ROBERT CAIVANO AND BANKERS FIRE AND CASUALTY INSURANCE COMPANY, APPELLANTS,
v.
STATE OF FLORIDA AND COLLIER COUNTY, FLORIDA, APPELLEES
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This case concerns the propriety of a bond estreature and forfeiture after a defendant, released on bond for probation violation, failed to appear for sentencing.
The court affirmed the estreature and forfeiture of the bond, finding that the defendant's failure to appear for sentencing justified the action.
[1] A bail bond shall not be forfeited unless the clerk of court gave the surety at least seventy-two hours' notice, exclusive of Saturdays, Sundays, and holidays, before the…
[2] Notice of a defendant's required appearance is not necessary to avoid forfeiture if the time for appearance is within seventy-two hours from the time of arrest, or if the…
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Join FLexlaw to unlock all legal intelligenceRobert Caivano was convicted of drug offenses and later placed on probation. After an alleged probation violation, he was released on a $100,000 bail …
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BOARDMAN, Judge.
This timely appeal concerns the propriety of a bond estreature and forfeiture. The facts are essentially as follows:
The litigation arose initially when the state filed a two-count information charging appellant, Robert Caivano, with violation of the narcotic drug laws. He was subsequently convicted of both offenses and sentenced on each count to some three years to run concurrently. The judgment and sentence were appealed to this court and on October 25, 1973, we remanded the cause for proper sentencing, said sentencing being in violation of the same transaction rule.1 On remand for the imposition of the proper sentence, in accordance with our opinion, the proceedings in the trial court, which were originally set for November 20, 1973, were continued until February 11, 1974. During that interim rescheduling period appellant filed a motion for mitigation of sentence. On February 11, 1974, the trial court placed Caivano on probation for a period of three years. The state appealed this ruling of the trial court and the cause was presented to us for the second time.
In this second appeal, we remanded the cause to the trial court for imposition of sentence in accordance with our original mandate of October 25, 1973.2 Whereupon, the trial court issued an order of arrest which commanded the sheriffs, constables and any investigator of the state attorney’s office to bring Caivano before the court for sentencing.
While the second appeal was pending an affidavit was filed on August 29, 1974, alleging that Caivano had violated the terms and conditions of probation. On September 16, 1974, an order was entered by the Circuit Court in Broward County permitting Caivano to be released upon posting bond in the amount of $100,000 for violation of probation. The bond was posted and Caivano was released from custody. Said bail bond was executed on September 25, 1974, by Caivano and appellant, Bankers Fire and Casualty Insurance Company (Bankers). Subsequently, the order of ar rest, hereinabove referred to, was received by the attorney for Caivano and the attorney for Bankers.
The order of arrest directed Caivano to appear before the circuit judge in Coilier County on June 18, 1975, to be sentenced in accordance with our mandate of October 25, 1973. On June 18, 1975, the appellant having failed to appear as ordered, in open court the circuit judge estreated the bond of $100,000 that had been posted for the appearance of Caivano to answer to the charge of “vio. probation.” The estreature was ordered over objection of counsel for Caivano. On the following day, the court entered a certificate and order of forfeiture of appearance bond and a judgment of forfeiture of the bond was rendered.
Subsequently, counsel on behalf of Cai-vano and Bankers filed a motion to set aside this forfeiture. At the hearing on the said motion held on July 18, 1975, a representative of the circuit court clerk testified that the clerk’s office had not sent a notice to Bankers directing appearance of Caivano in court to answer to the charge of “vio. probation” as provided in the bond. The representative also testified that the only notice sent to the bonding company by the clerk’s office was contained in the order of arrest which only directed that certain law enforcement officers bring Caivano before the court for sentencing. Notwithstanding, the circuit court entered its order denying Bankers’ motion to set aside the forfeiture and this appeal followed.
Appellants have raised three points for our consideration. In view of our decision, we deem it necessary to discuss only one point, that is, the failure of a clerk’s office to give the requisite statutory notice afforded the surety of a bail bond in producing a defendant to answer charges set forth in the bond before estreature and the entry of judgment of forfeiture.
Florida Statutes, Section 903.26, provides, in pertinent part, as follows:
(1) A bail bond shall not be forfeited unless:
**
(b) The ’clerk of court gave the surety at least seventy-two hours’ notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant. Notice shall not be necessary if the time for appearance is within seventy-two hours from the time of arrest, or if the time is stated on the bond.
As the above-recited facts, which are entirely supported by the record, disclose, the surety, Bankers, was not given notice that Caivano’s appearance was for the purpose as set out in the bail bond, i. e. “vio. probation.” The order of arrest which Bankers’ attorney had notice of only directed that Caivano appear in court to be sentenced in accordance with our mandate of October 25, 1975. This notice was insufficient and is contrary not only to statutory law, but to case precedent regarding forfeiture.3 In this case, as stated above, the record fails to show that the requisite notice was ever given to Bankers prior to the contested forfeiture. It is a well established principle of law that forfeitures are not favored at law; and, thus, statutes providing for them are strictly construed.4 We conclude that the order denying Bankers’ motion to set aside the certificate and order of forfeiture of appearance bond and judgment of forfeiture of bond are hereby
REVERSED with directions to set aside the estreature and forfeiture. The said bond shall remain in effect. The cause is remanded to the trial court for further proceedings consistent with this opinion.
HOBSON, A. C. J., and SCHEB, J., concur. . Caivano v. State, Fla.App.2d, 1973, 276 So. 2d 245.
. State v. Caivano, Fla.App.2d, 1974, 304 So. 2d 139.
. In State for the Use and Benefit of Dade County v. All Florida Surety Co., Fla.1952, 59 So. 2d 849, the Supreme Court of Florida said: “This Court has repeatedly held that the offense charged must be stated in the appearance bond and that the liability of a surety is not to be extended beyond the terms of his contract and to that extent he is bonded. . .”
. Williams v. Stack, Fla.App. 4th, 1972, 269 So. 2d 771; Ramsey v. State, Fla.App. 2d, 1969, 225 So. 2d 182; Boyle v. State, Fla. 1950, 47 So. 2d 693; City of Miami v. Miller, 1941, 148 Fla. 349, 4 So. 2d 369.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Wiley v. State, 451 So. 2d 916 (Fla. 1st DCA 1984)…orfeited once again. 370 So. 2d at 1238. The state urges that the rationale of Resolute II controls here even though this case involves failure to give notice under section 903.26(l)(b), rather than section 903.26(2).2 Relying on Caivano v. State, 331 So. 2d 331 (Fla. 2d DCA 1976), wherein the notice to the surety was held insufficient to comply with section 903.26(l)(b) and the case was remanded to the trial court with directions to set aside the forfeiture, the state emphasizes the directive in the opinio…
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Accredited Sur. & Cas. Co., Inc. v. State, 418 So. 2d 378 (Fla. 5th DCA 1982)…a. 2d DCA 1979) (Failure to give post-forfeiture notice can constitute good cause [*381] to remit a forfeiture); Schaefer v. State, 369 So. 2d 443 (Fla. 3d DCA 1979) (Order and judgment reversed for lack of pre-for-feiture notice); Caivano v. State, 331 So. 2d 331 (Fla. 2d DCA 1976) (Order of forfeiture and judgment reversed for lack of pre-for-feiture notice); Resolute Insurance Company v. State, 269 So. 2d 770 (Fla. 3d DCA 1972) (Order denying appellant’s Motion to Set Aside Judgment and Discharge surety on…
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In re Forfeiture of the Following Described Prop.: 1975 Ford: N.C. Tag No. WEX 580 v. Dewitt Marion Brandon, III, 426 So. 2d 44 (Fla. 2d DCA 1982)…932.703(1) provides for forfeiture of any motor vehicle “which has been or is being used in violation of” section 932.702. Forfeiture statutes are strictly construed. Estate of Maltie v. State, 404 So. 2d 384 (Fla. 4th DCA 1981); Caivano v. State, 331 So. 2d 331 (Fla. 2d DCA 1976). Here, the plain language of the statute refers to actual use of a vehicle to transport contraband articles. The legislature did not include either attempts or intended uses. We must not broaden the scope of legislative enactments…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The City of Miami v. Miller, 4 So. 2d 369 (Fla. 1941)
- Ramsey v. State of Fla. & Gerald Lee Hemphill, 225 So. 2d 182 (Fla. 2d DCA 1969)
- Boyle v. State, 47 So.2d 693 (Fla. 1950)
- Caivano v. State, 276 So. 2d 245 (Fla. 2d DCA 1973)
- State v. All Fla. Sur. Co., 59 So. 2d 849 (Fla. 1952)
- Hunter v. State, 304 So. 2d 139 (Fla. 2d DCA 1974)
- State v. Caivano, 304 So. 2d 139 (Fla. 2d DCA 1974)
- Williams v. Stack, 269 So. 2d 771 (Fla. 4th DCA 1972)