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State v. Financial Casualty and Surety

Court of Appeals of Louisiana, Fourth Circuit

November 7, 2018

STATE OF LOUISIANA
v.
FINANCIAL CASUALTY AND SURETY STATE OF LOUISIANA V. HAROLD ALLEN

          APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 2016-00945, DIVISION "D" Honorable Kirk A. Vaughn, Judge

          David C. Jarrell 34th JUDICIAL DISTRICT COURT ST. BERNARD PARISH Perry Michael Nicosia, District Attorney 34TH JDC, ST. BERNARD PARISH COUNSEL FOR APPELLANT

          Michael David Singletary Singletary & Associates, APLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

          REGINA BARTHOLOMEW-WOODS JUDGE.

         In these consolidated appeals, the State of Louisiana challenges the district court's judgments of January 26, 2016, and October 16, 2017, granting the motion to set aside judgment of bond forfeiture and exception of no cause of action, respectively, which were filed by Appellee-Financial Casualty and Surety, Inc. ("Appellee" or "FCS"). For the reasons that follow, we affirm the judgment of the district court granting Appellee's exception of no cause of action, and we dismiss the State's ("Appellant" or "the State") appeal of the January 26, 2016 judgment as untimely. Thus, we also deny, as moot, the separately-filed motion to dismiss filed by FCS, on May 4, 2018.

         FACTUAL AND PROCEDURAL BACKGROUND

         Harold Allen contracted with FCS to post a commercial surety bond to secure his release as a result of his incarceration on criminal charges in St. Bernard Parish. Despite having been released on those charges, Mr. Allen failed to appear for a scheduled criminal court proceeding on June 25, 2015, in the Thirty-Fourth Judicial District Court, as a result of his incarceration in another jurisdiction. The district court issued a warrant and a judgment of bond forfeiture.

         On January 15, 2016, FCS filed a motion to set aside the judgment of bond forfeiture pursuant to La.C.Cr.P. art. 345(D)[1], which provided:

If during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
(1) The defendant or his sureties file a motion within the period allowed for the surrender of the defendant. The motion shall be heard summarily.
(2) The sureties of the defendant provide the court adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surety files the motion, shall be deemed adequate proof of the incarceration of the defendant.
(3) The defendant's sureties pay the officer originally charged with the defendant's detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant's detention prior to the defendant's return.

         FCS agreed to pay costs of transportation pursuant to subsection (D)(3). Months later, on June 10, 2016, the State alleges that it "discovered" that the costs required under subsection (D)(3) "had not been paid."[2] As a result, on April 20, 2017, the State filed an amended and supplemental petition to annul the judgment setting aside the bond forfeiture, pursuant to La.C.C.P. art. 2004(A), on the basis that the bond forfeiture judgment was procured via "fraud and ill practices."[3] On July 31, 2017, FCS responded with a ...


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