             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                         November 18, 2003 Session

                                   IN RE: GUY JAMES BONDING1

                         Appeal from the Circuit Court for Rutherford County
                                  No. F-51633A    Don R. Ash, Judge



                           No. M2003-01033-CCA-R3-CD - Filed June 23, 2004


The appellant, Guy James Bonding, appeals the order of the Rutherford County Circuit Court
denying its petition for reimbursement of a forfeited bail bond in the case of criminal defendant
Valissa Granderson. Following a review of the record and the parties’ briefs, we reverse the
judgment of the trial court and remand for a hearing at which the trial court shall determine to what
relief, if any, the appellant is entitled.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed and
                                        Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
THOMAS T. WOODALL, J., joined.

James Bryan Moseley, Nashville, Tennessee, for the appellant, Guy James Bonding.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                                        OPINION

                                               I. Factual Background

     The instant case arose from the criminal prosecution of the defendant, Valissa Granderson.
On November 29, 2000, Granderson was arrested at a Wal-Mart store for the forgery of stolen

         1
           In compliance with Rules 30(b)(2) and (d)(2) of the Tennessee Rules of Appellate Procedure, the parties have
styled their pleadings before this court “State of Tennessee v. Valissa Granderson” and have simply added the name of
the appellant and its status before this court. Rule 30 of the Tennessee Rules of Appellate Procedure provides that papers
addressed to this court should contain a caption setting forth the title of the case as it appeared in the trial court. In this
case, documents relating to the bail bond forfeiture proceedings were styled in accordance with the underlying criminal
case. Notwithstanding the style of the case in the trial court and because Guy James Bonding, rather than Granderson,
is the appellant in these proceedings, we have styled this opinion “In re: Guy James Bonding.”
checks.2 The following day, an appearance bond in the amount of $3,000 was posted on behalf of
Granderson by the appellant, Guy James Bonding, as surety.

        On December 12, 2001, Granderson failed to appear for a scheduled court hearing, and the
trial court issued a writ of scire facias to be served upon Granderson and the appellant. On
December 17, 2001, the trial court issued a capias for Granderson’s arrest. The Rutherford County
Sheriff’s Department served the appellant with the writ of scire facias on December 18, 2001. On
January 2, 2002, the trial court entered a conditional judgment of forfeiture against Granderson and
the appellant.

         After the entry of the conditional judgment of forfeiture, no action was taken in this matter
for approximately six months. On June 12, 2002, the clerk of the court sent a notice to the appellant
that the payment of the bond was due to the court on June 16, 2002. Thereafter, the appellant paid
the full amount of the bond. On July 22, 2002, the trial court entered an order retiring Granderson’s
case and ordering that the forfeited bond “be held in escrow in the Clerk’s Office for a period of
thirty (30) days.” The appellant apprehended Granderson on September 29, 2002, and surrendered
her to the custody of the State. Granderson subsequently pled guilty to two counts of forgery.

         On November 6, 2002, the appellant filed a “Petition to Set Aside Final Forfeit[ure] and for
Relief and Remission of Forfeited Recognizance,” arguing that relief was warranted under Tennessee
Code Annotated section 40-11-204 because the appellant had surrendered Granderson into custody.
The trial court denied the petition on January 14, 2003, finding that “the time to return [Granderson]
into custody had lapsed.” On February 6, 2003, the appellant filed a motion pursuant to Rules 52.02
and 59.04 of the Tennessee Rules of Civil Procedure3 to “Amend Findings and Alter or Amend the
Judgment,” asking the trial court for relief pursuant to Tennessee Code Annotated sections 40-11-
201 and 40-11-203.4 The appellant asserted that the writ of scire facias served upon the appellant
was invalid, no final forfeiture hearing was held, and no final judgment of forfeiture was entered;
therefore, the appellant maintained that it was entitled to a refund of the full amount of the bond.
The appellant argued in the alternative that the trial court’s previous order should be amended to
include additional findings of fact. In an order dated April 10, 2003, the trial court denied the
appellant’s request to alter or amend its previous order but granted the request to amend the findings
of fact.5

         2
             The facts relating to the arrest of Granderson were gleaned from Granderson’s presentence report.

         3
          The bail bond forfeiture process is a civil one governed by the Tennessee Rules of Civil Procedure. Indemnity
Ins. Co. of North America v. Blackwell, 653 S.W .2d 262, 264-65 (Tenn. Ct. App. 1983).

         4
             W e question whether the appellant was entitled to raise a new ground for relief pursuant to these rules.

         5
             The trial court amended its findings of fact to include the following:

                     1.       A scire facias was issued on December 12, 2001, when the defendant
                              failed to appear. The surety was served with this scire facias on December
                                                                                                             (continued...)

                                                             -2-
        The appellant now brings this appeal. The appellant contends that the judgment of the trial
court should be reversed because (1) there is no statute of limitations to prevent a surety from
returning a defendant to the custody of the State and (2) a surety cannot be forced to pay a bond
before a final forfeiture hearing and the entry of a final judgment of forfeiture.

                                                    II. Analysis

         The forfeiture of bail bonds is governed by Tennessee Code Annotated sections 40-11-201
through 40-11-215. Specifically, Tennessee Code Annotated section 40-11-201(a) (1997) provides
that a trial court may enter a conditional judgment of forfeiture against a defendant and her sureties
when the defendant fails to appear in court in accordance with a bail bond agreement. In order to
notify the defendant and her sureties of the conditional judgment of forfeiture, the trial court must
issue a writ of scire facias requiring the defendant and her sureties to show cause why the judgment
should not become final. Tenn. Code Ann. § 40-11-202 (1997). To this end, the trial court must
afford the defendant and her sureties a hearing prior to final forfeiture. In re: Paul’s Bonding Co.,
Inc., 62 S.W.3d 187, 193 (Tenn. Crim. App. 2001) (citing Indemnity Ins. Co. of North America v.
Blackwell, 653 S.W.2d 262, 264 (Tenn. Ct. App. 1983)). At this hearing, a surety or bonding
company may petition the court for relief from forfeiture.

        A surety may be exonerated from forfeiture by its surrender of the defendant to the court at
any time before payment of the judgment of forfeiture pursuant to Tennessee Code Annotated section
40-11-203 (1997). Otherwise, the surety must seek relief pursuant to Tennessee Code Annotated
section 40-11-204(a) (1997), which provides that

                    the judges of the general sessions, circuit, criminal and supreme
                    courts may receive, hear and determine the petition of any person who
                    claims relief is merited on any recognizances [or bail bonds6]
                    forfeited, and so lessen or absolutely remit the same, less a clerk’s


        5
            (...continued)
                             18, 2001. A conditional judgment was entered on January 2, 2002, against
                             the defendant and the surety.

                    2.       The surety paid the full amount of the bond on July 12, 2002.

                    3.       The defendant, Valissa S. Granderson, was arrested by the surety and
                             surrendered to the custody of the State by the surety on the 29th day of
                             September, 2002.

                    4.       The defendant, Valissa S. Granderson, entered a plea agreement with the
                             State and is currently serving her sentence.

        6
         See State v. W illiam Bret Robinson, No. E1999-00950-CCA-R3-CD, 2000 W L 1211316, at *2 (Tenn. Crim.
App. at Knoxville, Aug. 28, 2000) (defining “recognizance” within the meaning of Tennessee Code Annotated section
40-11-204(a)).

                                                          -3-
                   commission . . . , and do all and everything therein as they shall deem
                   just and right, and consistent with the welfare of the state, as well as
                   the person praying such relief. This power shall extend to the relief
                   of those against whom final judgment has been entered whether or
                   not the judgment has been paid, as well as to the relief of those
                   against whom proceedings are in progress.

        On appeal, the appellant first contends that the judgment of the trial court should be reversed
because “[t]here is no statute of limitations to prevent a surety from returning a defendant back to
the custody of the [S]tate.” We agree. Tennessee Code Annotated section 40-11-204 permits a trial
court to grant relief from forfeiture “whether or not the judgment has been paid.” The statute does
not limit the time for which relief can be sought. Accordingly, we conclude that the appellant was
not barred from seeking relief pursuant to Tennessee Code Annotated section 40-11-204. However,
the appellant bears the burden of proving that relief should be granted. In re: Paul’s Bonding Co.,
Inc., 62 S.W.3d at 193.

        Next, the appellant contends that a surety may not be compelled to pay on a bond prior to a
forfeiture hearing and the entry of a final judgment of forfeiture.7 The State concedes that the case
should be remanded, apparently concluding that the appellant is entitled to relief under Tennessee
Code Annotated sections 40-11-201 and 40-11-203. We agree that the case must be remanded for
a hearing; however, we do not agree with the reasoning of the appellant and the State.

         This court addressed the statutory provisions pertaining to the forfeiture of bail bonds in the
case of In re: Speedy Release Bail Bond, No. W2000-02260-CCA-R3-CD, 2002 WL 1549400 (Tenn.
Crim. App. at Jackson, Jan. 23, 2002). Specifically, the court reviewed the avenues for relief
available to a surety following forfeiture and further explained the applicability of Tennessee Code
Annotated sections 40-11-201, -203, -204. In re: Speedy Release Bail Bond involved a defendant
who failed to appear. In re: Speedy Release Bail Bond, 2002 WL 1549400, at *1. The trial court
issued a writ of scire facias notifying the defendant’s surety that “the conditional judgment [of
forfeiture] would be made final unless the appellant appeared before the court within 180 days to
show cause ‘to the contrary.’” Id. Upon the expiration of the 180 days, the circuit court clerk sent
a letter to the surety advising that unless the amount forfeited was paid within ten days, the surety’s
authority to issue bonds would be revoked. Id. The surety paid the forfeiture, but a final judgment
of forfeiture was not entered. Id. Approximately six months later, the surety, after learning that the
defendant had been incarcerated in another state, sought relief from the forfeiture. Id. The trial court
found that the surety had “waited too late” and denied relief. Id. at *2. An appeal followed.

       On appeal, this court concluded that the provisions of Tennessee Code Annotated section 40-
11-203 do not provide relief for a surety after payment of the forfeiture. Id. at *3. However, the



         7
          The State also contends that the validity of the writ of scire facias issued in the instant case must be determined
on appeal. W e disagree for reasons set forth in this opinion.

                                                            -4-
court explained that relief is available following entry and payment of final forfeiture by way of
Tennessee Code Annotated section 40-11-204. This court explained,

                First, [Tennessee Code Annotated section] 40-11-132 (1997) provides
                that, “[a]t any time before the forfeiture of their undertaking, the bail
                bondsman or surety may surrender the defendant in their exoneration,
                or the defendant may personally surrender to the officer.” Moreover,
                “[a]fter the liability of the bail bondsman or surety has become fixed
                by forfeiture, and before payment,” a surety may obtain relief under
                [Tennessee Code Annotated section] 40-11-203(a) (1997) by the
                surrender of the defendant and the payment of all costs. Under the
                latter statute, the degree to which the surety is released from liability
                is left to the sound discretion of the trial court. Id. at (b).

                ....

                Finally, and importantly, [Tennessee Code Annotated section] 40-11-
                204(a) (1997) provides in pertinent part that, regardless of whether
                “final judgment has been entered . . . or the judgment has been paid,”
                (emphasis added), the court

                        may receive, hear and determine the petition of any
                        person who claims relief is merited on any
                        recognizances forfeited, and so lessen or absolutely
                        remit the same, less a clerk’s commission . . . , and do
                        all and everything therein as they shall deem just and
                        right, and consistent with the welfare of the state, as
                        well as the person praying such relief.

Id. at **2-3. The court further noted that prior to 1987, the statute did not include the language “or
the judgment has been paid.” Id. at *3. Therefore, relief was not historically available to the surety
after payment of the forfeiture. The 1987 amendment specifically authorized relief even after “the
judgment has been paid.” Id.

         Additionally, this court concluded that Tennessee Code Annotated section 40-11-204(a) is
applicable once the forfeiture has been paid in full and is the only statute authorizing relief after “the
judgment has been paid.” Id. Significantly, the court stated that if payment has been made, this
statute is applicable even if final judgment has not been entered. Id.

       In the instant case, as in In re: Speedy Release Bail Bond, the appellant paid the forfeiture
before seeking relief. Accordingly, the appellant must seek relief pursuant to Tennessee Code
Annotated section 40-11-204(a).



                                                   -5-
                                         III. Conclusion

        In summary, we conclude that the appellant was not barred from seeking relief pursuant to
Tennessee Code Annotated section 40-11-204 and was entitled to a hearing on the petition for relief.
Accordingly, we reverse the judgment of the trial court and remand for a hearing at which the trial
court shall determine to what relief, if any, the appellant is entitled.




                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




                                                -6-
