State v. Turner
| Citation | 893 So.2d 900 |
| Decision Date | 08 December 2004 |
| Docket Number | No. CW 04-914.,No. 04-1111.,04-1111.,CW 04-914. |
| Parties | STATE of Louisiana v. Dominique TURNER. |
| Court | Supreme Court of Louisiana |
Robert Richard Bryant, Jr., District Attorney, Frederick Wayne Frey, Assistant
District Attorney, Lake Charles, LA, for Plaintiff/Appellant, State of Louisiana.
Glen D. Vamvoras, Michael H. Schwartzberg, Vamvoras & Schwartzberg, Lake Charles, LA, for Defendant/Appellee, Dominique Turner.
Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
The State of Louisiana appeals the judgment of the trial court granting the motion of the appellant, Paris Bail Bonds, to set aside a judgment of bond forfeiture forfeiting an appearance bond posted by it to guarantee the appearance of Rudolph Turner. For the following reasons, we affirm the judgment of the trial court and deny the granting of the writ.
On January 13, 2003, Paris Bail Bonds posted a $50,500 appearance bond on behalf of an individual purporting to be Rudolph Turner, who was arrested on the charge of possession of over four hundred grams of cocaine. A bill of information indicting Turner was issued on January 16, 2003, and he was scheduled for arraignment on July 21, 2003. When he failed to appear for court, a bench warrant was issued by the trial court and the State moved for a forfeiture of the appearance bond. A Judgment of Appearance Bond Forfeiture was rendered on August 28, 2003. Notice of this judgment was mailed to Paris Bail Bonds on September 5, 2003. At a March 22, 2004 hearing, it was determined that the person purporting to be Rudolph Turner was actually Dominique Turner. Dominique had used the identity of his younger brother, Rudolph, when arrested by the Calcasieu Parish Sheriff's Office, which information was relied on by Paris Bail Bonds in issuing its appearance bond. Upon learning this, the trial court amended the arrest warrant and the State amended the May 8, 2003 bill of information to reflect that the defendant was Dominique Valentino Turner a/k/a Rudolph Turner and that his date of birth was December 11, 1975.
On April 29, 2004, Paris Bail Bonds filed a motion to set aside the August 28, 2003 judgment of bond forfeiture. After listening to argument in this matter, the trial court rendered oral reasons setting aside the bond forfeiture. This appeal by the State followed. Additionally, the State sought a supervisory writ of review in this matter, which writ was granted and ordered consolidated with its appeal. See State v. Dominique Turner a/k/a Rudolph Turner, 04-914 (La.App. 3 Cir. 10/20/04).
On appeal, the State argues that the trial court erred in setting aside the bond forfeiture since Paris Bail Bonds failed to request that it be set aside within the six-month time limitation for doing so. In response to the State's appeal and writ, Paris Bail Bonds has filed an Alternative Motion to Remand for the taking of evidence. This motion has been referred to the merits of the matter.
The State argues that it obtained the bond forfeiture judgment in compliance with La.R.S. 15:85 and that Paris Bail Bonds failed to file its motion to set aside the forfeiture within the six-month period allowed by that same statute. Thus, it argues that the trial court erred in setting aside the judgment of bond forfeiture.
Section 85 of the Louisiana Revised Statutes, Title Fifteen contains the provisions pertaining to the forfeiture of appearance bonds. The statute provides in pertinent part:
(1) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(2) Signing of the judgment of bond forfeiture. Following the defendant's failure to appear, the court shall sign a written judgment of bond forfeiture.
(3) Notice of judgment.
(a) After entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture....
....
(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceedings brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.
(6) Appeals.
(a) The defendant and his sureties shall have the right to an appeal that suspends the effect or execution of the judgment of bond forfeiture. The security to be furnished for this suspensive appeal shall be equal to the bail obligation.
(b) The defendant and his sureties shall have the right to a devolutive appeal of the judgment of bond forfeiture.
(c) All appeals shall be to the appellate court having general civil appellate court jurisdiction over the court issuing the judgment of bond forfeiture.
(7) Enforcement and collection of judgment. No judgment of bond forfeiture rendered on or after August 15, 1997, shall be enforced or collected until ten days after the expiration of six months after the mailing of proper notice of the signing of the judgment of bond forfeiture. The timely filing of a suspensive appeal shall suspend the enforcement or collection of the judgment of the bond forfeiture. In addition, the court may provide by court rule for the filing of an offset claim against the principal with the secretary of the Department of Revenue, in accordance with R.S. 47:299.1 through 299.20. If after six...
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State v. Tabb, 15-1129
...order to obtain a valid bond forfeiture. State v. Hathaway, 403 So.2d 737 (La.1981); State v. Turner, 04-1111 (La.App. 3 Cir. 12/8/04), 893 So.2d 900; State v. Rice, 36,401 (La.App. 2 Cir. 9/18/02), 827 So.2d 1180, writ denied, 02-2587 (La.12/13/02), 831 So.2d 989. As the surety notes, the ......
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State v. Tabb
...order to obtain a valid bond forfeiture. State v. Hathaway, 403 So.2d 737 (La.1981) ; State v. Turner, 04–1111 (La.App. 3 Cir. 12/8/04), 893 So.2d 900 ; 200 So.3d 848State v. Rice, 36,401 (La.App. 2 Cir. 9/18/02), 827 So.2d 1180, writ denied, 02–2587 (La.12/13/02), 831 So.2d 989. As the sur......
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State v. Universal Fire & Cas. Ins. Co.
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