In re: Sanford & Sons Bail Bonds Inc.
| Decision Date | 30 May 2002 |
| Docket Number | E2001-01479-CCA-R3-CV |
| Parties | IN RE: SANFORD & SONS BAIL BONDS, INC.(FN1)IN THE COURT OF CRIMINAL APPEALS OF TENNESSEEAT KNOXVILLE |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Hamblen County No. 00-CR-123 James E. Beckner, J.
The appellant, Sanford & Sons Bail Bonds, Inc., appeals the judgment of the Hamblen County Criminal Court forfeiting $5,000 bail in the case of criminal defendant Florentino DeJesus Hernandez. Following a review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.
Robert L. Jolley, Jr., and Charles Currier, Knoxville, Tennessee, for the appellant, Sanford & Sons Bail Bonds, Inc.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Chris Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee.
Tenn. Code Ann. 16-5-108(a)(2) (1994)2; Judgment of the Criminal Court is Reversed and Remanded.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES CURWOOD WITT, JR., JJ., joined.
The instant case arose from a criminal prosecution in which the State preliminarily charged Florentino DeJesus Hernandez, allegedly a citizen of Mexico, with driving under the influence (second offense), violating the implied consent law, and driving on a revoked license. The Hamblen County General Sessions and Criminal Courts set bail in Hernandez's case in the amount of $5,000, and, on July 25, 2000, the appellant, Sanford & Sons Bail Bonds, Inc., agreed to secure Hernandez's appearance before the General Sessions Court and "from day to day until the case is finally concluded and if, the Principal be bound over to the Grand Jury, then before the Criminal Court of Hamblen County on the 9 day of October, 2000, . . . and until the case there be finally concluded." The bail bond specified that Hernandez would "not depart the Court without leave."
Subsequently, Hernandez was bound over to the Hamblen County Grand Jury, which indicted the defendant for driving under the influence (second offense) and driving on a revoked license. Hernandez, however, failed to appear before the Hamblen County Criminal Court on October 9, 2000. Accordingly, the trial court issued a capias for Hernandez's arrest. Additionally, the trial court entered a conditional judgment of forfeiture against the defendant and Sanford & Sons Bail Bonds, Inc., and issued a writ of scire facias to notify the appellant of the conditional judgment. The Hamblen County Sheriff's Department served the appellant with the writ of scire facias on October 17, 2000.
On June 11, 2001, prior to the entry of a final judgment of forfeiture, the appellant petitioned the court for relief pursuant to Tenn. Code Ann. 40-11-204 (1997), asserting in the petition that the Hamblen County Sheriff's Department had surrendered Hernandez to the Immigration and Naturalization Service (hereinafter the INS), which in turn had deported the defendant to Mexico. The trial court summarily denied the appellant's petition without a hearing, albeit the court apparently reviewed intake records from the Hamblen County Sheriff's Department indicating that Hernandez was arrested by "Agent Perkins" on August 3, 2000, and thereafter held in the Hamblen County Jail for the INS until being surrendered to that agency's custody on August 4, 2000. In a written order denying the appellant's petition for relief, the court simply concluded that Hernandez's deportation by the INS to Mexico did not constitute a ground for relief. Accordingly, the court entered a final judgment of forfeiture.
Sanford & Sons Bail Bonds, Inc., asserts in this appeal that the trial court abused its discretion by failing to relieve the appellant of its obligation under the bail bond on the basis of the surrender of Hernandez by the Hamblen County Sheriff's Department to the INS and Hernandez's consequent deportation to Mexico. The appellant further asserts that, to the extent the record fails to establish whether Hernandez in fact was deported and any relevant circumstances surrounding his deportation, the trial court abused its discretion in failing to afford the appellant a hearing prior to the entry of the final judgment. During oral argument before this court, the State conceded that the appellant was afforded neither a hearing nor an opportunity to make an offer of proof for purposes of appeal. Nevertheless, citing this court's recent opinion in In re: Paul's Bonding Co., 62 S.W.3d 187 (Tenn. Crim. App. 2001), the State asserts in its brief that
Preliminarily, we note that our consideration of the parties' arguments occurs against the backdrop of a criminal defendant's right to bail, the role of the professional bondsman in our system of criminal justice, and the nature of the "bail bond" itself. Article I, Section 15 of the Tennessee Constitution provides "[t]hat all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great." Our supreme court has held that "[u]nder the foregoing constitutional provision [a criminal defendant] is entitled to bail as a matter of right" in all except capital cases. Wallace v. State, 245 S.W.2d 192, 193 (Tenn. 1952); see also State ex rel. Hemby v. O'Steen, 559 S.W.2d 340, 341 (Tenn. Crim. App. 1977)( that "[t]here is no doubt that the right to bail is mandatory in all except capital cases"). The legislature has codified the right to bail at Tenn. Code Ann. 40-11-102 (1997). The right to bail, however, does not ensure a criminal defendant's ability to pay the amount of bail set by the court. Rather, a private, profit-driven bail bonding industry enables the average citizen to secure enough money to obtain release, in addition to relieving significant pressures upon local jails to house criminal defendants awaiting trial. Holly J. Joiner, Note, Private Police: Defending the Power of Professional Bail Bondsmen, 32 Ind. L. Rev. 1413, 1420-1421 (1999).
The bail bond itself is a contract between the government on the one side and the criminal defendant and his surety on the other, whereby the surety assumes custody of the defendant and guarantees to the State either the appearance of the defendant in court or the payment of the full amount of the bail set by the court. Indemnity Ins. Co. of North America v. Blackwell, 653 S.W.2d 262, 264 (Tenn. Ct. App. 1983); 8 C.J.S. Bail 4, at 12-13 (1988); see also Tenn. Code. Ann. 40-11-122 (1997).3 Typically, prior to the execution of a bail bond or simultaneously therewith, [a professional] bondsman and the defendant form a contract in which the bail bondsman agrees, for a fee, to act as the defendant's surety. In addition to paying the fee, the defendant agrees to appear in court for all scheduled appearances. The bondsman only makes a profit when he is able to collect fees from the defendant and avoid paying the amount of the bond to the court. . . . His business depends on the appearance in court of his clients.
There is, of course, risk that the defendant will sign the contract with the bondsman, secure release and leave the jurisdiction or refuse to appear in court. To protect his investment, the bondsman must be thorough not only in assessing the risk of flight before writing the bond, but in keeping tabs on the defendant after the bond is written. "The profit motive is presumed to insure diligent attention to his custodial obligation."
Holly J. Joiner, supra, at 1422 (footnotes omitted)(emphasis added).
Because the bail bonding business is closely related to the criminal justice system, it is strictly regulated by the government, including the circumstances under which a bail bonding company may obtain relief from forfeiture when it fails to fulfill its obligation under a bail bond. In In re: Paul's Bonding Co., 62 S.W.3d at 193-194, this court addressed the requirements of the statutes governing the forfeiture of bail, the focus of our discussion being the extent to which sureties may obtain relief from forfeiture pursuant to Tenn. Code Ann. 40-11-204. In particular, we emphasized our prior observation in State v. Shredeh, 909 S.W.2d 833, 836 (Tenn. Crim. App. 1995)(citing State v. Frankgos, 85 S.W. 79, 80-81 (Tenn. 1904))(emphasis added), that a trial court's discretionary authority to relieve sureties from liability pursuant to Tenn. Code Ann. 40-11-204 is limited to "extreme cases, such as the death of the defendant or some other condition making it impossible for sureties to surrender the defendant; the good faith effort made by the sureties or the amounts of their expense are not excuses." See In re: Paul's Bonding Co., 62 S.W.3d at 194; see also State v. Le Quire, 672 S.W.2d 221, 222-223 (Tenn. Crim. App. 1984).
This restrictive interpretation of Tenn. Code Ann. 40-11-204 is grounded in part in public policy considerations, Frankgos, 85 S.W. at 81, but also seemingly stems from the rule articulated by the United States Supreme Court in Taylor v. Taintor, 83 U.S. 366, 369 & 371 (1873), that a surety will be relieved of its obligation under a bail bond only when performance is rendered impossible by a supervening act of God, act of the State that is the beneficiary of the bail bond, or act of the law that is operative in the beneficiary State and obligatory in its effect upon her authorities. Cf. Bobo v. Patton, 53 Tenn. 172, 173 (1871). The rule articulated in Taylor is, in turn, an expression of the common law of contracts that if a party charge himself with an obligation possible...
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