Renny's Bail Bond Company, Inc. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RENNY'S BAIL BOND CO., INC.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-986

MARCH 1, 2006

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SECOND DIVISION

[NO. CR-04-3242]

HONORABLE CHRISTOPHER

CHARLES PIAZZA, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Renny's Bail Bond Company, Inc., appeals the denial of its motion to modify the Pulaski County Circuit Court order forfeiting bond in the amount of $6500. The person bonded, Harold Theodis Comic, was released on bail from jail on charges of second-degree forgery, and he was to appear for a hearing on August 24, 2004. Defendant Comic did not appear on that date, an arrest warrant issued, and the case was set for a bond forfeiture hearing, which was heard on March 24, 2005. The State appeared at the hearing through a deputy prosecutor, and the County appeared through a county attorney; the attorney for appellant did not appear. At the bond-forfeiture hearing, the county attorney represented to the trial court that she had spoken with appellant's attorney, who stated that he was unable to attend the hearing, that defendant Comic had not been apprehended, and that the attorney had no objection to a judgment being entered forfeiting the bond. The trial court then ordered the bond forfeited, and a judgment reflecting that decision was entered the same day.

On June 10, 2005, appellant filed a motion to modify the bond forfeiture judgment pursuant to Ark. R. Civ. P. 60. In that motion, appellant sought to have the forfeiture reduced on the basis that defendant Comic had been arrested in Union County on August 25, 2004, on an unrelated matter; that defendant Comic had been released from Union County near midnight on August 25; that the arrest warrant for failure to appear had been activated in the state-wide system on August 26, 2004; that defendant Comic had not reported since being released from Union County; that Union County erred in hastily releasing defendant Comic to appellant's detriment; and that the Pulaski County Circuit Court should exercise the discretion given it under Ark. Code Ann. § 16-84-207 (Supp. 2005) to reduce the appellant surety's liability on the bond. The trial court entered an order denying the motion, and a timely notice of appeal followed. Upon consideration of appellant's argument, we affirm.

An order of a circuit court may be modified or set aside on the motion of the court or any party within ninety days of its filing with the clerk. Ark. R. Civ. P. 60(b) (2005); M&M Bonding Co. v. State, 59 Ark. App. 228, 955 S.W.2d 521 (1997). Whether any relief is granted is a discretionary decision of the trial court. See Jones-Blair Co. v. Hammett, 51 Ark. App. 112, 911 S.W.2d 263 (1995). We hold that there was no abuse of discretion in this instance. Appellant surety failed to appear at the forfeiture hearing in March 2005, seven months after defendant Comic failed to appear at the August 2004 court hearing. Furthermore, when appellant surety filed the motion for a reduction in the forfeiture amount, the absented defendant was still at large.

In order to explain our conclusion, the case of Bryce Bail Bonds, Inc. v. State, 8 Ark. App. 85, 648 S.W.2d 832 (1983), is instructive. Therein, our court explained the underlying basis for allowing a defendant to be released on bail, the duties of the surety, and the authority of the trial court upon a request for forfeiture of the bond:

The defendant, rather than being held in custody by the State, is released to the surety who assumes custody of him and is responsible to the court for his appearance at anytime. The defendant is regarded as being in the custody of his surety from the time of execution of the bond until he is discharged and his bail is considered a jailer of his own choosing. Although the surety is not expected to keep the principal in physical restraint he is expected to keep close track of his whereabouts and keep him within this state subject to the jurisdiction of the court. Adler v. State, 35 Ark. 517, 37 Am. Rep. 38 (1880).

The surety is not released from forfeiture except where an act of God, the State, or of a public enemy, or actual duress prevents appearance by the accused at the time fixed in the bond. Absent one of those excuses the failure of an accused to appear at the time fixed is sufficient basis for forfeiture.

Proceedings after forfeiture are summary ones. The order to show cause pursuant to Ark. Stat. Ann. § 43-729 (Repl. 1977) merely affords the bondsman an opportunity to be heard with respect to remission of all or some part of the forfeiture. Craig v. State, 257 Ark. 112, 514 S.W.2d 383 (1974).

Where the principal does not appear there is no exoneration from liability under the bond, regardless of the extent of the search by the surety, if the surety shows no more than a disappearance of the principal. The trial court's authority to remit a forfeiture when the accused is subsequently surrendered by the surety is discretionary and that discretion will not be interfered with unless it is arbitrary or abused. It devolves upon the bail bondsman to establish facts which justify favorable action in the exercise of the trial court's discretion, and the failure to allow him even his expenses in this matter is not necessarily an abuse of the court's discretion. The mere fact that the bail takes the accused into custody after the forfeiture and surrenders him to the authorities, even during the same term of court, does not entitle the bail to right to a remission of the penalty, even though the return of the principal was at the expense of the surety. Hickey v. State, 150 Ark. 304, 234 S.W. 168 (1921).

Bryce Bail Bonds, Inc. v. State, 8 Ark. App. at 88-89. The basic notion is that it is the surety who is responsible for securing the appearance of its principal when so directed by the court. See AAA Bail Bond Co. v. State, 55 Ark. App. 35, 929 S.W.2d 723 (1996). Appellant did not secure defendant Comic's appearance at the August 2004 hearing on criminal charges, nor did it secure his appearance before the Pulaski County Circuit Court at any time thereafter. While it is accurate that appropriate law enforcement agencies must make every reasonable effort to apprehend the defendant, Ark. Code Ann. § 16-84-207(c)(3), there was not such a failure of reasonable effort here. Defendant Comic was released in south Arkansas prior to there being an active warrant in the state-wide computer system. Thereafter, to the extent that appellant relied upon the Union County authorities to perform appellant's duty, appellant was mistaken.

The trial court did not abuse its discretion in declining to modify the bond forfeiture judgment. We affirm.

Pittman, C.J., and Baker, J., agree.