THE STATE OF FLORIDA, FOR THE USE AND BENEFIT OF METROPOLITAN DADE COUNTY, APPELLANT,
v.
ORESTES SAIZ, APPELLEE
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Florida's highest appellate court for the Third District holds that a surety on a bail bond is not automatically discharged when the State fails to provide pre-forfeiture notice of a trial date, but must instead prove actual prejudice from the notice failure. The court overrules its prior precedent in Resolute Insurance and adopts the reasoning from Wiley v. State.
A surety may be entitled to discharge of a bail bond only upon showing by competent evidence that the State's failure to comply with statutory notice requirements caused actual prejudice. Prejudice is not presumed from a mere failure to notify the surety of the trial date. The trial court properly set aside the bond forfeiture, but the surety is not automatically discharged without proof of prejudice.
[1] A surety is not entitled to discharge on a bail bond solely due to the State's failure to provide pre-forfeiture notice of the trial date.
[2] Prejudice must be shown by competent evidence to relieve a surety of its obligations on a bail bond when the State fails to provide statutory notice of the trial date.
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“A surety may be entitled to discharge on its bond where there is a showing by competent evidence that the State's conduct in failing to comply with the statutory notice requirements of section 903.26(l)(b) caused prejudice.”
Establishes the standard that surety discharge requires proof of actual prejudice, not automatic relief upon notice failure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAmerican Bankers Insurance Company posted a $25,000 bail bond for defendant Orestes Saiz, who was accused of cocaine trafficking. Saiz failed to appea…
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FERGUSON, Judge.
The State appeals from a final order setting aside the estreature of a bail bond and discharging the surety.
American Bankers Insurance Company (the surety) wrote a $25,000 bail bond assuring the court appearance of Orestes Saiz, accused in a criminal information of trafficking in cocaine. When Saiz failed to appear for trial the court estreated the bond and issued a capias.1
No notice was given the surety of the defendant’s original trial date as required by section 903.26(l)(b), Florida Statutes (1987).2 On the surety’s oral motion, the court entered a final order setting aside the estreature and discharging the surety. The question presented is whether prejudice is presumed as a matter of law, for the purpose of discharge on an appearance bond, where the surety is not given written pre-forfeiture notice.3
Relying on Wiley v. State, 451 So. 2d 916 (Fla. 1st DCA 1984), the State contends that while failure to provide notice does entitle a surety to have a bond forfeiture vacated it does not entitle the surety to have the bond discharged unless the surety proves by competent evidence that it was prejudiced by the State’s failure to comply with the required notice provisions. See also Dependable Ins. Co. v. Union County, 509 So. 2d 1228 (Fla. 1st DCA 1987).
The surety, on the other hand, citing, Resolute Ins. Co. v. State, 269 So. 2d 770 (Fla. 3d DCA 1972), as the controlling law in the third district, maintains that the trial court correctly cancelled the bond on an application of strict contract principles.
We approve the reasoning and holding in Wiley. A surety may be entitled to discharge on its bond where there is a showing by competent evidence that the State’s conduct' in failing to comply with the statutory notice requirements of section 903.26(l)(b) caused prejudice. However, lack of pre-forfeiture notice, without prejudice, is not a valid reason for relieving a surety of all obligations on the bond. Further, prejudice will not be presumed from a failure to give the surety notice of the trial date. In this case, as in Wiley, no evidence of resultant prejudice was submitted in support of the motion for dis charge. Our earlier opinion in Resolute — to the extent it presumed prejudice from a failure to notify the surety of the original trial date — is overruled.
Accordingly, that part of the final order which sets aside the estreature of the bond is affirmed, that part of the order which discharges the surety is reversed, and the cause is remanded for further consistent proceedings.
. Capias, Latin for "That you take," is the general name for several species of writs, the common characteristic of which is that they required the sheriff to take the body of the defendant into custody. Black’s Law Dictionary 188 (5th ed. 1979).
. Notice of new trial dates was sent to both the defendant and the surety by an order, entered on the surety’s motion, continuing the hearing scheduled for August 21, 1987. The court clerk testified that re-forfeiture of the bond was delayed for several months because of the surety’s repeated requests for extensions.
.We held in Allied Fidelity Ins. Co. v. State, 415 So. 2d 109 (Fla. 3d DCA 1982), that the lack of a post-forfeiture notice is not a sufficient basis for relieving a surety of its obligations under the bond.
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Accredited Sur. & Cas. Co. v. Putnam Cnty., 561 So. 2d 1243 (Fla. 5th DCA 1990)…303 So. 2d 39 (Fla. 1st DCA 1974), cert. denied, 423 U.S. 939, 96 S.Ct. 300, 46 L.Ed.2d 271 (1975); Bailey v. State, 282 So. 2d 32 (Fla. 1st DCA 1973); Resolute Insurance Company v. State, 269 So. 2d 770 (Fla. 3d DCA 1972), overruled, State v. Saiz, 547 So. 2d 208 (Fla. 3d DCA 1989); Ramsey v. State, 225 So. 2d 182 (Fla. 2d DCA 1969); see also Ryan v. State, 380 So. 2d 539, 541 (Fla. 5th DCA 1980). Here, the record indicates that no notice was ever given to the bondsman in order to produce the defendant for…1 / 2
Authorities Cited
- Allied Fid. Ins. Co. v. State, 415 So. 2d 109 (Fla. 3d DCA 1982)
- Wiley v. State, 451 So. 2d 916 (Fla. 1st DCA 1984)
- Resolute Ins. Co. v. State, 269 So. 2d 770 (Fla. 3d DCA 1972)
- Dependable Ins. Co., Inc. v. Union Cnty., 509 So. 2d 1228 (Fla. 1st DCA 1987)