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State v. Ortiz

Court of Appeals of North Carolina

August 6, 2019

STATE OF NORTH CAROLINA
v.
ELMER ROMERO ORTIZ, Defendant, and ANTHONY BROADWAY, Bail Agent, and 1ST ATLANTIC SURETY COMPANY, Surety.

          Heard in the Court of Appeals 21 May 2019.

          Appeal by the State from Order entered 18 September 2018 by Judge Larry D. Brown, Jr. in Alamance County No. 17CR053304 District Court.

          Todd Allen Smith and Champion & Giles, P.A., by Robert Clyde Giles, II, for Alamance-Burlington Board of Education, Appellant.

          No brief for Elmer Romero Ortiz, Defendant.

          David K. Holley for Anthony Broadway, Bail Agent, Appellee.

          Brian Elston Law, by Brian D. Elston, for 1st Atlantic Surety Company, Surety, Appellee.

          INMAN, JUDGE.

         The Alamance-Burlington Board of Education ("the Board") appeals from the trial court's order providing relief from a forfeited bond before a final judgment. The Board argues that the trial court erred in granting relief based on N.C. Gen. Stat. § 15A-301 because a different statute, N.C. Gen. Stat. § 15A-544.5, is the exclusive means for relief. After thorough review of the record and applicable law, we vacate the trial court's order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The record tends to show the following[1]:

         On 29 June 2017, Defendant Elmer Romero Ortiz ("Defendant") was arrested in Alamance County on felony charges of committing a statutory sex offense on a child younger than fifteen years of age and taking indecent liberties with a minor. Defendant was released on a $50, 000 bond on 30 June 2017 to secure his appearance at further proceedings. The bond was underwritten by Anthony Broadway as bail agent for 1st Atlantic Surety Company (collectively, "Sureties").

         Defendant failed to appear for his 14 February 2018 court date. The court forfeited Defendant's bond and issued an order for his arrest. The forfeiture order was entered on 19 February 2018, the parties were notified of the forfeiture on 22 February 2018, and the final judgment of forfeiture was scheduled to be entered on 22 July 2018.

         On 26 April 2018, Sureties filed a motion to recall the order for arrest and strike the forfeited bond, pursuant to N.C. Gen. Stat. §§ 15A-301 and 15A-544.5. Sureties alleged that Defendant was deported at the time of his missed 14 February 2018 court appearance.

         During the initial hearing on the motion on 3 May 2019, the Board argued that because the forfeiture had not yet become a final judgment, Section 15A-544.5 was the sole avenue of relief and that Sureties could not establish any of that statute's enumerated factors to set aside the bond forfeiture. Sureties conceded that none of the factors existed, but argued that Section 15A-301 provided alternative authority for the trial court to strike the forfeiture. The trial court took the matter under advisement and continued the hearing.

         At the second hearing on 9 May 2018, at the request of the trial court, Defendant's counsel and an assistant district attorney for Alamance County were present, along with Sureties and the Board. Defense counsel informed the trial court that Defendant was in federal immigration custody on 14 February 2018 and that his current whereabouts were unknown.[2] The assistant district attorney asserted her belief that since being deported, Defendant "had already returned to the United States without proper ...


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