{ "id": 8321643, "name": "STATE OF NORTH CAROLINA and THE JOHNSTON COUNTY BOARD OF EDUCATION v. ANTON DANIEL EDWARDS, Defendant, and AEGIS SECURITY INSURANCE CO., Surety", "name_abbreviation": "State v. Edwards", "decision_date": "2005-08-16", "docket_number": "No. COA04-1387", "first_page": "821", "last_page": "829", "citations": [ { "type": "official", "cite": "172 N.C. App. 821" } ], "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": "145 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436886 ], "year": 2001, "opinion_index": -1, "case_paths": [ "/nc-app/145/0237-01" ] }, { "cite": "611 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632626 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0197-01" ] }, { "cite": "612 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632782 ], "year": 2005, "pin_cites": [ { "page": "152", "parenthetical": "quoting State v. Vikre, 86 N.C. App. 196, 198, 356 S.E.2d 802, 804 (1987)" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0148-01" ] }, { "cite": "610 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801020 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0404-01" ] }, { "cite": "601 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "Wynn, J." }, { "page": "878" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411491 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "Wynn, J." }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0432-01" ] }, { "cite": "325 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527110 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0527-01" ] }, { "cite": "256 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "42 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554847 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/42/0486-01" ] }, { "cite": "70 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "235 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625479 ], "year": 1952, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0463-01" ] }, { "cite": "456 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "846", "parenthetical": "quoting In re Housing Authority, 235 N.C. 463, 468, 70 S.E.2d 500, 503 (1952)" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920091 ], "year": 1995, "pin_cites": [ { "page": "615", "parenthetical": "quoting In re Housing Authority, 235 N.C. 463, 468, 70 S.E.2d 500, 503 (1952)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0609-01" ] }, { "cite": "169 N.C. App. 816", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473990 ], "year": 2005, "pin_cites": [ { "page": "819" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0816-01" ] }, { "cite": "550 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "566" }, { "page": "569" }, { "page": "569" }, { "parenthetical": "\"The fact of the defendant's death must be weighed against certain factors in determining whether a forfeited bond may be remitted for 'extraordinary cause.' \"" } ], "opinion_index": 0 }, { "cite": "356 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125748 ], "year": 1987, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0196-01" ] }, { "cite": "170 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004172 ], "year": 2005, "pin_cites": [ { "page": "49", "parenthetical": "quoting State v. Vikre, 86 N.C. App. 196, 198, 356 S.E.2d 802, 804 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0045-01" ] }, { "cite": "145 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436886 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "244" }, { "page": "248" }, { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0237-01" ] }, { "cite": "612 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632782 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "152", "parenthetical": "citation omitted" }, { "page": "152" } ], "opinion_index": 1, "case_paths": [ "/se2d/612/0148-01" ] }, { "cite": "24 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1943, "pin_cites": [ { "page": "638", "parenthetical": "stating \"[t]he very purpose of the bond was ... to make the sureties responsible for the appearance of the defendant at the proper time\"" }, { "page": "638" } ], "opinion_index": 1 }, { "cite": "222 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632116 ], "weight": 2, "year": 1943, "pin_cites": [ { "page": "688", "parenthetical": "stating \"[t]he very purpose of the bond was ... to make the sureties responsible for the appearance of the defendant at the proper time\"" }, { "page": "688" } ], "opinion_index": 1, "case_paths": [ "/nc/222/0684-01" ] }, { "cite": "256 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "832" }, { "page": "832" } ], "opinion_index": 1 }, { "cite": "42 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554847 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "489" }, { "page": "489" } ], "opinion_index": 1, "case_paths": [ "/nc-app/42/0486-01" ] }, { "cite": "550 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "568", "parenthetical": "stating \"the court system's paramount concern is ensuring the return of the criminal defendant for prosecution\"" }, { "page": "568" }, { "page": "568" } ], "opinion_index": 1 }, { "cite": "170 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004172 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "50", "parenthetical": "citation omitted" }, { "page": "50" } ], "opinion_index": 1, "case_paths": [ "/nc-app/170/0045-01" ] }, { "cite": "145 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436886 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "247", "parenthetical": "stating \"the court system's paramount concern is ensuring the return of the criminal defendant for prosecution\"" }, { "page": "247" }, { "page": "247" } ], "opinion_index": 1, "case_paths": [ "/nc-app/145/0237-01" ] } ], "analysis": { "cardinality": 757, "char_count": 18093, "ocr_confidence": 0.753, "pagerank": { "raw": 3.851681265620971e-07, "percentile": 0.8996769695839409 }, "sha256": "85438e8d6f068b5e034ab1605a460c27106eefaf9af9eba6fa2b3b14d05c7e86", "simhash": "1:0b737562a687aa70", "word_count": 2903 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge HUNTER concurs with separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA and THE JOHNSTON COUNTY BOARD OF EDUCATION v. ANTON DANIEL EDWARDS, Defendant, and AEGIS SECURITY INSURANCE CO., Surety" ], "opinions": [ { "text": "LEVINSON, Judge.\nAegis Security Insurance Co. (surety) appeals from an order entered 20 May 2004 denying its motion for relief from final judgment of forfeiture. We affirm.\nOn 8 July 2002 defendant was indicted by a grand jury for felo-niously transporting marijuana in violation of N.C.G.S. \u00a7 90-95(h)(l). On 30 June 2003 surety posted defendant\u2019s bond to secure his release. Defendant failed to appear in court 2 July 2003. Notice of bond forfeiture was mailed to surety 1 August 2003. The final judgment of forfeiture was entered 29 December 2003. On 14 April 2004 surety surrendered defendant to the Johnston County Sheriffs Department and, on 19 April 2004, filed a motion under N.C.G.S. \u00a7 15A-544.8 for relief from final judgment of forfeiture.\nThe evidence presented at the hearing is summarized as follows: Surety presented two affidavits of its agent, Timothy Fitzpatrick. According to Fitzpatrick, he received the notice of forfeiture on or about 6 August 2003 and began making inquiries to determine defendant\u2019s whereabouts. Fitzpatrick ran a computer check of the Johnston County jail records and spoke with the Johnston County Clerk of Court by telephone. He mailed correspondence on 7 August 2003 alerting \u201call indemnitors\u201d that defendant failed to appear in court. Fitzpatrick attempted to locate defendant by searching credit records and checking telephone numbers. Fiztpatrick also worked with two outside recovery agents. In January 2004 Fitzpatrick discovered the address of defendant\u2019s mother. In April 2004 a recovery agent learned defendant was staying with his mother and apprehended him in her home. Defendant was returned to the custody of the Johnston County Sheriff\u2019s Department on 14 April 2004. Fitzpatrick affirmed that monies were expended in efforts to apprehend defendant, including payments made to the recovery agent and payments for attorneys fees.\nOn 20 May 2004 the trial court entered an order denying surety\u2019s motion for relief from final judgment. The order included, in pertinent part, the following findings of fact:\n12. That there was no evidence, except speculation and argument of counsel as to the amount of the fees paid by the \u2022 surety or what they specifically went to pursuant to apprehending the defendant.\n13. That there was no evidence presented by affidavit or present in the file as to what steps the surety took in maintaining contact with the defendant while he was out on bond pending his court appearance in Johnston County, nor was there any evidence presented as to what actions the surety took himself to secure the defendant's] appearance in court prior to July 2, 2003.\n14. That the only evidence of the defendant\u2019s] whereabouts in the file was noted on the bond forfeiture notice that gave the name and mailing address of the defendant as 487 St. Johns Place, 313, Brooklyn, NY, 11238.\n15. That no where [sic] in the petitioner's] motion for relief from judgment was there any allegation of extraordinary circumstance under the statute to justify remission of the said bond.\n16. That no witnesses were presented by the petitioner as to any fact or circumstance that would exhibit extraordinary circumstance under North Carolina General Statute 15A-544.8 that would entitle the petitioner to relief.\n17. That the court finds as a fact that the defendant was not produced by the surety between July 2, 2003 and December 29, 2003 by surrender or any other means to justify remission prior to a final judgment being entered.\n18. That any acts or actions by the petitioner/surety or any of its agents after notice of the Order of Forfeiture were taken or initiated in the course of his duties as a professional bondsman, and that no extraordinary circumstance or efforts were made by the surety that in the courtfs] discretion would justify extraordinary circumstances and entitle the surety for remission of the said bond.\n19. That after hearing all the arguments of counsel, reviewing case law, and applicable statutes submitted by the parties and after reviewing all documents and evidence presented by the petitioner the court finds no extraordinary circumstances have been presented before the court to justify remission of the said bond.\nBased upon these findings, the trial court made the following pertinent conclusion of law:\n4. That the Petitioner has failed to show by credible evidence that extraordinary circumstance exists for remission of the bond pursuant to [N.C.G.S. \u00a7] 15A-544.8 heretofore paid into the office of the Clerk of Superior Court of Johnston County, and the Court further concludes that notice of the said forfeiture was properly given by the Clerk\u2019s Office of the said County with no prejudice to the Petitioners.\nFrom this order, surety appeals.\nOn appeal, surety first argues that the trial court erred by concluding that no extraordinary circumstances existed to grant relief from the final judgment of forfeiture pursuant to N.C.G.S. \u00a7 15A-544.8 (2003). Surety contends that, where defendant is apprehended and surrendered by surety\u2019s agents, this constitutes \u201cextraordinary circumstances\u201d under G.S. \u00a7 15A-544.8 as a matter of law. We disagree.\nG.S. \u00a7 15A-544.8 provides:\n(a) Relief Exclusive. \u2014 There is no relief from a final judgment of forfeiture except as provided in this section.\n(b) Reasons. \u2014 The court may grant the defendant or any surety named in the judgment relief from the judgment, for the following reasons, and none other:\n(1) The person seeking relief was not given notice as provided in G.S. 15A-544.4.\n(2) Other extraordinary circumstances exist that the court, in its discretion, determines should entitle that person to relief.\n\u201c \u2018Extraordinary circumstances\u2019 in the context of bond forfeiture has been defined as \u2018going beyond what is usual, regular, common, or customary... of, relating to, or having the nature of an occurrence or risk of a kind other than what ordinary experience or prudence would foresee.\u2019 \u201d State v. Gonzalez-Fernandez, 170 N.C. App. 45, 49, 612 S.E.2d 148, 152 (2005) (quoting State v. Vikre, 86 N.C. App. 196, 198, 356 S.E.2d 802, 804 (1987)). Whether the evidence presented rises to the level of showing extraordinary cause, or, under the present statute, extraordinary circumstances, \u201cis a heavily fact-based inquiry\u201d and \u201cshould be reviewed on a case by case basis.\u201d State v. Coronel, 145 N.C. App. 237, 244, 550 S.E.2d 561, 566 (2001). \u201c[W]hether to grant relief pursuant to N.C. Gen. Stat. \u00a7 15A-544.8 is entirely within the discretion of the court[.]\u201d State v. Lopez, 169 N.C. App. 816, 819, 611 S.E.2d 197, 199 (2005). Therefore, we review the decision of the trial court only for abuse of discretion. See id. Abuse of discretion occurs when an act is \u201c \u2018not done according to reason or judgment, but depending upon the will alone\u2019 and \u2018done without reason.\u2019 \u201d Dare County Bd. of Education v. Sakaria, 118 N.C. App. 609, 615, 456 S.E.2d 842, 846 (1995) (quoting In re Housing Authority, 235 N.C. 463, 468, 70 S.E.2d 500, 503 (1952)).\nRelying heavily on this Court\u2019s opinions in State v. Locklear, 42 N.C. App. 486, 256 S.E.2d 830 (1979), State v. Fonville, 72 N.C. App. 527, 325 S.E.2d 258 (1985), and the dissenting opinion in State v. Evans, 166 N.C. App. 432, 601 S.E.2d 877 (2004) (Wynn, J.), surety repeatedly states that \u201cthe efforts of a surety which result in the capture and return of the defendant on the charge for which the bond was secured constitutes extraordinary [circumstances]\u201d and requires the court to grant relief from the forfeiture judgment. However, neither Fonville nor Locklear supports surety\u2019s argument on appeal that the trial court must set aside a judgment of forfeiture where the surety surrenders the defendant. Moreover, this Court\u2019s majority opinion in Evans has now been affirmed by our Supreme Court. State v. Evans, 359 N.C. 404, 610 S.E.2d 198 (2005). We agree with appellee that \u201cthe common thread linking . . . this Court\u2019s prior rulings . . . is the great deference given to the findings of the trial court, rather than the establishment of a principle that return of the defendant constitutes extraordinary cause or extraordinary circumstances as a matter of law.\u201d\nFurthermore, the relevant statutes themselves do not support surety\u2019s argument on appeal. In authorizing the trial court to set aside final judgments of forfeitures in limited circumstances, see G.S. \u00a7 15A-544.8(b), the General Assembly did not expressly provide that a surety\u2019s efforts, which result in the capture and return of the defendant, always constitute \u201cextraordinary circumstances.\u201d In contrast, the legislature mandated that, before a final judgment of forfeiture has been entered, a forfeiture \u201cshall\u201d be set aside where the defendant is surrendered. See G.S. \u00a7 15A-544.5(b)(3). We can safely infer, then, that the legislature consciously chose, in adopting more stringent requirements for setting aside final judgments of forfeiture, that one\u2019s surrender of the accused would not, as a matter of law, constitute a basis upon which judgments would automatically be set aside. As we stated in Evans, \u201c[accepting [surety\u2019s] argument would be tantamount to holding that the trial court, as a matter of law, abuses its discretion by failing to equate the statutory criteria for setting aside a forfeiture listed in N.C. Gen. Stat. \u00a7 15A-544.5(b)(l-6) (2003), with \u2018extraordinary circumstances\u2019 for purposes of obtaining relief from final judgment under N.C. Gen. Stat. \u00a7 15A-544.8(b)(2).\u201d Evans, 166 N.C. App. at 434, 601 S.E.2d at 878.\nWe next turn to an application of the foregoing legal principles to the facts of this case. Defendant did not appear in court 2 July 2003. Defendant had not been surrendered by surety prior to the final judgment of forfeiture entered 29 December 2003. Defendant was apprehended by surety\u2019s agents and surrendered to Johnston County Sheriff\u2019s Department on 14 April 2004. Surety presented no evidence of any efforts by its agents to secure the presence of defendant in court on 2 July 2003. Surety did present evidence, in the form of affidavits of its agent Timothy Fitzpatrick, of efforts made on its behalf to apprehend defendant following receipt of the notice of forfeiture. According to Fitzpatrick, he made telephone calls, performed computer searches, sent letters, and coordinated his search with other recovery agents. One of the recovery agents eventually apprehended defendant at defendant\u2019s mother\u2019s residence in Brooklyn, N.Y., in April 2004, and returned him to North Carolina. Notwithstanding these efforts, the trial court, as detailed in its order, did not view surety\u2019s lackluster efforts as those fitting within the \u201cextraordinary circumstances\u201d contemplated by G.S. \u00a7 15A-544.8(b)(2). Assuming arguendo that surety\u2019s efforts to apprehend defendant could be characterized as diligent, \u201cwe caution that diligence alone will not constitute \u2018extraordinary [circumstances],\u2019 for due diligence by a surety is expected.\u201d Coronel, 145 N.C. App. at 248, 550 S.E.2d at 569.\nThe trial court did not abuse its discretion in failing to find that extraordinary circumstances existed to allow surety relief from the judgment of forfeiture. This assignment of error is overruled.\nSurety argues next that the trial court\u2019s order denying its motion to set aside the judgment of forfeiture must be reversed because the trial court failed to set forth findings of fact regarding the factors enumerated in Coronel, 145 N.C. App. at 248, 550 S.E.2d at 569. As many of the considerations discussed in Coronel relate to cases wherein the accused has died, we easily reject surety\u2019s argument. See id. (\u201cThe fact of the defendant\u2019s death must be weighed against certain factors in determining whether a forfeited bond may be remitted for \u2018extraordinary cause.\u2019 \u201d). Accordingly, Coronel is not controlling, and this assignment of error is overruled.\nAffirmed.\nJudge McGEE concurs.\nJudge HUNTER concurs with separate opinion.", "type": "majority", "author": "LEVINSON, Judge." }, { "text": "HUNTER, Judge,\nconcurring.\nI agree with the majority\u2019s conclusion that the trial court did not abuse its discretion in failing to find that extraordinary circumstances existed to allow surety relief from the judgment of forfeiture in this case.\nHowever, I write separately to suggest that while our past jurisprudence has not established a requirement that the trial court grant relief from a forfeiture judgment when a surety returns a defendant after the judgment has been entered, such a factor should weigh heavily in the trial court\u2019s consideration of extraordinary circumstances which entitle the surety to some relief under N.C. Gen. Stat. \u00a7 15A-544.8 (2003).\nOur courts have long recognized that \u201c[t]he goal of the bonding system is the production of the defendantf.]\u201d State v. Locklear, 42 N.C. App. 486, 489, 256 S.E.2d 830, 832 (1979); see also State v. Pelley, 222 N.C. 684, 688, 24 S.E.2d 635, 638 (1943) (stating \u201c[t]he very purpose of the bond was ... to make the sureties responsible for the appearance of the defendant at the proper time\u201d); State v. Coronel, 145 N.C. App. 237, 247, 550 S.E.2d 561, 568 (2001) (stating \u201cthe court system\u2019s paramount concern is ensuring the return of the criminal defendant for prosecution\u201d).\nOur system of bail bonds places the surety as custodian of the accused, and provides the surety great discretion in regaining custody in the event an accused escapes from such custody, in order to effectuate the purpose of returning the criminal defendant for prosecution. See State v. Gonzalez-Fernandez, 170 N.C. App. 45, 50, 612 S.E.2d 148, 152 (2005) (citation omitted) (stating that a surety \u201c \u2018may pursue [the accused] into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. ... It is likened to the rearrest by the sheriff of an escaping prisoner\u2019 \u201d). Further, our courts have recognized that \u201c[sjureties must be assured that if they expend money, time, and effort to recover criminal defendants, they have viable remedies for the return of forfeited bond money.\u201d Coronel, 145 N.C. App. at 247, 550 S.E.2d at 568. Finally, our courts have stated that recovery efforts which result in the principal\u2019s detention need not be dramatic to constitute extraordinary circumstances sufficient to grant relief from a forfeiture judgment. Locklear, 42 N.C. App. at 489, 256 S.E.2d at 832.\nGiven these established principles, a trial court should give great weight to the actual return of the accused into custody in considering relief from a forfeiture judgment, as failure to due so may discourage sureties from continued attempts to apprehend the accused and undermine the paramount concern of ensuring the return of the criminal defendant for prosecution. Pelley, 222 N.C. at 688, 24 S.E.2d at 638. Return of the accused into custody within the 150 day period after entry of forfeiture is preferable, as recognized by the automatic set aside of a specific forfeiture for a return to custody in that time period. See N.C. Gen. Stat. \u00a7 15A-544.5(b)(3) (2003). However, in order to effectuate the \u201cforemost goal of the bond system\u201d to produce the defendant in court in order to stand trial, Gonzalez-Fernandez, 170 N.C. App. at 50, 612 S.E.2d at 152, there must be some continued incentive to assure sureties (individuals as well as corporate) that a viable remedy for the return of forfeited bond money exists if they expend money, time, and effort to recover criminal defendants. Coronel, 145 N.C. App. at 247, 550 S.E.2d at 568.", "type": "concurrence", "author": "HUNTER, Judge," } ], "attorneys": [ "Daughtry, Woodard, Lawrence & Starling, by James R. Lawrence, Jr. and Woodruff, Reece & Fortner, by Gordon C. Woodruff and Michael J. Reece, for Johnston County Board of Education.", "Andresen & Vann, by Kenneth P. Andresen and Christopher M. Vann, for surety appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA and THE JOHNSTON COUNTY BOARD OF EDUCATION v. ANTON DANIEL EDWARDS, Defendant, and AEGIS SECURITY INSURANCE CO., Surety\nNo. COA04-1387\n(Filed 16 August 2005)\n1. Bail and Pretrial Release\u2014 failure to appear \u2014 relief from forfeiture \u2014 no extraordinary circumstance\nThe trial court did not abuse its discretion by denying surety\u2019s motion under N.C.G.S. \u00a7 15A-544.8 for relief from final judgment of a bond forfeiture based on the conclusion that no extraordinary circumstances existed to grant relief, because: (1) the trial court is not required to set aside a judgment of forfeiture where the surety surrenders defendant; (2) in authorizing the trial court to set aside final judgments of forfeiture in limited circumstances, the General Assembly did not expressly provide that a surety\u2019s efforts which result in the capture and return of defendant always constitute extraordinary circumstances, but instead mandated that before a final judgment of forfeiture has been entered it shall be set aside where defendant is surrendered; (3) defendant had not been surrendered by the surety prior to the final judgment of forfeiture entered 29 December 2003, but instead defendant was apprehended by surety\u2019s agents and surrendered to the sheriff\u2019s department on 14 April 2004; (4) surety presented no evidence of any efforts by its agents to secure the presence of defendant in court on 2 July 2003, but instead presented evidence of efforts to apprehend defendant following receipt of the notice of forfeiture; and (5) assuming arguendo that surety\u2019s efforts to apprehend defendant could be characterized as diligent, diligence alone will not constitute extraordinary circumstances since due diligence by a surety is expected.\n2. Bail and Pretrial Release\u2014 failure to appear \u2014 relief from forfeiture \u2014 findings of fact\nThe trial court did not err by denying surety\u2019s motion to set aside the judgment of forfeiture of a bond based on the trial court\u2019s failure to set forth findings of fact enumerated in State v. Coronel, 145 N.C. App. 237 (2001), because that case is not controlling when many of the considerations in that case relate to cases where the accused has died.\nJudge Hunter concurring.\nAppeal by surety from order entered 20 May 2004 by Judge Knox V. Jenkins in Johnston County Superior Court. Heard in the Court of Appeals 7 June 2005.\nDaughtry, Woodard, Lawrence & Starling, by James R. Lawrence, Jr. and Woodruff, Reece & Fortner, by Gordon C. Woodruff and Michael J. Reece, for Johnston County Board of Education.\nAndresen & Vann, by Kenneth P. Andresen and Christopher M. Vann, for surety appellant." }, "file_name": "0821-01", "first_page_order": 851, "last_page_order": 859 }