State v. Poteat, 594 S.E.2d 253 (N.C. App. 2004) held that N.C. Gen. Stat. §15A-544.5(f) barred the court from setting aside the bond forfeiture. The statute provides that a forfeiture cannot be set aside for any reason if the surety or bail agent had “notice or actual knowledge” before executing the bond that the defendant had failed to appear on two or more prior occasions. The court held that “notice” includes constructive as well as actual notice, and that the facts of the case were sufficient to put the bail agent on constructive notice of the defendant’s two prior failures to appear.
In State v. Evans, 601 S.E.2d 877 (N.C. App. 2004) 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 notice of forfeiture 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. 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, 2004 WL 2340991 (N.C. App. October 19, 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.
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.