In re Jenkins Bonding Company ( 2016 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    March 8, 2016 Session
    IN RE: JENKINS BONDING COMPANY
    Appeal from the Criminal Court for Davidson County
    No. 2014-A-756    Steve R. Dozier, Judge
    No. M2015-00868-CCA-R3-CD – Filed May 27, 2016
    The Appellant, Jenkins Bonding Company, appeals the Davidson County Criminal
    Court‟s judgment of final forfeiture of bail bonds. The Appellant argues that its
    obligation to secure the appearance of a defendant had been released; therefore, the trial
    court erred in issuing a judgment of final forfeiture. Upon review, we reverse the
    judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed,
    Vacated and Dismissed
    CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
    WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.
    Joel H. Moseley, Sr., Murfreesboro, Tennessee, for the Appellant, Jenkins Bonding
    Company.
    Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
    Glenn R. Funk, District Attorney General; and Tammy H. Meade, Assistant District
    Attorney General, for the Appellee, State of Tennessee.
    OPINION
    The record reflects that on November 2, 2012, the defendant, Ervin Sweat, Jr., was
    indicted in case number 2012-D-3012 for four counts of possession of a controlled
    substance with the intent to sell and one count of possession of a firearm during the
    commission of a dangerous felony. After several motions, the trial court reduced the
    defendant‟s bond to $75,000. On February 14, 2014, he was released on bond, and the
    Appellant, Jenkins Bonding Company, was the named surety. On February 14, 2014, the
    same day the defendant was released on bond, the trial court granted the State‟s motion to
    dismiss the charges against the defendant.
    On March 21, 2014, a subsequent indictment, case number 2014-A-756, was
    issued against the defendant. This indictment charged the defendant with two counts of
    possession of a controlled substance, fourth offense, one count of possession of a
    controlled substance with the intent to sell in a school zone, and one count of possession
    of a firearm during the commission of a dangerous felony. According to the order of
    final forfeiture issued by the trial court, the defendant appeared at an April 11, 2014
    arraignment, as well as subsequent status hearings for the new indictment. Mr. Jenkins,
    the owner/agent of the Appellant, testified that his company notified the defendant to
    appear at status hearings on the new indictment. A notation at the bottom of the bond
    application also listed the April 11, 2014 arraignment date for the new indictment.
    Nevertheless, the defendant failed to appear at a June 20, 2014 court date, and on June
    20, 2014, the trial court entered a conditional judgment of forfeiture against the Appellant
    for $75,000. On September 9, 2014, the Appellant filed a motion to have the judgment of
    conditional forfeiture set aside, asserting that it was not obligated to secure the
    defendant‟s appearance in the new indictment. On February 10, 2015, the trial court
    denied the Appellant‟s motion and issued a judgment of final forfeiture. It is from this
    judgment that the Appellant now timely appeals.
    ANALYSIS
    On appeal, the Appellant argues that the trial court was not authorized to enter a
    judgment of forfeiture because its obligation to secure the defendant‟s appearance was
    discharged on February 14, 2014, upon the dismissal of the indictment in case 2012-D-
    3012. The State counters that the trial court properly determined that the Appellant was
    not released of its obligation to secure the defendant because the dismissed indictment
    was superseded by indictment 2012-A-756. The State further argues that the Appellant
    has waived this issue because it is raising it for the first time on appeal. We agree with
    the Appellant.
    The trial court‟s authority to relieve a surety of liability and grant exoneration of a
    bond is discretionary. T.C.A. § 40-11-203(b); see also State v. William Bret Robinson,
    No. E1999-00950-CCA-R3-CD, 
    2000 WL 1211316
    , at *3 (Tenn. Crim. App. Aug. 28,
    2000) (“Determinations concerning the exoneration of bond forfeitures fall within the
    discretion of the trial court.” (citing State v. Gann, 
    51 S.W.2d 490
    , 490 (Tenn. 1932))).
    “[I]n reviewing the trial court‟s determination[,] . . . we apply an [abuse of discretion]
    standard.” In re Paul‟s Bonding Co., 
    62 S.W.3d 187
    , 194 (Tenn. Crim. App. 2001),
    perm. app. denied (Tenn. Sept. 17, 2001). “Under an [abuse of discretion] standard, this
    court grants the trial court the benefit of its decision unless the trial court „applied an
    incorrect legal standard, or reached a decision which is against logic or reasoning that
    caused an injustice to the party complaining.‟” 
    Id. (quoting State
    v. Shuck, 
    953 S.W.2d 662
    , 669 (Tenn. 1997)).
    -2-
    The statutory provision governing the release of a bondsman‟s obligation is
    provided by Tennessee Code Annotated section 40-11-138(b), which provides that a bail
    bondsman shall be released of its obligation under a bail bond “upon the disposition of
    the charge against the surety‟s principal. A disposition shall include, but shall not be
    necessarily limited to, conviction, acquittal, plea of guilty, [or] agreement with the state.”
    See T.C.A. § 40-11-138(b); see also State v. Davis, 
    173 S.W.3d 411
    , 414-16 (Tenn.
    2005) (holding that a bail bondsman was released from its obligation upon disposition of
    the criminal defendant‟s case).
    The State relies on State v. Adkisson, 
    899 S.W.2d 626
    , 634 (Tenn. Crim. App.
    1994), in its assertion that the Appellant has waived this issue. While this court has
    stated that “a party cannot assert a new or different theory to support the objection . . . in
    the appellant court[,]” the Appellant clearly asserted this issue in its motion to set aside
    the judgment of conditional forfeiture. Specifically, the Appellant argued that it was not
    obligated to secure the defendant‟s appearance in the new indictment because its
    obligation was released when indictment 2012-A-3012 was dismissed. Although the
    Appellant stated an incorrect dismissal date of April 11, 2014, in its motion to the trial
    court, the theory for relief is the same theory the Appellant now asserts on appeal. This
    issue is not waived.
    We conclude that the trial court abused its discretion in entering a judgment of
    final forfeiture against the Appellant. The trial court issued an order of final forfeiture
    against the Appellant based upon its determination that the indictment in case number
    2014-D-756 was a superseding indictment. The Tennessee Supreme Court has
    recognized that “[t]he power to seek a superseding indictment lies within the broad
    discretion of the state.” State v. Harris, 
    33 S.W.3d 767
    , 771 (Tenn. 2000). “A
    superseding indictment is an indictment obtained without the dismissal of a prior
    indictment.” 
    Id. In its
    order, the trial court determined that the indictment in case 2014-
    D-756 was issued against the defendant while the initial indictment was still pending.
    The trial court‟s determination is not supported by the record. The record is clear that the
    new indictment was issued more than four weeks after the trial court dismissed the initial
    indictment on February 14, 2014. Accordingly, case number 2014-D-756 was not a
    superseding indictment. The charges against the defendant for which the Appellant was
    obligated were disposed of on February 14, 2014. Pursuant to Tennessee Code
    Annotated section 40-11-138(b), the Appellant‟s obligation to secure the defendant‟s
    appearance was released. Having reached our decision on this basis, we want to make
    clear that we do not hold that a surety is automatically released from its obligations
    whenever a superseding indictment is filed, an issue raised in the trial court, but not
    properly argued by Jenkins Bonding Company in its appellate arguments.
    -3-
    CONCLUSION
    Upon review, we reverse the judgment of the trial court.
    _________________________________
    CAMILLE R. McMULLEN, JUDGE
    -4-
    

Document Info

Docket Number: M2015-00868-CCA-R3-CD

Judges: Judge Camille R. McMullen

Filed Date: 5/27/2016

Precedential Status: Precedential

Modified Date: 5/27/2016