Opinion
No. 2015–KA–1232.
08-17-2016
STATE of Louisiana v. Ladareus J. JONES.
Leon A. Cannizzaro, Jr., District Attorney, Edward McAuliffe, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana. Michelle H. Hesni, Ehle & Hesni, Inc., Gretna, LA, for Defendant/Appellant.
Leon A. Cannizzaro, Jr., District Attorney, Edward McAuliffe, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
Michelle H. Hesni, Ehle & Hesni, Inc., Gretna, LA, for Defendant/Appellant.
(Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge MADELEINE LANDRIEU, Judge JOY COSSICH LOBRANO, Judge SANDRA C. JENKINS ).
DANIEL L. DYSART, Judge.
Financial 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.
FACTS AND PROCEDURAL HISTORY
According 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.
Mr. 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. The matter was then continued without date. Notice of the bond forfeiture was mailed to FCS and Mr. Jones on May 30, 2013.
In addition to the sum of $22,500, the judgment also ordered Mr. Jones and FCS to pay legal interest, reasonable attorney's fees in the amount of 25% of the bond and various other charges and costs.
On 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 the trial court. See State v. Jones, 14–1259 (La.App. 4 Cir. 5/27/15), 171 So.3d 1020.
The record does not indicate what occurred regarding the bonds after the matter was remanded, but only pertains to Mr. Jones, himself. However, the record now contains 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.
At an arraignment on March 5, 2015, Mr. Jones pled guilty to both counts and was sentenced on the first count to 30 months at hard labor at the Department of Corrections, and on the second count, to 6 months at Orleans Parish Prison. After a multiple bill was filed by the State, the sentences were vacated, and Mr. Jones was sentenced as a multiple offender to 30 months at hard labor with the Department of Corrections, with credit for time served.
The Order of Appeal references transcripts from a hearing on October 21, 2014 and a December 9, 2014 hearing on a Motion for New Trial. Neither of these transcripts are part of the record, and there is no indication in the record that hearings were held on either of these days.
DISCUSSION
We note, at the outset, that “[b]ond forfeitures are not favored in 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 in 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. 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.
Mr. Jones was arrested on July 9, 2013, for driving while intoxicated and came before the Traffic Court of New Orleans, where bail was set at $6,500. Mr. Jones obtained a surety bond from Accredited Surety and Casualty Company, Inc., and that bond, too, was forfeited by a judgment dated August 13, 2013, and an alias capias was issued by the Traffic Court for Mr. Jones' arrest with bail set at $10,000.
As 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.
There 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 Sheriff's 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.”
The 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 time 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.
There is no question in this case 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 F 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.
Paragraph F states: “When 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.
Paragraph F states: “When 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.
La.C.Cr.P. art. 345 B. (Emphasis added).
The 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 ify 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. 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.
La.C.Cr.P. art. 349.9 provides certain circumstances in which no judgment of forfeiture shall be entered (e.g., where a defendant has a physical disability, illness or injury), none of which apply to this matter.
In this matter, FCS sought to set aside 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.In support of its motion, FCS attached a “Letter of Verification of Incarceration,” from the Orleans Parish Sheriff's 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.
Because 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.
While 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.
FCS 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.
(2) A fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen by the surety.
La. 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 Rosa Court 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.
We 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 capias has been issued without bond), is the kind of fortuitous event that would absolve a surety from liability under a bond.
Accordingly, we find that, under the circumstances of this case, the trial court correctly denied FCS's Motion to Set Aside Bond Forfeiture.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED
LOVE, J., dissents and assigns reasons.
LOBRANO, J., dissents and assigns reasons.
JENKINS, J., concurs in the result.
LOBRANO, J., dissents and assigns reasons.
I 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 Sheriff's 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.”
La. R.S. 15:83(A). Although this issue was not directly briefed by the parties, under Uniform Rules, Courts of Appeal, Rule 1–3, the interest of justice clearly requires consideration of this issue. See also La. C.C.P. art. 2164 (stating that the “appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” Revision comment (A) (1960) states that “The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.”). State v. Lexington Nat. Ins. Corp., 2013–1134, p. 4 (La.App. 3 Cir. 3/5/14), 134 So.3d 230, 233 (addressing, in a case about bond contracts, a non-dispositive issue in order to clarify why certain arguments were improper applications of the law).
Paragraph B states, “[i]f the 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 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).
I 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 had the alias capias been executed; (2) OPSO gains a financial benefit in the event of a bond forfeiture; 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 capias and 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.
La.C.Cr.P. art. 349.8, which has been cited by both parties, states in relevant part, “For bonds that have a face value under fifty thousand dollars, a judgment forfeiting the appearance bond shall at any time, within one hundred eighty days after the date of mailing the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender of the defendant or the appearance of the defendant.” At the hearing on the motion to set aside the judgment of bond forfeiture, Judge Herman explained that a defendant for whom an alias capias has been issued must appear before the judge who issued it when it is executed. A remand in this case would allow for the district court to determine why this procedure was not followed by OPSO and whether FCS was prejudiced by OPSO's actions.
Paragraph B's corollary, La.C.Cr.P. art. 345(D), uses past and present tense when referring to the defendant's incarceration, appearing to support FCS's interpretation.
Under La. R.S. 13:1381.2, which establishes the Sheriff's Fee Fund, costs not more than twenty-five dollars are assessed against the surety every time a bond is forfeited in Orleans Parish, which are distributed to this fund. The Sheriff's Fee Fund is administered solely by the Sheriff of Orleans Parish. Further, under La. R.S. § 13:1377, which establishes the Criminal Court Cost Fund, twenty-five dollars is paid by the surety to the fund each time a bond is forfeited, which is distributed amongst the offices of “various officials and agencies which maintain offices in said building.” OPSO, as an agency maintaining an office in the Criminal District Court of Orleans Parish, is eligible to receive disbursements from this fund. Lastly, under La. R.S. 13:1381.5, OPSO receives twenty percent of all criminal bail bonds licensing fees in Orleans Parish.
Black's Law Dictionary defines a “fortuitous event” as “[a] happening that, because it occurs only by chance or accident, the parties could not reasonably have foreseen.” (emphasis added).
“Each sheriff or deputy ... shall execute all writs, orders, and processes of the court or judge thereof directed to him.” La. R.S. 13:5539.
First, 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).
In 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 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.” 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.
I would note that the form of the “Letter of Verification of Incarceration” sent by OPSO to FCS in this case appears to be statutorily deficient, as it does not contain the date verification of incarceration was requested. However, this deficiency does not affect the analysis as FCS admits that it did not request the letter during Defendant's incarceration.
To 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.
When 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 suretyship may allow for FCS to be released from its obligation.
One who posts an appearance bond 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 criminal 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.
See, La. R.S. 15:88, stating in relevant part, “[T]he term ‘appearance bond’ shall be taken and intended to mean every bail bond, recognizance, or other obligation, or deposit of cash, checks, negotiable bonds, or money orders, made or taken to secure the appearance of any person before any court....”
Suretyship 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 Louisiana 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.
See La.C.Cr.P. art. 381, stating, “A criminal prosecution is brought in the name of the state in a court of criminal jurisdiction, for the purpose of bringing punishment to one who has violated a criminal law. The person injured by the commission of an offense is not a party to the criminal prosecution, and his rights are not affected thereby.” It is important to note that “state” refers to the state as a complete entity, including all of its component parts and political subdivisions; La.C.Cr.P. art. 934(10), stating, “ ‘State’ includes a city or other political subdivision of the state.” See also La. Const. art. V § 32 (referring to the sheriff's office in Orleans Parish in the section on powers of the judicial branch); La. R.S. 13:5102 (stating that, for the purposes of that title, the term “political subdivision” means “any ... sheriff”); Alvarado v. Poche, 2002–2, p. 2 (La.App. 3 Cir. 6/5/02), 819 So.2d 1150, 1152 (finding that a sheriff's office is a political subdivision).
While 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. 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.
In fact, there is support for the proposition that when law enforcement fails in the performance of its duties a surety may be released built into La.C.Cr.P. art. 345. Part G of that article states that if, after payment of the appropriate fee, the defendant's name is removed from the National Crime Information Center registry (which lists active warrants) “without cause,” during the period provided for surrender of the defendant, the surety is relieved of “all obligations under the bond.”
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 of FCS. La. R.S. 15:83(C)(2) defines fortuitous event as “one that, at the time the contract was made, could not have been reasonably foreseen by the surety.” 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.
As noted by Judge Tobias in dissent in State v. Allen, a “fortuitous event” is defined in the Civil Code as one that makes performance impossible. 2011–0693, p. 2 (La.App. 4 Cir. 8/8/12), 98 So.3d 926, 931, (Tobias, J., dissenting) writ denied, 2012–1995, p. 2 (La.4/1/13), 110 So.3d 138 (citing La. C.C. art. 1873). The definition given in La. R.S. 15:83(C)(2) appears to mean something less arduous than the La. C.C. art. 1873 definition, but neither is specifically applicable to the situation where a party to the surety contract caused the event in question.
I respectfully dissent.
LOVE, J., dissents and assigns reasons.
I respectfully dissent from the majority. For reasons discussed in greater detail below, I find that because the Orleans Parish Sheriff's Office (OPSO), a state actor, failed to perform its mandated duties the State failed to strictly comply with statutory provisions in order to obtain a judgment of bond forfeiture. Additionally, OPSO's error was not reasonably foreseeable as OPSO is required by law to execute a trial court's orders. Thus, I find OPSO's failure to do so constitute a “fortuitous event” pursuant to La.C.Cr.P. art. 345(I) and La. R.S. 15:83(C)(2).
In State v. Kerrison, 97–1759, p. 1 (La.10/17/97), 701 So.2d 1347, 1348, the Louisiana Supreme Court held “that La.C.Cr.P. art. 345 and La. R.S. 15:85 are not two separate and independent provisions regarding the rights of the surety with respect to bond forfeitures. Instead, they must be considered together in the context of each other.” Id. (citing State v. Wheeler, 508 So.2d 1384 (La.1987) ). La. R.S. 15:85 recognizes bond forfeitures; however, they are not favored in Louisiana. Id. (citing State v. Breaux, 94–1562, 94–1553 (La.App. 3 Cir. 5/13/95), 657 So.2d 371 ); Nellon, 12–1429, p. 5, 124 So.3d at 1118. Therefore, “the State must strictly comply with statutory provisions to obtain a judgment of bond forfeiture.” Id.
I disagree with the majority's finding that “FCS does not suggest that ... the State did not comply with the statutory requirements necessary for a judgment of bond forfeiture.” In fact, the basis of FCS' assertions on appeal is that the State, through OPSO's improper actions, failed to comply with the necessary statutory requirements.
FCS sought to set aside the judgment of bond forfeiture based on the provisions of La.C.Cr.P. art. 345. FCS timely filed its motion, attaching an August 14, 2013 letter of verification from OPSO, stating that Mr. Jones “was incarcerated from July 9, 2013 through July 9, 2013.” FCS avers that because Mr. Jones was incarcerated by the officer originally charged with his detention within the time allowed by law for setting aside a judgment for forfeiture, it is entitled to be fully discharged from its obligations under the bond within the meaning of La.C.Cr.P. art. 345(B).
The State contends that this Court need not look any further than the express language of Paragraph B.1 The State asserts that the use of present tense demonstrates the requirement of the defendant's continued incarceration for purposes of surrendering a defendant. Consequently, the State claims that the statute requires that the defendant “be currently incarcerated” and that the letter of verification state that the defendant is “currently being held by the officer originally charged with his detention.”
While the State's interpretation focuses on the use of present tense in La.C.Cr.P. art. 345(B), it overlooks the fact that the legislature included a temporal element as it relates to the defendant's incarceration. The statute requires only that the defendant be incarcerated “at any time” either prior to forfeiture or within the time allowed by law for setting aside the forfeiture.2 Nothing in the statute expressly requires the defendant be presently incarcerated at the time the surety obtains a letter verifying his incarceration. If the legislature so intended, it could have easily included such express language.
Additionally, as a practical matter, the State's interpretation would “require the surety to sit at the jail, checking names of those arrested against the names of those who have failed to appear, and obtain a letter verifying incarceration at that instant moment in time.” Likewise, the surety would have to supervise OPSO's operations to ensure that the state actor did not release a defendant arrested on an alias capias without bond. I find such actions by the surety are not required in order for the surety to be relieved of its obligations on a bond.
Despite the sheriff's error in releasing Mr. Jones in violation of the trial court's order, the State's argument on appeal shirks its obligation to strictly comply with the statutory requirements. Instead, the State argues that, after learning of Mr. Jones' erroneous release, the proverbial buck stopped with FCS, who was required to physically present Mr. Jones to the sheriff for surrender. Any failure to surrender Mr. Jones after he was released within the time allowed for setting aside the forfeiture, the State claims obligates FCS under the bond.
The purpose of criminal bail bonds is to “ensure that the accused will appear at all stages of the proceedings against him.” Nellon, 12–1429, p. 5, 124 So.3d at 1118. In the instance that a defendant fails to appear, “[i]t is axiomatic, that as the time period between entry of the forfeiture and the sending of notice thereof increases, the surety's chances of tracking down the defendant are progressively diminished.” State v. William, 07–648, p. 9 (La.App. 5 Cir. 1/22/08), 977 So.2d 154, 159. Therefore, La. R.S. 15:85 serves to “shield the surety from prejudice brought by the delay in learning of a defendant's failure to appear.” Id., 07–648, p. 6, 977 So.2d 154, 157–58.
Similarly, a review of article 345 in its entirety demonstrates that notice is a necessary component of a defendant's surrender that safeguards the surety and its bond obligation. Just as a surety's chances of tracking down the defendant are significantly diminished when the period between entry of forfeiture and the surety's notification increases, the same is true under the present circumstances. When the officer originally charged with the defendant's detention arrests the defendant pursuant to an alias capias without bond and fails to hold him, “the surety's chances of tracking down the defendant are progressively diminished.” Id., 07–648, p. 9, 977 So.2d at 159. Therefore, I find timely notice of the defendant's re-arrest under La.C.Cr.P. art. 345(B) underscores the purpose of criminal bail bonds and the safeguards of La. R.S.15:85.
Additionally, La. R.S. 13:5539(B) mandates that each sheriff or deputy “shall execute all writs, orders, and process of the court or judge thereof directed to him.” The trial court acknowledged as much, stating, “... I don't understand how he gets arrested on my capias and he is in OPP for 24 hours and he is not held. That is something that I have to take up with the jail....” Thus, by law the sheriff lacks the discretion to ignore its mandated duties.
In Kerrison, the surety challenged the judgment of bond forfeiture based on the sheriff's failure to perform its mandated duties. The surety attempted to surrender the defendant to the officer charged with his detention pursuant to La.C.Cr.P. art. 345, and the officer refused to accept the surrender. Id., 97–1759, p. 1, 701 So.2d at 1348. The Louisiana Supreme Court reversed the trial court's denial of the surety's motion to set aside the bond forfeiture, finding the unambiguous language of La.C.Cr.P. art. 345(A) makes “clear that an officer charged with the detention of a defendant has no discretion to refuse to accept a surety's lawful surrender of [the] defendant.” Considering La.C.Cr.P. art. 345 and La. R.S. 15:85 together, the Court found that the sheriff, a state actor, had no discretion to refuse the surety's lawful surrender of the defendant pursuant to La.C.Cr.P. art. 345. Id. Therefore, in circumstances where the State refuses the surety's lawful surrender of a defendant, “ the State may not claim satisfaction of its requirements under La. R.S. 15:85 to effectuate bond forfeiture. ” Id. (emphasis added).
On appellate review, we must consider “the law in its entirety and all other laws on the same subject matter” and interpret the law in a manner “consistent with the express terms of the law” and legislative intent. Nellon, 12–1429, p. 5, 124 So.3d at 1118 (internal citation omitted). The purpose of criminal bail bonds is not to enrich the State but to compel a defendant's appearance in court to answer the charges filed against him. When a defendant fails to appear and an alias capias without bond is issued, article 345 provides not only a means for ensuring the defendant's appearance in court, but also a way for the surety to be discharged from its bond obligation. To set aside a bond forfeiture based on article 345, the surety, itself, must comply with all laws applicable to criminal bail bonds. Nevertheless, the surety must also rely on the trial court, the State, and the sheriff to do the same. The State suggests that despite any error on the part of itself, or its actors, the surety remains liable on the bond if the released defendant fails to appear or the surety fails to surrender him. Kerrison indicates otherwise as it found a surety will not be held accountable for a sheriff's failure to comply with its mandated duties under the applicable bail bond statutes. For this reason, jurisprudence requires strict compliance and not just of the surety.
Considering La.C.Cr.P. art. 345 in its entirety in light of La. R.S. 13:5539, I find article 345 does not contemplate an officer's failure to follow the mandates of a court or judge. For that reason, it was error for OPSO to release Mr. Jones when the court issued an alias capias without bond. I find, like Kerrison, that where the sheriff fails to hold the defendant in his custody without bond pursuant to court order, “the State may not claim satisfaction of its requirements under La. R.S. 15:85 to effectuate bond forfeiture” when the released defendant subsequently fails to appear or the surety fails to formally surrender him. Id.
Moreover, La. R.S. 15:83(C)(1) provides that a surety is not liable for his failure to perform when it is “caused by a fortuitous event that makes performance impossible.” A fortuitous event is one that, at the time the contract was made, the surety could not have been reasonably foreseen. La. R.S. 15:83(C)(2).3 As discussed above, it is presumed that the sheriff will execute the orders of a court as required by law. In that I find La.C.Cr.P. art. 345 does not contemplate an officer's failure to perform its mandated duties, I do not find it to be a reasonably foreseeable event. Furthermore, as a matter of principle, if it was foreseeable that the sheriff would not perform his mandated duties to detain a defendant following the issuance of an alias capias without bond, then sureties would have little, if any, incentive to enter contracts that obligate themselves on a bond. Consequently, FCS asserts that it should not be liable, nor should the State be rewarded, for the failure of a state actor to perform its mandated duties. After review of La.C.Cr.P. art. 345 together with La. R.S. 13:5539 and 15:85, I find OPSO's failure to perform its mandated duties is not reasonably foreseeable. Therefore, I find OPSO's failure also constitutes a “fortuitous event” under La.C.Cr.P. art. 345(I) and La. R.S. 15:83(C)(2).
Like Kerrison, I find in the case sub judice that the State did not satisfy the requirements of La. R.S. 15:85 because OPSO (by law) had no discretion to release Mr. Jones while there was an outstanding alias capias for his arrest without bond. For the same reason, it is not reasonably foreseeable that OPSO would act in contravention to its mandated duties under La. R.S. 13:5539 and fail to execute the orders of a court. Thus, the error of OPSO constitutes a fortuitous event pursuant to La.C.Cr.P. art. 345(I) and La. R.S. 15:83(C)(2). Therefore, I find the trial court erred in denying FCS' motion to set aside the judgment of bond forfeiture. Accordingly, I respectfully dissent and would reverse the trial court and order the judgment of bond forfeiture set aside.
JENKINS, J., concurs in the result.