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State v. Cobb

Court of Appeals of North Carolina

July 5, 2017

STATE OF NORTH CAROLINA
v.
ROBERT JEROME COBB, Defendant, SURETY: ULONDA T. HILL, Bail Agent for 1st Atlantic Surety Company; JUDGMENT CREDITOR: WATAUGA COUNTY BOARD OF EDUCATION.

          Heard in the Court of Appeals 7 March 2017.

         Appeal by judgment creditor from order entered 6 July 2016 by Judge Gary M. Gavenus in Watauga County Superior Court. No. 15 CRS 50271

          No brief was filed for Surety 1st Atlantic Surety Company.

          Miller & Johnson, PLLC, by Nathan A. Miller, for Judgment Creditor Watauga County Board of Education.

          BRYANT, Judge.

         Where the motion to set aside the forfeiture of an appearance bond did not contain the required documentation to support any ground set forth in North Carolina General Statutes, section 15A-544.5, the trial court lacked statutory authority to set aside the forfeiture of the appearance bond. Accordingly, we vacate the trial court's order setting aside the forfeiture of the bond.

         An appearance bond in the amount of $30, 000.00 was placed for Robert Jerome Cobb to appear in Watauga County Superior Court on 12 January 2016 on a felony charge in case number 15 CRS 050271. Due to Cobb's failure to appear, the Honorable Gary M. Gavenus, Superior Court judge, ordered that Cobb's $30, 000.00 appearance bond in that case be forfeited. On 14 January 2016, a Deputy Clerk of Watauga County Superior Court issued a bond forfeiture notice to Cobb, as well as to 1st Atlantic Surety Company via first-class mail. On 8 June 2016, Ulonda Hill, a bail agent, moved the court to set aside the forfeiture. In the motion, which was filed on form AOC-CR-213-a form with pre-set options and check boxes-Hill checked that "defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced on the attached 'Surrender Of Defendant By Surety' (AOC-CR-214)." However, instead of a Form CR-214, attached to the motion was a printout from the Automated Criminal/Infractions System (ACIS). On 14 June 2016, an attorney for the school board filed an objection and notice of hearing. The hearing was set for 5 July 2016. On 6 July 2016, the trial court entered an order finding "that the moving party has established one or more of the reasons specified in G. S. 15A-544.5 for setting aside the forfeiture. . . . The . . . Motion is allowed and the forfeiture is set aside." Judgment creditor Watauga County Board of Education ("the Board") appeals.

         On appeal, the Board argues that the trial court erred by finding that the moving party established a reason for setting aside the bond forfeiture, pursuant to N.C. Gen. Stat. § 15A-544.5. More specifically, the Board contends that by submitting an ACIS printout rather than the required AOC-CR-214 form, the bail agent failed to comply with section 15A-544.5 in seeking to aside the bond forfeiture. We agree in part.

         General Statutes Chapter 15A, Article 26, Part 2 governs bail bond forfeiture. "By executing a bail bond the defendant and each surety submit to the jurisdiction of the court. . . . The liability of the defendant and each surety may be enforced as provided in this Part . . . ." N.C. Gen. Stat. § 15A-544.1 (2015). "If a defendant . . . 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 . . . ." Id. § 15A-544.3(a). "There shall be no relief from a forfeiture except as provided in [section 15A-544.5]." Id. § 15A-544.5(a); see also State v. Williams, 218 N.C.App. 450, 451, 725 S.E.2d 7, 9 (2012) (holding where forfeiture of an appearance bond has not become a final judgment, G.S. § 15A-544.5 offers "[t]he exclusive avenue for relief"); State v. Sanchez, 175 N.C.App. 214, 623 S.E.2d 780 (2005) (holding the trial court lacked authority to grant the surety's motion to set aside forfeiture of an appearance bond where the motion was not premised on any ground set forth in G.S. § 15A-544.5).

         Pursuant to subsection (b) of General Statutes, section 15A-544.5,

Except as provided by subsection (f)[ (which is not applicable here)] . . . a forfeiture shall be set aside for any one of the following reasons, and none other:
(1)The defendant's failure 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, including an electronic 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, including an electronic 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 as evidenced by a copy of an official court record, including an electronic record.
(5)The defendant died before or within the period between the forfeiture and the final judgment as demonstrated by the ...

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