First Arkansas Bail Bonds, Inc. v. State of Arkansas , 2022 Ark. App. 189 ( 2022 )

Cite as 2022 Ark. App. 189ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-21-362
FIRST ARKANSAS BAIL BONDS, INC. Opinion Delivered April 27, 2022
APPELLANT
APPEAL FROM THE CRAIGHEAD
V. COUNTY CIRCUIT COURT, WESTERN
DISTRICT
[NO. 16JCR-18-50]
STATE OF ARKANSAS
APPELLEE HONORABLE CINDY THYER, JUDGE
AFFIRMED
KENNETH S. HIXSON, Judge
Appellant First Arkansas Bail Bonds, Inc. (First Arkansas), appeals from a $25,000
bond-forfeiture judgment entered by the Craighead County Circuit Court. On appeal, First
Arkansas argues that the circuit court erred in entering the bond-forfeiture judgment because
the defendant had been in custody in another state and was not returned to Arkansas upon
his release. We affirm.
On November 21, 2017, Justin Whitmore was arrested in Craighead County for
felony theft and obstructing governmental operations, and he was later charged with these
offenses. On November 29, 2017, First Arkansas posted a $75,000 bail bond to secure
Whitmore’s appearance before the circuit court. The circuit court ordered Whitmore to
appear in court for a plea and motions on May 21, 2018, and Whitmore failed to appear.
On May 22, 2018, the circuit court entered an order for the issuance of an arrest
warrant and summons/order for surety to appear. In it, the circuit court ordered that a
bench warrant be issued for Whitmore’s immediate arrest. The circuit court also ordered
the circuit clerk to notify First Arkansas that Whitmore should be surrendered to the sheriff
as required by the terms of the bail bond and to notify First Arkansas to appear at a show-
cause hearing on August 23, 2018, and show cause why the amount specified in the bail
bond should not be forfeited.
On August 23, 2018, First Arkansas appeared at the show-cause hearing. Whitmore’s
whereabouts were unknown. The show-cause hearing was continued multiple times, and it
was ultimately held on February 26, 2021. Whitmore was neither apprehended nor present
for court by the time of the February 26, 2021, show-cause hearing.
At the hearing, First Arkansas alleged that Whitmore was jailed in Tennessee in 2019.
According to First Arkansas, Whitmore was then paroled in Tennessee and began serving a
jail sentence in Mississippi. First Arkansas stated that Whitmore was paroled in Mississippi
in November 2020. However, First Arkansas was never able to locate Whitmore after his
release from jail in Mississippi. First Arkansas indicated that it had been in contact with
Whitmore’s parole officer in Tennessee but had been unable to reach Whitmore’s
Mississippi parole officer. First Arkansas stated that “for some reason he never got back to
Arkansas” and that “he just slipped through the cracks and never made it back here.”
On April 5, 2021, the circuit court entered a bond-forfeiture judgment against First
Arkansas. In the judgment, the circuit court found that, as of entry of the judgment,
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Whitmore had not been surrendered or otherwise brought into custody. The circuit court
found further that First Arkansas had not shown good cause why the bond should not be
forfeited, and it ordered $25,000 of the $75,000 bond forfeited.
First Arkansas timely appealed from the bond-forfeiture judgment. First Arkansas
argues that its bond should not have been forfeited because Whitmore had been in custody
in another state, and the State of Arkansas failed to ensure that it had a hold on him to
secure his presence in Craighead County Circuit Court upon his release. We disagree.
Arkansas Code Annotated section 16-84-207 prescribes the rules for actions on bail
bonds in circuit courts and provides, in pertinent part, as follows:
(a) If a bail bond is granted by a judicial officer, it shall be conditioned on the
defendant’s appearing for trial, surrendering in execution of the judgment, or
appearing at any other time when his or her presence in circuit court may be lawfully
required under Rule 9.5 or Rule 9.6 of the Arkansas Rules of Criminal Procedure, or
any other rule.
(b)(1) If the defendant fails to appear at any time when the defendant’s presence
is required under subsection (a) of this section, the circuit court shall enter this fact
by written order or docket entry, adjudge the bail bond of the defendant or the money
deposited in lieu thereof to be forfeited, and issue a warrant for the arrest of the
defendant.
(2) The circuit clerk shall:
(A) Notify the sheriff and each surety on the bail bond that the defendant
should be surrendered to the sheriff as required by the terms of the bail bond;
and
(B) Immediately issue a summons on each surety on the bail bond
requiring the surety to personally appear on the date and time stated in the
summons to show cause why judgment should not be rendered for the sum
specified in the bail bond on account of the forfeiture.
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(c)(1)(A) If the defendant is apprehended and brought before the circuit court
within seventy-five (75) days of the date notification is sent under subdivision (b)(2)(A)
of this section, then no judgment of forfeiture may be entered against the surety.
The basic premise to be followed in this type of case is that “[o]nce the defendant has
failed to appear, the entire amount of the bond is subject to forfeiture. The surety is given
the opportunity to present evidence why the bond should not be forfeited, or why the full
amount of the bond should not be forfeited.” Bob Cole Bonding v. State, 340 Ark. 641, 644,
13 S.W.3d 147, 149 (2000). The essence of a show-cause hearing is that the summoned
bonding company should offer proof or argument as to why the bail bond should not be
forfeited. Id.In M&M Bonding Co. v. State, 59 Ark. App. 228, 233, 955 S.W.2d 521, 523–24 (1997),
our court explained:
[I]n determining a forfeiture of bail, the underlying basis for admitting one to bail
must be considered. The defendant, rather than being held in custody by the State,
is released to the surety who assumes custody of him and is responsible to the court
for his appearance at any time. The defendant is regarded as being in the custody of
his surety from the time of execution of the bond until he is discharged and his bail
is considered a jailer of his own choosing. Although the surety is not expected to
keep the principal in physical restraint, he is expected to keep close track of his
whereabouts and keep him within this state subject to the jurisdiction of the court.
The surety is not released from forfeiture except where an act of God, the
State, or of a public enemy, or actual duress prevents appearance by the accused at
the time fixed in the bond. Absent one of those excuses the failure of an accused to
appear at the time fixed is sufficient basis for forfeiture.
....
Where the principal does not appear there is no exoneration from liability
under the bond, regardless of the extent of the search by the surety, if the surety shows
no more than a disappearance of the principal. . . . It devolves upon the bail
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bondsman to establish facts which justify favorable action in the exercise of the trial
court’s discretion[.]
(Citations omitted.)
First Arkansas cites M&M Bonding for its holding that the surety may be released from
forfeiture when the appearance of the accused was prevented by an act of God, the State, a
public enemy, or actual duress. First Arkansas contends that under the circumstances
presented, it was an act of the State that prevented Whitmore’s appearance before the circuit
court. First Arkansas asserts that it was impossible to surrender Whitmore to the circuit
court while he was incarcerated in Tennessee and Mississippi. First Arkansas states further
that the State failed to ensure that it had a hold on Whitmore so he would be returned to
Arkansas upon his release from jail in Mississippi. That being so, First Arkansas argues that
it was an act of the State that prevented Whitmore’s appearance and that the bond forfeiture
should be reversed.
We conclude that First Arkansas’s argument is meritless. First Arkansas focuses on
the wrong time period. In Beth’s Bail Bonds, Inc. v. State, 2016 Ark. App. 183, 486 S.W.3d
822, we explained that the most critical date regarding the bond forfeiture was the date when
the defendant failed to appear in court for a scheduled hearing. In AAA Bail Bond Co. v.
State, 55 Ark. App. 35, 929 S.W.2d 723 (1996), we held that the surety bears the primary
responsibility for assuring the appearance of the defendant.
Here, Whitmore was ordered to appear in circuit court on May 21, 2018, and when
First Arkansas failed to secure his appearance, the bond was subject to forfeiture. See Ark.
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Code Ann. § 16-84-207(b)(1) (Supp. 2021) (“If the defendant fails to appear at any time
when the defendant’s presence is required under subsection (a) of this section, the circuit
court shall . . . adjudge the bail bond of the defendant or the money deposited in lieu thereof
to be forfeited[.]”); see also Bob Cole Bonding v. State, 340 Ark. 641, 644, 13 S.W.3d 147, 149
(2000) (holding that once the defendant has failed to appear, the entire amount of the bond
is subject to forfeiture). The show-cause hearing was originally scheduled for August 23,
2018, the hearing was continued multiple times, and at no time did First Arkansas bring
Whitmore before the court. Although Whitmore was apparently jailed in Tennessee
sometime in 2019, this was long after he had been ordered to appear in Craighead County
Circuit Court. First Arkansas assumed responsibility for Whitmore’s appearance in circuit
court, and because Whitmore failed to appear, it was First Arkansas’s burden to present
proof or argument at the show-cause hearing as to why the bond should not be forfeited.
First Arkansas offered no proof or argument as to how an act of the State prevented
Whitmore’s presence at the May 21, 2018 hearing. Because First Arkansas failed to show
cause why its bond should not be forfeited, we affirm the bond-forfeiture judgment entered
by the circuit court.
Affirmed.
GLADWIN and KLAPPENBACH, JJ., agree.
Wankum Law Firm, by: J. Jeff Wankum, for appellant.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.
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