ALLIED BONDING AGENCY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
STATE OF FLORIDA AND RAYMOND ARTHUR MCABEE, APPELLEES
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A bail bondsman appealed the trial court's denial of bond remission after the surety apprehended and returned a fugitive defendant within one year of bond forfeiture. The court reversed, holding that under Florida Statute § 903.28, the trial court must remit a forfeited bond unless the defendant's absence thwarted proper prosecution, and the record showed no such thwarting.
Under Florida Statute § 903.28, a court shall order remission of a forfeited bond unless the delay caused by the defendant's failure to appear thwarted proper prosecution. The statute is designed to reward diligent sureties for returning principals, and the trial court abused its discretion in denying remission where the record showed no evidence that the delay thwarted prosecution.
[1] A court shall order remission of a forfeited bond unless the delay caused by the defendant's failure to appear has thwarted the proper prosecution of the defendant.
[2] A surety is entitled to remission of a forfeited bond when the defendant is apprehended and surrendered to the court within one year of the forfeiture, absent evidence th…
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Join FLexlaw to unlock all legal intelligence“the court shall order the remission unless the delay has thwarted the proper prosecution of the defendant”
States the statutory requirement under § 903.28 that forfeited bonds must be remitted unless prosecution was thwarted
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Join FLexlaw to unlock all legal intelligenceA defendant failed to appear and the trial court estreated (forfeited) the bond. Allied Bonding Agency, as the surety, was required to forfeit the bon…
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DAUKSCH, Judge.
The trial court estreated the bond of a defendant who failed to appear and the appellant was required to forfeit the amount of the bond since it was the surety for the defendant. Within one year of the forfeiture the surety apprehended and surrendered the defendant to the court. The court readmitted the defendant to bail and a short time later the defendant was permitted to enter his plea of nolo contendere to the crime originally charged. When the bondsman went to the court to have the forfeited bond remitted this was denied even though Section 903.28, Florida Statutes (1975) says the court shall order the remission unless the delay has thwarted the proper prosecution of the defendant. United Bonding Insurance Company v. State, 242 So. 2d 140 (Fla. 1 DCA 1970); Leach v. State, 293 So. 2d 77, (Fla. 1 DCA 1974). The record discloses no evidence the delay, caused by the defendant’s having failed to appear, thwarted the proper prosecution of the defendant. Of course, any disappearance of a defendant delays and thereby somewhat thwarts prosecution but we cannot say every disappearance thwarts prosecution or the statute, Section 903.28, Florida Statutes (1975), would be rendered meaningless. That provision of the statute which provides remission of the forfeited bond is meant to reward a diligent surety for the return of the principal. Leach, supra. To disallow the remission would be to allow the diligent to go unrewarded and the lack of reward would surely lead to the thwarting of the prosecution because there would be no incentive to the surety.
The order denying the remission is reversed and this matter is remanded for entry of an order granting full remission of the bond to the surety.
REVERSED AND REMANDED.
CROSS and ANSTEAD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Luciano Morra v. State, 460 So. 2d 507 (Fla. 3d DCA 1984)…s of the trial date and was subsequently tried and convicted, has not “thwarted the proper prosecution of the defendant” as that term is used in sections 903.26(5)(c) and 903.-28(2), Florida Statutes (1983). See Allied Bonding Agency, Inc. v. State, 358 So. 2d 246 (Fla. 4th DCA 1978) (not every disappearance of a defendant thwarts prosecution even though it causes delay). Here a timely motion to vacate the forfeiture was made by defendant’s counsel prior to the entry of a forfeiture judgment. The trial court…
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State v. Allstar Bail Bonds, 983 So. 2d 1218 (Fla. 5th DCA 2008)…ce, which states: “The defendant’s death is the ultimate thwarting of his prosecution.” Hence, not even the State contends that the delay thwarted the prosecution; rather, it argues the defendant’s death did. In Allied Bonding Agency, Inc. v. State, 358 So. 2d 246 (Fla.4th DCA 1978), the court explained the issue of delay: The record discloses no evidence the delay, caused by the defendant’s having failed to appear, thwarted the proper prosecution of the defendant. Of course, any disappearance of a defendant…
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German Fidel Cueto & Midland Ins. Co. v. State, 384 So. 2d 44 (Fla. 3d DCA 1980)…PER CURIAM. Affirmed. See Section 903.28, Florida Statutes (1977); and Allied Bond Agency, Inc. v. State, 358 So. 2d 246 (Fla. 4th DCA 1978).…
Authorities Cited
- Leach v. State, 293 So. 2d 77 (Fla. 1st DCA 1974)
- United Bonding Ins. Co. v. State, 242 So. 2d 140 (Fla. 1st DCA 1970)