State of Louisiana VS Earl Wellington Johnson
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 CA 0133 STATE OF LOUISIANA l q I G VERSUS EARL WELLINGTON JOHNSON Judgment Rendered November 1 2013 Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No 571551 The Honorable David W Arceneaux Judge Presiding Joseph L Waitz Jr District Counsel for Plaintiff Appellee Attorney Elten Daigle Doskey Assistant District Attorney Houma Louisiana State of Louisiana Anthony T Marshall Gonzales Louisiana Counsel for Defendant Appellant International Fidelity BEFORE KUHN HIGGINBOTHAM AND THERIOT JJ r I lll ifAQ D L IJ C Cv11 THERIOT J The appellant International Fidelity Insurance Company International seeks reversal of a judgment denying its motion to set aside a bond forfeiture or to grant its petition for nullity For the following reasons we affirm FACTS AND PROCEDURAL HISTORY On February 1 2010 Earl Wellington Johnson Johnson was charged with aggravated flight from an officer disregarding a stop sign and driving without a license s Johnson bond amount was fixed at 25 00 000 s Johnson bond was posted by appellant International The bond agreement provided that Johnson promised to appear before the court through pronouncement of sentence On March 12 2010 Johnson appeared in district court and tendered a plea of NOT GUII On June 28 2010 Johnson appeared in district I T court and upon being arraigned on an amended bill of information tendered a plea of NOT GUII The district court ordered a pretrial set for July TY 15 2010 a plea date set for August 5 2010 and a trial set for August 16 2010 On August 16 2010 Johnson was called for trial and failed to answer to his name The Assistant District Attorney for the 32 Judicial District Court State moved for and the district court granted a bench warrant and a judgment of bond forfeiture Appeazance Bail Bond nwnber 700781D executed by Johnson as principal and International as surety on February 1 2010 provided that Johnson aclrnowledged notof a court appearance on March 12 cation 2010 and promises to appeaz before the wurt whenever required to answer the chazges or related charges and all stages of the proceedings through pronouncement of sentence Z Ms Makiva Johnson was Mr Johnson sattorney of record On Friday August 13 2010 Ms Johnson filed a Motion for Continuance of the Monday August 16 2010 trial date stating that she had a prior matter pending in another pazish on August 16 2010 and that the Assistant District Attomey had no objection to the matter being continued until October On August 16 2010 the date on which Johnson failed to appear in court for hial the district court signed the order continuing the uial to October 18 2010 however there is no indication in the record whether this order was signed before or after Johnson failed to appear for his trial on August 16 2010 2 On October 18 2010 Johnson appeared in court with his attorney Pursuant to the State motion the district court ordered the previously s issued bench warrant and the judgment of bond forfeiture recalled and cancelled Upon re Johnson tendered a plea of GUILTY to arraignment the charge of aggravated flight from an officer However the district court did not accept Johnson guilty plea on October 18 2010 The district court s scheduled a hearing for October 22 2010 and stated that it would make a determination as to whether or not to accept Johnson guilty plea on that s date and if necessary impose sentence The district court instructed Johnson that if he was arrested for another offense before his October 22 2010 court date or if he failed to appear on October 22 2010 the district court would reject the guilty plea and require Johnson to go to trial On October 22 2010 Johnson failed to appear in court The district court ordered a bench warrant and judgment of bond forfeiture The Terrebonne Parish Clerk of Court office mailed the notice of bond s forfeiture on November 8 2010 On February 7 2011 Intemational through its agent Richmond Boyd Jr filed a Motion to Set Aside the Forfeiture or Grant Nullity The motion was argued and the district court denied the motion It is this denial that International appeals ASSIGNMENT OF ERROR International avers that the district court erred by not setting aside and annulling the judgment of bond farfeiture DISCUSSION The general rule is that bond forfeitures are not favared State v Bailey 567 So 721 724 La 2 Cir 1990 A bond forfeiture is 2d App basically a civil proceeding however it is subject to the special rules as set forth in the Code of Criminal Procedure State v Likens 577 So 285 289 2d 3 La App 3 Cir 1991 writ denied 580 So 386 La 1991 In order to 2d obtain a judgxnent of bond forfeiture against a surety the State must strictly comply with the terms of the statutory provisions regulating bond forfeitures Bankers Insurance Company v State 37 p 4 App 2 080 La Cir 4 843 So 641 644 writ denied 2003 La 6 03 ll 2d 1240 03 27 847 So 1268 2d International argues that it was relieved of its obligations under the bond pursuant to La C art 326 once Johnson entered a guilty plea P Cr B to a felony on October 18 2010 and therefore there was no bond obligation in place when Johnson failed to appear on October 22 2010 Louisiana Code of Criminal Procedure Article 326 provides B 1 Upon conviction and imposition of sentence or the pronouncement of sentence or condition of probation pursuant to Article 894 in misdemeanor cases the bail undertaking shall cease and the surety shall be relieved of a11 obligations under the bond 2 Upon conviction in any felony case the bail undertaking shall cease and the surety shall be relieved of all obligations under the bond 3 In all cases if necessary to assure the presence of the defendant at all future stages of the proceedings the court may in its discretion in accordance with Article 332 require the defendant to post another bond or other acceptable security or may release the defendant on bail without surety as provided for in Article 325 The court may continue the existing bail undertaking with the written approval of the surety on the bond Such approval must be obtained from the surety after conviction The crime with which Johnson was charged Aggravated Flight From an Officer is a felony See La R 14 La R A S 108 E 1 2 14 S4 Thus under Article 326 the surety would be relieved of its obligations 2 B under the bond when Johnson convicted was However Johnson was neither convicted nor sentenced on October 18 2010 making Article 326 B 4 inapplicable to the facts of this case International sargument in this regard lacks merit International further argues in its brief that Johnson appearance in s court on October 18 2010 constituted a surrender under La C art 345 P Cr which relieved the surety of all obligations under the bond Exoneration of the surety is in order when the defendant has been surrendered in conformity with La GCr art 345 We find Johnson did not surrender in conformity P with article 345 Article 345 provides A A surety may surrender the defendant or the defendant may surrender himself in open court or to the officer charged with his detention at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond For the purpose of surrendering the defendant the surety may arrest him Upon surrender of the defendant the officer shall detain the defendant in his custody as upon the original commitment and shall aclmowledge the surrender by a certificate signed by him and delivered to the surety The officer shall retain and forward a copy of the certificate to the court After compliance with the provisions of Paragraph F of this Article the surety shall be fully and finally discharged and relieved as provided for in Paragraphs C and D of this Article of all obligations under the bond Johnson and his attorney appeared in court on October 18 2010 pursuant to an August 16 2010 court order granting a continuance of the August 16 2010 trial date Furthermore Johnson was not detained in custody after his appearance in court The occasion of Johnson appearance in open court on s October 18 2010 allowed the district court to properly rescind the August 16 2010 judgment of bond forfeiture The ruling rescinding the judgment of bond forfeiture reinstated the bond on all parties to their positions prior to the forfeiture Intemational took no action to exonerate itself from its liability on the bond therefore International remained liable on the bond The bond clearly states Johnson promises to appear before the court through pronouncement of sentence When Johnson subsequently failed to appear 5 the trial court properly forfeited the bond Intemational has not provided any reason why the judgment of farfeiture dated October 22 2010 should be annulled or set aside This assignment of error lacks merit Finally Intemational argued at the July 27 2011 hearing on its motion to set aside the bond forfeiture or to grant a nullity that Johnson was incarcerated in Lafourche Parish and therefore its obligations under the bond were satisfied Under La C art 345 the surrender of a P Cr D defendent may be accomplished during the time period allowed therefor by the filing of a motion for surrender and presenting adequate proof of the s defendant incarceration International offered a letter of verification of incarceration dated July 25 2011 from the Sheriff of the Parish of Lafourche stating that Johnson had been incarcerated in Lafourche Parish since May 12 2011 Under La C art 349 International had P Cr 1 A 8 one hundred and eighty days from the mailing of the notice ofjudgment of forfeiture to surrender Johnson and have the judgment of bond forfeiture satisfied and set aside The notice of judgment of bond forfeiture was Louisiana Code of Criminal Procedure article 345 provides D D If during the period allowed for the surrender of the defendant the defendant is found to be incazcerated in another parish of the state of Louisiana or a foreign jurisdiction the judgment of bond forfeiture is deemed satisfied if all of the following conditions aze met 1 The defendant or his sureties File a morion within the period allowed for the surrender of the defendant The motion shall be heard summarily 2 The sureties of the defendant provide the court adequate proof of incazceration of the defendant or the o originally charged with his detention verifies his incazcerarion A cer letter of incazceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surery files the motion shall be deemed adequate proof of the incazcerarion ofthe defe dant 3 The defendanPs sweties pay the officer originally charged with the defendanYs detenrion the reasonable cost of retuming the defendant to the officer originally chazged with the defendanPs deten prior to the defendanPs retum ion 5 Louisiana Code of Criminal Procedure article 349 provides 1 A 8 For bonds that have a face value under fifty thousand dollazs a judgment forfeiting the appearance bond shall at any time wit6in one hundred eighty days after the date of mailing the nodce of the signing of the judgment ofbond forfeiture be fully satisfied and set aside upon the surrender of the defendant or the appearance of the defendant The surrender of the defendant also reGeves the surety of all obligations under the bond and the judgment 6 I mailed on November 8 2010 Accord the last day for International to mgly produce Johnson and be relieved of its obligations under the bond was one hundred and eighty days from November 8 2010 or May 7 201 L The letter of verification of incarceration certifies Johnson was incarcerated in Lafourche Parish on May 12 201 l clearly outside of the prescribed period allowed for the surrender of Joluison This assignment of error is without merit DECREE The judgment denying the motion to set aside the bond forfeiture or to grant a nullity is affirmed Costs of this appeal are assessed to appellant International Fidelity Insurance Company AFFIRMED 7
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