        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 8, 2016 Session

                    IN RE: JENKINS BONDING COMPANY

                Appeal from the Criminal Court for Davidson County
                     No. 2014-A-756    Steve R. Dozier, Judge


                No. M2015-00868-CCA-R3-CD – Filed May 27, 2016


The Appellant, Jenkins Bonding Company, appeals the Davidson County Criminal
Court‟s judgment of final forfeiture of bail bonds. The Appellant argues that its
obligation to secure the appearance of a defendant had been released; therefore, the trial
court erred in issuing a judgment of final forfeiture. Upon review, we reverse the
judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed,
                              Vacated and Dismissed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Joel H. Moseley, Sr., Murfreesboro, Tennessee, for the Appellant, Jenkins Bonding
Company.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Tammy H. Meade, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       The record reflects that on November 2, 2012, the defendant, Ervin Sweat, Jr., was
indicted in case number 2012-D-3012 for four counts of possession of a controlled
substance with the intent to sell and one count of possession of a firearm during the
commission of a dangerous felony. After several motions, the trial court reduced the
defendant‟s bond to $75,000. On February 14, 2014, he was released on bond, and the
Appellant, Jenkins Bonding Company, was the named surety. On February 14, 2014, the
same day the defendant was released on bond, the trial court granted the State‟s motion to
dismiss the charges against the defendant.
       On March 21, 2014, a subsequent indictment, case number 2014-A-756, was
issued against the defendant. This indictment charged the defendant with two counts of
possession of a controlled substance, fourth offense, one count of possession of a
controlled substance with the intent to sell in a school zone, and one count of possession
of a firearm during the commission of a dangerous felony. According to the order of
final forfeiture issued by the trial court, the defendant appeared at an April 11, 2014
arraignment, as well as subsequent status hearings for the new indictment. Mr. Jenkins,
the owner/agent of the Appellant, testified that his company notified the defendant to
appear at status hearings on the new indictment. A notation at the bottom of the bond
application also listed the April 11, 2014 arraignment date for the new indictment.
Nevertheless, the defendant failed to appear at a June 20, 2014 court date, and on June
20, 2014, the trial court entered a conditional judgment of forfeiture against the Appellant
for $75,000. On September 9, 2014, the Appellant filed a motion to have the judgment of
conditional forfeiture set aside, asserting that it was not obligated to secure the
defendant‟s appearance in the new indictment. On February 10, 2015, the trial court
denied the Appellant‟s motion and issued a judgment of final forfeiture. It is from this
judgment that the Appellant now timely appeals.

                                        ANALYSIS

       On appeal, the Appellant argues that the trial court was not authorized to enter a
judgment of forfeiture because its obligation to secure the defendant‟s appearance was
discharged on February 14, 2014, upon the dismissal of the indictment in case 2012-D-
3012. The State counters that the trial court properly determined that the Appellant was
not released of its obligation to secure the defendant because the dismissed indictment
was superseded by indictment 2012-A-756. The State further argues that the Appellant
has waived this issue because it is raising it for the first time on appeal. We agree with
the Appellant.

       The trial court‟s authority to relieve a surety of liability and grant exoneration of a
bond is discretionary. T.C.A. § 40-11-203(b); see also State v. William Bret Robinson,
No. E1999-00950-CCA-R3-CD, 2000 WL 1211316, at *3 (Tenn. Crim. App. Aug. 28,
2000) (“Determinations concerning the exoneration of bond forfeitures fall within the
discretion of the trial court.” (citing State v. Gann, 51 S.W.2d 490, 490 (Tenn. 1932))).
“[I]n reviewing the trial court‟s determination[,] . . . we apply an [abuse of discretion]
standard.” In re Paul‟s Bonding Co., 62 S.W.3d 187, 194 (Tenn. Crim. App. 2001),
perm. app. denied (Tenn. Sept. 17, 2001). “Under an [abuse of discretion] standard, this
court grants the trial court the benefit of its decision unless the trial court „applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.‟” Id. (quoting State v. Shuck, 953 S.W.2d
662, 669 (Tenn. 1997)).
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       The statutory provision governing the release of a bondsman‟s obligation is
provided by Tennessee Code Annotated section 40-11-138(b), which provides that a bail
bondsman shall be released of 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, plea of guilty, [or] agreement with the state.”
See T.C.A. § 40-11-138(b); see also State v. Davis, 173 S.W.3d 411, 414-16 (Tenn.
2005) (holding that a bail bondsman was released from its obligation upon disposition of
the criminal defendant‟s case).

        The State relies on State v. Adkisson, 899 S.W.2d 626, 634 (Tenn. Crim. App.
1994), in its assertion that the Appellant has waived this issue. While this court has
stated that “a party cannot assert a new or different theory to support the objection . . . in
the appellant court[,]” the Appellant clearly asserted this issue in its motion to set aside
the judgment of conditional forfeiture. Specifically, the Appellant argued that it was not
obligated to secure the defendant‟s appearance in the new indictment because its
obligation was released when indictment 2012-A-3012 was dismissed. Although the
Appellant stated an incorrect dismissal date of April 11, 2014, in its motion to the trial
court, the theory for relief is the same theory the Appellant now asserts on appeal. This
issue is not waived.

       We conclude that the trial court abused its discretion in entering a judgment of
final forfeiture against the Appellant. The trial court issued an order of final forfeiture
against the Appellant based upon its determination that the indictment in case number
2014-D-756 was a superseding indictment. The Tennessee Supreme Court has
recognized that “[t]he power to seek a superseding indictment lies within the broad
discretion of the state.” State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000). “A
superseding indictment is an indictment obtained without the dismissal of a prior
indictment.” Id. In its order, the trial court determined that the indictment in case 2014-
D-756 was issued against the defendant while the initial indictment was still pending.
The trial court‟s determination is not supported by the record. The record is clear that the
new indictment was issued more than four weeks after the trial court dismissed the initial
indictment on February 14, 2014. Accordingly, case number 2014-D-756 was not a
superseding indictment. The charges against the defendant for which the Appellant was
obligated were disposed of on February 14, 2014. Pursuant to Tennessee Code
Annotated section 40-11-138(b), the Appellant‟s obligation to secure the defendant‟s
appearance was released. Having reached our decision on this basis, we want to make
clear that we do not hold that a surety is automatically released from its obligations
whenever a superseding indictment is filed, an issue raised in the trial court, but not
properly argued by Jenkins Bonding Company in its appellate arguments.



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                                CONCLUSION

Upon review, we reverse the judgment of the trial court.



                                          _________________________________
                                          CAMILLE R. McMULLEN, JUDGE




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