AMERICAN BANKERS INSURANCE COMPANY, APPELLANT,
v.
MONROE COUNTY, APPELLEE
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American Bankers Insurance Company appealed a bail bond forfeiture judgment, arguing that the state's unilateral addition of a conspiracy charge substantially altered the charges for which the original $50,000 bond was written. The court reversed, holding that such material changes to criminal charges release a surety company from liability unless the surety expressly agrees to the modification.
The surety company is no longer obligated under the bond when charges are substantially changed without its express agreement. The addition of a second-degree conspiracy charge to the original first-degree trafficking charge constituted a substantial change that materially increased the bail risk, thereby absolving the surety of liability.
[1] A surety company is no longer obligated under a bail bond when the charges against the defendant are substantially changed by the state after the bond was initially writt…
[2] The addition of a conspiracy charge to an original trafficking charge substantially changes the risk undertaken by a surety company, increasing the likelihood of flight.
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“where, as here, (1) a surety company enters into a $50,000 appearance bond contract obligating itself to produce the defendant in court when required on a criminal charge of trafficking in marijuana [§ 893.135(1)(a), Fla.Stat. (1991) ], a first-degree felony, and (2) the charges are subsequently and unilaterally changed by the state by adding a second charge of conspiracy to traffic in marijuana [§§ 777.04(3), (4)(d), 893.135(1)(a), Fla.Stat. (1991) ], a second-degree felony — the subject charges have been substantially changed from the charges for which the bail bond was originally written and the surety company is no longer obligated under the bond”
The court's core holding that unilateral state modification of charges releases the surety from bond obligations.
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Join FLexlaw to unlock all legal intelligenceAmerican Bankers Insurance Company entered into a $50,000 appearance bond obligating it to produce a defendant charged with trafficking in marijuana, …
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PER CURIAM.
This is an appeal by American Bankers Insurance Company, a surety company, from a final order denying its motion to set aside a final judgment of bail bond forfeiture in a criminal case. We reverse the final order under review and remand the cause to the trial court with directions to set aside the bail bond forfeiture upon a holding that where, as here, (1) a surety company enters into a $50,000 appearance bond contract obligating itself to produce the defendant in court when required on a criminal charge of trafficking in marijuana [§ 893.135(1)(a), Fla.Stat. (1991) ], a first-degree felony, and (2) the charges are subsequently and unilaterally changed by the state by adding a second charge of conspiracy to traffic in marijuana [§§ 777.04(3), (4)(d), 893.135(1)(a), Fla.Stat. (1991) ], a second-degree felony — the subject charges have been substantially changed from the charges for which the bail bond was originally written and the surety company is no longer obligated under the bond. See Midland Ins. Co. v. State, 354 So. 2d 961 (Fla. 3d DCA 1978).
Contrary to Monroe County’s argument, we cannot say that the addition of the conspiracy to traffic in marijuana charge did not substantially change the charges against the defendant. This additional charge is a second-degree felony, §§ 777.04(4)(d), 893.135(1)(a), Fla.Stat. (1991), which carries a maximum penalty of fifteen-years imprisonment, § 775.082(3)(c), Fla.Stat. (1991). Moreover, there is no statutory bar to the defendant receiving consecutive sentences on this charge as well as the marijuana trafficking charge — as, without dispute, the conspiracy charge contains different statutory elements than the trafficking charge and is neither a lesser degree offense nor a necessarily included offense under the trafficking charge. § 775.021(4)(a), (b), Fla.Stat. (1991). This being so, the addition of the conspiracy charge substantially increased the bail risk from the risk which the surety originally agreed to; the likelihood of flight by a criminal defendant is much greater when an additional felony charge is added, as here, to the felony charge or charges for which the bail bond was originally written. Resolute Insurance Co. v. State ex rel. Dade County, 238 So. 2d 520 (Fla. 3d DCA 1970), relied on by Monroe County, is not controlling because in that case the court did not consider the issue of whether the charges had been substantially changed so as to absolve the surety company of any liability under the surety contract — the issue which is involved in the instant case.
Finally, the fact that the surety company did not object when the charges were changed and undertook to look for the defendant when he absconded, obtaining court continuances to do so, does not, as urged, constitute a waiver of the surety’s rights, because this action in no way amended the surety company’s obligations under the original surety contract. Indeed, there is no showing on this record that the surety company was ever notified of the subject change in charges, much less that it agreed to this change in the surety contract. Clearly, if the state wished to require the surety company to remain legally obligated on the bail bond after the conspiracy charge was added, it should have sought the surety com- pan/s express agreement to this substantial change in the original surety contract. This is so because surety contracts of this nature cannot be substantially amended without the express agreement of both parties to the contract. A contrary rule would drastically alter the law of suretyship and would be both impractical and unwise. See Miami Nat’l Bank v. Fink, 174 So. 2d 38, 40 (Fla. 3d DCA), cert. denied, 180 So. 2d 658 (Fla.1965); Equitable Fire & Marine Ins. Co. v. Tiernan Bldg. Corp., 190 So. 2d 197, 198-99 (Fla. 4th DCA 1966). See generally 28 Fla.Jur.2d Guaranty & Suretyship § 28 (1981).
Reversed and remanded.
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Fast Release Bail Bonds, Inc. v. State, 895 So. 2d 448 (Fla. 4th DCA 2005)…mistake — this defendant deserves no sympathy from us for his failure to appear in court. However, the surety should not suffer if a material term of its agreement was changed without its consent. In American Bankers Insurance Co. v. Monroe County, 644 So. 2d 560, 561 (Fla. 3rd DCA 1994), the court held “surety contracts of this nature cannot be substantially amended without the express agreement of both parties to the contract.” In Wiley v. State, 451 So. 2d 916 (Fla. 1st DCA 1984), the court noted a surety…
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Universal Bail Bonds, Inc. v. State, 929 So. 2d 697 (Fla. 3d DCA 2006)…bond contract among the surety, the accused, and the state" and finding that the change, "being made without notice to, or the consent of, the surety, absolved the surely from liability on the contract”); American Bankers Ins. Co. v. Monroe County, 644 So. 2d 560, 561-62 (Fla. 3d DCA 1994) ("Clearly, if the state wished to require the surety company to remain legally obligated on the bail bond after the conspiracy charge was added, it should have sought the surety company’s express agreement to this substant…
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Surety v. State, 846 So. 2d 1154 (Fla. 1st DCA 2003)…ng made without notice to, or the consent of, the surety, absolved the surety from liability on the contract. See Cash v. State, 73 So. 2d 903 (Fla.1954); Ex Parte Cribbs, 109 Fla. 286, 146 So. 912 (1933); American Bankers Ins. Co. v. Monroe County, 644 So. 2d 560 (Fla. 3d DCA 1994). Section 903.21, Florida Statutes, which states in part: [*1156] (1) A surety desiring to surrender a defendant shall deliver a copy of the bond and the defendant to the official who had custody of the defendant at the time bail…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miami Nat'l Bank v. Fink, 174 So. 2d 38 (Fla. 3d DCA 1965)
- Midland Ins. Co. v. State, 354 So. 2d 961 (Fla. 3d DCA 1978)
- Hansen v. Ponce de Leon Hotel, 180 So. 2d 658 (Fla. 1965)
- Silver v. State, 180 So. 2d 658 (Fla. 1965)
- Massaro v. Int'l Minerals & Chem. Corp., 190 So. 2d 197 (Fla. 2d DCA 1966)
- Equitable Fire & Marine Ins. Co. v. Tiernan Bldg. Corp., 190 So. 2d 197 (Fla. 4th DCA 1966)
- Resolute Ins. Co. v. State, 238 So. 2d 520 (Fla. 3d DCA 1970)