O.C.G.A. § 17-6-70 (2019)

Annotations

Cross references. - Limitation on power of General Assembly to relieve principals or securities upon forfeited recognizances, Ga. Const. 1983, Art. III, Sec. VI, Para. VI.

JUDICIAL DECISIONS Enforcement of criminal bonds or recognizances. - Criminal bonds or recognizances must be enforced according to the procedure prescribed by statute; i.e., by entering a rule nisi, issuing a scire

facias, and entering a judgment absolute, and not by an action on the debt. Garner v. Chambers, 75 Ga. App. 756, 44 S.E.2d 507 (1947). Trial court’s denial of a surety’s motion

to set aside a judgment of forfeiture absolute was properly denied since: (1) the defendant and the surety were ordered to appear before the trial court and show cause why the bond should not be forfeited; (2) neither the defendant nor the surety appeared; (3) the surety did not receive notice of the judgment until five months after the hearing; (4) the trial court followed O.C.G.A. §§ 17-6-70 and 17-6-71 to the letter; and (5) even if O.C.G.A. § 15-6-21(c) obligated the trial court to serve notice of the judgment absolute, the surety failed to exercise any diligence whatsoever, and any harm the surety suffered was self-imposed. Reliable Bonding Co. v. State, 262 Ga. App. 280, 585 S.E.2d 192 (2003). Rule nisi commences forfeiture proceeding. - Real beginning of a forfeiture proceeding is the issuance of the rule nisi and its signature by the judge. Perkins v. Terrell, 1 Ga. App. 250, 58 S.E. 133 (1907). Voluntary bond may be forfeited by scire facias. Smith v. Spencer, 63 Ga. 702 (1879). Neither trial nor waiver thereof is a requisite to forfeiture. - It is not requisite to the forfeiture of a bail that there shall have been a committing trial or an express waiver thereof by the obligor. Bird v. Terrell, 128 Ga. 386, 57 S.E. 777 (1907). No need to allege that case called in order on the docket. - It is not necessary that it be alleged in the scire facias that the case was called in its order on the docket, or that the state had announced ready for trial. Collins v. Smith, 7 Ga. App. 653, 67 S.E. 847 (1910). Record must show that the principal was called and failed to appear. Park v. State, 4 Ga. 329 (1848). It must appear that there was an opportunity to produce the principal. Wellmaker v. Terrell, 3 Ga. App. 791, 60 S.E. 464 (1908). Bonding company was given proper notice when a copy of the trial calendar was mailed to the company ten days prior to the defendant’s scheduled trial date. Taylor v. State, 194 Ga. App. 245, 390 S.E.2d 601 (1990). Record must show a judgment of forfeiture before a bail can be made liable. Spicer v. State, 9 Ga. 49 (1850).

When forfeiture not premature. - When a criminal recognizance is forfeited at one term, and a scire facias is issued and made returnable to a later term and is duly served before that term, and when at the term to which it is returnable the case against the principal is called, and upon the principal’s failure to appear, forfeiture absolute is taken, such forfeiture is not premature. Robinson v. Brown, 146 Ga. 257, 91 S.E. 31 (1916). Triggering dates for the applicable statutory notice and hearing provisions in bond forfeiture proceedings are not limited to calculation from the date of a principal’s initial time of required appearance and failure to appear; the statute allows initiation of the notice and hearing procedures after any time of required appearance and failure to appear thereat. Griffin v. State, 194 Ga. App. 624, 391 S.E.2d 675 (1990). Commencing of forfeiture proceedings after traverse jurors discharged. - When, after one panel of the traverse jurors has been discharged for the term, and all cases, including criminal cases, have been continued, the solicitor general (now district attorney) cannot proceed to forfeit a recognizance and issue scire facias returnable to the next term, and at that term have final judgment of forfeiture against the surety, although the principal does not appear at either term. Lamb v. State, 73 Ga. 587 (1884). When and where scire facias returnable. - Scire facias required by law to be issued upon the forfeiture of a criminal bond or recognizance must be made returnable to the term of court next following the term at which the bond or recognizance was forfeited. Garner v. Chambers, 75 Ga. App. 756, 44 S.E.2d 507 (1947). It is no defense that someone without authority has informed the obligor that the obligor has been discharged. Duffey v. Harris, 19 Ga. App. 646, 91 S.E. 1006 (1917). Plea of duress is not a defense. Spicer v. State, 9 Ga. 49 (1850). Attack on indictment against principal. - It avails one nothing to attack the indictment returned against the principal, unless the indictment appears to be

void. Williams v. Candler, 119 Ga. 179, 45 S.E. 989 (1903). Blood relationship between principal and district attorney as a defense. - Fact that the solicitor general (now district attorney) who presents the indictment of the principal to the grand jury is a blood relation of the principal, and that the solicitor general’s (district attorney’s) successor who takes the forfeiture nisi is a relation by marriage, presents no defense when both are out of office when the case is heard. Salter v. State, 125 Ga. 760, 54 S.E. 685 (1906). Defense that the district attorney failed to announce ready for trial for the state has no merit when a case is called in its regular order. Collins v. Smith, 7 Ga. App. 653, 67 S.E. 847 (1910); Duffey v. Harris, 19 Ga. App. 646, 91 S.E. 1006 (1917). Continuance did not render original notice invalid. - Final judgment of forfeiture on a criminal appearance bond posted by the surety was proper under O.C.G.A. § 17-6-70(a) because the surety

received notice of the execution hearing within the statutory time period under O.C.G.A. § 17-6-71(a) and the execution hearing took place within the required window. That the state sought and obtained a continuance from the originally-scheduled date for the execution hearing did not magically render the original notice invalid; because the original notice was valid, that notice was also not later invalidated by a subsequent notice of a new hearing date. Powell v. State, 313 Ga. App. 535, 722 S.E.2d 158 (2012). Cited in O.K. Bonding Co. v. Carter, 133 Ga. App. 32, 209 S.E.2d 717 (1974); Ace Bonding Co. v. State, 152 Ga. App. 477, 263 S.E.2d 256 (1979); State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980); Osborne Bonding Co. v. Harris, 179 Ga. App. 13, 345 S.E.2d 116 (1986); Daza v. State, 224 Ga. App. 383, 480 S.E.2d 623 (1997); Easy Out Bonding v. State, 224 Ga. App. 706, 481 S.E.2d 834 (1997); Northeast Atlanta Bonding Co. v. State, 308 Ga. App. 573, 707 S.E.2d 921 (2011).

OPINIONS OF THE ATTORNEY GENERAL Release of principal serving sentence on another charge. - District attorney lacks authority to grant release to a surety on a bail bond when the principal is serving a sentence on another charge. 1969 Op. Att’y Gen. No. 69-432.

It is not necessary that a jury be present for the forfeiture of bonds. 1965-66 Op. Att’y Gen. No. 66-170.

RESEARCH REFERENCES Am. Jur. 2d. - 8A Am. Jur. 2d, Bail and Recognizance, § 127 et seq. C.J.S. - 8 C.J.S., Bail; Release and Detention Pending Proceedings, §§ 228 et seq., 246 et seq. ALR. - Induction of principal into military or naval service as exonerating his bail for his nonappearance, 8 A.L.R. 371; 147 A.L.R. 1428; 148 A.L.R. 1400; 150 A.L.R. 1447; 151 A.L.R. 1462; 152 A.L.R. 1459; 153 A.L.R. 1431; 154 A.L.R. 1456; 156 A.L.R. 1457; 157 A.L.R. 1456. Right to recover cash bail or securities taken without authority, 44 A.L.R. 1499; 48 A.L.R. 1430.

Failure of judgment or order forfeiting bail, or deposit in lieu thereof, to recite arraignment and plea, 90 A.L.R. 298. Governor’s authority to remit forfeited bail bond, 77 A.L.R.2d 988. Appealability of order relating to forfeiture of bail, 78 A.L.R.2d 1180. Bail: effect on surety’s liability under bail bond of principal’s subsequent incarceration in same jurisdiction, 35 A.L.R.4th 1192. Forfeiture of bail for breach of conditions of release other than that of appearance, 68 A.L.R.4th 1082.