Opinion
Case No. 5D18-2677
08-23-2019
#1 ANYTIME BAIL 24/7 INC. and Palmetto Surety Corporation, Appellants, v. STATE of Florida and Clerk of the Circuit Court for Citrus County, Florida, Appellees.
James Patrick Tarquin, Ocala, for Appellants. Ashley Moody, Attorney General, Tallahassee, and Shelley Cridlin, Assistant Attorney General, Tampa, for Appellee, State of Florida. Adam A. Czaya, of Keith Taylor Law Group, P.A., Lecanto, for Appellee, Clerk of the Circuit Court for Citrus County, Florida.
James Patrick Tarquin, Ocala, for Appellants.
Ashley Moody, Attorney General, Tallahassee, and Shelley Cridlin, Assistant Attorney General, Tampa, for Appellee, State of Florida.
Adam A. Czaya, of Keith Taylor Law Group, P.A., Lecanto, for Appellee, Clerk of the Circuit Court for Citrus County, Florida.
COHEN, J.
#1 Anytime Bail 24/7 Inc. and Palmetto Surety Corporation ("Anytime Bail") appeals the order denying its application for remission of a bond forfeiture. On appeal, Anytime Bail argues that the trial court abused its discretion by denying the application for remission because Anytime Bail met the statutory requirements for 100% remission of the bond posted on behalf of Robert Williams Post. We agree and reverse.
Anytime Bail posted two appearance surety bonds in Citrus County. Two days prior to his scheduled pretrial conference, Post was arrested and incarcerated in Pasco County on unrelated charges. As a result, he breached the conditions of his bond by failing to appear in his Citrus County case, and the Clerk sent Anytime Bail a notice of forfeiture. The trial court issued a no-bond capias, and Pasco County law enforcement accordingly arrested Post on that capias.
Anytime Bail timely paid the forfeiture and sought remission of the bond, alleging it substantially attempted to procure or cause the apprehension or surrender of Post by staying in contact with law enforcement, providing information regarding Post's whereabouts, and inspecting his known addresses. Along with its application for remission, Anytime Bail requested a hearing and filed an affidavit in support of remission and a motion to transfer Post to Citrus County. The trial court did not rule on Anytime Bail's motion to transfer Post but summarily denied its application and request for a hearing. Anytime Bail appealed.
Four days later, the State petitioned to transfer Post to Citrus County for a status conference. The trial court granted the State's petition, and Post was present at that hearing.
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The applicable remission statute is section 903.28(2), Florida Statutes (2018), which provides, in part:
(2) If the defendant surrenders or is apprehended within 90 days after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 100 percent of a forfeiture if ... the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant.
Section 903.28(8) requires that an application for remission be accompanied by an affidavit setting forth the facts on which it is founded. Additionally, it mandates that the surety "establish by further documentation or other evidence any claimed attempt at procuring or causing the apprehension or surrender of the defendant." § 903.28(8), Fla. Stat. (2018). It is the surety's burden to show a substantial attempt to procure the return of the defendant and that any delay has not thwarted proper prosecution. Accredited Sur. & Cas. Co. v. Putnam Cty., 528 So.2d 430, 431 (Fla. 5th DCA 1988).
Ordinarily, to meet this burden, a surety must recite the specific efforts it made in its attempt to procure the defendant's return. Palmetto Sur. Corp. v. State, 148 So.3d 517 (Fla. 2d DCA 2014) (holding that when surety provided only counsel's argument at a hearing and a general affidavit "woefully deficient in relevant facts showing entitlement to remission," trial court did not abuse its discretion in denying surety's application for remission based on its attempt to procure defendant). Here, however, given that Post remained in custody in Pasco County after he failed to appear in his Citrus County case, Anytime Bail's only avenue to procure Post's return was to petition for his transfer. Anytime Bail made that effort and provided documentation of such. Additionally, the record does not reflect, and the State did not allege, that the delay thwarted the proper prosecution of Post.
Statutes governing bail bonds "should be construed liberally to favor sureties, since justice does not favor forfeiture." Bd. of Comm'rs of Brevard v. Barber Bonding Agency, 860 So.2d 10, 12 (Fla. 5th DCA 2003) (citations omitted) ("Liberal interpretation of such statutes in favor of sureties (1) saves the state the expense and burden of keeping an accused in jail pending trial; (2) promotes an accused's liberty interest consistent with the presumption of innocence; and (3) provides incentives to sureties to offer bails bonds and to pursue those who flee the jurisdiction."). Accordingly, we reverse the order summarily denying Anytime Bail's application for bond remission.
REVERSED and REMANDED for entry of an order granting Anytime Bail's application for remission.
EDWARDS and GROSSHANS, JJ., concur.