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.