WILLIAM ROBERT RYAN (AL ESTES BONDING COMPANY), APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ryan appeals a trial court's denial of his motion to set aside a bond forfeiture. The court held that the 1977 amendment to Florida Statute § 903.26(2) does not require post-forfeiture written notice to the surety as a condition of enforcing forfeiture, distinguishing this requirement from the pre-forfeiture advance notice requirement.
The post-forfeiture notice requirement is not a condition precedent to forfeiture; failure to provide post-forfeiture notice does not mandate setting aside the forfeiture. The post-forfeiture notice serves to initiate the running of the 30-day payment period, and at minimum, the surety must show prejudice to avoid forfeiture.
[1] A statute's silence on the consequences of failing to provide post-forfeiture notice does not automatically nullify a bond forfeiture.
[2] The purpose of post-forfeiture notice is to inform the surety of the forfeiture and to commence the period for payment, not to create a condition precedent to forfeiture.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“subsection (l)(b) of the statute expressly proscribes forfeiture in the absence of advance notice by the clerk to the surety, whereas subsection (2), as amended, is silent as to the consequences of a post-forfeiture notice failure.”
Establishes the critical statutory distinction between pre-forfeiture and post-forfeiture notice requirements, supporting the court's different treatment of each.
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Join FLexlaw to unlock all legal intelligenceA bond was forfeited when the defendant failed to appear in court. The trial court denied Ryan's motion to set aside the forfeiture, apparently based …
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COBB, Judge.
This is an appeal from a trial court order denying a motion to set aside a bond estrea-ture. It requires interpretation of the 1977 amendment to § 903.26(2), which added the following italicized words:
If there is a breach of the bond, the court shall declare the bond and any bonds or money deposited as bail forfeited and shall notify the surety agent and surety company in writing within 72 hours of said forfeiture. The forfeiture shall be paid within 30 days.
Subsection (l)(b) of § 903.26 provides that a bail bond shall not be forfeited in the absence of 72 hour advance notice to the surety of a court date. This subsection has been construed to require actual notice. Schaefer v. State, 369 So. 2d 443 (Fla.3d DCA 1979); Bailey v. State, 282 So. 2d 32 (Fla.1st DCA 1973). The burden of showing compliance with this advance notice requirement is on the state. Bankers Fire & Casualty Co. v. State, 303 So. 2d 39 (Fla.1st DCA 1974); Resolute Insurance Company v. State, 269 So. 2d 770 (Fla.3d DCA 1972).
In the instant case, there is no record showing that the post-forfeiture notice was given. Therefore, appellant argues from analogy with Bankers and Resolute, the forfeiture must be set aside.
The difficulty with this argument is that subsection (l)(b) of the statute expressly proscribes forfeiture in the absence of advance notice by the clerk to the surety, whereas subsection (2), as amended, is silent as to the consequences of a post-forfeiture notice failure. When a surety is given proper notice to produce a defendant, for whom it is legally responsible and for whom it has intervened in the case, that surety knows it is subject to forfeiture at the time of the failure of appearance. There is no logical reason for the requirement of additional written notice at all; the forfeiture occurs in open court and is a matter of public record. To preclude forfeiture each time a surety or its agent denies actual receipt of a post-forfeiture notice — and they may effectively insulate themselves from notice as occurred in Bailey-would be to emasculate the forfeiture law. It would be inimical to the interest of the public for there would be no effective recourse or motivation for the return of bond-jumping defendants to custody. If the legislature had intended this drastic result, it could have achieved it by an express statement that in the absence of the notice the forfeiture would be nullified. It did not elect to do so, and neither should this court.
It is logical and consistent with the language of subsection (2) of the statute to interpret the post-forfeiture notice as reasonable notice which serves as the inception of the running of the 30-day period for payment. At the very least, there should be a showing of prejudice made by the bondsman or surety before the trial court to avoid forfeiture. Weaver v. State, 370 So. 2d 1236 (Fla.2d DCA 1979).
Whether or not this court would follow the stringent interpretation of the pre-for-feiture notice requirement of § 903.26(l)(b) as expressed in Schaefer and Bailey need not be decided at this time. Cf. Ramsey v. State, 225 So. 2d 182 (Fla.2d DCA 1969).
In accordance with the foregoing, the order of the trial court is affirmed.
SHARP, J., concurs.
DAUKSCH, C. J., concurs in conclusion only.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Allied Fid. Ins. Co. v. State, 415 So. 2d 109 (Fla. 3d DCA 1982)…clude the entry of a judgment, Allied is entitled to show — and did in fact show — that it was prejudiced when notice of the forfeiture was served upon it more than seventy-two hours after forfeiture. While there is some suggestion in Ryan v. State, 380 So. 2d 539 (Fla. 5th DCA 1980), and Weaver v. State, supra, that a showing of prejudice arising from a lack of timely notice to the surety of forfeiture might prevent a judgment on the forfeiture, we seriously doubt that such a showing is possible. As the cour…
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Wiley v. State, 451 So. 2d 916 (Fla. 1st DCA 1984)…however, that a surety may be entitled to discharge on its bond if prejudiced by the state’s conduct in failing to comply with the statutory requirements in section 903.26. See, e.g., Weaver v. State, supra; Allied Fidelity I, supra; Ryan v. State, 380 So. 2d 539, 540-541 (Fla. 5th DCA 1980); Summit Fidelity Insurance Co. v. State, 166 So. 2d 757, 758 (Fla. 1st DCA 1964). The burden, however, is clearly upon the surety to prove such prejudice by competent evidence. In the instant ease, no evidence was submit…
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Accredited Sur. & Cas. Co., Inc. v. State, 418 So. 2d 378 (Fla. 5th DCA 1982)…ersed for lack of pre-for-feiture notice); Resolute Insurance Company v. State, 269 So. 2d 770 (Fla. 3d DCA 1972) (Order denying appellant’s Motion to Set Aside Judgment and Discharge surety on grounds of lack of notice reversed); In Ryan v. State, 380 So. 2d 539 (Fla. 5th DCA 1980) this court held that lack of post-forfeiture notice does not require that an order of estreature be set aside; however, this court’s decision in Ryan was predicated on the fact that Ryan had pre-forfeiture notice of the defendant…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ramsey v. State of Fla. & Gerald Lee Hemphill, 225 So. 2d 182 (Fla. 2d DCA 1969)
- Resolute Ins. Co. v. State, 269 So. 2d 770 (Fla. 3d DCA 1972)
- Bailey v. State, 282 So. 2d 32 (Fla. 1st DCA 1973)
- Bankers Fire & Cas. Co. v. State, 303 So. 2d 39 (Fla. 1st DCA 1974)
- Weaver v. State, 370 So. 2d 1236 (Fla. 2d DCA 1979)
- S. Hallock duPONT, Jr. v. Cnty. Nat'l Bank OF N. Miami Beach, 369 So. 2d 443 (Fla. 3d DCA 1979)
- Schaefer v. State, 369 So. 2d 443 (Fla. 3d DCA 1979)