{ "id": 11439240, "name": "STATE OF NORTH CAROLINA, Appellee v. WAYNE RUSSELL ROBINSON and CARLYLE POINDEXTER, Surety-Petitioner-Appellant", "name_abbreviation": "State v. Robinson", "decision_date": "2001-08-21", "docket_number": "No. COA00-47", "first_page": "658", "last_page": "664", "citations": [ { "type": "official", "cite": "145 N.C. App. 658" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "315 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "323" }, { "page": "323" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527463 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "483" }, { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0480-01" ] }, { "cite": "24 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "638", "parenthetical": "\"[t]he very purpose of the bond was not to enrich the treasury of [the] County, but to make the sureties responsible for the appearance of the defendant at the proper time\"" } ], "opinion_index": 0 }, { "cite": "222 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632116 ], "year": 1943, "pin_cites": [ { "page": "688", "parenthetical": "\"[t]he very purpose of the bond was not to enrich the treasury of [the] County, but to make the sureties responsible for the appearance of the defendant at the proper time\"" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0684-01" ] }, { "cite": "360 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 637", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725572, 4730441, 4724404, 4726682, 4730811 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0637-03", "/nc/320/0637-04", "/nc/320/0637-01", "/nc/320/0637-02", "/nc/320/0637-05" ] }, { "cite": "356 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125748 ], "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0196-01" ] }, { "cite": "256 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "832", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554847 ], "year": 1979, "pin_cites": [ { "page": "489", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0486-01" ] }, { "cite": "277 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "302 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565229, 8565261, 8565205, 8565176, 8565148 ], "year": 1981, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0221-04", "/nc/302/0221-05", "/nc/302/0221-03", "/nc/302/0221-02", "/nc/302/0221-01" ] }, { "cite": "272 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "5" }, { "page": "4" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8527463 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc-app/68/0480-01" ] }, { "cite": "356 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "86 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125748 ], "opinion_index": 1, "case_paths": [ "/nc-app/86/0196-01" ] }, { "cite": "277 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "302 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565229, 8565261, 8565205, 8565176, 8565148 ], "year": 1981, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/302/0221-04", "/nc/302/0221-05", "/nc/302/0221-03", "/nc/302/0221-02", "/nc/302/0221-01" ] }, { "cite": "272 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "5" } ], "opinion_index": 1 }, { "cite": "49 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522642 ], "year": 1980, "pin_cites": [ { "page": "540-41" } ], "opinion_index": 1, "case_paths": [ "/nc-app/49/0537-01" ] } ], "analysis": { "cardinality": 590, "char_count": 15550, "ocr_confidence": 0.762, "pagerank": { "raw": 2.507073046731664e-07, "percentile": 0.8101122883998256 }, "sha256": "0caea1488c9a39795de9b4ca575ba956dc76d550fa4594f95f249b12aacd2578", "simhash": "1:2fe94210d6662ef2", "word_count": 2541 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge THOMAS concurs.", "Judge WYNN dissents." ], "parties": [ "STATE OF NORTH CAROLINA, Appellee v. WAYNE RUSSELL ROBINSON and CARLYLE POINDEXTER, Surety-Petitioner-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nCarlyle Poindexter (petitioner) appeals an order filed 2 September 1999 denying his petition to remit forfeiture of a bond before execution. Wayne Russell Robinson (Robinson) was arrested 20 March 1998 on a charge of trafficking in cocaine and attempting to obtain property by false pretenses. His bond was set at $40,000. Petitioner executed a surety appearance bond for Robinson in the amount of $40,000. Robinson failed to appear on his trial date. An order of bond forfeiture was entered 20 January 1999.\nPetitioner\u2019s agent, Aric W. Swanger, obtained custody of a suspect in Stone Mountain, Georgia on 22 March 1999 and believing the suspect to be Robinson returned him to North Carolina. After the suspect was incarcerated, it was determined by a Granville County detective that the fingerprints of the suspect did not match the fingerprints of Robinson. The suspect was released and flown back to Georgia by petitioner. Petitioner did not locate Robinson and was unable to obtain his custody.\nJudgment of forfeiture was entered against petitioner on 14 July 1999 and the trial court\u2019s order stipulated \u201cthat this ruling is without prejudice to the surety to request by proper verified written petition that the judgment be remitted, in whole or in part, pursuant to N.C.G.S. 15A-544(e).\u201d Petitioner filed a petition to remit forfeiture before execution on 4 August 1999 along with an affidavit signed by petitioner stating the case \u201cis extraordinary and I request special consideration be given to this matter for two reasons: (a) Extraordinary effort of surety and (b) the State\u2019s failure to properly identify the defendant.\u201d Petitioner submitted extensive records asserting that numerous hours of searching, calling, paying informants and meeting with law enforcement officials had been spent in search of Robinson.\nThe trial court made the following findings of fact in its order denying petitioner\u2019s petition to remit forfeiture before execution:\n3. On 4 August, 1999 the bondsman [Poindexter], surety for the defendant in this matter, filed a verified Petition to Remit Forfeiture Before Execution on the basis of extraordinary cause pursuant to G.S. 15A-544. The defendant has not been surrendered by the surety and has not otherwise been apprehended.\n4. The surety has made extensive efforts to apprehend the defendant as set forth in the verified petition and his testimony. Those efforts have been unsuccessful.\n5. [Poindexter] testified that although he reported to the North Carolina Department of Insurance that the defendant had paid a premium of $6,000.00, in truth, the defendant paid a premium of only $4,000.00 for the bond. He said this practice was per the instructions of the Department of Insurance.\nPetitioner appeals from this order.\nI.\nPetitioner argues that the trial court erred by failing to make appropriate and necessary findings of fact and conclusions of law to support its decision that petitioner did not demonstrate extraordinary cause entitling him to relief. Petitioner contends that our Court\u2019s holding in State v. Lanier, 93 N.C. App. 779, 379 S.E.2d 109 (1989) controls the present case. In Lanier, our Court held that the trial court\u2019s comment that \u201cthe school board needs this money more than the [s]urety and I am not going to make any remissions\u201d did not meet the test required by N.C. Gen. Stat. \u00a7 15A-544(h) (1999). Id. at 781, 379 S.E.2d at 110. Our Court noted that \u201c[t]he required test is whether \u2018extraordinary cause\u2019 is shown. Without the trial court making appropriate findings of fact and conclusions of law . . . we are unable to give effective review of the trial court\u2019s decision.\u201d Id. at 781, 379 S.E.2d at 110-11.\nWe note that the Court\u2019s holding in Lanier was based on the standard of \u201cextraordinary cause\u201d pursuant to N.C.G.S. \u00a7 15A-544(h). For reasons that we will review in the second part of our analysis, the case before us is on appeal pursuant to the \u201cjustice requires\u201d standard enunciated in N.C.G.S. \u00a7 15A-544(e).\nThe State argues that the trial court is not required to give a lengthy explanation of its decision. \u201cUnder Rule 52(a), N.C. Rules Civ. Proc., the court need only make brief, definite, pertinent findings and conclusions upon the contested matters. A finding of such essential facts as lay a basis for the decision is sufficient.\u201d State v. Rakina and State v. Zofira, 49 N.C. App. 537, 540-41, 272 S.E.2d 3, 5 (1980), disc. review denied, 302 N.C. 221, 277 S.E.2d 70 (1981) (citation omitted).\nThe findings of fact by the trial court in the case before us are sufficient and support its conclusion that \u201cthe petition of the surety to remit the $40,000.00 bond be denied in full.\u201d \u201cThe goal of the bonding system is the production of the defendant^]\u201d State v. Locklear, 42 N.C. App. 486, 489, 256 S.E.2d 830, 832 (1979) (citation omitted). In Locklear, our Court affirmed the trial court\u2019s order to remit the bond to the surety because \u201c[t]he efforts of the bondsman, while not dramatic, did result in the principal\u2019s detention on the charge for which the bond had secured the principal\u2019s appearance.\u201d Id. In State v. Vikre, our Court affirmed the trial court\u2019s denial of the surety\u2019s petition to remit and held that \u201cthe efforts made by the sureties . . . did not lead to [defendant\u2019s] appearance in [court], the primary goal of the bonds.\u201d Vikre, 86 N.C. App. 196, 199, 356 S.E.2d 802, 804 (citations omitted), disc. review denied, 320 N.C. 637, 360 S.E.2d 103 (1987). Therefore our Court found that \u201cwe cannot say, as a matter of law, that the sureties\u2019 evidence conclusively demonstrates ... justifying remission of the bonds[.]\u201d Id. See also State v. Pelley, 222 N.C. 684, 688, 24 S.E.2d 635, 638 (1943) (\u201c[t]he very purpose of the bond was not to enrich the treasury of [the] County, but to make the sureties responsible for the appearance of the defendant at the proper time\u201d).\nIn the case before us, the trial court found that petitioner, despite his efforts, was unable to secure the appearance of Robinson in Granville County Superior Court, which is the primary purpose of the bond system. The trial court\u2019s findings of fact support its conclusion of law that petitioner be denied remission of the $40,000 bond. Petitioner\u2019s first assignment of error is dismissed.\nII.\nPetitioner next argues that the trial court erred in denying his petition for remission by failing to conclude as a matter of law that petitioner\u2019s evidence demonstrated \u201cextraordinary cause\u201d pursuant to N.C.G.S. \u00a7 15A-544(h). We disagree. N.C.G.S. \u00a7 15A-544(e) states that\n[a]t any time within 90 days after entry of the judgment against a principal or surety, the principal or surety, by verified written petition, may request that the judgment be remitted in whole or in part, upon such conditions as the court may impose, if it appears that justice requires the remission of part or all of the judgment.\nOur Court in Rakina confirmed that \u201c[u]nder subsection (e) the court is guided in its discretion as \u2018justice requires.\u2019 Execution is mandatory under subsection (f) \u2018[i]f a judgment has not been remitted within the period provided in subsection (e) above. . . .\u2019 Subsection (h) becomes applicable after execution of the judgment.\u201d Rakina, 49 N.C. App. at 539, 272 S.E.2d at 4. (emphasis added) (quoting N.C.G.S. \u00a7 15A-544).\nThe record in this case shows no execution of the judgment of forfeiture. In addition, the record shows that petitioner filed his petition to remit forfeiture before execution within ninety days after the 14 July 1999 judgment of forfeiture and that the trial court\u2019s order stated that its \u201cruling is without prejudice to the surety to request by proper verified written petition that the judgment be remitted in whole or in part, pursuant to N.C.G.S. 15A-544(e).\u201d Although the 2 September 1999 order uses the \u201cextraordinary cause\u201d language within its findings, the trial court entitled its order as an \u201cOrder Upon Surety\u2019s Petition To Remit Forfeiture Before Execution\u201d and stated that the matter was before the trial court as \u201ca verified Petition to Remit Forfeiture Before Execution.\u201d (Emphasis added). Our Court found in State v. Home, 68 N.C. App. 480, 483, 315 S.E.2d 321, 323 (1984), that in a review of an order pursuant to N.C.G.S. \u00a7 15A-544(e) \u201c[i]t is immaterial. . . that the judge\u2019s order did not include a use of the statutory words \u2018justice requires.\u2019 \u201d Under these facts, subsection (h) is inapplicable, and we apply subsection (e) alone.\nOur Court in Home held that since N.C.G.S. \u00a7 15A-544(e) \u201csays \u2018may\u2019 remit, the decision to do so or not is a discretionary one.\u201d Home, 68 N.C. App. at 483, 315 S.E.2d at 323. Thus, \u201c[i]n order to exercise judicial discretion in a manner favorable to a surety, the judge must determine in his discretion that justice requires remission.\u201d Id. The Home court found \u201cthat justice required the defendant\u2019s presence, rather than his absence\u201d and that the sureties, although not professionals in the bonding business, \u201cknowingly executed a defendant\u2019s bail bond and had the responsibility to produce the defendant for all his required court appearances.\u201d Id.\nApplying the decision in Home to the facts before us, petitioner, who is a professional in the bonding business, testified that his agent conducted an investigative interview with Robinson and then executed a surety appearance bond for him. Petitioner testified that all the information given him by Robinson during the interview was false. When Robinson failed to appear for his court date, petitioner was unable to locate him based on the false information given by Robinson. As stated in Home, \u201cjustice required defendant\u2019s presence\u201d and petitioner \u201chad the responsibility to produce the defendant^]\u201d Id. We cannot say the trial court abused its discretion in denying petitioner\u2019s petition for remission when petitioner failed to produce Robinson and thus failed to meet the statutory goal of N.C.G.S. \u00a7 15A-544 to ensure the production of the defendant for trial.\nThe trial court\u2019s order denying petitioner\u2019s petition to remit forfeiture before execution is affirmed.\nAffirmed.\nJudge THOMAS concurs.\nJudge WYNN dissents.", "type": "majority", "author": "McGEE, Judge." }, { "text": "WYNN, Judge,\ndissenting.\nBecause I believe that the trial court failed to make adequate findings of fact and conclusions of law to support its order denying surety\u2019s petition to remit forfeiture of the bond, I respectfully dissent from the majority opinion.\nOur Rules of Civil Procedure require the trial court, at a minimum, to \u201cmake brief, definite, pertinent findings and conclusions upon the contested matters. A finding of such essential facts as lay a basis for the decision is sufficient.\u201d State v. Rakina and State v. Zofira, 49 N.C. App. 537, 540-41, 272 S.E.2d 3, 5 (1980), disc. review denied, 302 N.C. 221, 277 S.E.2d 70 (1981) (citation omitted); see N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a) (1999).\nIn my opinion, the trial court\u2019s findings in this case are primarily statements of the disposition of this case, not findings of fact on the disputed issues. Indeed, the trial court made only two relevant \u201cfindings of fact\u201d: (1) \u201cThe defendant has not been surrendered by the surety and has not otherwise been apprehended\u201d; and (2) \u201cThe surety has made extensive efforts to apprehend the defendant as set forth in the verified petition and his testimony. Those efforts have been unsuccessful.\u201d Based on those scant findings, the trial court \u201cconclude[d], in its discretion, that the Surety\u2019s Petition should be denied.\u201d\nThe majority opinion states:\nIn the case before us, the trial court found that petitioner, despite his efforts, was unable to secure the appearance of Robinson in Granville County Superior Court, which is the primary purpose of the bond system. The trial court\u2019s finding of fact supports its conclusion of law that petitioner be denied remission of the $40,000 bond.\nThis conclusion implies that the sole and determinative factor in the \u201cjustice requires\u201d analysis under G.S. \u00a7 15A-544(e) is whether the surety is able to procure the appearance of the defendant. I disagree with that implication.\nWhile the recovery of a defendant who has \u201cjumped\u201d bail is important and a defendant\u2019s appearance is the ultimate goal of the bond system, it should not be the sole determinative factor in deciding whether to remit a bond forfeiture under G.S. \u00a7 15A-544(e). For instance, in State v. Horne, 68 N.C. App. 480, 315 S.E.2d 321 (1984), the trial court made fourteen extensive findings of fact, which were not challenged by the appellants. Instead, the appellants there challenged the trial court\u2019s conclusion that there was no meritorious defense for the remission of any of the judgment. On review, this Court concluded that \u201c[t]he facts as found do not compel the conclusion that \u2018justice requires\u2019 the forfeiture be remitted in whole or in part.\u201d In contrast, the surety in the instant case does not challenge the scant findings made, but instead contends that there were inadequate findings of fact and conclusions of law.\nFurthermore, State v. Vikre, 86 N.C. App. 196, 356 S.E.2d 802 (1987), is inapposite in that it involved remission under G.S. \u00a7 15A-544(h), and thus involved application of the \u201cextraordinary cause\u201d standard instead of the \u201cjustice requires\u201d formula.\nIn summary, I believe this matter should be remanded to the trial court for further findings of fact and conclusions of law. I offer no opinion on the issue of whether \u201cjustice requires\u201d remission in the instant case, but believe that there were inadequate findings of fact to support the trial court\u2019s conclusion denying remission on the basis that justice did not so require.", "type": "dissent", "author": "WYNN, Judge," } ], "attorneys": [ "Royster, Cross & Currin, LLP, by James E. Cross, Jr. and Dale W. Hensley, for the State.", "Edmundson & Burnette, L.L.P., by R. Gene Edmundson and James T. Duckworth III; Perry, Kittrell, Blackburn & Blackburn, by Charles F. Blackburn, for surety-petitioner-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Appellee v. WAYNE RUSSELL ROBINSON and CARLYLE POINDEXTER, Surety-Petitioner-Appellant\nNo. COA00-47\n(Filed 21 August 2001)\n1. Bail and Pretrial Release\u2014 forfeiture of bond \u2014 extraordinary cause \u2014 failure to secure defendant\u2019s appearance\nThe trial court did not fail to make appropriate and necessary findings of fact and conclusions of law to support its decision that the surety did not demonstrate extraordinary cause entitling him to relief from the forfeiture of a surety bond in the amount of $40,000, because the trial court found that despite the surety\u2019s efforts, he was unable to secure the appearance of defendant in court, which is the primary purpose of the bond system.\n2. Bail and Pretrial Release\u2014 forfeiture of bond \u2014 extraordinary cause \u2014 statutory goal to produce defendant at trial\nThe trial court did not abuse its discretion by denying a surety\u2019s petition to remit forfeiture of a bond before execution by allegedly failing to conclude as a matter of law that the surety\u2019s evidence demonstrated extraordinary cause under N.C.G.S. \u00a7 15A-544(h), because: (1) N.C.G.S. \u00a7 15A-544(e) provides that justice requires a defendant\u2019s presence, and a surety has the responsibility to produce the defendant; and (2) the surety in this case, who was a professional in the bonding business, failed to produce the defendant and thus failed to meet the statutory goal of N.C.G.S. \u00a7 15A-544 to ensure the production of defendant for trial.\nJudge Wynn dissenting.\nAppeal by surety-petitioner from order entered 2 September 1999 by Judge Wade Barber, Jr. in Superior Court, Granville County. Heard in the Court of Appeals 21 February 2001.\nRoyster, Cross & Currin, LLP, by James E. Cross, Jr. and Dale W. Hensley, for the State.\nEdmundson & Burnette, L.L.P., by R. Gene Edmundson and James T. Duckworth III; Perry, Kittrell, Blackburn & Blackburn, by Charles F. Blackburn, for surety-petitioner-appellant." }, "file_name": "0658-01", "first_page_order": 688, "last_page_order": 694 }