Florida Case Law & Florida Court Opinions - Florida Law
|Need Legal Help?|
NOT FINDING WHAT YOU NEED? -CLICK HERE
This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
AL ESTES BONDING, INC.,
Case No. 2D02-2529
PINELLAS COUNTY BOARD OF
Opinion filed May 7, 2003.
Appeal from the Circuit Court for
Pinellas County; Nelly N. Khouzam,
Joseph R. Fritz of Joseph R. Fritz, P.A.,
Tampa, for Appellant.
Susan H. Churuti, County Attorney, and
Michael A. Zas, Senior Assistant County
Attorney, Clearwater, for Appellee.
ALTENBERND, Chief Judge.
Al Estes Bonding, Inc., appeals an order denying a motion to set aside or
discharge bond estreature. We conclude that we have jurisdiction to review this order
by common law certiorari and deny the petition for writ of certiorari.
In June 2001, Patrick Clark was arrested on charges of aggravated battery
arising out of a domestic dispute. His bond was set at $15,000. Al Estes Bonding acted
as agent for a surety to post an appearance bond for Mr. Clark, and Mr. Clark was
released. Although our record is limited, it is undisputed that Mr. Clark did not appear
for trial on February 19, 2002. As a result, a notice of surety bond estreature was filed
pursuant to section 903.26(1)(b), Florida Statutes (2002).1
Al Estes Bonding immediately attempted to locate Mr. Clark. In late
February, they found him in federal custody in Vermont. Our record contains no
information about the pending federal charges, but the parties agree that Mr. Clark was
arrested by federal authorities after February 19, 2002. Efforts to obtain the release or
transfer of Mr. Clark were unsuccessful, and he apparently remains in federal custody
subject to a Florida detainer.
In March, Al Estes Bonding filed a motion to discharge the bond
estreature, explaining that Mr. Clark was now in federal custody and subject to detainer.
A hearing was held on the motion on May 30, 2002. At the conclusion of the hearing,
the trial court denied the motion. That same day, Al Estes Bonding paid the $15,000
bond pursuant to section 903.26 in order to avoid the entry of a judgment against the
surety under section 903.27, Florida Statutes (2002). In June 2002, the trial court
1 The statute actually uses the term "forfeiture" in this context. See § 903.26(1),
Fla. Stat. (2002). The common law referred to "estreature" of a bond. See, e.g., Ex
Parte Peacock, 6 So. 473, 495 (Fla. 1889). Since the statutory codification of this
process, it has become common to use the terms "forfeit" and "estreat" interchangeably
when referring to criminal appearance bonds. See, e.g., Dolly Bolding Bail Bonds v.
State, 787 So. 2d 73, 73 (Fla. 2d DCA 2001); Bush v. Int'l Fid. Ins. Co., 834 So. 2d 212,
213, 215 (Fla. 4th DCA 2002).
entered a written order denying the motion to set aside or discharge the bond. Al Estes
Bonding appealed that order to this court.
Initially, we note that the source of our jurisdiction in this case is not
entirely clear.2 Pinellas County maintains that we lack jurisdiction. In Chase v. Orange
County, 511 So. 2d 1101 (Fla. 5th DCA 1987), the Fifth District dismissed an appeal
from an order denying a similar motion to set aside a bond estreature. The Fifth District
reasoned that "all steps leading up to the entry of a judgment of forfeiture of a bail bond
are interlocutory in nature" and thus nonappealable. Id. at 1102. We are troubled by
this reasoning because if the surety pays its money to the clerk of court pursuant to
section 903.26, no final judgment will be entered under section 903.27. In Chase, the
bail bondsman had not paid the forfeiture and the Fifth District at least hinted that it
would have permitted review if the money had been paid because the payment "has the
same effect as a judgment." Id. Because of these circumstances, we conclude that
Chase is not controlling in this case. See also Schmidt v. Osceola County, 517 So. 2d
79 (Fla. 5th DCA 1987) (relying on Chase to hold order denying motion to set aside
bond estreature was nonfinal nonappealable); cf. Accredited Sur. & Cas. Co. v.
Hagman, 467 So. 2d 1065, 1066 (Fla. 4th DCA 1985) (holding order denying remission
was appealable final order and noting that court had dismissed prior "appeal" of motion
to vacate estreature without prejudice to filing motion for remission).
2 We note that Florida is not the only jurisdiction that has struggled with this
jurisdictional issue. See E. H. Schopler, Annotation, Appealability of Order Relating to
Forfeiture of Bail, 78 A.L.R.2d 1180 (1961).
Although, as Chase noted, section 903.26(7) provides that "the payment
by a surety of a forfeiture under the provisions of this law shall have the same effect on
the bond as payment of a judgment," this section does not state that payment is
equivalent to the entry of a judgment. It does not transform an order denying a motion
to set aside forfeiture into a final order.
This court has permitted an appeal from a final order that set aside an
estreature, see Hillsborough County v. Roche Sur. & Cas. Co., 805 So. 2d 937 (Fla. 2d
DCA 2001), but that does not require this court to review an order denying such a
motion. This court has also reviewed by direct appeal a case that seems on jurisdic-
tional grounds to be indistinguishable from this case. See Dolly Bolding Bail Bonds v.
State, 787 So. 2d 73 (Fla. 2d DCA 2001). It does not appear that anyone raised a
jurisdictional issue in Dolly Bolding.
In theory, a bail bondsman could refuse to pay the forfeiture and force
judgment to be entered against the surety. We are hesitant to require such action as a
prerequisite for appellate review because a judgment against the surety can have other
consequences for the bail bondsman. See § 903.27, Fla. Stat. (2002). Accordingly, we
conclude that an order denying a motion to set aside an estreature under section
903.26 may be reviewed by certiorari if the bond has been paid; the bail bondsman is
not forced to allow the issue to go to judgment against the surety under section 903.27
prior to seeking review. Cf. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995)
(holding certiorari review is appropriate where order departs from essential require-
ments of law, causing material injury to petitioner and effectively leaving no adequate
remedy on appeal).
Having determined that we can review this matter, we further conclude
that the trial court properly denied the motion. There is no question that the appearance
bond was breached when Mr. Clark failed to appear. Although bail bonds have a long
common law history, the grounds for discharge are now purely statutory. See §
903.26(6). None of those grounds apply here. It may be that Mr. Clark is now in
custody and no longer on the lam, but the bail bondsman cannot produce Mr. Clark to
appear in state court. It is undisputed in this case that the federal government has no
obligation to release Mr. Clark to the state authorities, much less to Al Estes Bonding.
This circumstance is not a statutory basis for discharge. Thus, the trial court did not
depart from the essential requirements of the law, and we deny this petition for writ of
certiorari. Any relief that the bail bondsmen may be entitled to in this situation must
come from the legislature.
Upon review of this order as a petition for writ of certiorari, we deny the
FULMER and CASANUEVA, JJ., Concur.
LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!
NOW - CASE
LAW - All 50 States - Federal Courts - Try
it for FREE
Ask Your Legal Question Now.
Pennsylvania Lawyer Help Board
Find An Attorney
Created and Developed by
Copyright 1997 - 2010.
A Division of