State of Louisiana v. Dominique Turner

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-1111 consolidated with CW 04-914

STATE OF LOUISIANA

VERSUS

DOMINIQUE TURNER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 10062-03
HONORABLE ALCIDE JOSEPH GRAY, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

AFFIRMED; WRIT DENIED.

Robert Richard Bryant, Jr.
District Attorney
Frederick Wayne Frey
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70601
(337) 437-3400
Counsel for Plaintiff/Appellant
State of Louisiana

Glen D. Vamvoras
Michael H. Schwartzberg
Vamvoras & Schwartzberg
1111 Ryan Street
Lake Charles, LA 70601
(337) 433-1621
Counsel for Defendant/Appellee
Dominique Turner

GREMILLION, Judge.

The State of Louisiana appeals the judgment of the trial court granting

the motion of the appellant, Paris Bail Bonds, to set aside a judgment of bond

forfeiture forfeiting an appearance bond posted by it to guarantee the appearance of

Rudolph Turner. For the following reasons, we affirm the judgment of the trial court

and deny the granting of the writ.

FACTS

On January 13, 2003, Paris Bail Bonds posted a $50,500 appearance

bond on behalf of an individual purporting to be Rudolph Turner, who was arrested

on the charge of possession of over four hundred grams of cocaine. A bill of

information indicting Turner was issued on January 16, 2003, and he was scheduled

for arraignment on July 21, 2003. When he failed to appear for court, a bench

warrant was issued by the trial court and the State moved for a forfeiture of the

appearance bond. A Judgment of Appearance Bond Forfeiture was rendered on

August 28, 2003. Notice of this judgment was mailed to Paris Bail Bonds on

September 5, 2003. At a March 22, 2004 hearing, it was determined that the person

purporting to be Rudolph Turner was actually Dominique Turner. Dominique had

used the identity of his younger brother, Rudolph, when arrested by the Calcasieu

Parish Sheriff’s Office, which information was relied on by Paris Bail Bonds in

issuing its appearance bond. Upon learning this, the trial court amended the arrest

warrant and the State amended the May 8, 2003 bill of information to reflect that the

defendant was Dominique Valentino Turner a/k/a Rudolph Turner and that his date

of birth was December 11, 1975.

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On April 29, 2004, Paris Bail Bonds filed a motion to set aside the

August 28, 2003 judgment of bond forfeiture. After listening to argument in this

matter, the trial court rendered oral reasons setting aside the bond forfeiture. This

appeal by the State followed. Additionally, the State sought a supervisory writ of

review in this matter, which writ was granted and ordered consolidated with its

appeal. See State v. Dominique Turner a/k/a Rudolph Turner, 04-914 (La.App. 3 Cir.

10/20/04), So.2d .

ISSUES

On appeal, the State argues that the trial court erred in setting aside the

bond forfeiture since Paris Bail Bonds failed to request that it be set aside within the

six-month time limitation for doing so. In response to the State’s appeal and writ,

Paris Bail Bonds has filed an Alternative Motion to Remand for the taking of

evidence. This motion has been referred to the merits of the matter.

BOND FORFEITURE

The State argues that it obtained the bond forfeiture judgment in

compliance with La.R.S. 15:85 and that Paris Bail Bonds failed to file its motion to

set aside the forfeiture within the six-month period allowed by that same statute.

Thus, it argues that the trial court erred in setting aside the judgment of bond

forfeiture.

Section 85 of the Louisiana Revised Statutes, Title Fifteen contains the

provisions pertaining to the forfeiture of appearance bonds. The statute provides in

pertinent part:

(1) Failure to appear and answer. If at the time fixed for
appearance the defendant fails to appear and answer when called, the

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judge, on motion of the prosecuting attorney, upon hearing of proper
evidence including: the bail contract; the power of attorney if any; and
the notice to the defendant and the surety as required by Article 344 of
the Code of Criminal Procedure, shall immediately and forthwith issue
a warrant for the arrest of the person failing to appear and order a
judgment decreeing the forfeiture of the bond and against the defendant
and his sureties in solido for the full amount of the bond.

(2) Signing of the judgment of bond forfeiture. Following the
defendant’s failure to appear, the court shall sign a written judgment of
bond forfeiture.

(3) Notice of judgment.

(a) After entering the fact of the signing of the judgment of
bond forfeiture in the court minutes, the clerk of court shall promptly
mail notice of the signing of the judgment of bond forfeiture. . . .

....

(5) Summary proceedings. The defendant and his sureties shall
be entitled to bring defenses and actions in nullity by use of summary
proceedings in the criminal matter before the trial court which issued the
judgment of bond forfeiture within sixty days from mailing the notice of
the signing of the judgment of bond forfeiture. Any summary
proceedings brought by the defendant or his sureties within the sixty-day
period shall be determined by the court within one hundred and eighty
days of mailing the notice of the signing of the judgment of bond
forfeiture. The defendant and his sureties shall be entitled to bring
defenses pursuant to Code of Criminal Procedure Art. 345 and R.S.
15:87 by use of summary proceedings in the criminal matter before the
trial court which issued the judgment of bond forfeiture within six
months from mailing the notice of the signing of the judgment of bond
forfeiture.

(6) Appeals.

(a) The defendant and his sureties shall have the right to an
appeal that suspends the effect or execution of the judgment of bond
forfeiture. The security to be furnished for this suspensive appeal shall
be equal to the bail obligation.

(b) The defendant and his sureties shall have the right to a
devolutive appeal of the judgment of bond forfeiture.

(c) All appeals shall be to the appellate court having general civil

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appellate court jurisdiction over the court issuing the judgment of bond
forfeiture.

(7) Enforcement and collection of judgment. No judgment of
bond forfeiture rendered on or after August 15, 1997, shall be enforced
or collected until ten days after the expiration of six months after the
mailing of proper notice of the signing of the judgment of bond
forfeiture. The timely filing of a suspensive appeal shall suspend the
enforcement or collection of the judgment of the bond forfeiture. In
addition, the court may provide by court rule for the filing of an offset
claim against the principal with the secretary of the Department of
Revenue, in accordance with R.S. 47:299.1 through 299.20. If after six
months and ten days from the mailing of proper notice of the signing of
the judgment, a judgment of bond forfeiture against a commercial surety
company has not been suspensively appealed nor satisfied or
proceedings challenging the bond forfeiture have not been timely filed,
the prosecuting attorney may either file a rule to show cause with the
commissioner of insurance in accordance with R.S. 22:658.1 or collect
the judgment in the same manner as a civil judgment.

....

(9) Nullity actions. Nullity actions pursuant to Code of Civil
Procedure Art. 2001 et seq. not filed within the sixty days provided for
filing summary proceedings shall be brought by the use of ordinary civil
proceedings.

(10) Satisfaction of judgment of bond forfeiture. Any judgment
forfeiting the appearance bond rendered according to this Section shall
at any time, within six months, after mailing of the notice of the signing
of the judgment of bond forfeiture, be fully satisfied and set aside upon
the surrender or the appearance of the defendant. The appearance of
the defendant shall operate as a satisfaction of the judgment and the
surrender shall operate as a satisfaction of the judgment and shall fully
and finally relieve the surety of any and all obligations under the bond.
Any judgment forfeiting the appearance bond rendered according to this
Section shall at any time, within ten days after the expiration of the
six-month period provided to surrender the defendant, be fully satisfied
by the payment of the amount of the bail obligation without incurring
any interest, costs, or fees.

(Emphasis added).

Paris Bail Bonds issued the appearance bond on Turner’s behalf on

January 13, 2003. His arraignment was scheduled for July 21, 2003. When he failed

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to appear in court, the trial court ordered a bench warrant issued on July 24, 2003, and

the State moved for a bond forfeiture. The judgment forfeiting the appearance bond

was rendered on August 28, 2003, and notice of mailing of the judgment was sent to

Paris Bail Bonds on September 5, 2003. Paris Bail Bonds filed its motion to set aside

the bond forfeiture judgment on April 29, 2004, more than six months after the notice

of the judgment was mailed.

We recognize that bond forfeitures are not favored by law. State v.

Hathaway, 403 So.2d 737 (La.1981); State v. Rice, 36,401 (La.App. 2 Cir. 9/18/02),

827 So.2d 1180, writ denied, 02-2587 (La. 12/13/02), 831 So.2d 989. Thus, the State

must strictly comply with the statutory procedure in bond forfeiture actions in order

to obtain a valid bond forfeiture. State v. DeLaRose, 391 So.2d 842 (La.1980). A

surety is allowed six months within which to produce the defendant in court. La.R.S.

15:85(10). No extension of this time is allowed; the only extension which may take

place operates pursuant to the district attorney’s failure to seek the bond forfeiture at

the time of the defendant’s nonappearance. Rice, 827 So.2d 1180. In State v. Lanns,

95-781, p. 4 (La.App. 1 Cir. 11/9/95), 665 So.2d 66, 67, the appellate court held that

a “surety should not be penalized for failing to produce the defendant timely when

that failure was due to a reasonable reliance on false information provided by

representatives of the state.”

Under the facts of this matter, we affirm the trial court’s judgment setting

aside the bond forfeiture. It is undisputed that Dominique falsely identified himself

as Rudolph to the Sheriff’s Office at the time of his arrest. It appears that the

Sheriff’s Office did nothing to verify whether this information was correct. Paris Bail

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Bonds then relied on this information in issuing its appearance bond. We find that

this reliance was reasonable.

As a result of the Sheriff’s Office’s failure to verify the information, the

bill of information, the indictment, and the bench warrant were all issued for the

wrong person, Rudolph. When Dominique failed to appear in court, Paris Bail Bonds

once again relied on this information while attempting to locate him. Based on this

information, it could not satisfy its appearance bond until the correct warrant was

issued for Dominique. Accordingly, we find that the trial court correctly set aside the

bond forfeiture. Paris Bail Bonds reasonably relied on the information obtained by

the Sheriff’s Office; thus, it should not be penalized because that information was

erroneous.

Pursuant to our finding, Paris Bail Bonds’ Alternative Motion to Remand

is rendered moot. Thus, we need not address it.

CONCLUSION

For the forgoing reasons, the judgment of the trial court setting aside the

judgment of bond forfeiture is affirmed. We further deny the State of Louisiana’s writ

application. The costs of this appeal are assessed against the State of Louisiana, in

the amount of $237.50.

AFFIRMED; WRIT DENIED.

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