in the Court of Appeals 21 May 2019.
by the State from Order entered 18 September 2018 by Judge
Larry D. Brown, Jr. in Alamance County No. 17CR053304
Allen Smith and Champion & Giles, P.A., by Robert Clyde
Giles, II, for Alamance-Burlington Board of Education,
brief for Elmer Romero Ortiz, Defendant.
K. Holley for Anthony Broadway, Bail Agent, Appellee.
Elston Law, by Brian D. Elston, for 1st Atlantic Surety
Company, Surety, Appellee.
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
FACTUAL AND PROCEDURAL BACKGROUND
record tends to show the following:
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,
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.
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.
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.
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. The assistant district attorney asserted
her belief that since being deported, Defendant "had
already returned to the United States without proper