney was just an agreement between the surety and agent and stated, “the power of attorney is a critical and mandated portion of the bail bonding agreement. It is to be viewed and read as part of the total bail bond agreement.”

In State v. McLaurin, 2006 WL 782849 (La.App. March 28, 2006) the bond contained an appearance date, but the date was changed. The court attempted unsuccessfully to give the defendant notice of the new date by personal service, but did not give the surety notice. The defendant appeared on the original date and filled out a form to change her address. The record does not show whether she was given notice of the new date, but she failed to appear on the new date, and the court forfeited the bond and denied the surety’s motion to set the forfeiture aside. The Court of Appeals reversed because the surety was not given notice of the new appearance date as required by La.C.Cr.P. art. 344. The Court held, “a judgment of bond forfeiture is only to be rendered upon proof of delivery or mailing of notice of the appearance date to the surety, when that date has been changed from the one listed on the appearance bond.” The Court did not reach the problem with notice to the defendant, but expressed skepticism that it would have supported a forfeiture judgment.

In State v. Ramee, 2006 WL 1228942 (La.App. May 9, 2006) the defendant failed to appear and the bond was forfeited. Several months later, but within the six month appearance period, the defendant was incarcerated for two days in another Parish. The Court held that La.C.Cr.P. 345 did not provide relief because the defendant was released. The Court interpreted section 345 to apply only if the surety was unable to return the defendant because the defendant was incarcerated and was still incarcerated. Presumably the Court meant still incarcerated at the time the surety’s motion was filed. The Court disagreed with the trial court that denied the surety’s motion to set aside the forfeiture because the surety did not tender transportation costs pursuant to section 345 but nevertheless affirmed the result because section 345 did not apply at all. The Court also noted that La.R.S. 15:87 provides relief to the surety if the defendant’s original failure to appear was because of incarceration on the appearance date.

In Louisiana Bail Bonds, Inc. v. State, 2006 WL 1329693 (La.App. May 17, 2006) the defendant failed to appear, and the court issued a bench warrant and forfeited the bond. No written order of forfeiture was signed, however, and no notice of forfeiture was mailed. Several months later, the court recalled the bench warrant and set aside the forfeiture. The defendant again failed to appear, and the bond was forfeited properly and notice sent to the surety.

The surety and bail agent argued that the bond was released because no notice was mailed within 60 days of the original failure to appear as required by La. R.S. 15:85. The Court held that the notice requirement applied only if there was a written forfeiture order. Since in this case there was no written order for the first forfeiture, the 60 day period to mail notice did not apply and the trial court was free to set aside the forfeiture and start over. The Court affirmed judgment against the surety.

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In Martin v. Commonwealth, 2003 WL 22681798 (Ken. App. November 14, 2003) the defendant violated a non-appearance condition of his bond (contact with the minor victim of the crime). The surety, the defendant’s father, appealed forfeiture of 50% of the $20,000 cash bond. The court held that forfeiture was justified but the amount excessive.

Clemons v. Commonwealth, 2004 WL 2484530 (Ken. App. November 5, 2004) held that the bond could be forfeited based on breach of conditions other than appearance and that forfeiture of $5,000 of a $20,000 bond was not excessive where the defendant violated conditions not to consume alcohol and to be at home from 6:00 p.m. to 6:00 a.m.

Woolsey v. Commonwealth, 2005 WL 1125183 (Ken. App. May 13, 2005) held that a cash bond deposited by the defendant’s mother could be forfeited based on his violation of conditions other than appearance. After release, the defendant was re-arrested on various drug charges. He admitted that he violated the conditions of his release and that the bond could be revoked because of his violation, but he argued that the bond could not be forfeited. The Court disagreed. The case involved a cash bond not a commercial surety bond, and the Court does not discuss what, if any, difference a surety bond would have made to its decision.

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In State v. Chukes, 2003 WL 23018243 (Kan. App. December 24, 2003) the bond was signed by the defendant as principal and by the bail agent as surety. There was no execution by an actual surety company although a power of attorney for the bail agent as agent for a surety company was attached. The appeal was from entry of judgment on the bond and an order refusing to set the judgment aside. The court held that the judgment (which was against the principal and the bail agent only) and refusal to set it aside were not abuses of discretion and so under Kansa law the judgment is affirmed as to the agent. The surety also purportedly appealed even though no judgment was entered against it and it was not a party to the case, and the court dismissed the surety’s appeal for lack of standing.

In State v. Burhans, 89 P.3d 629 (Kan. 2004) a bail bondsman was convicted of criminal trespass and assault for going on the bond principal’s sister’s property and threatening the sister’s husband, allegedly in an attempt to apprehend the principal. The court considered cases from other jurisdictions dealing with the rights of bail agents to enter property of third parties and concluded that it did not have to decide whether a reasonable belief that the principal was on the property would have justified the bondsman’s actions since, under the facts of the case, there was no basis to believe the principal was present.

State v. Ocampo-Navarro, 2004 WL 1609122 (Kan. App. July 16, 2004) held that the surety was discharged by a material alternation in the risk of the bond. As issued, the bond was conditioned on appearance and on the defendant not having contact with the alleged victim or others under the age of 18. Without notice to the surety, or obtaining its consent, the court added a condition that the defendant be subject to electronic monitoring of his location. He did not appear to have the electronic monitoring put in place, and the court forfeited the bond. He then did not appear for a preliminary hearing and the court forfeited the bond again. The state initially sought judgment against the bond for both forfeitures but eventually withdrew the request for forfeiture based on failing to appear for the electronic monitoring. Judgment, therefore, was entered only on the forfeiture for failure to appear at the preliminary hearing.

The Court of Appeals reversed and discharged the bond on the theory that adding the electronic monitoring requirement was a material change in the bond that increased the surety’s risk. The Court reasoned that since the additional condition could result in bond forfeiture it was material and increased the surety’s risk of loss. [Not published].

State v. Landes, 2004 WL 1683126 (Kan. App. July 23, 2004) held that the trial court was within its discretion in refusing to remit any part of a forfeited bond. The defendant was apprehended shortly after he failed to appear, but the surety and bail agent did not play any part in the apprehension. The trial court thought the bail agent should have done a better job of monitoring the defendant and his appearance obligations. The Court also refused to consider the bail agent’s argument that the judgment should have been only against the actual surety not the agent because the argument was not raised in the trial court. [Not published.]

State v. Sedam, 122 P.3d 829 (Kan. App. 2005) held that the appearance bond was discharged by a material change without notice to the surety or the surety’s consent. The defendant failed to appear and the bond was forfeited. Three days later the defendant appeared in court and the court “reinstated” the bond and added a condition that the defendant be supervised by pretrial services. Part of such supervision was to report to pretrial services weekly and undergo drug testing. After giving a urine sample showing use of amphetamines, the defendant never came back. When he did not appear at the next court date, the bond was forfeited. The state argued that the addition of pretrial supervision benefited the surety, but the Court of Appeals thought the surety’s risk was increased by requirement of drug testing and more frequent appearances even though the ultimate forfeiture was for failure to appear in court. The Court held, “By reinstating a forfeited bond with new conditions with no notice to the surety, the court in fact rewrote the bond and gave the surety no opportunity to evaluate whether he wanted to assume the increased risk of forfeiture. Imposing a money judgment under such facts is an abuse of discretion.”

City of Dodge City v. Reyes, 2006 WL 1359192 (Kan.App. May 19, 2006) held that an appearance bond in connection with an appeal to the district court was valid even though the defendant did not sign it within the time required. The surety’s agent signed the bond on the proper form, and the court held that was sufficient.

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State of Iowa v. Briggs, 666 N.W.2d 573 (Iowa 2003) considered a constitutional challenge to an Order requiring the defendant to post “cash only” bail. The defendant was first released on a surety bond but failed to appear. The bench warrant specified that bail would have to be in cash. She eventually appeared and filed an application for bond review arguing a constitutional right to a surety bond. The trial court refused to modify the cash only requirement, and the defendant, who was found guilty of the charged offense, appealed the denial of access to a surety bond.

The Iowa Constitution provides that before conviction all persons shall be bailable “by sufficient sureties” except for certain capital offenses. It also forbids “excessive” bail. The majority of the Iowa Supreme Court held that the imposition of a “cash only” bail requirement does not per se violate either clause of the Iowa Constitution. The majority opinion seems to hold that the posting of cash is a form of access to a surety. The three dissenting Justices argued that “A cash-only bond is a per se denial of the constitutional guarantee to bail ‘by sufficient sureties.’”

Even the majority opinion acknowledges that appellate courts in Louisiana, Ohio, Minnesota and Tennessee have reached the opposite conclusion under their constitutions, and that if the defendant could show that “the bail determination absolutely bars his or her utilization of a surety of some form, a court is constitutionally bound to accommodate the accused’s predicament.”

In State v. Neville, 2004 WL 1813748 (Iowa August 11, 2004) a judgment forfeting the bond was entered, and the surety did not appeal. Almost a year later, the surety filed a motion for return of surety. The trial court denied the motion and the surety appealed. The Iowa Supreme Court treated the motion for return of surety as a petition to vacate the judgment. Of the six permissible grounds to vacate a judgment, however, the surety could advance only one – that the clerk did not mail the notice of forfeiture as required by law. The trial court held a hearing and found that the surety did receive notice, and the Supreme Court affirms on the ground that there was substantial evidence to support the finding.

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State v. Boles, 792 N.E.2d 553 (Ind. App. 2003) involved a consolidated appeal of nine cases in which the trial court clerk imposed “late surrender fees” after the defendant failed to appear. The Court of Appeals affirmed the trial court’s order vacating the fees and exonerating the bonds. In each case, the court had failed to give the bail bondsman or surety advance notice of the trial or hearing date at which the defendant did not appear. The Court of Appeals held that such notice was mandatory. The Court also held that only a trial court judge, not the clerk, could assess late surrender fees.

In State v. Boles, 2004 WL 1445441 (Ind. June 29, 2004) the Indiana Supreme Court reversed the trial court and Court of Appeals and held that late surrender fees and bond forfeiture can be imposed even though the court failed to give the bail agent or surety advance notice of the appearance date as required by Ind. Code §27-10-2-8(a). The Supreme Court also held that the clerk, as opposed to the Judge, could assess the late surrender fees. The bail agent and surety would still be entitled to receive notice that the defendant failed to appear pursuant to §27-10-2-12(a), and only the Judge could declare a forfeiture of the bond. The Court remanded the case to the trial court to determine whether the late surrender fees should be waived pursuant to §27-10-2-12(e) because of the surety’s or bail agent’s diligent efforts to locate the defendants.

In Smith v. City of Hammond, 2004 WL 2453757 (7th Cir. November 3, 2004) a City Court judge refused to permit use of a surety bond for bail and instead ordered that bail be “cash bond” meaning that the defendant had to deposit 10% of the face amount of the bail and would receive that deposit, less certain deductions, back if she appeared. The bondsman sued the judge, the city court, the City, the police chief and the city clerk asserting that he was deprived of a property right in violation of 42 U.S.C. §1983. The alleged property right was his license as a bondsman. The plaintiff sought a preliminary injunction and appealed its denial. The Seventh Circuit affirmed on multiple grounds and remanded the case with the suggestion that it be dismissed “without further ado” since it was plainly without merit.

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State v. Vargas, 111 P.3d 621 (Idaho App. 2005) is a very unfortunate case. Alladin Bail Bonds appealed denial of its motion to set aside forfeiture and motion to extend the 90 day period to produce the defendant. The first motion was based on the fact that the clerk put the wrong date on the notice of forfeiture so it was mailed within the required five days of the actual forfeiture but said the failure to appear occurred on a future date. The court held that the notice was sufficient. The court noted that Alladin was not mislead by the clerk’s mistake. Unfortunately, on the second motion the court held that there was no statutory authority to extend the 90 days to recover the defendant even though it was the custom of the courts to do so. There was, therefore, no abuse of the trial court’s discretion in denying the extension requested by Alladin. Presumably, extensions will no longer be available unless or until legislation is obtained to authorize them.

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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.

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.

A.A. Professional Bail v. State, 2006 WL 1098888 (Ga.App. April 27, 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.

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Al Estes Bonding v. Pinellas County Board of County Commissioners, 845 So.2d 254 (Fla. 2nd DCA 2003) was a procedural victory but a substantive defeat. The court held that the bondsman could pay the forfeiture and appeal without having a judgment entered against the surety. On the merits of the appeal, however, the court rejected the argument that the forfeiture should be set aside because the defendant was in federal custody, thus preventing the bondsman from producing him. There was no evidence he had been in federal custody at the time he failed to appear, and none of the statutory grounds for discharge under section 903.26(6), Fla. Stats. were met.

In Allegheny Casualty Co. v. State, 2003 WL 21749533 (Fla. 4th DCA July 30, 2003) the court refused to remit a forfeited bond. The defendant failed to appear and fled to Haiti. The surety located her there, but under the relevant treaty she allegedly could not be extradited. The court found that the surety did not meet the requirement in §903.28(2), Fla. Stat. that the surety “has substantially attempted to procure or cause the apprehension or surrender of the defendant.” The court distinguished cases in which the state refused to seek extradition after the surety located the principal in another country and noted that the defendant fled to Haiti some three months after the bond forfeiture. In effect, the court thought the surety bore a sufficient part of the blame for the failure to return the defendant that the forfeiture should not be remitted.

Section 903.28, Fla. Stats., allows remission of bail bond forfeitures if the defendant surrenders or is apprehended within 2 years of the forfeiture. The percentage of the forfeiture remitted depends on the length of time between the forfeiture and the surrender or apprehension. In Board of Commissioners of Brevard County v. Barber Bonding Agency, 2003 WL 22213328 (Fla. 5th DCA September 26, 2003) the defendant was arrested in another county within 270 days of forfeiture but not returned to Brevard County until over one year after forfeiture. The statute provides for remission of up to 90% if apprehension is within 270 days but of up to 50% if apprehension is between one and two years after forfeiture. The court of appeals held that the date of “apprehension” is the date the defendant is taken into custody in another jurisdiction, not the date of return to custody in the jurisdiction where the bond was filed, and therefore affirmed remission of 90% of the forfeiture. The decision was by a two to one vote, and the dissenting judge suggested the issue should be certified to the Florida Supreme Court as a matter of public importance.

In Carr v. Lammie, 2004 WL 507570 (Fla. 2ndDCA March 17, 2004) a defendant was recovered and $28,500 of the forfeited bond proceeds remitted. The seller and purchaser of the bail bond agency both claimed the right to receive the money. The surety had been reimbursed in part from the agency’s build up fund and in part from the purchase price of the agency. The surety did not claim the remitted money for itself. The Court held that the right to receive the money was an asset of the agency transferred to the purchaser along with the other agency assets.

Green v. Abony Bail Bond, 316 F. Supp.2d 1254 (M.D. Fla. 2004) is a suit for personal injuries allegedly inflicted by agents and employees of the surety and bail agent in the process of recovering the bond principal who had “inadvertently failed to appear.” The case was filed in federal court on the theory that the actions of the defendants violated the plaintiffs’ civil rights pursuant to 42 U.S.C. §1983. The court dismissed the case without prejudice to re-filing in state court because the defendants were not “state actors” for purposes of §1983.

In A-Alternative Release Bail Bonds v. Martin County, 882 So.2d 414 (Fla. App. 2004) the defendant was arrested for simple cocaine trafficking for which the mandatory minimum sentence is 5 years. The prosecutor filed an information charging him with trafficking in an amount greater than 400 grams which carried a mandatory minimum sentence of 15 years. Neither the bail agent nor the state official who reviewed and accepted the bond were aware of the increased charge, and the bond described the offense as “trafficking in cocaine.” The Court reversed an order escheating the bond because the offense for which the defendant failed to appear was significantly different than the one described on the face of the bond. Although the description can be in general terms without technical detail, it cannot describe a different offense. The dissenting Judge thought the trial court should have been affirmed because the information was filed before the bond was issued and therefore “trafficking in cocaine” should be read as a general description of the 400 gram offense. Even the dissent acknowledged that if the offense were increased, without the surety’s consent, after the bond was written the bond would have been discharged. [Probably published].

Allegheny Casualty Company v. Roche Surety, Inc., 885 So.2d 1016 (Fla. App. 2004) was a dispute over a build-up fund. The bail agent involved had a fund on deposit for Allegheny’s benefit. The bail agent ceased doing business with Allegheny and entered into a contract with Roche and assigned the agent’s rights in the build-up fund to Roche. Allegheny refused to release the fund on the ground that its liability on any and all bonds had not been discharged. The trial court granted Roche summary judgment and attorneys fees. The six allegedly remaining Allegheny bonds dated from 1994 to 1997. The trial court held that any possible liability on the bonds was time barred under §903.31(1), Fla. Stats., which states that an original appearance bond expires 36 months after it is posted. Allegheny argued that the 36 month provision did not apply because it was added to the statute in 1999 after the bonds were written.

The Court of Appeals agreed that the 36 month provision did not apply retroactively. It rejected Allegheny’s arguments that the bail agent breached the contract (thus discharging any obligation to return the build-up fund) by writing bonds for another surety and by assigning the build-up fund to Roche, and that the court lacked jurisdiction because the contract said exclusive jurisdiction was in New Jersey. The Court vacated the attorneys fee award because the trial court did not follow the required procedures but indicated the trial court could revisit the issue upon remand. The case was remanded to determine whether Allegheny had any remaining bond liability.

Fast Release Bail Bonds, Inc. v. State, 895 So.2d 448 (Fla. 4th DCA 2005) was a 2 to 1 opinion affirming forfeiture of several bonds. The defendant failed to appear for a scheduled hearing, and the court estreated [the Florida word for forfeited] the bonds and issued a “no bond” capias [bench warrant?] for the defendant. The sureties, however, had not been given proper notice of the hearing, and the trial court set aside the estreature, noticed another hearing, but refused to cancel the capias. The defendant again failed to appear and the court estreated the bonds for the second time. The sureties argued that the defendant fled when he learned of the “no bond” capias and that their bonds should be exonerated because the court interfered with their control over the defendant by refusing to cancel the capias. The majority disagreed and held that the capias was correctly issued when the defendant, who had been properly noticed, failed to appear at the first hearing and that the defendant’s decision to flee was his own and not attributable to the capias. The dissenting judge would have exonerated the bonds because the prospect of pre-trial incarceration represented by the no bond capias materially increased the risk that the defendant would flee.

Roche Surety and Casualty Co., Inc. v. Department of Financial Services, Office of Insurance Regulation, 895 So.2d 1139 (Fla. App. 2005) reversed the Department’s fine for willful failure to return a former agent’s build-up fund. The surety and the former agent were engaged in litigation in the Florida Circuit Court, and the Circuit Court entered an Order that the build-up fund be held pending the outcome of that case. The Department’s administrative law judge found that the existence of the Circuit Court Order meant that the surety’s refusal to return the build-up fund was not a “willful” violation of §648.29, Fla. Stat. The Department re-classified that finding as a conclusion of law and disregarded it. There was a delay of several months between the hearing in the Circuit Court (at which the former agent consented to the holding of the build-up fund) and the Circuit Court’s entry of its written Order. The Department imposed a fine based on the proposition that retaining the build-up fund during this delay period, i.e. prior to entry of the written Order, was a willful violation. The Court of Appeals reversed and held that willfulness was a question of fact on which the Department was bound by the administrative law judge’s finding.

Surety v. State, 894 So.2d 301 (Fla. App. 2005) in a one paragraph decision reversed estreature of the bond because the surety was not given the 72 hour notice of the defendant’s appearance as required by section 903.26(1)(b), Fla. Stats.

Monroe County Bail Bonds v. State, 2004 WL 3262883 (Fla. Cir. Ct. December 6, 2004) is an opinion from a Florida Circuit Court (which is probably why it is dated in 2004 but only now reaching Westlaw). The defendant failed to appear, but the surety located him in Virginia. The state refused to issue a warrant for his arrest outside of Florida. The government and the surety agreed to a stipulated order to set aside the forfeiture and exonerate the bond. The county court refused to enter the order. The surety appealed to the circuit court which held that payment of the forfeiture was a precondition to relief, that even if the forfeiture was paid, relief could only be granted if the motion was brought before the judge within 60 days after the notice of forfeiture was mailed. The court also thought that the surety could not be entitled to remission of any part of the forfeited amount since it had not paid the forfeiture and that no remission was due based on the mere fact that the defendant was outside of Florida unless there was proof the surety had seized him but could not have him returned to Florida because of the state’s limit on the warrant. This decision seems to be one judge’s explanation of how he thinks sections 903.26, 903.27 and 903.28, Fla. Stats., ought to work.

In Mike Snapp Bail Bonds v. Orange County, 913 So.2d 88 (Fla. App. 2005) the bail agent did what the statute required for remission of the forfeiture. The defendant was recovered thirteen days after the forfeiture notice, and the bail agent paid the costs to return the defendant. The state admitted that the prosecution was not hindered. The trial court nevertheless refused to remit the forfeiture because there was no proof in the court file that the transportation costs were paid. The bail agent paid the forfeiture and sought rehearing on remission of the forfeiture. The trial court again denied relief, and the bail agent appealed. The Court held that the statute does not require the surety to have filed a receipt or proof of payment of transportation costs to be entitled to remission of the forfeiture (the State did not contest that the transportation costs actually were paid, and the bail agent had a letter to that effect from the sheriff). The Court of Appeals reversed the judgment and remanded the case with directions that the amount forfeited plus interest be returned to the bail agent.

In Universal Bail Bonds, Inc. v. State, 2006 WL 1409895 (Fla.App. May 24, 2006) the court conditioned release of the defendant on electronic monitoring by the Miami-Dade County Corrections and Rehabilitation Department and a $100,000 bond. The bond, however, was conditioned only on appearance and did not mention electronic monitoring. Within a few days of release, the defendant removed the electronic monitoring device and absconded, but the Department neglected to tell the court or the bail agent for over a month. The defendant did not appear and the bond was forfeited. The surety argued that the bond was discharged because the Department’s failure to notify the court or the agent that the defendant had absconded altered the terms of the bail contract to the prejudice of the surety. The Court of Appeals disagreed. The Court held that the bond contract remanded custody of the defendant to the surety and made the surety responsible for the defendant’s appearance. The Department’s failure in its independent duty to the court did not interfere with the surety’s custody or control of the defendant.

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In State of Delaware v. Jefferson, 2003 WL 22931392 (Del Common Pleas October 10, 2003) the defendant failed to appear and her bond was forfeited. A few days later she was brought before the court. The court denied a motion to vacate the forfeiture because no evidence was presented to show that the bondsman made any effort to locate the defendant and return her to the court.

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