State v. Cox
| Decision Date | 19 July 1988 |
| Docket Number | No. 8818DC16,8818DC16 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. James F. COX, Defendant, Tommy D. Scoggins, Surety. |
Douglas R. Hoy and James F. Walker, Gibsonville, for surety, defendant-appellant.
No brief filed on behalf of the State of North Carolina.
The State of North Carolina issued a warrant for the arrest of James F. Cox on 12 February 1986 for the violation of G.S. § 14-107, which makes it unlawful to issue a check knowing at the time that there are insufficient funds to pay the check upon presentation. Mr. Cox was arrested on 25 May 1986 and charged with giving a worthless check to L & M Machine and Tool Company. On the same date, the defendant, James F. Cox, was released when the surety, Tommy D. Scoggins (hereinafter surety), signed an appearance bond in the amount of $2,000.00. The defendant's court date was set for 13 June 1986 at 9:30 a.m. in the Criminal District Court of Guilford County.
At the 13 June 1986 Criminal Session of the District Court of Guilford County, the matter was continued until 17 July 1986. At the 17 July 1986 Criminal Session of the District Court of Guilford County, the matter was again continued until 14 October 1986. At the 14 October 1986 Criminal Session of the District Court of Guilford County, the defendant, James F. Cox, did not appear and an order of forfeiture and notice to appear were issued and mailed to the Alamance County Sheriff's Department for service. A copy of the order of forfeiture and notice were mailed to defendant's last known address, but he was not served since he could not be located. A copy of the order of forfeiture and notice were neither mailed nor personally served upon the surety, who has resided at 1086 Gant Road, Graham, North Carolina, at all times during the course of these proceedings.
On 3 December 1986, Judge Bencini entered a judgment of forfeiture for $2,000.00. On 16 March 1987, the execution was docketed in Guilford County Superior Court. On 19 March 1987, the execution was issued to the Alamance County Sheriff's Department in order to levy and execute against the surety's property. This was the first time that the surety acquired knowledge that the order of forfeiture and notice had been entered on 14 October 1986, that the judgment had been made absolute, and that the matter had been transferred to the Alamance County Sheriff's Department for execution.
On 12 April 1987, the surety filed a motion for remission pursuant to G.S. § 15A-544(h). Judge Morton entered a stay preventing any levy, attachment or execution against his property until the motion for remission could be heard. On 11 May 1987, Judge Bencini granted the surety an additional 90 days in which to locate and surrender the defendant, James F. Cox. On 12 August 1987, the surety's motion for remission was denied. He then filed notice of appeal on 24 August 1987.
On appeal, the surety contends that the trial court committed reversible error when it entered an order of forfeiture and a subsequent judgment of forfeiture without proper notice to him pursuant to G.S. § 15A-544(b). The purpose of this statute is to regulate the forfeiture of bonds in criminal proceedings and to establish "an orderly procedure for forfeiture." State v. Moore, 57 N.C.App. 676, 678, 292 S.E.2d 153, 155 (1982), citing, State v. Rakina and State v. Zofira, 49 N.C.App. 537, 539, 272 S.E.2d 3, 4 (1980), disc. rev. denied, 302 N.C. 221, 277 S.E.2d 70 (1981).
G.S. § 15A-544(b) provides in pertinent part that:
[A] copy of the order of forfeiture and notice that judgment will be entered upon the order after 30 days must be served on each obligor. Service is to be made by the sheriff by delivery of the order and notice to him or by delivery at his dwelling house.... If the sheriff is unable to effect service ..., he must file a return to this effect; the clerk must then mail a copy of the order of forfeiture and notice to the obligor at his address of record....
These statutory requirements are not discretionary but mandatory. G.S. § 15A-531 defines obligor as "a principal or a surety on a bail bond." The surety was an obligor and therefore was entitled to notice as required under G.S. § 15A-544(b).
Notice was neither...
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State v. Poteat, COA03-764.
...regulate the forfeiture of bonds in criminal proceedings and to establish `an orderly procedure for forfeiture.'" State v. Cox, 90 N.C.App. 742, 744, 370 S.E.2d 260, 261 (1988) (quoting State v. Moore, 57 N.C.App. 676, 678, 292 S.E.2d 153, 155 We conclude that construing the term "notice" i......
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