State v. WheelerState v. Wheeler
Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for appellee.
Before KLEES, CIACCIO and LOBRANO, JJ.
CIACCIO, Judge.
After considering all of the relevаnt facts we originally decided that as a matter of law relator was not entitled to relief. After providing the reasons for our decision, we denied rеlator‘s application for writs. The supreme court, however, without providing any reason, granted relator‘s application for writs and remanded the matter to this court for “briefing, argument and opinion.” 493 So.2d 627. In compliance with that order the writ application was set for additional briefing and oral argument. After considering the briefs and arguments of counsel, we affirm the ruling of the district court.
By bill of information filed July 31, 1984, the district attorney charged defendant Crawford S. Whеeler with violating
On August 1, 1984, South Central Insurance Company, relator, filed a $2,000 commerciаl surety bond securing defendant‘s release on bail. Defendant did not appear in court for his arraignment on August 9, 1984. On that date, the court issued a $5,000 alias cаpias for defendant‘s arrest and set a bond forfeiture hearing for August 31, 1984. The hearing was rescheduled and on September 12, 1984, when defendant again failed tо appear the court
On December 11, 1984, defendant appeared in court attended by counsel and pleaded not guilty. The court reсalled the alias capias and “rescinded” the September 12, 1984, judgment of bond forfeiture.
Defendant did not appear in Court on the date set for trial. The court issued another alias capias. The court scheduled a status hearing, and on May 28, 1985, when defendant did not appear, the court ordered the bond forfeited. The clerk mailed notice of the forfeiture on June 7, 1985.
On December 16, 1985, South Central filed in the district court a Motion to Set Aside Judgment оf Bond Forfeiture and Petition for Nullity of Judgment. On February 4, 1986, the trial court denied South Central‘s motion. Relator applied to this court for review. In an opinion hаnded down on March 27, 1986, this court denied the application. As noted above, the supreme court granted writs and remanded the matter to this court to be resolved again.
Relator‘s arguments focus upon the characteristics of its surety undertaking as a civil contract creating civil obligations. As a surety on a court appearance bond (
Rеlator argues first that when the bond was initially forfeited because defendant failed to appear, the bond was “merged” into the judgment and ceasеd to exist as a separate entity. And, that when the judgment of bond forfeiture was rescinded, all of relator‘s obligations under the bond were extinguished. Relator compares its situation to one in which a civil obligation is brought to judgment and thereafter the judgment is the obligation.
A judgment forfeiting an appearance bond is not an ordinary judgment on a civil obligation. After bail is set for a criminal defendant,
When the bond is forfeited, defendant no longer has his bail satisfied and is subject to return to custody. Further, judgment in the amount of the bond is rendered against defendant and his surety in solido. If, howеver, the judgment of forfeiture is rescinded or set aside, then defendant‘s bail is satisfied, he remains free on that bail, and both defendant and the surety are returned to their original positions as if the bond had never been forfeited. A ruling rescinding or setting aside a judgment of bond forfeiture does not cancel the bond or the obligations of those parties liable on the bond; it reinstates the bond by removing it from the ranks of the forfeited.
For the same reasons relator‘s next argument also fails, that the court extended the terms and released the principal thereby releasing the surety. Upon defendant‘s appearance the court did not extend the terms or release the principal-defendant. Defendant‘s apрearance permitted the court to set aside the judgment forfeiting the bond, thereby returning all parties to their positions before the bond was forfеited. No terms were extended, no new obligations were imposed, no one was released.
As its final contention relator argues that it should have been exonerated from its liability on the bond because of defendant‘s appearance or “self-surrender.” Exoneration of the surety is in order “when the defendant has been surrendered in conformity with Article 338 or a letter of verification of incarceration has been issued to the surety as provided for in Article 338.”
The occasion of defendant‘s appearance permitted the district court to properly rescind the judgment of bond forfeiture. The ruling rescinding the judgment of bond forfeiture reinstated the bond and all parties to their positions prior to the forfeiture аs if the forfeiture had never occurred. The surety took no steps to exonerate itself from its liability on the bond. Relator, therefore, remained liаble on the bond. When defendant subsequently failed to appear, the district court properly forfeited the bond. Relator has not provided any reason why the judgment of forfeiture should be annulled or set aside. Accordingly, the judgment of the district court is affirmed.
AFFIRMED.