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

                           IN RE: SPEEDY RELEASE BAIL BONDS 1

                      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


The appellant, Speedy Release Bail Bonds, appeals the order of the Madison County Circuit Court
denying its motion for reimbursement of a forfeited bail bond. Following a review of the record and
the parties’ briefs, we reverse the judgment of the trial court and remand this case for proceedings
consistent with this opinion.

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

JOE G. RILEY, J., delivered the opinion of the court, in which CORNELIA A. CLARK , SP. J., joined.
NORMA MCGEE OGLE , J., filed a separate opinion concurring in part and dissenting in part.

Marcus M. Reaves, Jackson, Tennessee, for the appellant, Speedy Release Bail Bonds.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                                       OPINION

        The issues in this case are as follows: when a bondsman pays into court the full amount of
the bond forfeiture after entry of the conditional judgment, issuance of the scire facias, and
expiration of the 180-day period, (1) can the bondsman later seek reimbursement; and, if so, (2)


         1
            In compliance with Tenn. R. App. P. 30(b)(2) and (d)(2), the parties have styled their pleadings befo re this
court “State of Tennessee v. Keith Mayfield, Jr.” and have simply added the name of the appellant and its status before
this court. Tenn. R. App. P. 30 provides that pa pers 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
becau se Speed y Release Bail Bonds, rather than Mr. May field, is the appellant in these proceedings, we have styled this
opin ion “In re: S peedy R elease Bail Bond s.”
which statute governs the proceeding seeking reimbursement? We answer the first query in the
affirmative and, as to the second query, conclude that Tenn. Code Ann. § 40-11-204(a) governs the
proceeding. We remand to the trial court for further proceedings pursuant to Tenn. Code Ann. § 40-
11-204(a).


                                      I. Factual Background

         The instant case arose in 1999 from the criminal prosecution of Keith Mayfield, Jr. Bail was
set in the amount of $10,000, and on March 29, 1999, the appellant, Speedy Release Bail Bonds,
agreed to secure Mayfield’s appearance. On July 6, 1999, a Madison County Grand Jury indicted
Mayfield, and the trial court scheduled his arraignment for July 13, 1999. Mayfield, however, failed
to appear for his arraignment, and on July 16, 1999, the trial court entered a conditional judgment
of forfeiture against both Mayfield and the appellant, issuing a capias for Mayfield’s arrest and a writ
of scire facias for the appellant. The Madison County Sheriff’s Department served the appellant
with the writ of scire facias on July 26, 1999, thereby notifying the appellant that the conditional
judgment would be made final unless the appellant appeared before the court within 180 days to
show cause “to the contrary.” The appellant failed to appear or file anything with the court within
180 days. In response to a letter from the Circuit Court Clerk dated January 25, 2000, advising
appellant to pay the bond within ten days or its bond authority would be revoked, the appellant paid
the bail bond on February 3, 2000, which was after the 180-day period. No final judgment was
entered.

        The appellant filed nothing until July 26, 2000, almost six months after paying the forfeiture,
when it filed a motion in the Madison County Circuit Court requesting reimbursement of the
forfeited bail bond. The appellant alleged it had discovered that Mayfield had been incarcerated in
Wilmington, North Carolina, between December 8, 1999, and June 1, 2000, at which time he had
been transferred to the custody of law enforcement authorities in Madison County and had pled
guilty to the pending charges. There was no affidavit or documentation attached to the motion which
established Mayfield’s being in custody in North Carolina. The appellant alleged in its motion that
it had exercised due diligence in attempting to locate Mayfield prior to its payment of the bail bond.
In particular, the appellant alleged that it had hired two bounty hunters to locate Mayfield, and one
of the bounty hunters had located Mayfield in North Carolina prior to his incarceration in
Wilmington. Appellant alleged that because the outstanding capias in Madison County had not yet
been registered with the National Crime Information Center (NCIC), the bounty hunter was forced
to release Mayfield in order to avoid prosecution for kidnapping. Thereafter, the appellant was
unable to locate Mayfield and paid the bail bond forfeiture of $10,000.

        The trial court conducted a hearing on the appellant’s motion where Shawki Madyun, a
representative of the appellant, testified concerning facts alleged in the motion. Again, no affidavit
or documentation concerning Mayfield’s custodial status in North Carolina was introduced. At the
conclusion of the hearing, the trial court denied the appellant’s motion, concluding that the appellant
had “waited too late” to request reimbursement. The appellant now appeals the trial court’s denial
of relief.

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                                             II. Analysis

        Tenn. Code Ann. § 40-11-201(a) (1997) authorizes a trial court to enter a conditional
judgment of forfeiture against a defendant and his sureties when a defendant fails to appear in court
in accordance with a bail bond agreement. See also Tenn. Code Ann. § 40-11-139(a) (1997). The
trial court then issues a writ of scire facias or otherwise provides notice to the defendant and his
sureties in conjunction with the conditional judgment. Tenn. Code Ann. § 40-11-202 (1997); see
also Tenn. Code Ann. § 40-11-139(a). A surety has 180 days from the date it is served with the scire
facias to produce the defendant; otherwise, “the court may enter [final] judgment.” Tenn. Code Ann.
§ 40-11-139(b).

         The applicable statutes provide sureties with several avenues of relief from the liability of
forfeiture. First, Tenn. Code Ann. § 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 Tenn. Code Ann. § 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).

        In addition to the above statutes, Tenn. Code Ann. § 40-11-201(b) prohibits the entry of a
“forfeiture or conditional forfeiture” when a surety is unable to surrender a defendant due to the
defendant’s incarceration in a jail, workhouse, or penitentiary; provided, the surety furnishes the trial
court “a sworn affidavit of the jailer, warden, or other responsible officer” verifying defendant’s
incarceration.

        Finally, and importantly, Tenn. Code Ann. § 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.

         Prior to 1987, this statute did not contain the language “or the judgment has been paid;” thus,
it did not authorize relief after the judgment had been paid. See Tenn. Code Ann. § 40-1304 (1982)
(predecessor statute to Tenn. Code Ann. § 40-11-204); Wallace v. State, 223 Tenn. 255, 443 S.W.2d
656, 657 (Tenn. 1969) (holding relief was unavailable under Tenn. Code Ann. § 40-1304 after final
judgment, execution and collection of forfeiture). In 1987, the statute was amended to specifically
authorize relief even after “the judgment has been paid.” See 1987 Public Acts, Chapter 423.

                                                  -3-
        The discretion granted the trial court under Tenn. Code Ann. § 40-11-204(a) is broad and
comprehensive, empowering the trial court to make determinations based on justice and “right.”
State v. Shredeh, 909 S.W.2d 833, 835 (Tenn. Crim. App. 1995).

        Having reviewed the possible statutory bases for relief, we conclude that Tenn. Code Ann.
§ 40-11-204(a) applies once the forfeiture has been paid in full after expiration of the 180 days. This
statute is entitled “Relief on Forfeited Recognizances,” and is the only statute which expressly
authorizes relief after “the judgment has been paid.” The fact that the forfeiture was paid before, or
even without, the entry of a “final judgment,” does not authorize proceedings, or the possibility of
greater relief, under Tenn. Code Ann. § 40-11-201. Tenn. Code Ann. § 40-11-201, entitled
“Conditional Judgment on Failure to Appear,” provides that “[n]o forfeiture or conditional forfeiture
shall be rendered” when it is shown by affidavit that the defendant is prevented from being in court
due to mental or physical disability or incarceration elsewhere. (Emphasis added). It does not
provide relief once the forfeiture has been paid. We further note that, even if Tenn. Code Ann. §
40-11-201 did apply after payment of the forfeiture, the appellant did not comply with its provisions.
An affidavit from a jailer, warden or other appropriate personnel showing defendant was in custody
was never filed. See Tenn. Code Ann. § 40-11-201(b).


                                III. NECESSITY FOR REMAND

        In this case the trial court’s findings indicate it did not believe relief was possible once the
forfeiture was paid after the 180 days had expired. The trial court did not consider whether any relief
should be granted under Tenn. Code Ann. § 40-11-204(a). As stated, the trial court has broad
discretion under this statute to determine whether any relief should be granted.

         We reverse and remand for another hearing pursuant to Tenn. Code Ann. § 40-11-204(a).
It is within the trial court’s discretion as to the relief, if any, that should be granted.


                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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