Criminal Practice – Bond Forfeiture – Second Failure to Appear – Actual Notice

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State v. Hinnant (Lawyers Weekly No. 011-307-17, 28 pp.) (Linda McGee, C.J.) (John Tyson, J., dissenting) Appealed from Wilson County District Court (John Covolo, J.) N.C. App.

Holding: When defendant failed to appear for his DWI trial, the order for his arrest as well as his release order indicated that this was his “second or subsequent failure to appear in this case.” Even though the bail agent brought defendant back to the jail, under G.S. § 15A-544.5(f), the court was prohibited from setting aside the bond forfeiture “for any reason in any case in which the surety or the bail agent had actual notice before executing a bail bond that the defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed.”

We vacate the trial court’s order setting aside the bond forfeiture.

Since both the arrest order and the release order indicated that this was defendant’s second or subsequent failure to appear on his DWI charge, the bail agent had actual notice before executing the bail bond that defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed. Accordingly, the trial court lacked authority to set aside the forfeiture for any reason, including the bail agent’s surrender of defendant to a deputy sheriff.

We do not, as the dissenting opinion contends, read the requirement of “actual notice” in § 15A-544.5(f) as encompassing “constructive” or “record” notice. We instead follow the exact wording of the statute as amended in the 2009-2010 legislative session, under which a properly marked release order is per se sufficient evidence of “actual notice.” The state is not required to produce any additional evidence – including evidence that the surety or bail agent actually saw the release order before executing the bail bond.

We stress that the question of whether a trial court, in applying § 15A-544.5(f), may consider evidence that, notwithstanding a properly marked release order, a surety or bail agent was prevented in some way from discovering a defendant’s prior failures to appear is not presently before us.

Vacated.

Dissent

(Tyson, J.) Since the evidence in the record supports the trial court’s findings of fact, which in turn support its conclusions of law, we should not presume error on the part of the trial court. The record indicates that the school board’s counsel told the court about the indications on the arrest order and the release order; however, statements of counsel are not evidence, and the record does not indicate that the school board presented any evidence that the bail agent had actual notice of defendant’s other failures to appear.

Interpreting “actual notice,” as the majority opinion does, would change “actual notice” to mean “constructive” or “record” notice. To construe “actual notice” in the current version of § 15A- 544.5(f) to encompass “constructive” or “record” notice would create an absurd consequence in light of the plain language of the statute and the legislative history showing the statute was amended to specifically require the bail agent to have received “actual notice” versus the more general “notice or actual knowledge.”