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Board of Commissioners of Brevard v. Barber Bonding Agency9/26/2003
The Board of County Commissioners of Brevard County (County) appeals from an order which granted Barber Bonding Agency's (Barber) motion for remission of 90% of its forfeited bail bond, pursuant to section 903.28(4), Florida Statutes. The County concedes that Barber is entitled to remission under the statute, but it argues the applicable subsection is (6), which permits remission of up to 50% of the forfeited bond. We agree with the able trial judge that subsection (4) applies and affirm the order for remission of 90%.
Section 903.28, Florida Statutes, deals with remission of forfeited bail bonds. Its subsections (2) through (6) are worded identically except for the time periods [90 days, 180 days, 270 days, 1 year and 2 years] and the corresponding maximum amount which can be remitted to the surety for a forfeited bond [100%, 95%, 90%, 85% and 50%].
Section 903.28(4) provides:
If the defendant surrenders or is apprehended within 270 days after forfeiture, the court, on motion at a hearing upon notice having been given to the county attorney and state attorney as required in subsection (8), shall direct remission of up to, but not more than, 90 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or if the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.
(Emphasis added)
Section 903.28(6) has identical language except the time limit is two years and the maximum possible remission is 50%.
The facts in this case are not in dispute. Barber posted a $1,000.00 bail bond for McCloy on September 8, 2000, in a criminal case being prosecuted in the Circuit Court of Brevard County. On January 26, 2001, when McCloy failed to appear, the court forfeited the bond. Barber paid the forfeiture on March 28, 2001.
On August 6, 2001, McCloy was arrested in Dade County, Florida, on different criminal charges than those involved in the Brevard County case. Barber apparently played no part in his apprehension and arrest in Dade County. McCloy remained in the Dade County jail until June 14, 2002, when he was transferred to Brevard County to face the criminal charges underlying this bail bond matter. Barber paid the state's expenses and costs to return McCloy to Brevard County.
The state agreed in its answer that the prosecution of the case against McCloy had not been thwarted by his failure to appear. Indeed, at the hearing held on Barber's motion for remission, the assistant state attorney appeared with the assistant county attorney for the purpose of working out a guilty plea for McCloy. The state did not present any argument that the delay in returning McCloy to the Brevard Circuit Court had impeded the prosecution of the case against McCloy in any way. Thus, the requirement of the statute (that the delay has not thwarted the prosecution of the case) was satisfied and is not in issue here.
At the hearing on remission, the County argued that inherent in the language of all of the subsections to section 903.28 is the requirement that the defendant be surrendered to or apprehended in the jurisdiction of the court
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