         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  October 28, 2003 Session

               STATE OF TENNESSEE v. STANLEY RAY DAVIS
              IN RE: RAY D. DRIVER d/b/a DRIVER BAIL BONDS

                    Appeal from the Criminal Court for Campbell County
                           No. 11461    E. Shayne Sexton, Judge



                                 No. E2003-00765-CCA-R3-CD
                                         May 11, 2004

Ray D. Driver appeals the Campbell County Criminal Court’s judgment requiring his bail bonding
company, Driver Bail Bonds, to pay $570.50 as a bond forfeiture because Stanley Ray Davis failed
to appear at a general sessions court probation hearing. The appellant contends that T.C.A. § 40-11-
138(b) relieved his company from liability under the bond because the defendant already had pled
guilty and been sentenced. He also claims that his company is not liable for the defendant’s fine and
costs because his company did not assume such obligations in the defendant’s bond. We hold that
appellant remained obligated under the bond and that the trial court did not require him to pay the
defendant’s fine and costs. The trial court is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined. GARY
R. WADE, P.J., filed a dissenting opinion.

Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Ray D. Driver d/b/a Driver Bail Bonds.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

       This case relates to the defendant’s being arrested for driving under the influence (DUI) and
driving on a suspended license on December 2, 2001. Driver Bail Bonds underwrote a $1,750
appearance bond for the defendant. According to the bond, the defendant was to appear in the
Campbell County General Sessions Court on December 10, 2001. On December 10, the defendant
pled guilty in the general sessions court to DUI, a Class A misdemeanor, and was sentenced to
eleven months, twenty-nine days to be served as forty-eight hours in jail and the remainder on
probation. According to the judgment form, the general sessions court also prohibited the defendant
from driving for one year, ordered him to pay a three hundred fifty dollar fine and court costs, and
ordered him to appear at a “probation hearing” in the general sessions court on March 11, 2002, in
order for the court to ensure that he was complying with the requirements of his sentence. In
December 2001, the defendant served his forty-eight hours in jail. However, he failed to appear for
the probation hearing on March 11, 2002. As a result, the general sessions court entered an Order
of Conditional Forfeiture of Bond and issued a writ of scire facias to notify Driver Bail Bonds of the
conditional judgment. On November 15, 2002, the general sessions court entered a Judgment of
Final Forfeiture, ordering that Driver Bail Bonds pay the State of Tennessee $613.

        The appellant appealed the general sessions court’s order to the Campbell County Criminal
Court, claiming that pursuant to T.C.A. § 40-11-138(b), Driver Bail Bonds was relieved of its
obligation under the bond when the defendant pled guilty and was sentenced by the general sessions
court. The criminal court disagreed, holding that the bonding company remained liable on the bond
pursuant to T.C.A. § 40-11-130. However, it ordered the bonding company to pay $570.50.

        The appellant appeals the criminal court’s ruling. He contends that T.C.A. § 40-11-138(b)
relieved his company of any liability under the bond once the defendant pled guilty and was
sentenced in the general session court. In addition, he contends that a bail bond is a contract and that
Driver Bail Bonds was not responsible for the defendant’s fine and court costs because the
defendant’s bond only stated that the bonding company would pay the bond if the defendant failed
to appear in general sessions court on December 10, 2001. He argues that because the bond did not
stipulate that Driver Bail Bonds would be responsible for the defendant’s fine and court costs, this
court should reverse the criminal court’s order. The state concedes that pursuant to T.C.A. § 40-11-
138(b) and case law interpreting that statute, the bail bonding company was no longer liable under
the bond. We disagree, however, with the defendant and the state and hold that the defendant’s bond
remained in effect pursuant to T.C.A. § 40-11-130(b)(2) and that Driver Bail Bonds must pay the
amount ordered by the criminal court.

       In support of his claim that Driver Bail Bonds was relieved of liability under the bond by the
defendant’s guilty plea and sentence, the appellant cites State v. Sharon Melton, No. 01C01-9612-
CC-00497, Franklin County (Tenn. Crim. App. Mar. 12, 1998). In that case, the defendant was
charged with various drug offenses, posted a $20,000 appearance bond, pled guilty, and was
sentenced to four years in a community corrections program. The defendant later absconded from
community corrections, and the trial court entered a conditional forfeiture on the bail bond against
her and the bail bonding company that underwrote the bond. The trial court later determined,
however, that the defendant’s guilty plea and subsequent sentence had released the bonding company
from any further obligation under the bond.

       The state claimed on appeal that the bonding company was still liable under the bond by
T.C.A. § 40-11-130 (1996). At the time of the defendant’s guilty plea, that statute provided, in
pertinent part, as follows:




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                        Where the defendant in a criminal case executes a bond or
                recognizance before any court or other person authorized by law to
                take the same, for the defendant’s personal appearance before a court,
                to answer a criminal charge, the bond or recognizance shall be valid
                and binding upon the defendant and the defendant’s sureties thereon
                for the defendant’s personal appearance before the court from the
                time of arrest, preliminary hearing, bind over to the grand jury and
                trial until the case is finally terminated or stricken from the docket
                and the defendant discharged by the court. . . .

The state argued that because the defendant had been sentenced to community corrections and the
trial court retained authority over her sentence, her case had not been “finally terminated or stricken
from the docket and the defendant discharged by the court.” The bonding company relied on T.C.A.
§ 40-11-138(b), which states,

                        In addition to any other provisions releasing sureties from
                their obligations, a bail bondsman or surety shall also be released
                from its obligation under a bail bond upon the disposition of the
                charge against the surety’s principal. A disposition shall include, but
                shall not be necessarily limited to, conviction, acquittal, a plea of
                guilty, agreement with the state, whether designated diversion or
                otherwise, or retirement; provided, that where the disposition is a
                conviction or plea of guilty, the surety, unless relieved by the court,
                shall remain liable on the criminal appearance bond until the court
                renders the defendant’s sentence.

This court agreed with the defendant, noting that T.C.A. §§ 40-11-130 and -138(b) “should be read
to coincide” and that -138(b) “clearly states that when a sentence is rendered following a guilty plea
or conviction, then the surety is released from its obligation under the bail bond.” Id., slip op. at 5-6.
This court concluded that pursuant to the legislative intent and plain language in T.C.A. §§ 40-11-
130 and -138(b), the bonding company was released from liability when the defendant pled guilty
and was sentenced. Id. at 7.

       However, as noted in Sharon Melton, the Tennessee legislature amended T.C.A. § 40-11-130
after Ms. Melton’s guilty plea. The statute currently provides, in pertinent part, as follows:

                         (a) Where the defendant in a criminal case executes a bond or
                recognizance before any court or other person authorized by law to
                take the same for the defendant’s personal appearance before a court
                to answer a criminal charge, such bond or recognizance shall be valid
                and binding upon the defendant and the defendant’s sureties thereon
                until the time allowed by law for the defendant to appeal a finding of
                guilt to the court of criminal appeals. . . .


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                        (b) If the defendant . . . is placed on pre-trial or post-plea
                diversion or community correction, fined or if the defendant’s
                sentence is suspended and probation granted, the defendant shall be
                required to make a new bond or recognizance notwithstanding that
                the bond or recognizance executed in accordance with subsection (a)
                has not yet terminated, unless the trial judge, after examination of the
                original bond, sets out in a written order that such original bond is
                sufficient. The court shall use its discretion in determining whether
                the bond at issue should be changed. No presumption is otherwise
                intended to be raised in this section.

                ....

                         (2) If the defendant is placed on pre-trial or post-plea
                diversion, community correction, fined or if the defendant’s sentence
                is suspended and probation granted, the defendant shall be required
                to make such new bond or recognizance to the court granting such
                placement. Such new bond or recognizance may not terminate until
                the defendant has completed the period of court-ordered supervision
                or until the defendant’s diversion, community correction or probation
                is revoked. If the defendant’s diversion, community correction or
                probation is revoked, the bondsman may be required to surrender the
                defendant.

                ....

         We note that T.C.A. § 40-11-130 (1997) now partially conflicts with T.C.A. § 40-11-138(b).
“[If] there is an irreconcilable conflict between two statutory provisions, there is a repeal of the older
code section by implication.” State v. Hicks, 848 S.W.2d 69, 70 (Tenn. Crim. App. 1992) (citing
State v. Lewis, 198 Tenn. 91, 278 S.W.2d 81 (1955)). The older, more general statute will be
repealed only to the extent that it conflicts with the more recent, specific statute. See Byrd v. Rhea
County, 207 Tenn. 62, 70, 338 S.W.2d 545, 548 (1960); Sutherland Statutory Construction § 22.22
(5th ed. 1992) (stating that the “inconsistent provisions of the prior statute . . . are treated as
repealed”). In 1997, the legislature amended T.C.A. § 40-11-130 to address specifically the duration
of bail bonds after a defendant has been placed on probation. The current form of T.C.A. § 40-11-
138(b) has been in place since 1989. Thus, T.C.A. § 40-11-130 has repealed by implication any
conflicting provisions in T.C.A. § 40-11-138(b).


        Turning to the present case, unlike the statute in effect at the time of the plea in Sharon
Melton, T.C.A.§ 40-11-130(b) (1997) now provides that if a defendant is granted probation, the
defendant must make a new bond “unless the trial judge . . . sets out in a written order that such
original bond is sufficient.” Moreover, T.C.A. § 40-11-130(b)(2) provides that the new bond will


                                                   -4-
remain in effect until the defendant completes probation or probation is revoked. Thus, if a trial
court determines that a new bond is not necessary and states in a written order that the defendant is
to remain under the same bond, the original bond also remains in effect under T.C.A. § 40-11-
130(b)(2) until the defendant completes probation or probation is revoked. In this case, a box is
checked beside the following statement on the defendant’s judgment form: “The defendant and
his/her sureties shall remain obligated under the present bail for future court appearances.” We hold
that the defendant’s original bond remained in effect and that Driver Bail Bonds was still obligated
under the bond at the time of the defendant’s failure to appear.

         Both the appellant’s and the state’s briefs cite State v. Tony Bernard Williams, No. 02C01-
9810-CC-00301, Henry County (Tenn. Crim. App. Jan. 29, 1999), in support of their claims that
Driver Bail Bonds was relieved from liability under the bond when the defendant pled guilty and was
sentenced. In that opinion, which was filed after the amendment to T.C.A. § 40-11-130 went into
effect, a panel of this court relied on Sharon Melton and held that despite the defendant’s probation
violation, the express language in T.C.A. § 40-11-138(b) had relieved the defendant’s surety of
liability when the defendant pled guilty and was sentenced. Id. at 2-3. However, the Tony Bernard
Williams opinion does not reveal whether T.C.A. § 40-11-130 as amended was in effect at the time
of Mr. Williams’ guilty plea. In any event, T.C.A. § 40-11-130(b) governs our decision in this case.

        The appellant also contends that Driver Bail Bonds is not liable for the defendant’s unpaid
fine and costs because the bond agreement did not provide for such obligations. He relies on State
v. Clements, 925 S.W.2d 244 (Tenn. 1996), in which the defendant’s father deposited a cash bond
of $40,000 to secure the defendant’s release. The jury convicted the defendant of the charges and
imposed an $85,000 fine. On the day of the verdict, the defendant and his father requested that
$12,500 be taken from the cash bond and paid to defense counsel. The state filed a motion to apply
the bond to the defendant’s fines and court costs. The trial court denied the state’s motion and
ordered that $12,500 be paid to defense counsel. Our supreme court held that in order for a surety
to be held liable for a defendant’s fines and costs under an appearance bond, there must be an
“indication in the document that the [surety] could be held liable for any fines and/or costs associated
with the prosecution of [the defendant or an indication that the surety] subsequently acquiesced to
or adopted this liability.” Id. at 227. Given that nothing in the appearance bond stated that the father
agreed to be responsible for the defendant’s fine and costs and that nothing indicated the father later
agreed to pay them, the supreme court ruled he was not liable for the fine and costs. Id.

         We believe the appellant misapprehends the trial court’s actions. The record does not reflect
that the trial court ordered Driver Bail Bonds to pay the defendant’s fine and costs. Rather, the trial
court adopted the general sessions court’s apparent conclusion that the amount of bond to be
forfeited in this case would equal the amount of the defendant’s unpaid fine and costs. Obviously,
the trial court chose not to require the bonding company to pay $1,750, the entire amount of the
bond. In this regard, we note that the state filed a notice of appeal which its brief states was related
to the amount of forfeiture. However, the brief states that the error it concedes regarding the
forfeiture “necessarily moots the issue raised by the State.” Thus, the state has not presented an issue
about the amount of the forfeiture nor do we have the benefit of the parties’ briefing such an issue.


                                                  -5-
         Based upon the foregoing and the record as a whole, we affirm the judgment of the criminal
court.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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