Palmetto Surety Corporation v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
PALMETTO SURETY CORPORATION, )
)
Appellant, )
)
v. ) Case No. 2D13-6095
)
STATE OF FLORIDA & PAULA S. )
O'NEIL, PASCO COUNTY CLERK )
OF COURT, )
)
Appellees. )
___________________________________ )
Opinion filed October 8, 2014.
Appeal from the Circuit Court for Pasco
County; William R. Webb, Judge.
Lisa H. Colón of Law Office of Lisa H. Colón,
P.A., Miami; and Bruce S. Reich of Bruce S.
Reich, P.A., Miami Beach, for Appellant.
Clint Edge Roberson of McClain, Alfonso &
Meeker, P.A., Dade City, for Appellees.
LaROSE, Judge.
Palmetto Surety Corporation appeals the trial court's final order denying its
application for remission of bond estreature. See §§ 903.26, .28, Fla. Stat. (2013). We
have jurisdiction, see Fla. R. App. P. 9.030(b)(1)(A), and affirm.
Palmetto posted a $10,000 appearance bond for a defendant held for
felony petit theft. The defendant failed to appear in court as required. An arrest warrant
issued and the bond estreated. Several days later, the Clerk timely issued a certificate
of bond forfeiture. § 903.26(2)(a), Fla. Stat. On the day that the Clerk issued the notice
of forfeiture to Palmetto, the defendant's dead body was found in Marion County.
Palmetto moved to set aside the forfeiture pursuant to section 903.28(2),
contending that it had maintained routine and repeated supervisory contacts with the
defendant and his family members to ensure the defendant's court appearance.
Palmetto also asserted that it diligently sought the defendant's location and, on the
same date as the notice of forfeiture issued, learned the defendant was dead.
The Clerk opposed Palmetto's motion, relying on State v. Sunshine State
Bail Bonds, Inc., 967 So. 2d 1084 (Fla. 2d DCA 2007) (holding that surety was not
entitled to remission or excused of its obligation to take precautionary action to prevent
defendant from leaving jurisdiction; doctrine of impossibility of performance did not
apply to the circumstances presented), and State ex rel. Gardner v. Allstar Bail Bonds,
983 So. 2d 1218 (Fla. 5th DCA 2008) (holding that doctrine of impossibility of
performance did not apply so as to entitle surety to partial remission of forfeited bond).
The trial court agreed with the Clerk.
In pertinent part, section 903.28(2) states that:
(2) If the defendant surrenders or is apprehended within 90
days after forfeiture, the court, on motion at a hearing upon
notice having been given to the clerk of the circuit court and
the state attorney as required in subsection (8), shall direct
remission of up to, but not more than, 100 percent of a
forfeiture if the surety apprehended and surrendered the
defendant or if the apprehension or surrender of the
defendant was substantially procured or caused by the
surety, or the surety has substantially attempted to procure
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or cause the apprehension or surrender of the defendant,
and the delay has not thwarted the proper prosecution of the
defendant.
We review the trial court's order for an abuse of discretion. See Accredited Sur. & Cas.
Co., Inc. v. Putnam Cnty, Fla., 528 So. 2d 430, 431 (Fla. 5th DCA 1988).
Palmetto contended that it substantially attempted to procure or cause the
apprehension or surrender of the defendant. See Cont'l. Heritage Ins. Co. v. Orange
Cnty., 798 So. 2d 837 (Fla. 5th DCA 2001) (holding that substantial attempts by surety
may entitle it to remission of bond forfeiture); Cnty. Bonding Agency v. State, 724 So. 2d
131 (Fla. 3d DCA 1998) (same). In the trial court, Palmetto argued that "based upon
the death of this defendant on the very date of notice of forfeiture, as well as based
upon the surety's pre-trial as well as post capias/pre-forfeiture mailing efforts to effect
the defendant's apprehension and surrender, that remission of forfeiture is merited."
The Clerk opines that the surety must show surrender or apprehension as
a predicate to remission of bond estreature. We have no occasion to address that
issue. At the hearing before the trial court, Palmetto relied upon a single general
affidavit attached to its motion, made by one of the guarantors, and argument of
counsel. This was insufficient to show reversible error on appeal. See § 903.28(8).
The affidavit is woefully deficient in relevant facts showing entitlement to
remission. Section 903.28(8) requires that:
An application for remission must be accompanied by
affidavits setting forth the facts on which it is founded;
however, the surety must establish by further documentation
or other evidence any claimed attempt at procuring or
causing the apprehension or surrender of the defendant
before the court may order remission based upon an attempt
to procure or cause such apprehension or surrender.
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Palmetto failed to recite, by affidavit or actual evidence, what specific efforts it made to
show that it substantially attempted to procure the return of the defendant. See
Accredited Sur. & Cas. Co., Fla., 528 So. 2d at 431. Accordingly, we find no abuse of
discretion in the trial court's denial of Palmetto's motion.
Affirmed.
NORTHCUTT, J., and HIRSCH, MILTON, ASSOCIATE JUDGE, Concur.
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