Caivano v. State
| Decision Date | 05 May 1976 |
| Docket Number | No. 75--1170,75--1170 |
| Parties | Robert CAIVANO and Bankers Fire and Casualty Insurance Company, Appellants, v. STATE of Florida and Collier County, Florida, Appellees. |
| Court | Florida District Court of Appeals |
Steadman S. Stahl, Jr., of Varon, Stahl & Kay, Hollywood, and Archie Odom, Punta Gorda, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Tampa, Asst. Atty. Gen., for appellee State of Florida; David Emerson Bruner, Naples, for appellee Collier County.
This timely appeal concerns the propriety of a bond estreature and forfeiture. The facts are essentially as follows:
The litigation arose initially when the state filed a two-count information charging appellant, Robert Caivano, with violation of the narcotic drug laws. He was subsequently convicted of both offenses and sentenced on each count to some three years to run concurrently. The judgment and sentence were appealed to this court and on October 25, 1973, we remanded the cause for proper sentencing, said sentencing being in violation of the same transaction rule. 1 On remand for the imposition of the proper sentence, in accordance with our opinion, the proceedings in the trial court, which were originally set for November 20, 1973, were continued until February 11, 1974. During that interim rescheduling period appellant filed a motion for mitigation of sentence. On February 11, 1974, the trial court placed Caivano on probation for a period of three years. The state appealed this ruling of the trial court and the cause was presented to us for the second time.
In this second appeal, we remanded the cause to the trial court for imposition of sentence in accordance with our original mandate of October 25, 1973. 2 Whereupon, the trial court issued an order of arrest which commanded the sheriffs, constables and any investigator of the state attorney's office to bring Caivano before the court for sentencing.
While the second appeal was pending an affidavit was filed on August 29, 1974, alleging that Caivano had violated the terms and conditions of probation. On September 16, 1974, an order was entered by the Circuit Court in Broward County permitting Caivano to be released upon posting bond in the amount of $100,000 for violation of probation. The bond was posted and Caivano was released from custody. Said bail bond was executed on September 25, 1974, by Caivano and appellant, Bankers Fire and Casualty Insurance Company (Bankers). Subsequently, the order of arrest hereinabove referred to, was received by the attorney for Caivano and the attorney for Bankers.
The order of arrest directed Caivano to appear before the circuit judge in Collier County on June 18, 1975, to be sentenced in accordance with our mandate of October 25, 1973. On June 18, 1975, the appellant having failed to appear as ordered, in open court the circuit judge estreated the bond of $100,000 that had been posted for the appearance of Caivano to answer to the charge of 'vio. probation.' The estreature was ordered over objection of counsel for Caivano. On the following day, the court entered a certificate and order of forfeiture of appearance bond and a judgment of forfeiture of the bond was rendered.
Subsequently, counsel on behalf of Caivano and Bankers filed a motion to set aside this forfeiture. At the hearing on the said motion held on July 18, 1975, a representative of the circuit court clerk testified that the clerk's office had not sent a notice to Bankers directing appearance of Caivano in court to answer to the charge of 'vio. probation' as provided in the bond. The representative also testified that the only notice sent to the bonding company by the clerk's office was contained in the order of arrest which only directed that certain law enforcement officers bring Caivano before the court for sentencing. Notwithstanding, the circuit court entered its order denying Bankers' motion to set aside the forfeiture and this appeal followed.
Appellants have raised three points for our consideration. In...
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Wiley v. State
...this case involves failure to give notice under section 903.26(1)(b), rather than section 903.26(2). 2 Relying on Caivano v. State, 331 So.2d 331 (Fla. 2d DCA 1976), wherein the notice to the surety was held insufficient to comply with section 903.26(1)(b) and the case was remanded to the t......
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Accredited Sur. & Cas. Co., Inc. v. Hagman
...4th DCA 1980); Ryan v. State, 380 So.2d 539 (Fla. 5th DCA 1980); Schaefer v. State, 369 So.2d 443 (Fla. 3d DCA 1979); Caivano v. State, 331 So.2d 331 (Fla. 2d DCA 1976); Bankers Fire and Casualty Company v. State, 303 So.2d 39 (Fla. 1st DCA 1974); Bailey v. State, 282 So.2d 32 (Fla. 1st DCA......
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Allied Fidelity Ins. Co. v. State
...principle that forfeitures are not favored at law and statutes providing for them must be strictly construed. See, Caivana v. State, 331 So.2d 331 (Fla. 2d DCA 1976). Having concluded that the notice required by Section 903.26(1)(b) was not provided to the Surety herein, it remains to be de......
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Accredited Sur. & Cas. Co., Inc. v. State, 81-1657
...Schaefer v. State, 369 So.2d 443 (Fla. 3d DCA 1979) (Order and judgment reversed for lack of pre-forfeiture notice); Caivano v. State, 331 So.2d 331 (Fla. 2d DCA 1976) (Order of forfeiture and judgment reversed for lack of pre-forfeiture notice); Resolute Insurance Company v. State, 269 So.......