        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                         MAY 1998 SESSION
                                                 FILED
                                                    July 24, 1998

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk

STATE OF TENNESSEE,        )
                           ) C.C.A. No. 02C01-9710-CR-00402
     Appellee,             )
                           ) Shelby County
V.                         )
                           ) Honorable Carolyn Wade Blackett, Judge
                           )
ROGER MARTIN/              ) (Petition for Exoneration of Surety)
LIBERTY BAIL BOND COMPANY, )
                           )
     Appellant.            )




FOR THE APPELLANT:             FOR THE APPELLEE:

Michael J. Gatlin              John Knox Walkup
Attorney at Law                Attorney General & Reporter
P.O. Box 27331
Memphis, TN 38167-0331         Elizabeth T. Ryan
                               Assistant Attorney General
                               425 Fifth Avenue North
                               2d Floor, Cordell Hull Building
                               Nashville, TN 37243-0493

                               William L. Gibbons
                               District Attorney General

                               James J. Challen, III
                               Assistant District Attorney General
                               201 Poplar, Suite 301
                               Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                            OPINION
       Liberty Bail Bond Company (“Liberty”) was the surety on a $750.00

appearance bond for Roger Martin in Bartlett City Court. Martin failed to appear

at a scheduled court date. Liberty Bail Bond filed a petition for exoneration of

surety in the Shelby County Criminal Court. After a hearing, the court denied the

motion. Liberty appeals. The sole issue for our review is whether the trial court

abused its discretion in denying the petition. The judgment of the trial court is

affirmed.



       The bookkeeper for Liberty, Martee Arredondo, was the only witness to

testify at the hearing on the appellant’s petition. She testified that Liberty “made”

an appearance bond for Roger Martin in the amount of $750.00. Martin failed to

appear. On September 5, 1995, Liberty received a forfeiture from the Bartlett

City Court. A bounty hunter paid by Liberty found Martin. He was rearrested

and tendered back to the Bartlett City Court. It appears from the record that the

judge reinstated Martin’s bond.



       Later, Liberty received another forfeiture on Martin’s bond for failure to

appear. Liberty again rearrested Martin and tendered him to the court.

Apparently, the judge again reinstated Martin’s bond. Then, Liberty received a

third forfeiture notice on Martin in reference to the same bond. Liberty was

unable to locate Martin. As a result, Liberty received a demand for payment

from the City of Bartlett. Apparently, Liberty filed a petition for exoneration in the

Bartlett City Court. The trial court denied the petition. Liberty appealed to the

Shelby County Criminal Court. The court denied the petition.

       The forfeiture of bail is governed by statute. Tenn. Code Ann.
       §§ 40-11-201 through -215. When the defendant fails to
       appear as required, the issuance of a scire facias requires
       sureties to give reasons why a forfeiture of bail should not
       become final. Tenn.Code Ann. § 40-11-202. Trial courts have
       the discretion to relieve bail bondsmen or other sureties from
       the liability of bail and are authorized to hold hearings to
       determine whether the forfeiture should be excused, lessened,
       or absolutely remitted. Tenn.Code Ann. § 40-11-204. The
       discretion has been described as broad and comprehensive,

                                      -2-
         empowering trial courts to make determinations ‘in accordance
         with [its] conception of justice and right.’ Black v. State, 154
         Tenn. 88, 92, 290 S.W. 20, 21 (1927).

         The statute is permissive and extends no particular rights upon
         the sureties. Diehl v. Knight, 158 Tenn. 246, 12 S.W.2d 717
         (1929). 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. Frankgos, 114 Tenn. 76, 85 S.W. 79 (1904);
         State v. LeQuire, 672 S.W.2d 221 (Tenn. Crim. App.1984).

         [T]he power to excuse a forfeiture only results on account of
         death ‘or some other condition of affairs, if any can exist, which
         make it equally impossible ... to surrender [the defendant].’
         Frankgos, 114 Tenn. at 82, 85 S.W. at 80-81.


State v. Shredeh, 909 S.W.2d 833, 836 (Tenn. Crim. App. 1995).



         In Shredeh, the defendant fled to Jordan. The United States did not have

an extradition treaty with Jordan. Finding that the bonding companies knew that

the defendant was not a United States citizen, the court granted exoneration

from only a portion of the total forfeiture. Id.



         The policy behind only granting relief in extreme cases was stated in

Frankgos:

         The sureties knowingly and absolutely contract that their
         principal shall be present at the time in the obligation stated, to
         answer the state upon the charge preferred against him; and
         if they fail to do so, they must comply with the terms of the
         bond or recognizance. A wise and sound public policy requires
         a rigid enforcement of the bonds when breached.
         ... To relieve sureties upon the grounds here asked would
         encourage defendants to forfeit their bail, and bring about a
         very lax administration of the criminal laws of the state.


85 S.W. at 81; see State v. LeQuire, 672 S.W.2d 221, 222 (Tenn. Crim. App.

1984).

         In denying the petition, the trial court found that there was not enough

evidence in the record to grant the petition. The court noted that there was

nothing in the record to explain why the city court continued to let Martin out on

bond despite his failure to appear on two occasions. Liberty argued that it was

                                            -3-
not their responsibility to subpoena a representative of the Bartlett City Court.

Liberty argued that the court should grant its petition because despite notice, the

city court failed to appear at the hearing before the circuit court. The bonding

company has the burden of proving that its petition for exoneration should be

granted. To make the record clearer, Liberty should have presented evidence to

explain why the city judge released Martin after his two failures to appear.

Liberty cites Blankenship v. State, 443 S.W.2d 442 (Tenn. 1969) in support of its

petition. We read Blankenship to support exoneration when a defendant is in

custody at the time that he or she is scheduled to appear. Although Liberty

rearrested Martin twice, he was not in custody at the time of his third failure to

appear. Therefore, Blankenship is inapplicable to the facts of the present case.



       The trial court’s findings are conclusive for appellate purposes unless the

evidence preponderates otherwise. Shredeh, 909 S.W.2d at 836. The evidence

does not preponderate against the trial court’s findings. We do not understand

why Martin would have been released on bond after failing to appear twice.

Although Liberty has expended time and money securing the presence of Martin

twice, the evidence in the record does not establish that this is an extreme case

as contemplated by the court in Shredeh. Liberty has failed to present a

compelling reason as to why the defendant cannot be found.



       The judgment of the trial court is affirmed.




                                               _____________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




____________________________

                                         -4-
JOHN H. PEAY, Judge




____________________________
THOMAS T. W OODALL, Judge




                               -5-
