State v. Jones

¶1Financial Casualty & Surety Company (“FCS”), appeals the trial court judgment denying its motion to set aside a judgment of bond forfeiture. For the reasons that follow, we affirm.

¶2FACTS AND PROCEDURAL HISTORY

¶3According to the record before us, after a bill of information was filed against Mr. Jones, charging him with' possession of controlled dangerous substances (cocaine and marijuana), bond was set by the magistrate judge at $22,500. FCS posted two surety bonds on Mr. Jones’ behalf that day, one in the amount of $15,000 and the other in the amount of $7,500. The court set the arraignment for April 26, 2013,

¶4Mr. Jones failed to appear for the scheduled arraignment on April 26, 2013, at which time the State sought the forfeiture of the bonds. The trial court granted the State’s motion and, on April 26, 2013, executed a judgment in favor of the State of Louisiana and against Mr. Jones, and FCS as commercial surety, in the amount of $22,500. The trial court also issued an alias capias for Mr. Jones at that time, | ^without bond.1 The matter was then continued without date. Notice of the bond forfeiture was mailed to FCS and Mr. Jones on May 30,2013.

¶5On October 23, 2013, FCS filed a Motion to Set Aside Bond Forfeiture and Petition for Nullity of Judgment. After a hearing held on November 5, 2013, the trial court took the matter under advisement and on November 12, 2013, denied FCS’s motions. Counsel for FCS objected to the ruling, indicating an intent to seek a writ of supervisory review. The Docket Master then reflects that, over the next few months, FCS filed various motions for extensions of time. Ultimately, an appeal was lodged with this Court on November 12, 2014; however, because the record did not contain a signed judgment on FCS’s motions, the appeal was dismissed as premature and the matter remanded to thé trial court. See State v. Jones, 14-1259 (La.App. 4 Cir. 5/27/15), 171 So.3d 1020.

¶6The record does not indicate what occurred regarding the bonds after the matter was remanded, but only pertains to Mr. Jones, himself.2 However, the record *952now contatos a written judgment, dated June 18, 2015, by which the trial court denied FCS’s motions. This appeal timely followed with FCS’s Motion for Suspensive Appeal filed and granted on July 15, 2015.3

¶7DISCUSSION

¶8We note, at the outset, that “[b]ond forfeitures áre not favored to Louisiana” and therefore, “the State must strictly comply with statutory provisions to obtain a judgment of bond forfeiture.” State v. Nellon, 12-1429, p. 5 (La.App. 4 Cir. 9/4/13), 124 So.3d 1115, 1118. In this appeal, FCS does not suggest that the bond forfeiture was invalid or that the State did not comply with the statutory requirements necessary for a judgment of bond forfeiture. Rather, FCS maintains that the trial court erred to denying its motion to set aside bond forfeiture on the basis that Mr. Jones was incarcerated at the Orleans Parish Prison on July 9, 2013, some two and a half months after the alias capias was issued without bond.4 FCS argues that, under La.C.Cr.P. art. 345, it was relieved of its obligations on the bond based on Mr. Jones’ incarceration within the time delays for setting aside a judgment of bond forfeiture. We disagree.

¶9As this matter presents an issue of law, we review it de novo to determine whether the trial court’s decision is legally correct. See, French Quarter Realty v. Gambel, 05-0933, p. 3 (La.App. 4 Cir. 12/28/05), 921 So.2d 1025, 1027.

¶10There are no cases which specifically address the issue in this case — whether, under Code of Criminal Procedure Article 345, a defendant’s arrest and release in the same jurisdiction of his original arrest, following the issuance of an alias capias without bond, are grounds for setting aside a judgment of bond forfeiture. FCS maintains that the Orleans Parish Sheriff’s Office was responsible for retaining custody of Mr. Jones after his July 9, 2013 arrest because the trial court had issued an alias capias without bond on April 26, 2013. It then argues that, because of the failure of the Sheriffs Office to retain custody, and because Mr. Jones was incarcerated by “the officer originally charged with his detention,” it “must be relieved of all obligations under the bond.”

¶11The purpose of a bail (and a bond securing bail) is to ensure that the accused will appear at all stages of the proceedings to answer the charge for which he will be prosecuted. State v. Allen, 11-0693, p. 4 (La.App. 4 Cir. 8/8/12), 98 So.3d 926, 929. See also, State v. Matteson, 36,628, p. 7 (La.App. 2 Cir. 12/11/02), 833 So.2d 1199, 1203 (“The basic concept of the bail obligation is to make certain that a defendant appears in court with the surety paying a financial penalty when he fails to do so”). When a defendant fails to "be present in court at a subsequent scheduled appearance, the State may obtain a forfeiture of the surety bond. Importantly, “the 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 *953time allowed by law for setting aside a judgment of forfeiture of the bail bond.” La.C.Cr.P. art. 345 A. To effect a surrender, the surety “may [even] arrest him.” Id.

¶12There is no question in this cáse that Mr. Jones was not “surrendered” to the court by FCS, nor did he self-surrender at any time. The.issue in this case relates to Mr. Jones’ subsequent brief incarceration and whether that incarceration absolves FCS of liability under the bond. At the heart of this matter is the interpretation of La.C.Cr.P. art. 345 B, which provides as follows:

B. If the defendant is incarcerated by the officer originally charged with his detention at any time prior to forfeiture or within the time allowed by law for setting aside a judgment for forfeiture of the bail bond, the surety may apply for and receive from any officer in charge of any facility in the state of Louisiana or a foreign jurisdiction charged with the detention of the defendant a letter verifying that the defendant is incarcerated, but only after the surety verifies to the satisfaction of the officer charged with the detention of the defendant as to the identity of the defendant. After compliance with the provisions of Paragraph F5 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.

¶13La.C.Cr.P. art. 345 B. (Emphasis added).

¶14The time period for setting aside a judgment of bond forfeiture, as referenced in Article 345 B, is set forth in La.C.Cr.P. art. 349.5. When a surety seeks to nullify a-forfeiture for those grounds set forth in La. C.C.P. art. 2001 (“vices of either form or substance, as provided in [La. C.C.P.] Articles 2002 through 2006”), it may do so by use of summary proceedings “within sixty days after the date of mailing the notice of the signing of the judgment of bond forfeiture.” La.C.Cr.P. art. 349.5 A. Otherwise, when the grounds for setting aside a bond forfeiture arise out- of La: C.Cr.P. arts. 345 or 349.9, a surety may seek to set-aside the forfeiture “within one hundred eighty days after the date of | ^mailing the notice of the signing of the judgment of bond forfeiture.” La.C.Cr.P. art. 349.5 B.6 Thereafter, “[w]hen the defendant has been surrendered in conformity with this Article or a letter of verification of incarceration has been issued to the surety as provided for in this Article, the court shall, upon presentation of the certificate of surrender or the letter of verification of incarceration, order that the surety be exonerated from liability on his bail undertaking and shall order any judgment of forfeiture set aside.” La.C.Cr.P. art. 345 F. In this' matter, FCS sought to set asidé the bond forfeiture based on the provisions of Article 345; accordingly, it had one hundred eighty days from April 26, 2013, within which to file its motion. It met this deadline by filing its motion to set aside bond forfeiture three days before the one hundred eighty days elapsed, on October 23, 2013.

¶15*954In support of its motion, FCS attached a “Letter of Verification of Incarceration,” from the Orleans Parish Sheriffs Office, dated August 14, 2013, which states that Mr. Jones “was incarcerated from July 9, 2013 through July 9, 2013.” Under FCS’s interpretation of the statute, because Mr, Jones was incarcerated “by the officer originally charged with his detention” for this one day, albeit “within the time allowed by law for setting aside a judgment for forfeiture,” it was entitled to be fully discharged from its obligations under the bond within the meaning of Article 345 B.

¶16Because Article 345 B provides that “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,” a surety must meet the provisions of paragraphs C and D in order to be relieved of its obligations. Paragraph C pertains to fees that must be paid “to the officer charged with the defendant’s detention for recalling the capias” and for the issuance of “a letter of verification of incarceration” when the surety receives “either a certificate of surrender” as per paragraph A or “a letter of verification as provided for in Paragraph B.” Paragraph D states that “[i]f during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied” if certain conditions are met, one of which is that “[t]he sureties of the defendant provide the court adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration.” La.C.Cr.P. art. 345 D.

¶17While Article 345 D addresses a defendant’s subsequent incarceration in “another parish ... or foreign jurisdiction,” it does not clearly set forth the procedure to be followed in setting aside a bond forfeiture when a defendant is subsequently “incarcerated by the officer originally charged with his detention” within the -one hundred eighty days. However, Paragraph B plainly states that “[i]f the defendant is incarcerated by the officer originally charged with his detention,” the surety “may apply for and receive from any officer in charge of any facility in the state of Louisiana or a foreign jurisdiction charged with the detention of the defendant a letter verifying that the defendant is incarcerated.” La.C.Cr.P. art. 345 B. (Emphasis added). Clearly, the present tense wording of these provisions indicates that continual incarceration is contemplated by the statute. It requires that a defendant be incarcerated and that the letter of verification demonstrate that the defendant is incarcerated at that time. This interpretation also is in keeping with our jurisprudence, which has interpreted Article 345 to “appl[y] to circumstances in which a defendant who fails to make a court appearance cannot be surrendered by the surety because the defendant has been subsequently incarcerated and is still in jail.” State v. Ramee, 05-748, p. 4 (La.App. 5 Cir. 5/9/06), 930 So.2d 1092, 1095.

¶18FCS argues that La. R.S.15:83 B indicates that a surety assumes only “those risks that are reasonably foreseeable.” The statute actually states that a surety, “when entering into a criminal bail bond obligation, must consider the risks of his undertaking and assume those risks reasonably foreseeable.” La. R.S. 15:83 B. The statute then provides, in pertinent part:

C. (1) The surety is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible. A surety is, however, liable for his failure to perform when he has assumed the risk of such a fortuitous event.

*955(2) A fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen by the surety.

¶19La. R.S. 15:83 C. As an example, this Court found a defendant’s failure to appear in court because he was in federal protective custody and working with the federal government on a case to be a fortuitous event warranting performance on a bond impossible. See, State v. Allen, 11-0693 (La.App. 4 Cir. 8/8/12), 98 So.3d 926. In State v. De La Rosa, 43,696, p. 6 (La.App. 2 Cir. 10/22/08), 997 So.2d 165, 169, on the other hand, the risk that an alien defendant would flee to his native country and fail to make a court appearance was held to be an obvious and foreseeable risk “involved in a bail bond obligation” and this did not meet the definition of a fortuitous event. The De La RosaCourt also recognized that the “[d]isplacement of criminal defendants by a catastrophic natural disaster would not be the type' of risk reasonably contemplated in the ordinary bail bond obligation.” Id.

¶20We do not believe that the risk that a defendant may be arrested on other charges after the entry of a bond forfeiture, and not be held in custody by the arresting official (even when an alias capi-as has been issued without bond), is the kind of fortuitous event that would absolve a surety from liability under a bond.

¶21Accordingly, we find that, under the circumstances of this case, the trial court correctly denied FCS’s Motion to Set Aside Bond Forfeiture,

¶22CONCLUSION

¶23For the foregoing reasons, the judgment of the trial court is affirmed.

¶24AFFIRMED

¶25LOVE, J., dissents and assigns reasons.

¶26LOBRANO, J., dissents and assigns reasons.

¶27JENKINS, J., concurs in the result.

¶34dissents and assigns reasons.

¶35I respectfully dissent. I would vacate the district court’s judgment denying the motion to set aside the judgment of bond forfeiture filed by Financial Casualty & Surety (“FCS”). Considering the failure of the Orleans Parish Sheriffs Office (“OPSO”) to perform its statutorily mandated duty of executing the outstanding alias capias against Ladareus J. Jones (“Defendant”) while Defendant was in its custody, I would remand this case to the district court for -a hearing to determine whether OPSO’s failure to execute the alias capias modified the principal obligation under the surety contract such as to effect a release of FCS pursuant to “the laws applicable to civil contracts.”1

¶36I am compelled to dissent to address the effects that OPSO’s failure to execute the outstanding alias capias may have had on the surety contract itself given that: (1) FCS would have been relieved of liability *956had the alias capias been executed;2 (2) OPSO gains a financial benefit in the event of a bond forfeiture;3 and (3) OPSO’s failure to execute the outstanding alias capias contributed to the bond being forfeited. Specifically considering the circumstance where Defendant was in OPSO custody while OPSO had a duty to execute an outstanding alias capias4and OPSO failed that duty by not executing the alias capias, it is necessary to address how OPSO’s actions, taken on behalf of the State of Louisiana, may have modified the principal obligation that the bond serves to secure — the Defendant’s appearance.

¶37First, it is essential to clarify a surety’s obligations under La.C.Cr.P. art. 345. Part (B) of that statute states that a surety “may apply for and receive” a “letter verifying that the defendant is incarcerated” if the defendant “is incarcerated by the officer originally charged with his detention” at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture. Statutes are to be applied in a manner that is logical and consistent with their presumed purpose. State v. Nelson, 2012-1429, p. 4 (La.App. 4 Cir. 9/4/13), 124 So.3d 1115, 1118. The Legislature’s use of the phrase “verifying that the defendant is incarcerated” logically means that the law enforcement agency is to certify that the defendant is in fact incarcerated upon the surety’s request for such verification. This verification, upon proper presentation by the surety to the district court, releases the surety from its obligations under the bond contract. La.C.Cr.P. art. 345(F).

¶38In its appellee brief, the State argues that a defendant must be “incarcerated when the letter of incarceration is obtained and presented.” (emphasis added). While La.C.Cr.P. art. 345(B) does make it clear that the letter must be applied for during the defendant’s incarceration, Part (F) does not have the same requirement that the surety “present” contemporaneously with “incarceration” that Part (B) does when requiring that the surety “apply for” a letter “verifying that the defendant is incarcerated.” Instead, Part (F) requires that the court “shall, upon presentation of *957the ... letter of verification of incarcera: tion, order that the surety be exonerated from liability on his bail undertaking and shall order any judgment of forfeiture set aside.” When read together, these two parts of the statute give the order in which the surety is to operate when requesting that a judgment of bond forfeiture be set aside. First, while the defendant is incarcerated) the surety must apply for its letter of verification of incarceration. Then, after it has received the letter of verification of incarceration, the surety has the right to present the letter to the court in order to be exonerated from liability within the time limits set for setting aside a judgment of bond forfeiture, regardless of whether the defendant is still incarcerated or not. Therefore, the surety must request the letter of verification of incarceration while the defendant is incarcerated.5

¶39To read the statute otherwise is reductio ad absurdum. See, e.g., Fullilove v. U.S. Cas. Co. of N. Y., 240 La. 859, 886, 125 So.2d 389, 399 (1960) (refusing to construct language in a manner that produces an absurd result). If the surety had the authority to apply for the verification of incarceration letter after the defendant’s incarceration ended, OPSO would be asked to verify that they have custody of someone who is not under their control at the time of the request. Further, if the surety could not present the letter after receipt at any time within his statutorily allowed set aside delays, OPSO could prevent him from exercising his right to a set aside by refusing to issue the letter until after the defendant is released from custody. The idea that the Legislature intended either stakeholder to be able to manipulate.the rights of the other to such a. degree is an absurd result. Id.

¶40When taken as a whole, the reasonable interpretation of La.C.Cr.P. art. 345 is that verification of incarceration letters must be requested during incarceration, so as to allow law enforcement officials to verify facts that are indeed true, and that sureties may present their verification of incarceration letters during their statutorily allowed delays, regardless of the incarceration status of the defendant. Here, FCS admits it did not obtain a letter of verification of incarceration while the defendant was incarcerated. However, for reasons discussed in greater detail below, due to the actions of the principal obligor to the surety contract, the laws of surety-ship may allow for FCS to be released from its obligation.

¶41One who posts an appearance bond6 enters into a suretyship agreement with the surety for the benefit of the creditor, the State of Louisiana, which is considered a civil contract. State v. Berry, 29,359, p. 5 (La.App. 2 Cir. 4/2/97), 691 So.2d 375, 378. See also State v. Bailey, 567 So.2d 721, 724 (La.App. 2 Cir.1990) (citing State v. Shief, 534 So.2d 513 (La.App. 5 Cir. 1988), and Cormier v. Vidrine, 491 So.2d 397 (La.App. 3 Cir.1986)). “As criminal bail bonds are contractual and civil in nature, their creation and enforcement are governed by both the laws applicable to civil contracts and by the laws set forth in the statutes and code..articles governing *958criminal procedure.”. La. R.S. 15:83. Although procedural and jurisdictional authority for the forfeiture of such a bond vests with the criminal ■ court, the obligation of the surety, being civil in nature, is enforced in civil proceedings. State v. Bailey, 567 So.2d at 724. Given that the bond is a suretyship contract subject to the rules of the Civil Code, it must be analyzed as such.

¶42Suretyship is “an accessory contract by which a person binds himself to fulfill the obligation of another upon the failure of the latter to do so.” La. C.C. art. 3035. In a commercial bond agreement, the principal obligation is. the defendant’s appearance at all stages of the proceedings against him. The creditor of that obligation is the State of Louisiana7 which acts through the district court to require security, called bail. La. C.C. art. 326 (referring to the security required as the “bail undertaking” and the contract securing that undertaking as a “bond.”) The defendant enters' into the accessory contract of suretyship, called a bond, with the surety, in order to provide the State of Louisiana with the required security. Id.Actions by the creditor that modify the principal obligation result in the release of the surety to the extent that the surety is prejudiced by those actions. La; C.C. art. 3062.

¶43While FCS as the surety did not request the letter of verification while Defendant was incarcerated as required by statute, FCS’s ability to make that request was limited by OPSO’s failure to hold Defendant without bond as required by the outstanding alias capias as ordered by the district court. This release may have modified the principal obligation of the surety since when it-was within the creditor’s control to secure performance of the principal obligation-appearance of Defendant-the creditor prevented performance by not holding Defendant to make the required appearance.8 Given the actions of OPSO, a hearing to review the totality of the circumstances with respect to the actions of all parties to the surety contract is necessary to determine whether FCS was prejudiced. If it were determined that the State of Louisiana modified the principal obligation in a way that prejudiced FCS such that FCS should be released from its obligation, the bond forfeiture judgment should be set aside.

¶44■ Lastly, as Judge Love addresses in her dissent, an argument can be made that OPSO’s actions constitute a “fortuitous event” that would provide for the release *959of FCS. La. R.S. 15:83(0(2) defines fortuitous event as “one that, at the time the contract was made, could not have been reasonably foreseen by the surety.”9 Because in this case a party to the surety contract took an action to prevent performance; it is not necessary to determine whether that action is reasonably foreseeable in that an analysis under the laws of suretyship is appropriate in this case.

¶45I respectfully dissent.