CURLYCAN BAIL BONDS, INC., AS SURETY FOR DOUGLAS FONSECA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A bail bond surety appeals the denial of its motion to remit forfeiture of a $250,000 bond posted for a defendant who fled to Venezuela and could not be extradited. The court affirms, holding that the surety cannot invoke impossibility of performance because the defendant's voluntary flight and the surety's failure to take precautionary measures—not an unforeseeable act of God or state—caused the performance failure.
A bail bond surety cannot be relieved of its monetary obligation under the impossibility doctrine. The surety bears the risk that a defendant will fail to appear, and when that failure results from a combination of the defendant's voluntary flight and the surety's own failure to take precautionary measures—rather than an act of God or the state—the surety remains liable for the forfeiture.
[1] A bail bond is a three-party contract between the state, the accused, and the surety, where the surety guarantees the appearance of the accused.
[2] The risk of a defendant failing to appear is borne by the surety, which must take precautionary actions to prevent such an occurrence.
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 bail bond is a three-party contract between the state, the accused, and the surety, whereby the surety guarantees appearance of the accused.”
Establishes the nature of bail bond obligations and the three-party relationship.
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Join FLexlaw to unlock all legal intelligenceCurlycan Bail Bonds posted a $250,000 bond for Douglas Fonseca, who was arrested on drug trafficking charges. Fonseca failed to appear in court as sch…
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FLETCHER, Judge.
Curlycan Bail Bonds, Inc. appeals from the denial of its motion for remission of forfeiture of a bond it posted for Douglas Fonseca. We affirm. Fonseca was arrested and charged with drug trafficking. Curlycan posted a $250,000 bond for Fonseca’s release. When Fonseca failed to appear in court as scheduled, the bond was estreated. After extensive efforts, Curlycan was able to locate Fonseca in Venezuela. However, because the president of Venezuela refuses to extradite any native Venezuelan to another country, notwithstanding an existing treaty of extradition between the United States and Venezuela, Curlycan is unable to present Fonseca for prosecution.
Curlycan argues that it should be excused from its obligation because it could not have foreseen that a foreign sovereign would illegally interfere with its performance under the bond agreement. Curlycan contends that the court should apply the contract doctrine of impossibility of performance to excuse its failure to perform herein. A similar situation and argument was considered by the Fourth District Court of Appeal in Allegheny Casualty Co. v. State, 850 So. 2d 669, 671 (Fla. 4th DCA 2003). The court stated therein:
“A bail bond is a three-party contract between the state, the accused, and the surety, whereby the surety guarantees appearance of the accused. See Pinellas County v. Robertson, 490 So. 2d 1041, 1042 (Fla. 2d DCA 1986). The risk of a defendant not appearing is borne by the surety and the surety, in order to protect its interest, must take precautionary actions to prevent this type of situation. In the instant case, Surety’s performance was not rendered impossible by an act of God or an act of the State. Surety’s inability to perform its obligation is due to its own fault in permitting the defendant to leave the State of Florida.”
Here, it was also a combination of Fonse-ca’s voluntary action in fleeing to Venezuela and Curlycan’s failure to take precautionary action to prevent his leaving the jurisdiction which led to the surety’s inability to perform its obligation under the bond. Curlycan is therefore not entitled to be relieved of the monetary obligation it contractually assumed.
Affirmed.
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State of Fla. & Clerk of the Cir. Court v. Sunshine State Bail Bonds, Inc., 967 So. 2d 1084 (Fla. 2d DCA 2007)…. However, Florida courts have addressed the remission of a bond forfeiture when the defendant leaves the jurisdiction and the surety is unable to bring him back to Florida due to the actions of a third party. In Curlycan Bail Bonds, Inc. v. State, 933 So. 2d 122 (Fla. 3d DCA 2006), the defendant failed to appear as scheduled and was later located in Venezuela, which refused to extradite him. Curlycan argued that the court should excuse its failure to perform the contract, based on the doctrine of impossibil…
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State v. Allstar Bail Bonds, 983 So. 2d 1218 (Fla. 5th DCA 2008)…he application of the doctrine of impossibility of performance when the surety is able to locate an absconding defendant in another country, but that country refuses to extradite the defendant. Allegheny; see also Curlycan Bail Bonds, Inc. v. State, 933 So. 2d 122 (Fla. 3d DCA 2006). As our sister courts did in Sunshine, Allegheny, and Curlycan, we find that the doctrine of impossibility of performance provides no relief to the surety. REVERSED and REMANDED for entry of an order denying Allstar’s motion for…1 / 2
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Clerk of the Cir. Court & Comptroller of Collier Cnty. v. Yoelvis Denis Hernandez (Fla. 2d DCA 2022)…leave the State of Florida.")). The Third District, also addressing impossibility of performance, upheld the denial of a motion for remission when a surety was unable to produce the defendant for prosecution. See Curlycan Bail Bonds, Inc. v. State, 933 So. 2d 122, 123 (Fla. 3d DCA 2006). There, a defendant who failed to appear in court absconded to Venezuela after his bond was estreated. Id. Venezuela refused to extradite the defendant to the United States, and the surety was unable to present him for pr…
Authorities Cited
- Pinellas Cnty. v. Robertson, 490 So. 2d 1041 (Fla. 2d DCA 1986)
- Allegheny Cas. Co. v. State, 850 So. 2d 669 (Fla. 4th DCA 2003)