             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                           JANUARY 1998 SESSION
                                                           June 26, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,               )    No. 03C01-9706-CR-00228
                                  )
      Appellee                    )
                                  )    WASHINGTON COUNTY
V.                                )
                                  )    HON. LYNN W. BROWN,
BILLY RAY STOUT,                  )    JUDGE
                                  )
      Defendant,                  )
                                  )
In re AA BONDING COMPANY,         )    (Bond Forfeiture)
                                  )
      Appellant.                  )


For the Appellant:                     For the Appellee:

Steven G. Shope                        John Knox Walkup
620 West Hill Avenue                   Attorney General and Reporter
Knoxville, TN 37902
                                       Sandy C. Patrick
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493


                                       David E. Crockett
                                       District Attorney General

                                       Joe C. Crumley, Jr.
                                       Assistant District Attorney
                                       P.O. Box 38
                                       Jonesborough, TN 37659




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                        OPINION


       Appellant, AA Bonding Company, appeals from a judgment in the Washington

County Criminal Court ordering forfeiture of the appearance bond for the defendant

Billy Ray Stout. The sole issue on appeal is whether the trial court abused its

discretion in failing to fully exonerate AA Bonding Company upon the return of the

defendant to custody. We affirm the judgment of the trial court.

       On March 16, 1995, three affidavits of complaint and the resulting arrest

warrants were filed against the defendant for three counts of insurance fraud. On

April 14, 1995, an appearance bond in the amount of $30,000 was posted on behalf of

the defendant by appellant AA Bonding Company as surety. That appearance bond

was to secure defendant’s presence in Criminal Court on May 16, 1995. However,

defendant failed to appear and a capias was issued for his arrest. At that time, the

trial court ordered a conditional forfeiture against AA Bonding Company. Scire facias

was issued and served on appellant on June 16, 1995.

       On November 9, 1995, the trial court granted appellant’s motion to extend the

time of final forfeiture 180 days from December 15, 1995. Seven months later the

defendant had still not been returned to custody and the trial court entered judgment

for final forfeiture of the $30,000 bond on July 17, 1996. AA Bonding Company

returned defendant to custody within 24 hours of the order of final forfeiture and

petitioned the court for relief from its earlier judgment. Appellant sought full

exoneration from liability on the $30,000 bond under Tennessee Code Annotated

section 40-11-203.

       After a hearing, the trial court agreed that appellant was entitled to some

reduction in the forfeiture because the defendant was ultimately returned to custody.

However, it declined to grant full exoneration to appellant and instead relieved it of

$15,000 of the judgment and ordered appellant to pay the remaining $15,000.




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Appellant now appeals, alleging that the trial court abused its discretion in failing to

grant full exoneration.

       Tennessee Code Annotated section 40-11-203 grants trial courts discretion to

exonerate a bonding company from liability where the defendant is returned after final

forfeiture has been ordered. The discretion afforded the trial court in such matters has

been described as “broad and comprehensive” and is to be exercised in accordance

with the trial court’s conception of justice and right. State v. Shredeh, 909 S.W.2d

833, 835 (Tenn. Crim. App. 1995) (quoting Black v. State, 290 S.W. 20, 21 (Tenn.

1927)).

       The authority to relieve sureties on a bond should be exercised only in extreme

cases, such as the death of the defendant or some other condition making it

impossible for the sureties to surrender the defendant. State v. Frankgos, 85 S.W. 79,

81 (Tenn. 1905); State v. LeQuire, 672 S.W.2d 221, 222 (Tenn. Crim. App. 1984).

The good faith efforts of the surety or the expenses incurred are not excuses. Id. In

this case, the appellant fails to show that the trial court abused its discretion.

       At the hearing for full exoneration, Fred Weaver, the owner of AA Bonding

Company testified that the failure to return the defendant before final forfeiture was

due to an errant employee. He testified that the employee concealed the conditional

forfeiture and the extension of time until February, 1996. He took over the file and,

from that time forward, diligently worked to locate the defendant. However, Weaver

testified that he was unaware of the date for final forfeiture until two days before the

hearing. Although the defendant was located within the State and returned to custody

within one day following the final forfeiture, over 13 months had passed from entry of

the conditional forfeiture.

       In its ruling, the trial court noted that it was unfortunate that Mr. Weaver had an

irresponsible employee. However, the trial court stated that the resulting situation was

“intolerable,” noting that it had been very lenient and granted appellant substantially



                                             3
more time than is permitted by statute.1 Moreover, it stated that Mr. Weaver should

have notified the court of his difficulties in February to facilitate the return of the

defendant and avoid final forfeiture. Nevertheless, the trial court found that appellant

was entitled to some relief for the eventual return of the defendant and reduced the

judgment by one-half.

        In short, appellant has failed to demonstrate circumstances to justify the full

exoneration of liability on defendant’s bond, and we do not find that the trial court

abused its discretion in the matter. The judgment of the trial court is affirmed.



                                                              _______________________________
                                                              William M. Barker, Judge


CONCUR:



____________________________
Gary R. Wade, Presiding Judge



____________________________
Curwood Witt, Judge




        1
          Gene rally, the defen dant has 180 days from the date o f the con ditional forfe iture within wh ich to
surrender. Tenn. Code Ann. §40-11-139 (1990). In contrast, appellant was given one year to locate the
defendant and the trial court did not actually hold a hearing on the final forfeiture until one month after
the exp iration of that tim e.

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