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State v. Robertson10/19/2004
lure to appear has been set aside by the court and any order for arrest issued for that failure to appear has been recalled, as evidenced by a copy of an official court record. . . .
(2) All charges for which the defendant was bonded to appear have been finally disposed by the court other than by the State's taking dismissal with leave, as evidenced by a copy of an official court record. . . .
(3) The defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced by the sheriff's receipt provided for in that section.
(4) The defendant has been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question.
(5) The defendant died before or within the period between the forfeiture and the final judgment as demonstrated by the presentation of a death certificate.
(6) The defendant was incarcerated in a unit of the Department of Correction and is serving a sentence or in a unit of the Federal Bureau of Prisons located within the borders of the State at the time of the failure to appear. G.S. § 15A-544.5(b) (emphasis added).
Because incarceration in a unit of the Federal Bureau of Prisons is not implicated here, subparagraph (6) has two requirements: (i) that the defendant be "incarcerated in a unit of the Department of Correction," and (ii) that he be serving a sentence. Id. Neither of these two prongs is satisfied. On the date of Robertson's failure to appear in Forsyth County District Court, Robertson was not incarcerated in a unit of the Department of Correction. A county jail is a "local confinement facility" and not a unit of the DOC. See Opinion of the Attorney General to Mr. Bruce E. Colvin, Assistant County Attorney, Forsyth County, 55 Op. Att'y Gen. N.C. 21 (1985) ("misdemeanants with sentences of 180 days or less are not to be sent to the Department of Correction, but must be jailed in a `local confinement facility' . . . defined in G.S. § 153A-217(5).") (construing N.C.G.S. §§ 15-6 and 15A-1352(a)). As to the second prong of the statute, Robertson was not serving a judicially imposed sentence.
The surety concedes he has failed to satisfy the statutory requirements for relief from forfeiture under the only statute he relies upon, G.S. § 15A-544.5(b)(6), but nonetheless argues that he is entitled to a set-aside because Robertson's confinement in the Surry County Jail is functionally equivalent to incarceration in a unit of the DOC. This argument, however, is for the General Assembly to address. We are bound by the statute. The order of the trial court is Reversed.
Judges GEER and THORNBURG concur.
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