Posted 12/31/2015

In Forman v. Tay, Case No. 4D14-3413 (Fla.App. December 16, 2015) the defendant posted bond on February 11, 2010.  After delays not explained by the Court, the case was set for a change of plea hearing on June 12, 2014.  The defendant failed to appear, and the trial court estreated the bond.  The surety successfully moved to set aside the forfeiture, and the Government appealed.  The issue was the provision in §903.31(1), Florida Statues that, “The original appearance bond shall expire 36 months after such bond has been posted for the release of the defendant from custody.”  The Court held that “shall” in the statute made expiration of the bond automatic without any action by the surety being required.  The Court affirmed the trial court and suggested that trial courts should adopt a procedure to track expiring bonds and place them on the court’s docket for renewal or surrender of the defendant.

Buffin v. City and County of San Francisco, Case No. 15-cv-4959 (N.D.Cal. December 18, 2015) is a suit by certain named criminal defendants who had been arrested at the time the suit was filed but who were never charged.  The named plaintiffs, represented by lawyers from Equal Justice Under Law, challenge certain bail practices.  The City and County of San Francisco and the State of California moved to dismiss the case under the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971).  The court directed that the parties file additional briefs on the issues of “(1) the meaning of ongoing state proceeding, specifically focusing on whether judicial proceedings are a precondition to require Younger abstention; and (2) the adequacy of the state procedural mechanisms available to plaintiffs to raise these claims at the time the complaint was filed, citing specific authority in support thereof.”

In State v. Delaharran, 2015 WL 9264082 (Minn.App. December 21, 2015) the defendant was released on bond and required to wear a GPS tracking device.  On or about July 23, 2013, he removed the tracking device and fled.  On July 25th the trial court revoked his release and issued a warrant, but the surety was not informed.  On August 21 the defendant failed to appear for a scheduled hearing, and the court forfeited the bond and notified the surety.  The defendant was eventually located in Mexico, but the extradition possibilities were at best uncertain.  The trial court forfeited the bond in its entirety and the surety appealed.  The Court rejected the surety’s argument that it was entitled to notice when the defendant removed the GPS device and the warrant was issued.  The Court thought that these were matters of public record that the surety could have discovered if it had been diligently monitoring the case and that the state did not have a duty to inform the surety.  The Court reviewed the factors set forth in Application of Shetsky, 60 N.W.2d 40 (1953) and found that the trial court did not abuse its discretion in forfeiting the entire bond amount.

In Martinez v. State, Case No. 15-148-CR (Tex.App. – San Antonio December 23, 2015) the surety, who was also the defendant’s attorney, appealed forfeiture of the bond.  The defendant appeared for sentencing, but the trial court cancelled its docket for that day and did not provide a new date at that time.  Several days later, the court clerk called the surety/lawyer and told him the new date, but no other effort was made by the court to notify the defendant directly.  The defendant failed to appear, and the court entered a timely judgment nisi.  Over two years later, the defendant was still a fugitive (the surety believed he was in Mexico).  The trial court held a bond forfeiture hearing and ultimately entered judgment for the bond amount.  The surety appealed and argued that the defendant was entitled to actual notice of the rescheduled hearing and that, in the absence of such notice, the bond was unconstitutional.

The bond stated that the defendant was to appear in court “and there remain from day to day and term to term of said courts, until discharged by due course of law . . .”  The Court thought this was sufficient notice, that the bond met the requirements of Texas Code of Crim. Proc. Art. 17.08, and that judgment was properly entered.  The Court affirmed the trial court’s judgment against the surety.

In Cooper v. Hunt, Case No. 05-14-928-CV (Tex.App. – Dallas December 28, 2015) the surety surrendered the defendant, but the trial court found that the surrender was without reasonable cause and ordered return of the premiums.  The surety appealed, but the Court thought that the surrender proceedings were a part of the criminal action and so the appeal was from an interlocutory order.  The Court noted that nothing in the record suggested the criminal proceeding had been dismissed or that the defendant had been acquitted or convicted and stated, “The trial court’s order relating to refund of the bail bond premium paid by Hunt in the criminal case pending against him is interlocutory in nature and not a separately appealable order.”  The Court dismissed the appeal for want of jurisdiction.