Allied Fidelity Ins. Co. v. State, s. 81-2052 and 81-2127

• Citation: 415 So.2d 109
• Decision Date: 15 June 1982
• Docket Number: 81-2728,Nos. 81-2052 and 81-2127,81-2129,s. 81-2052 and 81-2127
• Parties: ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. The STATE of Florida, for the Use and Benefit of Dade County, Appellee.
• Court: Florida District Court of Appeals

Page 109

415 So.2d 109

ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. The STATE of Florida, for the Use and Benefit of Dade County, Appellee.

Nos. 81-2052 and 81-2127, 81-2129, 81-2728.

District Court of Appeal of Florida,

Third District.

June 15, 1982.

Neil I. Maryanoff, Miami, for appellant.

Robert A. Ginsburg, County Atty. and James A. Jurkowski, Asst. County Atty., for appellee.

Before HUBBART, C. J., and DANIEL S. PEARSON, and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

The primary issue in these consolidated appeals is whether a court may enter a judgment against a bail bond surety upon unpaid and undischarged forfeitures where written notices to the surety were not given within seventy-two hours of the forfeitures pursuant to Section 903.26(2), Florida Statutes (1979), which provides:

"If there is a breach of the bond, the court shall declare the bond and any bonds or money deposited as bail forfeited and shall notify the surety agent and surety company in writing within 72 hours of said forfeiture. The forfeiture shall be paid within 30 days."

Allied Fidelity Insurance Company was the surety on bail bonds posted to insure the appearance of defendants in four criminal cases. In each case, after due notice to Allied of a required appearance by the defendant, see § 903.26(1)(b), Fla.Stat. (1979), ¹ the defendant failed to appear, and orders declaring the bonds forfeited were entered. Written notices advising Allied of the forfeitures were sent four to six days, or more than seventy-two hours, after forfeiture. ²

Allied contends that Section 903.26(2) is mandatory, and the failure to strictly comply with its seventy-two hour requirement prevented judgment from being entered upon the forfeitures, and, therefore, in these cases, required the trial court to vacate the judgments entered. Allied's simplistic view of the statute is that "shall" means shall, and the inquiry ends there. While it is true that the first rule of statutory construction is that words are to be given their normal meaning, Neal v. Bryant, 149 So.2d 529 (Fla.1962), it is equally an axiom of statutory construction that an interpretation of a statute which leads to an unreasonable or ridiculous conclusion or a result obviously not designed by the Legislature will not be adopted. St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1959); Palm Springs General Hospital, Inc. of Hialeah v. State Farm Mutual Automobile Insurance Co., 218 So.2d 793 (Fla. 3d DCA 1969). Whether "shall" is mandatory or discretionary will depend, then, upon the context in which it is used and the legislative intent expressed in the statute. S. R. v. State, 346 So.2d 1018 (Fla.1977). Thus, for example, where "shall" refers to some required action preceding a possible deprivation of a substantive right, S. R. v. State, supra; Neal v. Bryant, supra; Gilliam v. Saunders, 200 So.2d 588 (Fla. 1st DCA 1967), or the imposition of a legislatively-intended penalty, White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973), or action to be taken for the public benefit, Gillespie v. County of Bay, 112 Fla. 687, 151 So. 10 (1933), it is held to be mandatory. And, by the same reasoning, the permissive word "may" will be deemed to be obligatory "[w]here a statute directs the doing of a thing for the sake of justice...." Mitchell v. Duncan, 7 Fla. 13 (1857). But where no rights are at stake, Reid v. Southern Development Co., 52 Fla. 595, 42 So. 206 (1906), and only a non-essential mode of proceeding is prescribed, Fraser v. Willey, 2 Fla. 116 (1848), the word "shall" is said to be advisory or directory only.

Turning to the case at hand, a reading of the entirety of Chapter 903 relating to bail convinces us that the provision for notice to the surety in Section 903.26(2) is intended to accomplish the orderly and prompt conduct of the court's business and is directory only. See Schneider v. Gustafson Industries, Inc., 139 So.2d 423 (Fla.1962); Reid v. Southern Development Co., supra. Under Section 903.26, the surety is provided with two separate and distinct notices ³: the first is a notice to produce the defendant at a time and place certain, see Section 903.26(1)(b), note 1, supra; the second and later notice is to formally advise the surety that it has failed in its duty to produce the defendant and that the bond is thereby forfeited, see § 903.26(2), supra. The first of these notices, as Section 903.26(1) expressly states ("... bond shall not be forfeited unless"), is a condition precedent to forfeiture of the bond. The failure to give the surety adequate notice of its obligation to produce the defendant in court invalidates an order of estreature and forfeiture entered against the surety. Estate of Maltie, 404 So.2d 384 (Fla. 4th DCA 1981); Schaefer v. State, 369 So.2d 443 (Fla. 3d DCA 1979); Bailey v. State, 282 So.2d 32 (Fla. 1st DCA 1973); Ramsey v. State, 225 So.2d 182 (Fla. 2d DCA 1969). The second notice, however, advising the surety of the fait accompli of forfeiture, is, definitively, not a condition precedent to forfeiture. Thus, we agree that

"[I]t would be illogical to conclude that the bondsman and his surety company are automatically relieved of their obligation under the bond in every case simply because of the failure to give the statutory notice of a forfeiture which has already occurred." Weaver v. State, 370 So.2d 1236, 1237 (Fla. 2d DCA 1979).

and conclude that a failure to comply with the seventy-two hour provision of Section 903.26(2) does not prevent the trial court from entering judgment on the forfeiture.

Having so concluded, we now address Allied's argument that even if the failure to strictly comply with the post-forfeiture notice provision of Section 903.26(2) does not preclude the entry of a judgment, Allied is entitled to show--and did in fact show--that it was prejudiced when notice of the forfeiture was served upon it more than seventy-two hours after forfeiture. While there is some suggestion in Ryan v. State, 380 So.2d 539 (Fla. 5th DCA 1980), and Weaver v. State, supra, that a showing of prejudice arising from a lack of timely notice to the surety of forfeiture might prevent a judgment on the forfeiture, we seriously doubt that such a showing is possible. As the court in Ryan v. State correctly observed When a surety is given proper notice to produce a defendant, for whom it is legally responsible and for whom it has intervened in the case, that surety knows it is subject to forfeiture at the time of the failure of appearance. There is no logical reason for the requirement of additional written notice at all; the forfeiture occurs in open court and is a matter of public record." 380 So.2d at 540 (emphasis in original).

Thus, the written notice of forfeiture at best advises a surety of that which it should be deemed to constructively know. In short, the written notice of forfeiture is a redundant courtesy extended to the surety, and it can hardly be said that the surety will be prejudiced by its absence. ⁴

However, because an argument could be made (although it is not here) that the surety has, through custom and practice, come to rely on the written notice of forfeiture from the court and blithely assumes that its principal, the defendant, has faithfully appeared in court pursuant to the earlier notice, we will, in this appeal, address the merits of Allied's attempt to show prejudice.

Allied's "showing" in each of the four cases consisted of two nearly identical affidavits, which asserted in pertinent part:

"7. In my experience, the effect of notification past the seventy-two (72) hour period is as follows: First, the fear of the defendant has increased as time has elapsed and is more intense due to two factors: the defendant has a greater fear that the penalty would be increased once he is brought before the authorities.

"8. Second, and most important, is the fact that when notice of a forfeiture is received by a surety at a time past the required seventy-two (72) hours, the defendant's trail has become cold and the defendant has had a greater chance to extract himself from the jurisdiction and/or secrete himself.

"9. Finally, it is the duty of an executing agent to follow the order of the court and arrest the defendant upon timely notice of the defendant's non-appearance. When notice is served upon...