State v. Fonville

325 S.E.2d 258 (1985)

STATE of North Carolina, Plaintiff,
v.
Leamon N. FONVILLE, Defendant,
Frank Moseley, Surety.

No. 848SC420.

Court of Appeals of North Carolina.

February 5, 1985.

Harvey W. Marcus, Kinston, for appellant Lenoir County Bd. of Educ.

Robert B. Hulbert, Jr., Asst. Dist. Atty., Snow Hill, for State.

Joretta Durant, Kinston, for petitioner-appellee.

WEBB, Judge.

G.S. 15A-544(e) and (h) provide for the remission of bond forfeitures. Subsection (e) provides that the Court may order a remission within 90 days of the entry of judgment or on the first day of the next session of court commencing more than 90 days after the entry of judgment if it appears that justice requires the remission. The petition for remission in this case was not filed within this time period. G.S. 15A-544(e) does not apply in this case.

G.S. 15A-544(h) provides that for "extraordinary cause shown, the court which has entered judgment may ... remit the judgment in whole or in part." The question posed by this appeal is whether the petitioner has shown "extraordinary cause" which allows the Court to remit the bond forfeiture. In State v. Locklear, 42 N.C.App. 486, 256 S.E.2d 830, appeal dismissed, 298 N.C. 302, 259 S.E.2d 303 (1979), the Superior Court found extraordinary cause when the evidence showed the bondsman had made several trips of 20 miles or less as well as several telephone calls in an effort to locate the defendant. He found the defendant who was in jail on a different charge in another county and notified the sheriff of the county in which he had signed the bond who returned the defendant for trial. In affirming the order for remitting a part of the bond this Court said:

The efforts of the bondsman, while not dramatic, did result in the principal's detention on the charge for which the bond had secured the principal's appearance. The goal of the bonding system is the production of the defendant, not increased revenues for the county school fund ... [citation omitted] and in this case the surety's efforts led directly to achieving that goal.

The efforts of the petitioner in this case were not dramatic, but they led to the defendant's appearance in court. Petitioner was not a professional bondsman; he apparently signed the bond for the defendant because he was his friend; he received no payment for signing the bond; and he possessed very limited assets. In light of all these circumstances we cannot say the Court erred in concluding that petitioner showed extraordinary cause pursuant to G.S. 15A-544(h) for remission of the forfeiture judgment.

The appellants contend that the Court made irrelevant findings of fact. This does not constitute reversible error so long as other findings of fact support the order. See Brown v. Hurley, 243 N.C. 138, 90 S.E.2d 324 (1955). We have held that there are sufficient findings of fact to support the order.

The appellants also contend that there was not sufficient evidence to support the findings of fact that the petitioner procured the appearance of the defendant in court and the surety's sole asset is the house in which he resides.

There was testimony that Mr. Moseley got in touch with the defendant after the defendant failed to appear, that he picked the defendant up and carried the defendant to court the day he paid his fine. This supports the finding of fact that the surety procured the appearance of the defendant in court.

There was evidence in the form of the tax listing which showed the surety owned one house and lot in Lenoir County. There was no evidence that he owned any other property. This evidence supports the Court's finding of fact that the surety's sole asset is the house in which he resides.

Affirmed.

EAGLES and COZORT, JJ., concur.