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State v. Robertson10/19/2004
PUBLISHED
The Board of Education, Winston-Salem/Forsyth County Schools appeals from a district court order granting respondent surety's motion to set aside a bond forfeiture. We reverse.
Jackie Lee Robertson (Robertson) was arrested in Forsyth County, North Carolina, on 4 January 2003 for driving while impaired (DWI) and driving while license revoked (DWLR). Howard H. Davis (Davis) signed as surety on Robertson's appearance bond for pre-trial release; the bond was in the amount of $5,000. Robertson was released and ordered to appear in Forsyth County District Court on the morning of 17 April 2003.
On 16 April 2003, Robertson was detained by the Surry County, North Carolina, Sheriff's Department on an extradition warrant for charges outstanding in Carroll County, Virginia. Robertson was booked in the Surry County Jail at 12:39 a.m. on the morning of 17 April 2003, and bond was set in the amount of $75,000. Robertson waived extradition, and the record indicates he was remanded to Virginia law enforcement authorities on or about 21 April 2003.
Meanwhile, upon Robertson's failure to appear in Forsyth County District Court on 17 April 2003 on the DWI and DWLR charges, the Forsyth County Clerk of Court issued an Order for Arrest for Robertson, and his $5,000 bond was ordered forfeited pursuant to N.C.G.S. § 15A-544.3 (2003). On 28 August 2003, Davis filed a Motion to Set Aside Forfeiture. Davis argued he was entitled to have the forfeiture set aside pursuant to N.C.G.S. § 15A-544.5(b)(6) (2003), which provides relief from forfeiture where the defendant is incarcerated in a unit of the Department of Corrections (DOC) and serving a sentence at the time of the failure to appear.
The Forsyth County Board of Education objected to the motion, and a hearing was held on 18 September 2003. At the hearing, Davis argued he was entitled to the set-aside because on 17 April 2003 Robertson was being held in Surry County on the extradition warrant relating to the Virginia charges, thus Robertson was prevented from appearing on that date in Forsyth County on the DWI and DWLR charges. The School Board contended that the surety had not satisfied the requirements of G.S. § 15A-544.5(b)(6), in that: 1) Robertson was not incarcerated in a unit of the Department of Corrections (but was, instead, in the Surry County Jail); and 2) Robertson was not serving a sentence. The district court granted the surety's Motion to Set Aside Forfeiture, and the School Board now appeals.
The sole issue before this Court is whether the district court erred in granting Davis' motion to set aside the bond forfeiture under G.S. § 15A-544.5(b)(6). The School Board contends Davis failed to present a legally sufficient reason to set aside the forfeiture under this specific provision. We agree.
In North Carolina, forfeiture of an appearance bond is controlled by statute. "If a defendant who was released . . . upon execution of a bail bond fails on any occasion to appear before the court as required, the court shall enter a forfeiture for the amount of that bail bond in favor of the State against the defendant and against each surety on the bail bond." G.S. § 15A-544.3(a). Notice of the forfeiture is given to the defendant and to his or her surety pursuant to G.S. § 15A-544.4. The exclusive avenue for relief from forfeiture of an appearance bond (where the forfeiture has not yet become a final judgment) is provided in G.S. § 15A-544.5. The reasons for setting aside a forfeiture are those specified in subsection (b):
Reasons for Set Aside. - A forfeiture shall be set aside for any one of the following reasons, and none other:
(1) The defendant's fai
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