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P. Art. 345 allows the surety six months from the mailing of discover of bond forfeiture in which to give up the defendant. The surety moved to extend the period, the state withdrew its opposition to the movement, and the trial court granted an extension. The surety surrendered the defendant one day after expiration of the extended period. The Court of Appeals held that the trial court docket didn’t have discretion to increase the surrender interval, and even when the state’s acquiescence legitimized the extension, the surrender was not within the prolonged interval. In addition, the varied statutory procedures to obtain reduction from the forfeiture were not followed.
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The Court affirmed the trial courtroomâ€™s dismissal of the suretyâ€™s petition to nullify the judgment. In Safety National Casualty Corp. v. State, 986 So.second 802 (La.App. 2008) the defendant appeared and eventually pled guilty, but he failed to appear for sentencing.
The court issued a bench warrant and, virtually two months later, signed a judgment of bond forfeiture. The clerk mailed notice of the bond forfeiture shortly after the written order of forfeiture. The surety didn’t appeal the judgment and did not assert defenses by abstract proceedings inside 60 days of the date the notice was mailed. The third avenue available to it to obtain relief from the judgment was to file a civil motion asserting nullity of the judgment. Such a nullity action is out there if the judgment was obtained by fraud or unwell follow.
In City of New Orleans v. Young, 967 So.second 539 (La.App. 2007) the surety on an look bond for the defendant asked the trial court to grant a suspensive enchantment of its order forfeiting the bond. The Court of Appeals held that the surety was entitled as a matter of legislation to the suspensive attraction and remanded the case with directions that the trial court docket grant the suretyâ€™s movement and enter an order for a suspensive appeal. State v. McCoy, 889 So.2nd 1026 (La. App. 2004) reversed a judgment vacating a bond forfeiture.
The surety merely didn’t avail itself of its statutory treatments. Thus, even though the bond mustn’t have prolonged past entry of the responsible plea with out the suretyâ€™s consent (La. C. Cr. P. Art. 326(B)), the Court did not attain the deserves of the suretyâ€™s arguments. In State v. Whitehouse, 2007 WL (La.App. November 2, 2007) the trial court denied the suretyâ€™s request to be launched from any obligation as to future appearances by the defendant. The surety appealed, but in the meantime the defendant pled responsible and was sentenced. Since this discharged the surety as a matter of law, the Court of Appeal dismissed the attraction.
There were disputes over what started the 60 days and when the notice was really mailed. The Court pointed out that in an earlier case it held that the 60 days began from entry of the order not the defendantâ€™s failure to seem, nevertheless it did not attain that issue as a result of the clerkâ€™s affidavit of mailing indicated the discover was mailed within 60 days of the nonappearance. The surety argued that the date within the affidavit was incorrect based mostly on a postmark on the envelop for the copy sent to the defendant, which was 5 days later and previous expiration of the 60 day period. The Court discovered no evidence to help the suretyâ€™s argument that the discover to it was mailed at the same time as the notice to the defendant, and the surety admittedly acquired the notice and knew of the forfeiture.