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State v. Nellon

Court of Appeal of Louisiana, Fourth Circuit

September 4, 2013

STATE of Louisiana
v.
Jacolvy NELLON.

Page 1116

Leon A. Cannizzaro, Jr., District Attorney, Michael B. Redmann, Assistant District Attorney, New Orleans, LA, for Appellant.

Kenneth J. Beck, Gretna, LA, for Defendant/Appellee.

(Court composed of Chief Judge JAMES F. McKAY, III, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).

SANDRA CABRINA JENKINS, Judge.

[2012-1429 La.App. 4 Cir. 1] The sole issue before the court is the discretion afforded the trial court in setting aside a judgment of bond forfeiture absent " a fortuitous event" that would make the bail bond obligation impossible to perform. See La. R.S. 15:83(C)(1); La.C.Cr.P. art. 345(I). We find that the trial court abused its discretion in granting the surety's motion to set aside the judgment of bond forfeiture. For the reasons stated below, the judgment of August 28, 2009 granting the surety's motion to set aside judgment of bond forfeiture and petition for nullity is reversed. The original judgment of November 20, 2008 forfeiting the bond in this matter is re-instated. This matter is remanded for further proceedings consistent with this opinion.

BACKGROUND AND PROCEDURAL HISTORY

The defendant was arrested for violation of La. R.S. 40:967, possession of a controlled dangerous substance— cocaine. Immediately following arrest, the defendant secured a commercial surety bond with Safety National Casualty Corporation (" Safety" ) in the amount of $7000. The defendant subsequently failed to appear for arraignment, and the State moved for forfeiture of defendant's bond. The trial court granted the State's motion to forfeit the commercial surety bond and, on November 20, 2008, executed a judgment in favor of the State of Louisiana [2012-1429 La.App. 4 Cir. 2] and against the defendant as principal, and Safety as commercial surety [1] in the amount of $7000.00.

On April 30, 2009, Safety filed a motion to set aside bond forfeiture and petition for nullity of judgment. Safety stated that within the six months of the mailing of the notice of bond forfeiture, on or about December 15, 2008, the defendant was in the custody of the Harris County Sheriff's Office in Texas. Safety attached a letter of verification that defendant had been in jail in Harris County from April 10, 2009 to April 12, 2009. On the basis of those allegations, Safety prayed for the judgment of bond forfeiture to be set aside and declared an absolute nullity, and to be released from liability under the bail bond.

On May 18, 2009, the State filed an answer and reconventional demand. The

Page 1117

State argued that Safety and its counsel did not comply with the requirements of La.C.Cr.P. art. 345, necessary to have a judgment of bond forfeiture set aside. Subsequently, Safety filed a motion for extension of time to surrender the defendant. In that motion, Safety asserted that it had complied with the policy that it knew to exist to have a forfeiture set aside. More specifically, Safety alleged the following:

8.
It has for years been the practice in Orleans Parish (as in many other parishes and courts of the State of Louisiana) that a letter verifying the defendant's incarceration in another parish, for however long of a period of time within six months of the mailing of the notice of judgment of bond forfeiture, satisfies the surety's obligation on a bond forfeiture without the surety doing anything further.
9.
Counsel has recently been made aware of a change in that policy, a change which was not promulgated in any way. The surety [2012-1429 La.App. 4 Cir. 3] companies had no way of knowing that this change of policy had taken place. The surety company had no was [sic] of suspecting that such a change of policy would take place.

Safety contended that if it had known of the policy change, then it would have complied with that policy in order to have the judgment of bond forfeiture set aside. Wherefore, Safety prayed for an extension of time to comply with the new policy and to surrender the defendant to satisfy Safety's bond obligation.

At the hearing on the motions, Safety argued that the change in policy by the Orleans Parish District Attorney's office was a fortuitous event that Safety could not have reasonably foreseen. Safety contended that this " fortuitous event" made the bond obligation impossible to perform within the six month timeframe, and therefore, Safety argued it should be granted an extension of time to surrender the defendant.

The State argued that there was no " change in policy," and the provisions of La.C.Cr.P. art. 345 require more than a letter of verification that the defendant was in jail at some time during the six months after notification of bond forfeiture. The State opposed Safety's motion to set aside the bond forfeiture based on Safety's failure to conform to the statutory requirements of La.C.Cr.P. art. 345.

After the parties presented arguments, the trial court found that the " change in policy" was not a fortuitous event, because the State had followed the law by requiring more than a letter of verification. The trial court denied the request for extension of time to surrender the defendant. The trial ...


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