Summary
noting that a violation of N.C. Gen. Stat. § 15A-544.5 could be grounds for disciplinary action against a bail agent
Summary of this case from State v. RamirezOpinion
No. COA03-1114
Filed 21 September 2004
Bail and Pretrial Release — bond forfeiture — surrender of defendant — motion for relief from final judgment — extraordinary circumstances
The trial court did not abuse its discretion by denying a surety's motion for relief from final judgments of bail bond forfeitures based upon "extraordinary circumstances" under N.C.G.S. § 15A-544.8, even though the surety surrendered defendant to the county sheriff and the trial court may have erred in failing to grant the surety's initial motions to set aside the bond forfeitures under N.C.G.S. § 15A-544.5(b)(3), because the surety's failure to appeal the orders denying his initial motions divested him of the right to appellate review of the merits of those orders.
Judge WYNN dissenting.
Appeal by surety from order entered 10 March 2003 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 25 May 2004.
David Phillips, for the Cumberland County Board of Education. Parish Cooke, by James R. Parish, for the surety.
Robert L. McQueen ("McQueen") appeals the trial court's denial of his motion for relief from final judgment of bond forfeiture. We affirm.
In November 2001, McQueen posted bonds for Alvis Luther Evans ("the defendant") in the amount of $10,000.00 for each of two counts of trafficking in cocaine, and $5,000.00 for one count of maintaining a place for controlled substances. The defendant failed to appear, and the bonds were ordered forfeited on 6 May 2002 with a final judgment date of 17 October 2002.
On 12 October 2002, McQueen located the defendant and surrendered him to the Cumberland County Sheriff. Three days later, on 15 October 2002, McQueen filed pro se motions to set aside the forfeitures under N.C. Gen. Stat. § 15A-544.5, certifying that he had served copies of the motions on the district attorney and the school board attorney by mailing copies to each by first class mail on 15 October 2002. However, the record shows the notice was postmarked on 24 October 2002 and received by the Board of Education on 28 October 2002. Based upon the delay in service, the school board requested McQueen's motions to set aside the bond forfeitures be denied.
On 26 November 2002, the trial court denied McQueen's motions indicating "this case is one of nine cases on the Superior Court calendar to be heard on this date and in each case the Cumberland County Board of Education received notice on the 13th day after filing." The trial court concluded that "the Surety's actions do establish a pattern of conduct that is in fact denying the statutory required period of time for response by the Cumberland County Board of Education." Though the 26 November orders were immediately appealable pursuant to N.C. Gen. Stat. § 15A-544.5(h) (2003), McQueen filed no appeal, and the forfeitures became final judgments as of 17 October 2002. Thereafter, McQueen initiated a new proceeding on 31 January 2003 by filing a motion for relief from final judgment of forfeiture. The trial court denied said motion by order entered 10 March 2003. From this denial, McQueen appeals.
In ruling on motions for relief from a final judgment of forfeiture, the trial court is guided by N.C. Gen. Stat. § 15A-544.8 (2003), which provides the exclusive avenue for relief:
(b) Reasons. — The court may grant the defendant or any surety named in the judgment relief from the judgment, for the following reasons, and none other:
(1) The person seeking relief was not given notice. . . .
(2) Other extraordinary circumstances exist that the court, in its discretion, determines should entitle that person to relief.
(emphasis added). Should the court determine at the hearing that statutory grounds for relief exist, it "may grant the party any relief from the judgment that the court considers appropriate, including the refund of all or a part of any money paid to satisfy the judgment." N.C. Gen. Stat. § 15A-544.8(c)(4) (2003).
Initially, we note McQueen did not raise insufficient notice before the trial court or on appeal; accordingly, our review is limited to whether the trial court abused its discretion in failing to find that "other extraordinary circumstances" existed that would entitle McQueen to relief from final judgment. On appeal, McQueen draws this Court's attention to the mandatory provisions of N.C. Gen. Stat. § 15A-544.5 (2003), which involves a trial court's review of a bond forfeiture and mandates the setting aside of such forfeiture when certain, exclusively-enumerated events occur. In relevant part, N.C. Gen. Stat. § 15A-544.5(b)(3) requires a bond forfeiture to be set aside when "[t]he defendant has been surrendered by a surety on the bail bond. . . ." Assuming arguendo McQueen's surrender of the defendant in the instant case met the requirements of N.C. Gen. Stat. § 15A-544.5(b)(3) and the trial court erred in failing to set aside the bond forfeitures, we are not of the opinion that such error is conclusive of our analysis of the trial court's denial of relief from final judgment of forfeiture under N.C. Gen. Stat. § 15A-544.8.
Accepting McQueen's argument would be tantamount to holding that the trial court, as a matter of law, abuses its discretion by failing to equate the statutory criteria for setting aside a forfeiture listed in N.C. Gen. Stat. § 15A-544.5(b)(1)-(6) (2003) with "extraordinary circumstances" for purposes of obtaining relief from final judgment under N.C. Gen. Stat. § 15A-544.8(b)(2). However, nothing in the statutes suggests the General Assembly intended to give a surety an opportunity, under the mantle of N.C. Gen. Stat. § 15A-544.8's "extraordinary circumstances," to re-capitulate to the trial court arguments concerning the alleged fulfilment of one of the statutory events which would mandate the setting aside of a forfeiture after those arguments were rejected and the motion was denied under N.C. Gen. Stat. § 15A-544.5.
A final reason to distinguish between McQueen's failure to observe the appropriate statutory method provided for raising these arguments to the appellate division under N.C. Gen. Stat. § 15A-544.8 and a proper appeal of such arguments under N.C. Gen. Stat. § 15A-544.5 is as follows: while the setting aside of a forfeiture that has not become final imposes no burden on any party, the court's grant of relief from a final judgment of forfeiture can be burdensome on local school boards, which, as beneficiaries of the proceeds from forfeited appearance bonds, may be required to pay a "refund of all or a part of any money paid to satisfy the judgment" under N.C. Gen. Stat. § 15A-544.8(c)(4).
Thus, regardless of whether the trial court erred in denying McQueen's motions to set aside the forfeitures, McQueen's failure to appeal those orders divested him of the right to appellate review of their merits. We will not resurrect the arguments of that appeal or ignore the effect of failing to properly appeal those orders by holding, as a matter of law, that the trial court abuses its discretion when it abstains from equating an arguably erroneous denial of a motion to set aside forfeiture with "extraordinary circumstances" under N.C. Gen. Stat. § 15A-544.8.
Affirmed.
Judge LEVINSON concurs.
Judge WYNN dissents in a separate opinion.