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.