(Laws 1831, Cobb's 1851 Digest, p. 862; Code 1863, § 4585; Code 1868, § 4606; Code 1873, § 4703; Code 1882, § 4703; Penal Code 1895, § 937; Penal Code 1910, § 962; Code 1933, § 27-906; Ga. L. 1943, p. 282, § 2; Ga. L. 1953, Jan.-Feb. Sess., p. 452, § 1; Code 1981, §17-6-71; Ga. L. 1982, p. 1224, § 2; Ga. L. 1983, p. 1203, § 2; Ga. L. 1986, p. 1588, § 3; Ga. L. 1987, p. 1342, § 3; Ga. L. 1989, p. 556, § 1; Ga. L. 1990, p. 8, § 17; Ga. L. 1990, p. 2336, § 1; Ga. L. 1992, p. 2933, § 3; Ga. L. 2000, p. 1589, § 3; Ga. L. 2009, p. 688, § 2/HB 147; Ga. L. 2015, p. 1217, § 2/SB 195.)
Law reviews.- For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 212 (1989).
JUDICIAL DECISIONSANALYSIS
General Consideration
More than one subject matter in bail legislation.
- Ga. L. 1943, p. 282, while amending former Code 1933, §§ 27-904 and 27-906 (see O.C.G.A. §§ 17-6-31 and17-6-71), which dealt with the subject of bail in criminal cases, by providing for service of the forfeiture proceeding and for relief of the surety after final judgment, did not contain more than one subject matter in violation of the Georgia Constitution (see Ga. Const. 1983, Art. III, Sec. V, Para. III). Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945).
Procedure for relief of surety not void for uncertainty.
- Former Code 1933, §§ 27-904 and 27-906 (see O.C.G.A. §§ 17-6-31 and17-6-71) although failing to describe the procedure by which the surety may be relieved as therein provided for after final judgment, are not on this account void for uncertainty and indefiniteness as the statutes name the court in which the relief must be had as being the same court rendering the final judgment, and make it mandatory upon such court to relieve the surety, thus requiring the court to act in such manner as a court may properly act to effectually grant such relief, and to the extent that these sections are silent, the provisions of former Code 1933, § 3-105 (see O.C.G.A. § 9-2-3) may be resorted to. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945).
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 and17-6-71 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).
Bonds to which statute applicable.
- Whether the defendant was admitted to bail under former Code 1933, § 70-308 (see O.C.G.A. § 5-5-46), was pending decision on defendant's motion for new trial, or under former Code 1933, § 6-1005 (see O.C.G.A. § 5-6-45) was pending decision on defendant's appeal, the forfeiture procedures of former Code 1933, § 27-906 (see O.C.G.A. § 17-6-71) applied to the bond. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).
Procedure for forfeiture of bond granted.
- Forfeiture of an appeal or supersedeas bond granted under former Code 1933, § 6-1005 (see O.C.G.A. § 5-6-45) was accomplished pursuant to former Code 1933, § 27-906 (see O.C.G.A. § 17-6-71) by issuing a rule nisi and a writ of scire facias. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).
Nature of proceeding.
- Proceeding by a scire facias to forfeit a criminal recognizance is a civil case, distinctly separate from the criminal indictment, and ancillary thereto for one purpose only, the securing of the defendant's presence. Perkins v. Terrell, 1 Ga. App. 250, 58 S.E. 133 (1907).
Proceeding brought for forfeiture of a bond is a summary civil action accomplished pursuant to O.C.G.A. § 17-6-71. Farmer v. State, 199 Ga. App. 576, 405 S.E.2d 569 (1991).
Judgment by motion is a mere nullity.
- Suit by scire facias or otherwise is necessary for entering a judgment on a recognizance bond; a judgment by motion in such a case is a mere nullity. Robinson v. Gordon, 85 Ga. 559, 11 S.E. 844 (1890); Braxton v. Candler, 112 Ga. 459, 37 S.E. 710 (1900).
Judgment by motion can be entered at the return term following the issuance and service of the scire facias upon the principal and surety when neither files an answer nor shows a sufficient cause to the contrary. Coffin v. Dorsey, 27 Ga. App. 131, 107 S.E. 564 (1921).
While the forfeiture proceeding is a civil case, this does not mean that a separate civil action has to be filed and that the trial court cannot summarily render the court's decision. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).
Surety's agreement that liability be determined under statute.
- When the surety enters into a security bond in a criminal case, the surety impliedly agrees that the surety's liability may be determined under this section without the state's initiation of a separate action. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).
Securities become quasi-parties to the proceedings, and subject themselves to the jurisdiction of the court, so that summary judgment may be rendered on the securities' bonds. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).
Issuance of scire facias generally.
- Scire facias is to be issued from the court of the county in which the indictment issues, rather than that in which the bail resides. Cooper v. State, 17 Ga. 437 (1855).
County clerk (now the clerk of the court) issues the scire facias on the recognizance, returnable to the next term of court. If issued too late to be returned to the next term, a new scire facias should be issued returnable to the succeeding term. In such case, no new forfeiture of the bond need be entered. Wright v. State, 51 Ga. 524 (1874); Rowland v. Towns, 120 Ga. 74, 47 S.E. 581 (1904); Bird v. Terrell, 128 Ga. 386, 57 S.E. 777 (1907).
It is proper to direct the scire facias to all and singular the sheriffs of this state. It may thus be directed to a sheriff of another county than that in which the indictment is found. Fryer v. State, 142 Ga. 81, 82 S.E. 497 (1914).
Service of scire facias against the principal is not a prerequisite to a judgment against the principal's bail. Fryer v. State, 142 Ga. 81, 82 S.E. 497 (1914).
What is insufficient service of scire facias.
- Mere knowledge by the bondsman that the matter will be heard at a certain term, or the writing of letters to the bail bondsman by the clerk or other officials, will not suffice for service of scire facias. Accredited Sur. & Cas. Co. v. Busbee, 137 Ga. App. 808, 224 S.E.2d 852 (1976).
Scire facias upon a criminal recognizance is amendable at the trial term, so as to make it conform in the description to the bond upon which it issued. Myrick v. State, 13 Ga. 190 (1853).
Amendment of rule nisi by county court to acquire jurisdiction.
- See Warren v. Slaton, 14 Ga. App. 734, 82 S.E. 307 (1914).
Scire facias as issued may not be amended to make scire facias returnable at a different term. Warren v. Slaton, 14 Ga. App. 734, 82 S.E. 307 (1914).
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).
Response to forfeiture and issuance of scire facias.
- When a criminal recognizance has been duly forfeited and a scire facias has been issued and served, the principal has until the state case against the principal has been called at the next term to appear and answer the charge, and the surety has until that time to produce the principal to answer the charge against the principal. If the principal fails to appear, or the surety fails to produce the principal and shows no sufficient excuse or reason for not doing so, it is proper for the court to enter against them a judgment absolute upon the scire facias. Coffin v. Dorsey, 27 Ga. App. 131, 107 S.E. 564 (1921).
When jury trial required.
- Jury trial is not required when a bond is forfeited, unless the trial court agrees that there are genuine issues of material fact to be resolved. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).
When judgment may be rendered.
- Judgment may not be rendered before the time is up for the surety to produce the principal. Russell v. State, 45 Ga. 9 (1872); Boswell v. Colquitt, 73 Ga. 63 (1884).
Judgment may be rendered at the term to which the scire facias is returnable, if no sufficient reason is shown to the contrary. Bird v. Terrell, 128 Ga. 386, 57 S.E. 777 (1907).
There may be a judgment of dismissal and for costs only, but this does not invalidate the appearance bond of the defendant or relieve defendant's sureties. Perkins v. Terrell, 1 Ga. App. 250, 58 S.E. 133 (1907).
Amount of the bond need not be specified in the judgment. Spicer v. State, 9 Ga. 49 (1850).
Relief of surety upon surrender of principal and payment of costs.
- Former Code 1933, §§ 27-904 and 27-906 (see O.C.G.A. §§ 17-6-31 and17-6-71) were mandatory upon the court to relieve the surety from liability after final judgment had been entered, when the surety had surrendered the principal to the court and paid all the costs in the forfeiture proceeding. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945).
Forfeiture judgment not set aside upon surrender of principal and payment of costs.
- Former Code 1933, §§ 27-904 and 27-906 (see O.C.G.A. §§ 17-6-31 and17-6-71), while making it mandatory upon the court, after rendering final judgment of forfeiture of a criminal bond, to relieve the surety from liability thereunder upon the surety surrendering the principal into court and paying all costs, did not authorize in such a case the setting aside of such final judgment, and motion praying only that such judgment be set aside because the principal had been surrendered into court and costs paid, was properly dismissed on demurrer. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945).
Surety not relieved by arrest and detention by another state.
- While ordinarily, if an act of the state prevents the appearance of the principal for trial, the surety is relieved of the liability under the bond, such rule does not apply as to an arrest and detention by another state. Walls v. State, 111 Ga. App. 337, 141 S.E.2d 606 (1965).
Fact that the principal in a bail bond, given for appearance in the courts of this state for trial of an offense committed in this state, is unable to appear because the principal is confined in jail in another state for a violation of the laws of that state, is not a defense to a scire facias issued against the principal and the principal's surety pursuant to a forfeiture of the bond. Walls v. State, 111 Ga. App. 337, 141 S.E.2d 606 (1965).
Appeal from denial of surety is motion to dismiss and judgment for state.
- When a surety orally objected during a bond forfeiture hearing to reinitiated bond forfeiture proceedings under O.C.G.A. § 17-6-70, and the trial court issued judgment rule absolutes in the state's favor and denied the surety's motion to dismiss, the matter was properly treated as a direct appeal. Griffin v. State, 194 Ga. App. 624, 391 S.E.2d 675 (1990).
Appellate jurisdiction from forfeiture order was proper.
- Contrary to the state's contention, a direct appeal was authorized from an order forfeiting a surety's criminal appearance bond because the trial court entered a final judgment of forfeiture pursuant to O.C.G.A. § 17-6-71(b) after conducting an execution hearing; thus, appellate jurisdiction was proper. Anytime Bail Bonding, Inc. v. State, 299 Ga. App. 695, 683 S.E.2d 358 (2009), cert. denied, No. S10C0045, 2010 Ga. LEXIS 154 (Ga. 2010).
Cited in Green v. Spires, 189 Ga. 719, 7 S.E.2d 246 (1940); B & J Bonding Co. v. Bell, 232 Ga. 623, 208 S.E.2d 555 (1974); Stitt v. Busbee, 136 Ga. App. 44, 220 S.E.2d 59 (1975); Dubs v. State, 139 Ga. App. 236, 228 S.E.2d 213 (1976); Ace Bonding Co. v. State, 152 Ga. App. 477, 263 S.E.2d 256 (1979); Osborne Bonding Co. v. Harris, 179 Ga. App. 13, 345 S.E.2d 116 (1986); ACE Bonding Co. v. State, 180 Ga. App. 261, 349 S.E.2d 15 (1986); Jam Bonding Co. v. State, 184 Ga. App. 246, 361 S.E.2d 238 (1987); AAA Bonding Co. v. State, 192 Ga. App. 684, 386 S.E.2d 50 (1989); Spring-U Bonding Co. v. State, 200 Ga. App. 533, 408 S.E.2d 831 (1991); Smith v. Deering, 880 F. Supp. 816 (S.D. Ga. 1994).
Timing
Strict compliance with ten day notice period was required.
- When the defendant failed to appear for a hearing, O.C.G.A. § 17-6-71(a) directed the trial court to forfeit the defendant's bond, issue a bench warrant, order an execution hearing, and notify the surety of the execution hearing within ten days; because notice was not sent to the surety until 11 days passed, the forfeiture case should have been dismissed. Anytime Bail Bonding, Inc. v. State of Georgia, 350 Ga. App. 288, 828 S.E.2d 662 (2019).
Forfeiture allowed in event of less than strict compliance.
- Trial court did not err in forfeiting the bond for the principal's failure to appear for arraignment even though the state served the surety 12 days after the principal's failure to appear; O.C.G.A. § 17-6-71 does not bar forfeiture in the event of less than strict compliance. Classic City Bonding Co. v. State, 256 Ga. App. 577, 568 S.E.2d 834 (2002).
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).
Expiration date of bond.
- It would be unrealistic to limit a bond to a single, specified date and not to require that the bond be continued in effect until the appeal is finally decided. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).
Time for order and notice of bond forfeiture.
- Trial court is not required to sign a forfeiture order on the same day as the defendant's failure to appear as a condition to issuing a judgment absolute. The "end of the court day" language in O.C.G.A. § 17-6-71(a) is directory and not a limitation of the court's authority, particularly when the surety is not harmed. Easy Out Bonding v. State, 224 Ga. App. 706, 481 S.E.2d 834 (1997); Anytime Bonding Co. v. State, 228 Ga. App. 232, 491 S.E.2d 399 (1997).
Although the language of the first sentence of O.C.G.A. § 17-6-71(a) requires a trial court to enter an order of forfeiture of bond on the same court day that the defendant failed to appear, this language has been held to be directory, and the holding that the language is directory was not superseded by a 2009 amendment to the statute. Don Johnson Bonding Co. v. State of Ga., 342 Ga. App. 387, 803 S.E.2d 774 (2017).
Delay in execution hearings.
- Surety must show harm as well as error before the surety will be relieved of liability based on failure to conduct an execution hearing within the time prescribed by O.C.G.A. § 17-6-71. A surety's failure to keep track of the surety's indemnitors was not caused by delayed execution hearings, but was the result of the surety's erroneous assumption that the surety was relieved of liability under the bonds -- by operation of law -- 150 days after the principals' initial failure to appear in court. United States Bonds v. State, 224 Ga. App. 758, 481 S.E.2d 887 (1997); Osborne Bonding & Sur. Co. v. State, 228 Ga. App. 383, 491 S.E.2d 837 (1997).
Surety showed no harm when instead of setting a hearing after the principal failed to appear for trial, the trial court placed the case on a bench warrant calendar, then scheduled a hearing and gave the surety notice of the hearing after the principal failed to appear at the calendar call. Accordingly, it was proper to order forfeiture of the bond. Troup Bonding Co. v. State of Ga., 292 Ga. App. 5, 663 S.E.2d 734 (2008).
Continuance did not render original notice invalid.
- Final judgment of forfeiture on a criminal appearance bond posted by the surety was proper 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, it 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).
Notice
Notice.
- Unlike O.C.G.A. § 17-6-71(a), which requires that a notice of the hearing be sent to the surety, § 17-6-71(b) does not expressly require that a notice of judgment be sent to the surety. Reliable Bonding Co. v. State, 262 Ga. App. 280, 585 S.E.2d 192 (2003).
Notice sufficient for final judgment of forfeiture.
- Trial court did not err when the court entered a final judgment of forfeiture because the first occasion for the satisfaction of the notice requirement arose when the defendant failed for a second time to appear at a pretrial hearing after the hearing was rescheduled due to the fact that notice was not given to the surety. Furthermore, because notice was given to the surety within ten days of the second hearing, there was strict compliance with the statutory notice requirement under O.C.G.A. § 17-6-71(a). Northeast Atlanta Bonding Co. v. State, 308 Ga. App. 573, 707 S.E.2d 921 (2011).
Substantial compliance with notice requirement.
- Trial court properly denied a surety's motion to dismiss the state's motion for bond forfeiture regarding a principal who failed to appear as the state substantially complied with the notice requirements of O.C.G.A. § 17-6-71(a) even though the surety did not submit the surety's motion until 15 days after the failure to appear and did not serve the surety with notice of the motion until 22 days from the date of the principal's failure to appear. Further, the surety failed to show any harm from the alleged notice violation. Northeast Atlanta Sur. Co. v. Perdue, 294 Ga. App. 32, 668 S.E.2d 508 (2008).
Lack of notice to surety.
- If the record shows on the record's face noncompliance with statutory service and notice requirements, the proceedings and resultant judgment must be set aside. Osborne Bonding Co. v. State, 163 Ga. App. 648, 295 S.E.2d 577 (1982) (construing section prior to 1982 amendment).
OPINIONS OF THE ATTORNEY GENERAL
Bond forfeitures reduced to judgment.
- In the absence of any specific statutory authority, bond forfeitures which have been reduced to judgment by a rule absolute may not be settled or satisfied by a compromise agreement. 1989 Op. Att'y Gen. U89-14.
RESEARCH REFERENCES
Am. Jur. 2d.
- 8A Am. Jur. 2d, Bail and Recognizance, § 141 et seq.
C.J.S.- 8 C.J.S., Bail; Release and Detention Pending Proceedings, § 329 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.
Appealability of order relating to forfeiture of bail, 78 A.L.R.2d 1180.
Dismissal or vacation of indictment as terminating liability or obligation of surety or bail bond, 18 A.L.R.3d 1354.
Bail: duration of surety's liability on pretrial bond, 32 A.L.R.4th 504.
Bail: duration of surety's liability on posttrial bail bond, 32 A.L.R.4th 575.
Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 A.L.R.4th 600.
Propriety of applying cash bail to payment of fine, 42 A.L.R.5th 547.