         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 13, 2001

                      IN RE: SPEEDY RELEASE BAIL BONDS

                  Direct Appeal from the Circuit Court for Madison County
                           No. 99-472    Donald H. Allen, Judge



                   No. W2000-02260-CCA-R3-CD - Filed January 23, 2002



NORMA MCGEE OGLE , J., concurring in part and dissenting in part.

                I concur in the majority’s conclusion that Tenn. Code Ann. § 40-11-204(a) (1997)
must govern any reimbursement of the conditionally forfeited bail bond in this case. As noted by
the majority, Tenn. Code Ann. § 40-11-201(b) (1997) does prohibit the rendering of a conditional
or final judgment of forfeiture, and therefore the entry of and execution on a final judgment of
forfeiture, when a surety is unable to surrender a defendant due to the defendant’s incarceration in
a jail, workhouse, or penitentiary and the surety furnishes the trial court with an affidavit of the
jailer, warden, or other responsible officer. As also noted by the majority, the appellant did not
provide the requisite affidavit to the trial court. Of course, the Madison County Sheriff’s Department
has since obtained custody of the defendant, and a final judgment of forfeiture has yet to be entered
in this case. Still, Tenn. Code Ann. § 40-11-201 places no affirmative obligation on the trial court
to order reimbursement of money paid pursuant to a bail bond agreement following a defendant’s
failure to appear. Cf. Blankenship v. State, 443 S.W.2d 442, 445-446 (Tenn. 1969)(interpreting the
different language of Tenn. Code Ann. § 40-11-201’s predecessor statute).

                 That having been said, I disagree that a remand of this case for a hearing pursuant to
Tenn. Code Ann. § 40-11-204(a) is necessary. The appellant was afforded an opportunity in the trial
court to present appropriate grounds for relief and, in fact, proceeded upon the assumption that relief
was available pursuant to Tenn. Code Ann. § 40-11-204. Concededly, the trial court applied an
incorrect legal standard in denying the appellant relief. Nevertheless, the correct legal standard
limits a trial court’s discretion to grant relief under Tenn. Code Ann. § 40-11-204 to a small number
of circumstances, In re Paul's Bonding Co., No. M1999-02528-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 112, at **17-18 (Nashville, February 16, 2001), perm. to appeal denied, (Tenn. 2001), which
circumstances do not include those set forth by the appellant in its motion and described by Madyun
at the August 25, 2000 hearing.

               Citing our supreme court’s decision in State v. Frankgos, 85 S.W. 79, 80-81 (Tenn.
1905), this court has described the applicable legal standard when a trial court exercises authority
under Tenn. Code Ann. § 40-11-204:
                The authority to relieve sureties from liability may only be exercised
                in extreme cases, such as the death of the defendant or some other
                condition making it impossible for sureties to surrender the
                defendant; the good faith effort made by the sureties or the amounts
                of their expense are not excuses.
State v. Shredeh, 909 S.W.2d 833, 836 (Tenn. Crim. App. 1995); see also State v. Le Quire, 672
S.W.2d 221, 222-223 (Tenn. Crim. App. 1984). Our supreme court in Frankgos, 85 S.W. at 81,
explained that “[t]o relieve sureties upon [lesser] grounds . . . would encourage defendants to forfeit
their bail, and bring about a very lax administration of the criminal laws of the State.”

                 Briefly recapitulating, the appellant essentially alleged in its motion that it had
exercised due diligence in attempting to locate Mayfield prior to the expiration of 180 days and its
payment of the bail bond but had been unable to apprehend Mayfield due to his flight to North
Carolina. However, the possibility of a defendant’s flight to another jurisdiction and the difficulties
inherent in recapturing such fugitives are, in the words of the trial court, “part of the cost of doing
business as a bondsman.” Cf., e.g., In re Paul's Bonding Co., No. M1999-02528-CCA-R3-CD, 2001
Tenn. Crim. App. LEXIS 112, at **21-22. Nothing in the record before this court suggests that the
difficulties faced by the appellant’s bounty hunter in North Carolina were unforeseeable or even
insurmountable. Indeed, notwithstanding the “sweeping powers” generally granted to sureties and
their agents operating in North Carolina to apprehend the principal of a bail bond agreement, State
v. Mathis, 509 S.E.2d 155, 160-161 (N.C. 1998); State v. Lingerfelt, 14 S.E. 75, 76-77 (N.C. 1891),
it is inexplicable why the appellant’s bounty hunter was not in possession of a certified copy of the
outstanding capias in addition to a certified copy of the bail bond and written authority by Speedy
Release Bail Bonds to arrest Mayfield. Cf. Tenn. Code Ann. § 40-11-318 (2000 Supp.); cf. also
Tenn. Op. Att’y Gen. No. 01-020, 2001 Tenn. AG LEXIS 20 (February 7, 2001)(discussing the
powers of bounty hunters operating in Tennessee). Similarly, it is inexplicable why the appellant’s
bounty hunter was unable to refer law enforcement authorities in North Carolina to the Madison
County Sheriff’s Department for confirmation of the outstanding capias. In short, I would affirm
the judgment of the trial court.

                                                       _________________________________
                                                       NORMA McGEE OGLE, JUDGE




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