State v. Adams
220 N.C. App. 406
| N.C. Ct. App. | 2012Background
- defendant was charged with misdemeanor tax failure; posted a $5,000 appearance bond issued by Financial Casualty & Surety
- 11 May 2010 OFA issued after defendant failed to appear; OFA recalled that same day and failure stricken
- 19 Aug 2010 bail agent issued $20,000 bond; defendant released; release order noted two prior failures to appear
- 25 Aug 2010 defendant again failed to appear; bond forfeited
- 14 Oct 2010 surety moved to set aside forfeiture; Wake County Board of Education opposed; court denied relief
- court relied on N.C. Gen.Stat. § 15A-544.5(f) to deny set-aside based on actual notice of two or more failures
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 15A-544.5(f) bars setting aside forfeiture when there was actual notice of two or more failures | Board argues statute prohibits relief where two or more failures were indicated on release order | Surety contends statute requires not this broad bar and findings were unsupported | Yes, statute bars relief |
| Whether the 30 June 2010 failure to appear was proven by the shuck notation without OFA | Board supports finding based on shuck indicating failure to appear | Surety argues lack of OFA makes it insufficient | Shuck evidence sufficient to prove second nonappearance |
| Whether surety had actual notice of two or more failures via the release order | Release order explicitly noted two or more failures; constitutes notice | Independent search found only one prior forfeiture/OFA | Yes, release order sufficed for actual notice |
| Whether the release order's two-failure finding was properly supported by competent evidence | Shuck and release order support the finding | Evidence did not show two failures | Supported; court properly found two prior failures |
| Whether the trial court properly denied setting aside the forfeiture | Statute bars relief due to notice | No reversible error shown | Denied; forfeiture not set aside |
Key Cases Cited
- Felton v. Felton, 213 N.C. 194 (North Carolina 1938) (construction of 'may' as permissive in statute interpretation)
- State v. Davis, 364 N.C. 297 (North Carolina 2010) (plain meaning of statute; no extra provisions inferred)
- State v. Dunn, 200 N.C.App. 606 (North Carolina App. 2009) (standard of review for bond-forfeiture appeals)