LUCIANO MORRA, EUGENE HOLZHAUER AND SOUTHLAND INSURANCE COMPANY, APPELLANTS,
v.
THE STATE OF FLORIDA, FOR THE USE AND BENEFIT OF MONROE COUNTY, APPELLEE
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A defendant's failure to appear at trial does not automatically constitute thwarting prosecution under Florida law when the surety surrenders the defendant within thirty days and the defendant is subsequently tried and convicted.
A defendant's failure to appear at trial does not per se thwart prosecution under Fla. Stat. §§ 903.26(5)(c) and 903.28(2) when the surety surrenders the defendant within thirty days and trial proceeds.
[1] A defendant's failure to appear at trial does not automatically constitute thwarting the proper prosecution under Florida Statutes sections 903.26(5)(c) and 903.28(2) whe…
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Join FLexlaw to unlock all legal intelligence“not every disappearance of a defendant thwarts prosecution even though it causes delay”
Court cited Allied Bonding Agency to establish that failure to appear does not automatically constitute thwarting prosecution.
Morra, a defendant on bond, failed to appear at trial, inconveniencing the court, jury, and witnesses. The surety surrendered Morra to authorities wit…
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PER CURIAM.
A defendant on bond who inconvenienced the court, a jury venire, and witnesses by not appearing on the date of trial, but who was surrendered by the surety to the custody of authorities within thirty days of the trial date and was subsequently tried and convicted, has not “thwarted the proper prosecution of the defendant” as that term is used in sections 903.26(5)(c) and 903.-28(2), Florida Statutes (1983). See Allied Bonding Agency, Inc. v. State, 358 So. 2d 246 (Fla. 4th DCA 1978) (not every disappearance of a defendant thwarts prosecution even though it causes delay). Here a timely motion to vacate the forfeiture was made by defendant’s counsel prior to the entry of a forfeiture judgment.
The trial court reserved ruling on that motion and, after the judgment of forfeiture was entered, denied a subsequent motion to vacate filed by the surety, ruling that the defendant’s failure to appear constituted a thwarting of the prosecution as a matter of law.
We disagree. On remand the trial court may, in the exercise of discretion, consider circumstances other than the delay or the subsequent conviction in ruling on the motion to vacate judgment of forfeiture and discharge surety.
Reversed and remanded for further proceedings.
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Citator
Cited By
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The Bd. OF Comm'rs OF Brevard v. Barber Bonding Agency, 860 So. 2d 10 (Fla. 5th DCA 2003)…ure and return to the court’s jurisdiction. See Easy Bail Bonds v. Polk County, 784 So. 2d 1173 (Fla. 2d DCA 2001); Rubin S. Williams Bailbonds, Inc. v. State, 493 So. 2d 1065 (Fla. 1st DCA 1986); Morra v. State For Use and Benefit of Monroe County, 460 So. 2d 507 (Fla. 3d DCA 1984). Section 903.28 should have a consistent interpretation. Therefore, I would reverse, but certify as a question of public importance11 to the Florida Supreme Court the question of first impression stated at the beginning of my dis…
Authorities Cited
- Allied Bonding Agency, Inc. v. State of Fla. & Raymond Arthur McAbee, 358 So. 2d 246 (Fla. 4th DCA 1978)