COUNTY OF VOLUSIA, APPELLANT,
v.
JOSEPH PAUL AUDET, APPELLEE
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The Fifth District Court of Appeal reversed a trial court's grant of remission to a bail bondsman who filed a motion to set aside a bond forfeiture judgment outside the statutory 60-day window. The court held that section 903.28 of the Florida Statutes, which provides the remedy of remission, is unavailable to a surety who fails to timely challenge a forfeiture judgment.
The trial court lacked jurisdiction to grant remission because section 903.28 is not available to a surety that fails to timely move to set aside the judgment within 60 days of entry. Timely vacating the judgment is essential to a surety's right to remission, and Mann and Severson's untimely motion precluded them from obtaining this remedy.
[1] A surety is precluded from obtaining remission of a forfeited bail bond if a motion to set aside the judgment of estreature is not filed within sixty days following the e…
[2] Timely vacating a judgment of bail bond forfeiture is essential to a surety's right to remission.
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Join FLexlaw to unlock all legal intelligence“In the instant case, section 903.28, Florida Statutes was not available to Mann and Severson because they breached the bond by failing to pay within 35 days after notice.”
Establishes that the statutory remedy of remission was unavailable due to the surety's breach and failure to timely file a motion to set aside the judgment.
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Join FLexlaw to unlock all legal intelligenceMann and Severson Bail Bonds posted bond for defendant Joseph Paul Audet, who failed to appear for trial. The bond was declared forfeited under Florid…
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COBB, Judge.
The issue on this appeal is whether the trial court had jurisdiction to grant Mann and Severson Bail Bonds’ motion for remission.
The surety, Mann and Severson Bail Bonds, bonded out the defendant who subsequently failed to appear for trial. Because there was a breach of the bond, the court declared the bond forfeited. § 903.26(2)(a), Fla. Stat. (1995). Mann and Severson failed to pay within 35 days and a judgment on the bond estreature was entered on May 19, 1994. § 903.27(1), Fla. Stat. On June 20, 1994, Mann and Severson satisfied the judgment. Approximately three months later, the surety filed a motion to set aside the bond estreature, set aside judgment, exonerate the bail bondsmen and obtain remission.
According to the County of Volusia, Mann and Severson failed to file their motion within sixty days following entry of the judgment and thus were precluded from obtaining remission pursuant to section 903.28(6), Florida Statutes. The lower court initially agreed with the County that there was no jurisdiction to set aside the judgment since Mann and Severson did not file a motion to set aside within the sixty day time period. Eventually, however, the lower court granted Mann and Severson’s motion and granted remission. In the instant ease, section 903.28, Florida Statutes was not available to Mann and Severson because they breached the bond by failing to pay within 35 days after notice. In addition, this court in Accredited Surety & Casualty Company, Inc. v. State, 418 So. 2d 378 (Fla. 5th DCA 1982), adopted the analysis of the Third District to the extent that section 903.28 is not available to a surety when forfeiture is reduced to a judgment and no timely motion to set aside the judgment is made. Resolute Insurance Company v. State ex rel. Dade County, 289 So. 2d 456 (Fla. 3d DCA 1974). Thus, timely vacating the judgment is essential to a surety’s right to remission. Accredited Surety at 381. As the County correctly notes, Mann and Severson did not move to set the judgment aside until 118 days after it was entered. § 903.27(5), Fla. Stat. Accordingly, we find that the lower court erred in granting the motion to set aside estreature, set aside judgment, exonerate bail bondsmen and obtain remission. The order of the lower court is hereby vacated.
REVERSED.
SHARP, W. and GOSHORN, JJ., concur.
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Hillsborough Cnty. v. Roche Sur. & Cas., 805 So. 2d 937 (Fla. 2d DCA 2001)…y that no monies had, as of that time, been paid. Without payment of the forfeiture, there are no funds for the clerk of the court to remit. Furthermore, failure to pay the forfeiture constitutes a breach of the bond. See County of Volusia v. Audet, 682 So. 2d 687 (Fla. 5th DCA 1996). We are concerned that the procedures followed in this case did not comport with the statutory scheme requiring that a forfeiture “be paid within 60 days of the date the notice was mailed.” § 903.26(2)(a). If the surety does not…
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State v. Allstar Bail Bonds, 983 So. 2d 1218 (Fla. 5th DCA 2008)…eached that statute and that part of the bail bond contract, it would not have been entitled to seek remission under section 903.28(6). See Hillsborough County v. Roche Sur. & Cas., Co., 805 So. 2d 937 (Fla. 2d DCA 2001); County of Volusia v. Audet, 682 So. 2d 687 (Fla. 5th DCA 1996). However, the surety fully complied by paying the bond amount. Therefore, it was entitled to seek remission under section 903.28(6) and the bail bond contract. See Roche; Audet. Hence, the question we must resolve is whether the…
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Polakoff & Aabbott Bail Bonds v. State, 111 So. 3d 253 (Fla. 5th DCA 2013)…c., 805 So. 2d 937, 939 (Fla. 2d DCA 2001) (“Without payment of the forfeiture, there are no funds for the clerk of the court to remit. Furthermore, failure to pay the forfeiture [*256] constitutes a breach of the bond.”); Cnty. of Volusia v. Audet, 682 So. 2d 687 (Fla. 5th DCA 1996).3 Once timely payment is made, and within two years from the forfeiture, the surety may file an application for remission of the forfeiture under the premise that no breach occurred. § 908.28(1), Fla. Stat. (2011).4 The order eit…
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
- Resolute Ins. Co. v. State, 289 So. 2d 456 (Fla. 3d DCA 1974)
- Accredited Sur. & Cas. Co., Inc. v. State, 418 So. 2d 378 (Fla. 5th DCA 1982)