State v. Roger Martin ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
FILED
July 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9710-CR-00402
Appellee, )
) Shelby County
V. )
) Honorable Carolyn Wade Blackett, Judge
)
ROGER MARTIN/ ) (Petition for Exoneration of Surety)
LIBERTY BAIL BOND COMPANY, )
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Michael J. Gatlin John Knox Walkup
Attorney at Law Attorney General & Reporter
P.O. Box 27331
Memphis, TN 38167-0331 Elizabeth T. Ryan
Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
James J. Challen, III
Assistant District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Liberty Bail Bond Company (“Liberty”) was the surety on a $750.00
appearance bond for Roger Martin in Bartlett City Court. Martin failed to appear
at a scheduled court date. Liberty Bail Bond filed a petition for exoneration of
surety in the Shelby County Criminal Court. After a hearing, the court denied the
motion. Liberty appeals. The sole issue for our review is whether the trial court
abused its discretion in denying the petition. The judgment of the trial court is
affirmed.
The bookkeeper for Liberty, Martee Arredondo, was the only witness to
testify at the hearing on the appellant’s petition. She testified that Liberty “made”
an appearance bond for Roger Martin in the amount of $750.00. Martin failed to
appear. On September 5, 1995, Liberty received a forfeiture from the Bartlett
City Court. A bounty hunter paid by Liberty found Martin. He was rearrested
and tendered back to the Bartlett City Court. It appears from the record that the
judge reinstated Martin’s bond.
Later, Liberty received another forfeiture on Martin’s bond for failure to
appear. Liberty again rearrested Martin and tendered him to the court.
Apparently, the judge again reinstated Martin’s bond. Then, Liberty received a
third forfeiture notice on Martin in reference to the same bond. Liberty was
unable to locate Martin. As a result, Liberty received a demand for payment
from the City of Bartlett. Apparently, Liberty filed a petition for exoneration in the
Bartlett City Court. The trial court denied the petition. Liberty appealed to the
Shelby County Criminal Court. The court denied the petition.
The forfeiture of bail is governed by statute. Tenn. Code Ann.
§§ 40-11-201 through -215. When the defendant fails to
appear as required, the issuance of a scire facias requires
sureties to give reasons why a forfeiture of bail should not
become final. Tenn.Code Ann. § 40-11-202. Trial courts have
the discretion to relieve bail bondsmen or other sureties from
the liability of bail and are authorized to hold hearings to
determine whether the forfeiture should be excused, lessened,
or absolutely remitted. Tenn.Code Ann. § 40-11-204. The
discretion has been described as broad and comprehensive,
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empowering trial courts to make determinations ‘in accordance
with [its] conception of justice and right.’ Black v. State, 154
Tenn. 88, 92, 290 S.W. 20, 21 (1927).
The statute is permissive and extends no particular rights upon
the sureties. Diehl v. Knight, 158 Tenn. 246, 12 S.W.2d 717(1929). The authority to relieve sureties from liability may only
be exercised in extreme cases, such as the death of the
defendant or some other condition making it impossible for
sureties to surrender the defendant; the good faith effort made
by the sureties or the amounts of their expense are not
excuses. State v. Frankgos, 114 Tenn. 76, 85 S.W. 79 (1904);
State v. LeQuire, 672 S.W.2d 221 (Tenn. Crim. App.1984).
[T]he power to excuse a forfeiture only results on account of
death ‘or some other condition of affairs, if any can exist, which
make it equally impossible ... to surrender [the defendant].’
Frankgos, 114 Tenn. at 82, 85 S.W. at 80-81.
State v. Shredeh, 909 S.W.2d 833, 836 (Tenn. Crim. App. 1995).
In Shredeh, the defendant fled to Jordan. The United States did not have
an extradition treaty with Jordan. Finding that the bonding companies knew that
the defendant was not a United States citizen, the court granted exoneration
from only a portion of the total forfeiture. Id.The policy behind only granting relief in extreme cases was stated in
Frankgos:
The sureties knowingly and absolutely contract that their
principal shall be present at the time in the obligation stated, to
answer the state upon the charge preferred against him; and
if they fail to do so, they must comply with the terms of the
bond or recognizance. A wise and sound public policy requires
a rigid enforcement of the bonds when breached.
... To relieve sureties upon the grounds here asked would
encourage defendants to forfeit their bail, and bring about a
very lax administration of the criminal laws of the state.
85 S.W. at 81; see State v. LeQuire, 672 S.W.2d 221, 222 (Tenn. Crim. App.
1984).
In denying the petition, the trial court found that there was not enough
evidence in the record to grant the petition. The court noted that there was
nothing in the record to explain why the city court continued to let Martin out on
bond despite his failure to appear on two occasions. Liberty argued that it was
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not their responsibility to subpoena a representative of the Bartlett City Court.
Liberty argued that the court should grant its petition because despite notice, the
city court failed to appear at the hearing before the circuit court. The bonding
company has the burden of proving that its petition for exoneration should be
granted. To make the record clearer, Liberty should have presented evidence to
explain why the city judge released Martin after his two failures to appear.
Liberty cites Blankenship v. State, 443 S.W.2d 442 (Tenn. 1969) in support of its
petition. We read Blankenship to support exoneration when a defendant is in
custody at the time that he or she is scheduled to appear. Although Liberty
rearrested Martin twice, he was not in custody at the time of his third failure to
appear. Therefore, Blankenship is inapplicable to the facts of the present case.
The trial court’s findings are conclusive for appellate purposes unless the
evidence preponderates otherwise. Shredeh, 909 S.W.2d at 836. The evidence
does not preponderate against the trial court’s findings. We do not understand
why Martin would have been released on bond after failing to appear twice.
Although Liberty has expended time and money securing the presence of Martin
twice, the evidence in the record does not establish that this is an extreme case
as contemplated by the court in Shredeh. Liberty has failed to present a
compelling reason as to why the defendant cannot be found.
The judgment of the trial court is affirmed.
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
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JOHN H. PEAY, Judge
____________________________
THOMAS T. W OODALL, Judge
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