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State v. Wallace

Court of Appeals of Louisiana, Fourth Circuit

November 13, 2019

STATE OF LOUISIANA
v.
DARREN WALLACE

          APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 388-841 C\W 388-842, 388-843, 388-844, DIVISION "E" Honorable Jacques A. Sanborn, Judge

          Perry Michael Nicosia, District Attorney David C. Jarrell, Assistant District Attorney ST. BERNARD PARISH COUNSEL FOR APPELLANT

          Jon S. McGill Donald Dorenkamp II THE LAW OFFICES OF JON S. MCGILL, LLC COUNSEL FOR DEFENDANT/APPELLEE

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

          SANDRA CABRINA JENKINS JUDGE

         The State of Louisiana appeals the district court's December 30, 2013 judgment granting the motion to set aside a judgment of bond forfeiture rendered on April 16, 2013. Following this Court's holding in State v. Financial Casualty and Surety, Inc., 17-1014, 18-0242 (La.App. 4 Cir. 11/7/18), So.3d, 2018 WL 5830381, writ denied, 19-0113 (La. 6/17/19), 274 So.3d 1258, we find the State's appeal of the December 30, 2013 judgment untimely and we dismiss the appeal with prejudice.

         PROCEDURAL BACKGROUND

         In October 2012, following his arrest on multiple felony charges, defendant, Darren Wallace, secured a commercial surety bond with Accredited Surety & Casualty Company, Inc. ("ASC") to post bail in the amount of $30, 000.00. Subsequently, the State filed a bill of information charging defendant with one count of possession of a firearm by a convicted felon. In January 2013, defendant appeared for arraignment, entered a plea of not guilty, and received notice in open court of his April 2, 2013 trial date. On the date set for trial, defendant failed to appear and the State moved for forfeiture of defendant's bond. On April 16, 2013, the district court signed the judgment of bond forfeiture, rendering judgment in favor of the State and against defendant, as principal, and ASC, as surety, in the amount of $30, 000.00.

         On August 16, 2013, ASC filed a motion to set aside the judgment of bond forfeiture, pursuant to La. C.Cr.P. arts. 345, 349.5, and 349.9, [1] averring that defendant was presently incarcerated in Orleans Parish. ASC supplemented its motion with a letter of incarceration, dated August 15, 2013, verifying defendant's incarceration in the Orleans Parish Prison from July 29, 2013 "thru Present." In consideration of the motion, the district court set the matter for hearing on October 8, 2013.

         On October 8, 2013, the State and ASC appeared for the hearing on the motion to set aside bond forfeiture. In support of the motion, ASC relied upon the letter of incarceration verifying defendant's incarceration in Orleans Parish within one hundred-eighty days of the judgment of bond forfeiture, pursuant to the applicable provisions of La. C.Cr.P. arts. 349.5(B), 345(D), and 349.9(C). In response, the State raised no objection to ASC's motion or the evidence presented in support; the State submitted the matter to the district court on the record, stating as follows:

Your Honor, it shows there is an incarceration letter that has been filed into the record showing that the defendant was incarcerated in Orleans Parish Prison beginning July 29th, 2013, which I believe is within six months of the date that he missed court. State will submit on that record.

         The district court then granted ASC's motion to set aside bond forfeiture. The State raised no objection to the district court's ruling. Subsequently, on December 30, 2013, the district court signed the written judgment setting aside and vacating the April 2, 2013 judgment of bond forfeiture.

         On August 9, 2017, [2] the State filed a motion for new trial on ASC's motion to set aside bond forfeiture, asserting that the December 30, 2013 judgment setting aside the bond forfeiture was contrary to the law because ASC had not complied with all requirements for setting aside the bond forfeiture, pursuant to La. C.Cr.P. art. 345(D). The State also asserted that its motion for new trial was timely, pursuant to La. C.C.P. art. 1974, because no notice of signing of the judgment setting aside the bond forfeiture had been served on the State. The State also filed a motion to vacate the judgment setting aside the judgment of bond forfeiture, arguing that it was not properly served with notice of the hearing on ASC's motion to set aside bond forfeiture.

         Following a hearing on the State's motions, the district court rendered judgment on November 14, 2017, denying the State's motion for new ...


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