Opinion
2015 CA 1557
04-27-2016
STATE OF LOUISIANA v. SCOTTY FORMAN
Warren L. Montgomery District Attorney and Jessica J. Brewster Matthew Caplan Assistant District Attorney Covington, Louisiana Attorneys for Appellee, State of Louisiana Scotty Forman Whereabouts Unknown Appellee, Pro Se William Noland Brandon, Mississippi Attorney for Appellant, Accredited Surety and Casualty Company
NOT DESIGNATED FOR PUBLICATION On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Trial Court No. 545026, Div. J The Honorable William J. Knight, Judge Presiding Warren L. Montgomery
District Attorney
and
Jessica J. Brewster
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Attorneys for Appellee,
State of Louisiana Scotty Forman
Whereabouts Unknown Appellee,
Pro Se William Noland
Brandon, Mississippi Attorney for Appellant,
Accredited Surety and Casualty
Company BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. DRAKE, J.
Appellant, Accredited Surety and Casualty Company (Accredited), a commercial surety, appeals the judgment of the trial court ordering the forfeiture of the bond entered in criminal proceedings on behalf of Scotty Forman. For the following reasons, we reverse the judgment of the trial court and nullify the bond forfeiture judgment at issue.
FACTS AND PROCEDURAL HISTORY
Scotty Forman was arrested and incarcerated on December 6, 2013, for distribution of controlled dangerous substances. On February 28, 2014, while still incarcerated, Forman was personally served with notice to appear in court for arraignment on March 31, 2014. Prior to the arraignment, Forman was released from prison pursuant to a surety bond posted with Accredited as the surety for the sum of $75,000.00. In connection with the bond, he was ordered to attend a bond condition hearing on April 1, 2014, and to appear in court on May 29, 2014. On March 31, 2014, Forman appeared in court and pled not guilty. A jury trial was set for May 12, 2014, and he was ordered to appear for a hearing on a motion to increase the bond on April 3, 2014, and pre-trial conference date on April 29, 2014. On April 3, 2014, Forman was present in court when the trial court denied an increase in bail and added several conditions to his bond. On April 29, 2014, Forman was again present in court for a hearing on several motions. The trial court continued the motions until May 20, 2014, and continued the trial date of May 12, 2014, to June 16, 2014. Forman was personally served with the pre-trial conference date of May 20, 2014, and the trial date of June 16, 2014. The record reflects that on May 12, 2014, nothing occurred in court, but that the matter had been previously continued until June 16, 2014. On May 20, 2014, Forman did not appear for the pre-trial conference, but was represented by counsel. The record contains no information as to any appearance or proceeding on May 29, 2014, the date originally set on the bond for an appearance by Forman. The record reflects that on June 16, 2014, and June 17, 2014, court was held, but that this matter was not called. On June 19, 2014, the matter was called for trial and Forman did not appear. On June 19, 2014, the state requested that the bond be forfeited.
The trial court signed a judgment forfeiting the bond on July 15, 2014. On June 16, 2015, Accredited filed a petition to declare the judgment on the bond forfeiture a nullity pursuant to La. C.C.P. art. 2002(A)(2). The trial court heard the matter on July 23, 2015, and signed a judgment that day denying the petition for declaration of nullity. It is from this judgment that Accredited appeals.
LAW AND DISCUSSION
The general rule is that bond forfeitures are not favored. A bond forfeiture is basically a civil proceeding; however, it is subject to the special rules as set forth in the Code of Criminal Procedure. In order to obtain a judgment of bond forfeiture against a surety, the state must strictly comply with the terms of the statutory provisions regulating bond forfeitures. State v. Johnson, 2013-0133 (La. App. 1 Cir. 11/1/13), 136 So. 3d 15, 17.
Forman's bond "fixed" his initial "appearance date" on May 29, 2014. However, Forman was personally served on February 28, 2014, with notice to appear in court for arraignment on March 31, 2014. The bond was not issued until March 25, 2014, almost a month after the service on Forman on February 28, 2014. Accredited argues that since there was no appearance on May 29, 2014, and the trial court did not reset the case on that date, that it was entitled to notice of any changes in court dates pursuant to La. C.Cr.P. art. 344(C). The state argues that Accredited was not entitled to notice because "as of 29 May 2014, the 16 June 2014 appearance date did not constitute a 'new appearance date' because it was a previously-scheduled appearance date", thereby not implicating La. C.Cr.P. art. 344(C).
Louisiana Code of Criminal Procedure article 344 provides:
A. When a bail bond fixes an appearance date, the defendant appears as ordered, and notice of the next appearance date is given to the defendant, no additional notice of that appearance date is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety.
B. When a bail bond does not fix the appearance date, written notice of the time, date, and place the defendant is first ordered by the court to appear shall be given to the defendant or his duly appointed agent and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety.
C. If the defendant appears as ordered and the proceeding is continued to a specific date, the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety and who has been given initial notice pursuant to Paragraph A or B of this Article, need not be given notice of the new appearance date. If the defendant fails to appear as ordered, or the proceeding is not continued to a specific date, the defendant or his duly appointed agent, the personal surety or the agent or bondsman who posted the bond for the commercial surety shall be given notice of the new appearance date.
D. Notice required pursuant to the provisions of this Article to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety shall be made to the address provided pursuant to Article 322. Notice may be:
(1) Delivered by an officer designated by the court at least two days prior to the appearance date.
(2) Mailed by United States first class mail at least five days prior to the appearance date.
E. Failure to give the notice required by this Article relieves the surety from liability on a judgment of bond forfeiture for the nonappearance of the defendant on that particular date.
The state relies on the first sentence of La. C.Cr.P. art. 344(C) to argue that the defendant appeared as ordered and the proceeding was continued to a specific date. Therefore, the state contends that the commercial surety, Accredited, had been given initial notice and the state was not required to give notice of the new appearance date. Accredited argues that because the defendant did not appear on May 29, 2014, the appearance date set by the bond, and the trial court did not continue any appearances on that date, the notice requirement set out in La. C.Cr.P. art. 344(C) was triggered.
The notice contemplated by the first sentence of La. C.Cr.P. art. 344(C) must be "pursuant to Paragraph A or B of this Article [344]." Paragraph A pertains to the defendant appearing on the date fixed on the bond and requires no additional notice when notice of the next appearance date is given. Paragraph B applies when no date is fixed on the bond and requires that written notice of the time, date, and place of the first appearance date be given to the commercial surety.
2012 La. Acts, No. 771, § 1 added the phrase "and who has been given initial notice pursuant to Paragraph A or B of this Article." After a thorough search, we have found no cases interpreting this phrase.
In the present matter, Accredited did not receive notice of the March 31, 2014 arraignment, as that notice was served on the defendant on February 28, 2014, prior to the bond being issued on March 25, 2014. State v. Richardson, 633 So. 2d 704, 707 (La. App. 1 Cir. 1993), involved a similar situation in which the notice was given to the defendant on January 30, 1992, of a sentencing date of February 7, 1992. However, the bond was procured on February 2, 1992, subsequent to the notice given the defendant. This court affirmed the vacating of the judgment of bond forfeiture since no notice of appearance date was given to the bondsmen or surety companies involved. We noted that although the defendant was given notice on January 30, 1992, of the sentencing date of February 7, 1992, the notice did not relieve the state of its duty to give the surety notice of the appearance date since the bond was procured on February 2, 1992, after the notice was given to the defendant. Richardson, 633 So. 2d at 707.
In Richardson, this court interpreted La. C.Cr.P. art. 337, which was incorporated into La. C.Cr.P. art. 344 by 1993 La. Acts, No. 834 § 1, effective June 22, 1993.
The state relies on State v. Bonilla, 2011-1376 (La. App. 4 Cir. 5/23/12), 91 So. 3d 571. In Bonilla, the defendant was arraigned on December 13, 2010, and received notice of a hearing date on December 14, 2010. The defendant received notice on December 14, 2010, while incarcerated, to appear for trial on April 5-7, 2011. On December 17, 2010, he was released from prison pursuant to a surety bond. As a condition of the bond, he was ordered to appear for arraignment on March 23, 2011. The defendant did not appear on March 23, 2011, and nothing happened on that date in court. The Fourth Circuit noted that the defendant had been given an appearance date and trial dates prior to the undertaking of the bond. The court noted that the trial date was never altered and remained consistent from the beginning of the prosecutorial process and, thus, concluded that La. C.Cr.P. art. 344(C) was not applicable. Bonilla, 91 So. 3d at 572-73.
Accredited relies on State v. Berry, 29,359 (La. App. 2 Cir. 4/2/97), 691 So. 2d 375, where the appellate court nullified the bond forfeiture judgments of the trial court. The defendants were issued bonds with an appearance date of October 17, 1994. The defendants did appear in court on that date and were instructed to return on November 2, 1994, but both failed to do so. Both defendants then appeared in court on November 7, 1994, and were instructed to return on January 9, 1995. The state did not send notice of the January 9, 1995 appearance date to the agent or commercial surety. The defendants did appear in court on January 9, 1995, and were ordered to return on March 7, 1995. The state again did not send notice of the March 7, 1995 appearance date to the agent or commercial surety. The defendants failed to appear in court on March 7, 1995. The state then obtained judgments of bond forfeiture, which the commercial surety sought to nullify.
The court noted that under La. C.Cr.P. art. 344(A) additional notice to the commercial surety concerning the "initial appearance date" is not required when the bond itself fixes the initial date. Berry, 691 So. 2d at 376. However, after appearing on the initial date, the defendants failed to appear on the continued date of November 2, 1994, as ordered by the court. Therefore, the failure to appear on November 2, 1994, triggered the notice requirements of a new appearance date. Berry, 691 So. 2d at 377. The defendants reappeared on November 7, 1994, and the trial court continued the matter to a specific date of January 9, 1995. The state was required to give the commercial surety notice of the new appearance date. Id.
Bankers Insurance Company v. State, 1997-578 (La. App. 3 Cir. 10/29/97), 702 So. 2d 1160, contained facts similar to Berry. The defendant appeared in court for his bond reduction and was notified in open court of his need to return to court on a specified date. The trial court concluded that no additional notice was due the commercial surety. The commercial surety argued that a previous nonappearance triggered the notice requirements. The appellate court reversed the bond forfeiture judgment and held that the commercial surety was entitled to notice of the hearings. Bankers Insurance Company, 702 So. 2d at 1161.
Berry and Bankers Insurance Company both refer to La. C.Cr.P. art. 344(B)(3), the provisions of which were renumbered and incorporated into La. C.Cr.P. art. 344(C) by 2010 La. Acts, No. 914, § 1. --------
In the present case, the trial date, which was set prior to the undertaking of the bond on March 25, 2014, was altered from May 12, 2014 to June 16, 2014. No notice was given the commercial surety in compliance with La. C.Cr.P. art. 344(A). The bond did fix an appearance date of May 29, 2014. However, La. C.Cr.P. art. 344(A) does not apply, since the defendant did not appear as ordered in the bond. The nonappearance of the defendant on May 29, 2014, triggered the notice requirements of La. C.Cr.P. art 344(C).
The state argues that the statute provides:
If the defendant fails to appear as ordered, or the proceeding is not continued to a specific date, the defendant or his duly appointed agent, the personal surety or the agent or bondsman who posted the bond for the commercial surety shall be given notice of the new appearance date. [Emphasis added].
The state takes the position that either the defendant had to fail to appear or the court had to fail to set a specific date for the notice to be triggered. Because there was a specific date given, the state claims that no notice was due. However, the state does not mention that the commercial surety must have been given "initial notice pursuant to Paragraph A or B" of La. C.Cr.P. art. 344. Furthermore, the Bonilla case relied upon by the state was decided before the effective date of the amendment to La. C.Cr.P. art 344 adding the above language. In order for the first sentence of La. C.Cr.P. art. 344(C) to apply, requiring no notice to the commercial surety, the bail bond had to fix an appearance date, and "the defendant appear[ed] as ordered." La. C.Cr.P. art. 344(A). Therefore, when the defendant did not appear in trial on the date of the bond, May 29, 2014, Accredited was entitled to notice of the new appearance date. The record reveals that Accredited was never provided any notice of any appearance date, other than the May 29, 2014 date, and was not present in court at any time. We agree that the bond forfeiture judgment should be nullified pursuant to La. C.C.P. art. 2002(A)(2).
CONCLUSION
For the above and foregoing reasons, we reverse the judgment of the trial court, and the July 15, 2014 judgment of bond forfeiture is hereby declared a nullity and vacated in its entirety. The costs of this appeal are assessed against the State of Louisiana in the amount of $1,134.50.
REVERSED.