TITLE 17 CRIMINAL PROCEDURE

Section 6. Bonds and Recognizances, 17-6-1 through 17-6-114.

ARTICLE 3 PROCEEDINGS FOR FORFEITURE OF BONDS OR RECOGNIZANCES

17-6-72. Conditions not warranting forfeiture of bond for failure to appear; remission of forfeiture.

No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court by the written statement of a licensed physician that the principal on the bond was prevented from attending court due to a mental or physical disability or the principal on the bond was receiving inpatient treatment as involuntary treatment, as such terms are defined in Code Section 37-3-1.
No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was detained by reason of arrest, sentence, or confinement in a penal institution or jail in the State of Georgia, or so detained in another jurisdiction, or because he or she was involuntarily confined or detained pursuant to court order in a mental institution in the State of Georgia or in another jurisdiction. An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement. Such notice may be sent from the holding institution by mail or e-mail or delivered by hand or by facsimile machine. Upon the presentation of such written notice to the clerk of the proper court, the prosecuting attorney, and the sheriff or other law enforcement officer having jurisdiction over the case, along with a letter of intent to pay all costs of returning the principal to the jurisdiction of the court, such notice and letter shall serve as the surety's request for a detainer or hold to be placed on the principal. Should there be a failure to place a detainer or hold within ten business days of the surety's service of a detainer or hold request, and after such presentation of such notice and letter of intent to pay costs, the surety shall then be relieved of the liability for the appearance bond without further order of the court.
No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that prior to the entry of the judgment on the forfeiture the principal on the bond is in the custody of the sheriff or other responsible law enforcement agency. An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement. Such notice may be sent from the holding institution by mail or e-mail or delivered by hand or by facsimile machine. Upon presentation of such written notice to the clerk of the proper court, the prosecuting attorney, and the sheriff or other law enforcement officer having jurisdiction over the case along with a letter of intent to pay all costs of returning the principal to the jurisdiction of the court, such notice and letter shall serve as the surety's request for a detainer or hold to be placed against the principal. Should there be a failure to place a detainer or hold within ten business days of the surety's service of a detainer or hold request, and after presentation of such notice and letter of intent to pay costs, the surety shall then be relieved of the liability for the appearance bond without further order of the court.
In cases in which subsection (e) of this Code section is not applicable, on application filed within 120 days from the payment of judgment, the court shall order remission under the following conditions:
1. Provided the bond amount has been paid within 120 days after judgment and the delay has not prevented prosecution of the principal and upon application to the court with prior notice to the prosecuting attorney of such application, said court shall direct remission of 95 percent of the bond amount remitted to the surety if the principal is produced or otherwise appears before the court that has jurisdiction of the bond within such 120 day period. Should the surety, within two years of the principal's failure to appear, locate the principal in the custody of the sheriff in the jurisdiction where the bond was made or in another jurisdiction causing the return of the principal to the jurisdiction where the bond was made, apprehend, surrender, or produce the principal, if the apprehension or surrender of the principal is substantially procured or caused by the surety, or if the location of the principal by the surety causes the adjudication of the principal in the jurisdiction in which the bond was made, the surety shall be entitled to a refund of 50 percent of the bond amount. The application for 50 percent remission shall be filed no later than 30 days following the expiration of the two-year period following the date of judgment; or
2. Remission shall be granted upon condition of the payment of court costs and of the expenses of returning the principal to the jurisdiction by the surety.
1. If, within 120 days from payment of the judgment, the surety surrenders the principal to the sheriff or responsible law enforcement officer, or said surrender has been denied by the sheriff or responsible law enforcement officer, or the surety locates the principal in custody in another jurisdiction, the surety shall only be required to pay costs and 5 percent of the face amount of the bond, which amount includes all surcharges. If it is shown to the satisfaction of the court, by the presentation of competent evidence from the sheriff or the holding institution, that said surrender has been made or denied or that the principal is in custody in another jurisdiction or that said surrender has been made and that 5 percent of the face amount of the bond and all costs have been tendered to the sheriff, the court shall direct that the judgment be marked satisfied and that the writ of fieri facias be canceled.
2. 1. The court shall direct that the judgment be marked satisfied and that the writ of fieri facias be canceled, if within 120 days from payment of the judgment, the surety:
    1. Tenders an amount equal to 5 percent of the face amount of the bond and all costs to the sheriff; and
    2. Provides, in writing, the court and the prosecuting attorney for the court that has jurisdiction of the bond with competent evidence giving probable cause to believe that the principal is located in another jurisdiction within the United States and states that it will provide for the reasonable remuneration for the rendition of the principal, as estimated by the sheriff; and
  2. The prosecuting attorney for the court that has jurisdiction of the bond:
    1. Declines, in writing, to authorize or facilitate extradition; or
    2. Within ten business days of the notice provided pursuant to division (2)(A)(ii) of this subsection, fails to enter the appropriate extradition approval code into the computerized files maintained by the Federal Bureau of Investigation National Crime Information Center thereby indicating an unwillingness to extradite the principal.

(c.1)No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was deported or removed from the United States by federal authorities. Official documentation from a federal official or agency shall be considered proof of the principal's deportation or removal. Such documentation may be delivered by mail or e-mail or delivered by hand or by facsimile machine.

(Ga. L. 1965, p. 266, §§ 1-3; Code 1981, §17-6-72; Ga. L. 1982, p. 1224, § 2; Ga. L. 1982, p. 1658, § 2; Ga. L. 1983, p. 3, § 14; Ga. L. 1983, p. 1203, § 3; Ga. L. 1985, p. 982, § 1; Ga. L. 1986, p. 1588, § 4; Ga. L. 1987, p. 1342, § 4; Ga. L. 1989, p. 556, § 2; Ga. L. 1990, p. 2336, § 2; Ga. L. 1992, p. 2933, § 4; Ga. L. 1996, p. 1233, § 3; Ga. L. 2009, p. 688, § 2A/HB 147; Ga. L. 2013, p. 1106, § 1/SB 225; Ga. L. 2015, p. 1217, § 3/SB 195.)

The 2013 amendment, effective July 1, 2013, in subsection (a), substituted "court due to a" for "by some" near the middle, and added "or the principal on the bond was receiving inpatient treatment as involuntary treatment, as such terms are defined in Code Section 37-3-1" at the end; in the last sentence of subsections (b) and (c), substituted "ten business days of the surety's service of a detainer or hold request" for "15 days, excluding Saturdays, Sundays, and legal holidays"; in subsection (d), in the introductory paragraph, substituted "subsection (e) of this Code section" for "paragraph (3) of this subsection"; in paragraph (d)(1), substituted "principal is produced or otherwise appears before the court that has jurisdiction of the bond within such 120 day period" for "surety locates the principal in the custody of the sheriff in the jurisdiction where the bond was made or in another jurisdiction causing the return of the principal to the jurisdiction where the bond was made, apprehends, surrenders, or produces the principal, if the apprehension or surrender of the principal was substantially procured or caused by the surety, or if the location of the principal by the surety caused the adjudication of the principal in the jurisdiction in which the bond was made" in the first sentence; in paragraph (d)(2), substituted a period for "; or" at the end; redesignated former paragraph (d)(3) as paragraph (e)(1); in paragraph (e)(1), in the first sentence, substituted "from payment of the judgment" for "after judgment" near the beginning, and inserted "the" preceding "surety" in the middle, and substituted "fieri facias" for "execution, fi. fa.," in the last sentence; and added paragraph (e)(2).

The 2015 amendment, effective July 1, 2015, near the middle of subsections (b) and (c), substituted "confinement. Such notice" for "confinement and such notice" and inserted "e-mail or"; and, in subsection (c.1), inserted "or removed from the United States" in the first sentence, and in the second sentence, substituted "Official documentation" for "An official written notice of such deportation" at the beginning, inserted "or agency" near the middle, and added "or removal. Such documentation may be delivered by mail or e-mail or delivered by hand or by facsimile machine" at the end.

Cross references.

- Corresponding provision relating to civil procedure, § 9-10-11.

Conditioning of appearance bond or recognizance on appearance by accused before court at time fixed for arraignment, § 17-6-17.

Law reviews.

- For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 212 (1989).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 17-6-72 does not violate the anti-gratuities clause of the Georgia Constitution since by apprehending absconded criminals and delivering the criminals to the state bail bonding companies perform a valuable service for the state inasmuch as the companies relieve law enforcement officers from the duty, thereby permitting officers to direct their energies to other areas of law enforcement. AAA Bail Bonding Co. v. State, 259 Ga. 411, 383 S.E.2d 125 (1989).

The 1987 and 1989 versions of O.C.G.A. § 17-6-72(f) violated the right to due process under the state and federal constitutions to the extent the statute required the surety to pay the judgment in full before being permitted to present arguments in support of remission. State v. Johnson, 261 Ga. 363, 404 S.E.2d 563 (1991).

Purpose.

- Intention of the General Assembly in enacting Ga. L. 1965, p. 266, §§ 1-3 (see O.C.G.A. § 17-6-72) was to supply a remedy for the exigency of former Code 1933, § 27-906 (see O.C.G.A. § 17-6-71). Stitt v. Busbee, 136 Ga. App. 44, 220 S.E.2d 59 (1975).

Time for filing.

- O.C.G.A. § 17-6-72 sets a limited time period for filing and measures the time from the surety's payment of judgment on the bond rather than from the apprehension of the principal. This is required even when the principal is found and returned at some time beyond that period. State v. Hightower, 199 Ga. App. 770, 406 S.E.2d 117 (1991).

Surety was not entitled to any remission of the bond payment because the surety did not apply for remission within 90 days of paying the judgment as the surety could have done inasmuch as the principal had been apprehended with the surety's help 34 days after payment. State v. Hightower, 199 Ga. App. 770, 406 S.E.2d 117 (1991).

Forfeiture exception in O.C.G.A.

§ 17-6-72(b). - Deportation of an illegal alien to Mexico with an inability to return to the United States is not the functional equivalent of a "sentence" and resulting "detention" as contemplated by O.C.G.A. § 17-6-72(b). Vargas v. State, 243 Ga. App. 725, 534 S.E.2d 173 (2000).

Construction of

§ 17-6-72(d)(1). - Because the purpose of O.C.G.A. § 17-6-72(d)(1) was remedial and had to therefore be construed in favor of the surety in interpreting the statute and avoiding a meaningless result, the trial court properly allowed a surety a remission of 50 percent of the bond amount since the surety filed the surety's application for the remission at any time within 30 days following the expiration of the two-year period following the date of judgment. State of Ga. v. Free At Last Bail Bonds, 285 Ga. App. 734, 647 S.E.2d 402 (2007).

Location of principal in another jurisdiction.

- Surety met the requirements of O.C.G.A. § 17-6-72(d)(1) by locating the principal in custody under an alias in another jurisdiction and placing a "hold" or detainer on the principal. Osborne Bonding & Sur. Co. v. State, 224 Ga. App. 459, 480 S.E.2d 900 (1997).

Remission of forfeiture.

- Surety who advised both the county where the bond was issued and the county where the principal was arrested of the principal's status and identity substantially procured or caused the principal's apprehension and return under the terms of the 1992 version of O.C.G.A. § 17-6-72. Osborne Bonding & Sur. Co. v. State, 224 Ga. App. 590, 481 S.E.2d 578 (1997).

Since a surety on four criminal bonds did not pay the judgments on its forfeited bonds, O.C.G.A. § 17-6-72(d)(3), allowing reduction, rather than O.C.G.A. § 17-6-72(d)(1), allowing remission, controlled. Because the individuals were all arrested by county authorities without any involvement of the surety, the surety failed to show that the surety was entitled to a remission of the bonds. Confidential Bonding Co. v. State of Ga., 279 Ga. App. 794, 632 S.E.2d 684 (2006).

Under the plain and ordinary language of O.C.G.A. § 17-6-72(d)(1), a bondsman who failed to assist in the arrest of the principal of its bond was not entitled to a 50 percent remission of the bond, and the district attorney's consent to the bondsman's motion had no legal effect as such was not accepted by the trial court. Joe Ray Bonding Co. v. State of Ga., 284 Ga. App. 687, 644 S.E.2d 501 (2007).

Consent to reduction.

- State's participation in a proposed consent order to allow reduction of the payment on a forfeited bond did not conclusively establish that one of the statutory conditions for reduction was met and the court was authorized to require that such fact be established by the surety through the prescribed evidence. Osborne Bonding & Sur. Co. ex rel. Castaneda v. State, 225 Ga. App. 896, 485 S.E.2d 235 (1997).

Judgment of forfeiture not set aside.

- Surety, which did not receive notice of the entry of a judgment of forfeiture in time to obtain remission of the forfeited sum, under O.C.G.A. § 17-7-72(d)(10), was not entitled to have the judgment set aside as the surety received notice of the hearing at which the forfeiture was considered and chose not to appear or determine whether a judgment was entered following the hearing. Reliable Bonding Co. v. State, 262 Ga. App. 280, 585 S.E.2d 192 (2003).

Forfeiture exceptions did not apply.

- Bond forfeiture exceptions found in O.C.G.A. § 17-6-72(b), (c) did not apply to an alien's bond forfeiture because the alien's failure to appear at an arraignment was because the alien had been deported, not because the alien was in a penal institution or jail because of an arrest or sentence, was confined to a mental institution because of a court order, or was in the custody of a sheriff or other responsible law enforcement agency. Gomez-Ramos v. State, 297 Ga. App. 113, 676 S.E.2d 382 (2009).

Criminal history calculation.

- Sentence imposed for defendant's 2008 bank robbery was vacated and the case was remanded for resentencing because the defendant's bond forfeiture should not factor into the calculation of the defendant's criminal history under U.S. Sentencing Guidelines Manual § 4A1.2(a) (2008) if the defendant's failure to attend the February 2008 arraignment was involuntary under O.C.G.A. § 17-6-72(b), and the district court, assuming that all Georgia bond forfeitures should be considered convictions for purposes of calculating criminal history under the sentencing guidelines pursuant to O.C.G.A. § 40-13-58, did not determine whether the defendant's failure to attend the arraignment was willful or involuntary. United States v. Daniel, 358 Fed. Appx. 79 (11th Cir. 2009).

Cited in Stitt v. Busbee, 136 Ga. App. 44, 220 S.E.2d 59 (1975); Caffey v. State, 140 Ga. App. 275, 231 S.E.2d 77 (1976); AAA Bonding Co. v. State, 192 Ga. App. 684, 386 S.E.2d 50 (1989); Smith v. Deering, 880 F. Supp. 816 (S.D. Ga. 1994); Northeast Atlanta Bonding Co. v. State, 308 Ga. App. 573, 707 S.E.2d 921 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Forfeiture date depends on wording of bond.

- Date of forfeiture of the appearance bond depends entirely upon the wording of each particular bond. In the event the bond indicates an appearance at a term of court, forfeiture does not occur until the end of that particular term of court. However, if the bond is returnable on a specific date, then the 60-day provision commences to run from that date. 1965-66 Op. Att'y Gen. No. 66-30.

RESEARCH REFERENCES

Am. Jur. 2d.

- 8A Am. Jur. 2d, Bail and Recognizance, § 180.

C.J.S.

- 8 C.J.S., Bail; Release and Detention Pending Proceedings, §§ 156 et seq., 267 et seq., 342.

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 back cash bail or securities taken without authority, 48 A.L.R. 1430.

Bail: effect on surety's liability under bail bond of principal's subsequent incarceration in other jurisdiction, 33 A.L.R.4th 663.

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.

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