State v. Hinnant, ___ N.C. App. ___, 806 S.E.2d 346 (Oct. 3, 2017)

Over a dissent, the court held that the trial court erred by allowing a motion to set aside a bond forfeiture filed by the bail agent on behalf of the surety. Because the record establishes that at the time the surety posted the bond, it had actual notice that the defendant previously had failed to appear in the same matter the trial court was prohibited by statute from setting aside the bond forfeiture. When the defendant failed to appear in district court an order for arrest was issued, indicating that this was the defendant’s second or subsequent failure to appear on the charges. The defendant was served with the order for arrest and released on a secured bond posted by the bail agent in the amount of $16,000. The release order also explicitly indicated that this was the defendant’s second or subsequent failure to appear in the case. When the defendant again failed to appear, the trial court ordered the bond forfeited. A motion to set aside asserted that the defendant had been surrendered by a surety on the bail bond. At the hearing on the motion, the bail agent presented a letter from the sheriff’s office stating that the defendant had been surrendered. The trial court allowed the motion to set aside. The Board of Education appealed, arguing that the trial court was statutorily barred from setting aside the bond forfeiture and that no competent evidence supported the trial court’s decision to set aside. The Court of Appeals agreed, noting in part that while the statute allows a forfeiture to be set aside where the defendant has been surrendered by a surety, it explicitly prohibits setting aside a bond forfeiture “for any reason in any case in which the surety or the bail agent had actual notice before executing a bail bond that the defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed.” G.S. 15A-544.5(f). Here, both the order for arrest and the release order expressly indicated the defendant’s second or subsequent failure to appear on the charges. Thus, the bail agent had actual notice and the trial court lacked authority to set aside the forfeiture for any reason.

There was dissenting opinion in this case.