Opinion
No. 69-1010.
August 11, 1970. Rehearing Denied September 3, 1970.
Appeal from the Circuit Court, Dade County, Gene Williams, J.
Blackwell, Walker Gray, and Jerome B. Ullman, Miami, for appellant.
Earl Faircloth, Atty. Gen., Richard E. Gerstein, State's Atty., and Joseph Durant, Asst. State's Atty., for appellee.
Before PEARSON, C.J., and CHARLES CARROLL, and SWANN, JJ.
On February 7, 1960 Resolute Insurance Company as surety executed an appearance bond with Lawrence White as principal. The $1500 bond was conditioned on the appearance of White in the Criminal Court of Record in and for Dade County, Florida, to answer "a charge of Attempt to Utter a Forged Instrument". The bail bond was "taken and approved" and White was released from custody.
On February 17, 1967, the state filed an information against White. It charged him under Three Counts of the crimes of "forgery", uttering a forged instrument and buying, receiving or concealing stolen property.
On October 31, 1967, White failed to appear to answer these charges and the Criminal Court entered an order forfeiting the appearance bond. Ultimately, the Circuit Court of Dade County entered a final judgment for the State of Florida against Resolute Insurance Company because Lawrence White had failed to appear to answer the charges of forgery, uttering a forged instrument and buying, receiving or concealing stolen property and because Resolute had failed to produce him at the proper time to answer those charges. Resolute's motion to set aside the final judgment was denied. This appeal followed.
Resolute argues that the final judgment is an attempt by the state to extend its liability beyond the terms of its contract, i.e., the appearance or bail bond. It claims that its contract was only to produce White in court at the proper time to answer the charge of "attempt to utter a forged instrument". See State for Use and Benefit of Dade County v. All Florida Surety Company, Fla. 1952, 59 So.2d 849.
In Edwards v. State, Fla.App. 1969, 223 So.2d 746 it was held that there is no distinction between uttering a forged instrument and attempting to utter a forged instrument. It follows that Resolute failed to produce White in court at the proper time to answer the charge of uttering a forged instrument and although the charge stated in the appearance bond was for an attempt to utter a forged instrument there is no distinction between these two charges.
Section 903.32, Fla. Stat., F.S.A., provides:
"(1) No undertaking shall be invalid, nor shall any person be discharged from his undertaking, nor a forfeiture thereof be stayed, nor shall judgment thereon be stayed, set aside or reversed, or the collection of any such judgment be barred or defeated by reason of any defect of form, omission of recital or of condition, failure to note or record the default of any principal or surety, or because of any other irregularity, or because the undertaking was entered into on Sunday or other holiday, if it appear from the tenor of the undertaking before what magistrate or at what court the principal was bound to appear, and that the official before whom it was entered into was legally authorized to take it and the amount of bail is stated." (Emphasis added)
It clearly appears from the undertaking here that White was to appear before the Criminal Court of Dade County, Florida at a time certain to answer the charge of uttering a forged instrument. He failed to do so, his surety Resolute failed to properly produce him and must suffer the consequences. Cf. § 903.12, Fla. Stat., F.S.A., and Rule 1.130(d), R.C.P., 33 F.S.A.
The final judgment is
Affirmed.
I agree with the majority that the bond was sufficient to cover White's failure to appear to answer the charge of uttering a forged instrument because there is no distinction between that charge and the charge of attempting to utter a forged instrument. But I disagree with the conclusion that the bond was properly declared forfeit for White's failure to appear to answer charges of uttering a forged instrument and forgery and buying, receiving or concealing stolen property. I would not hold the addition of two more serious charges to be an irregularity cured by § 903.32, Fla. Stat., F.S.A., which is quoted in the majority opinion. See State for Use and Benefit of Dade County v. All Florida Surety Co., Fla. 1952, 59 So.2d 849, 850-851, where the court stated:
"This court has repeatedly held that the offense charged must be stated in the appearance bond and that the liability of a surety is not to be extended beyond the terms of his contract and to that extent he is bonded."
It would seem that the addition of the more serious charges extended the liability of the surety because an accused is much less likely to appear when more serious charges are added. It may be that upon being informed of the more serious charges the surety must protect himself by a surrender of the accused under § 903.20, Fla. Stat., F.S.A. Cf. Summit Fidelity Surety Co. v. State, Fla.App. 1964, 166 So.2d 757. The record here is bare of a suggestion that the surety was informed of the new charges.
It should be added in fairness to the majority opinion that some states have held that the surety must produce the accused in accordance with the conditions of the bond even though the information is for an offense different from that under the bond. See cases cited at 8 C.J.S. Bail § 81b. But that does not seem to be the law as established in this state.