§ 15A-544.5. Setting aside forfeiture. - North Carolina Statutes

§ 15A‑544.5.  Settingaside forfeiture.

(a)        Relief Exclusive. –There shall be no relief from a forfeiture except as provided in this section.The reasons for relief are those specified in subsection (b) of this section.The procedures for obtaining relief are those specified in subsections (c) and(d) of this section. Subsections (f), (g), and (h) of this section applyregardless of the reason for relief given or the procedure followed.

(b)        Reasons for SetAside. – Except as provided by subsection (f) of this section, a forfeitureshall be set aside for any one of the following reasons, and none other:

(1)        The defendant'sfailure to appear has been set aside by the court and any order for arrestissued for that failure to appear has been recalled, as evidenced by a copy ofan official court record, including an electronic record.

(2)        All charges forwhich the defendant was bonded to appear have been finally disposed by thecourt other than by the State's taking dismissal with leave, as evidenced by acopy of an official court record, including an electronic record.

(3)        The defendant hasbeen surrendered by a surety on the bail bond as provided by G.S. 15A‑540,as evidenced by the sheriff's receipt provided for in that section.

(4)        The defendant hasbeen served with an Order for Arrest for the Failure to Appear on the criminalcharge in the case in question as evidenced by a copy of an official courtrecord, including an electronic record.

(5)        The defendant diedbefore or within the period between the forfeiture and the final judgment asdemonstrated by the presentation of a death certificate.

(6)        The defendant wasincarcerated in a unit of the North Carolina Department of Correction and isserving a sentence or in a unit of the Federal Bureau of Prisons located withinthe borders of the State at the time of the failure to appear as evidenced by acopy of an official court record or a copy of a document from the Department ofCorrection or Federal Bureau of Prisons, including an electronic record.

(7)        The defendant wasincarcerated in a local, state, or federal detention center, jail, or prisonlocated anywhere within the borders of the United States at the time of thefailure to appear, and the district attorney for the county in which thecharges are pending was notified of the defendant's incarceration while thedefendant was still incarcerated and the defendant remains incarcerated for aperiod of 10 days following the district attorney's receipt of notice, asevidenced by a copy of the written notice served on the district attorney viahand delivery or certified mail and written documentation of date upon whichthe defendant was released from incarceration, if the defendant was releasedprior to the time the motion to set aside was filed.

(c)        Procedure When Failureto Appear Is Stricken. – If the court before which a defendant's appearance wassecured by a bail bond enters an order striking the defendant's failure toappear and recalling any order for arrest issued for that failure to appear,that court may simultaneously enter an order setting aside any forfeiture ofthat bail bond. When an order setting aside a forfeiture is entered, thedefendant's further appearances shall continue to be secured by that bail bondunless the court orders otherwise.

(d)        Motion Procedure. –If a forfeiture is not set aside under subsection (c) of this section, the onlyprocedure for setting it aside is as follows:

(1)        At any time beforethe expiration of 150 days after the date on which notice was given under G.S.15A‑544.4, the defendant or any surety on a bail bond may make a writtenmotion that the forfeiture be set aside, stating the reason and attaching theevidence specified in subsection (b) of this section.

(2)        The motion is filedin the office of the clerk of superior court of the county in which theforfeiture was entered, and a copy is served, under G.S. 1A‑1, Rule 5, onthe district attorney for that county and the county board of education.

(3)        Either the districtattorney or the county board of education may object to the motion by filing awritten objection in the office of the clerk and serving a copy on the movingparty.

(4)        If neither thedistrict attorney nor the board of education has filed a written objection tothe motion by the twentieth day after the motion is served, the clerk shallenter an order setting aside the forfeiture.

(5)        If either thedistrict attorney or the county board of education files a written objection tothe motion, then not more than 30 days after the objection is filed a hearingon the motion and objection shall be held in the county, in the trial divisionin which the defendant was bonded to appear.

(6)        If at the hearingthe court allows the motion, the court shall enter an order setting aside theforfeiture.

(7)        If at the hearingthe court does not enter an order setting aside the forfeiture, the forfeitureshall become a final judgment of forfeiture on the later of:

a.         The date of thehearing.

b.         The date of finaljudgment specified in G.S. 15A‑544.6.

(8)        If at the hearingthe court determines that the motion to set aside was not signed or that thedocumentation required to be attached pursuant to subdivision (1) of thissubsection is fraudulent or was not attached to the motion at the time themotion was filed, the court may order monetary sanctions against the suretyfiling the motion, unless the court also finds that the failure to sign themotion or attach the required documentation was unintentional. A motion forsanctions and notice of the hearing thereof shall be served on the surety notlater than 10 days before the time specified for the hearing. If the courtconcludes that a sanction should be ordered, in addition to ordering the denialof the motion to set aside, sanctions shall be imposed as follows: (i) twenty‑fivepercent (25%) of the bond amount for failure to sign the motion; (ii) fiftypercent (50%) of the bond amount for failure to attach the requireddocumentation; and (iii) not less than one hundred percent (100%) of the bondamount for the filing of fraudulent documentation. Sanctions awarded under thissubdivision shall be docketed by the clerk of superior court as a civiljudgment as provided in G.S. 1‑234. The clerk of superior court shallremit the clear proceeds of the sanction to the county finance officer asprovided in G.S. 115C‑452. This subdivision shall not limit the criminalprosecution of any individual involved in the creation or filing of anyfraudulent documentation.

(e)        Only One Motion PerForfeiture. – No more than one motion to set aside a specific forfeiture may beconsidered by the court.

(f)         Set AsideProhibited in Certain Circumstances. – No forfeiture of a bond may be set asidefor any reason in any case in which the surety or the bail agent had actualnotice before executing a bail bond that the defendant had already failed toappear on two or more prior occasions in the case for which the bond wasexecuted. Actual notice as required by this subsection shall only occur if twoor more failures to appear are indicated on the defendant's release order by ajudicial official. The judicial official shall indicate on the release orderwhen it is the defendant's second or subsequent failure to appear in the casefor which the bond was executed.

(g)        No Final JudgmentAfter Forfeiture Is Set Aside. – If a forfeiture is set aside under thissection, the forfeiture shall not thereafter ever become a final judgment offorfeiture or be enforced or reported to the Department of Insurance.

(h)        Appeal. – An orderon a motion to set aside a forfeiture is a final order or judgment of the trialcourt for purposes of appeal. Appeal is the same as provided for appeals incivil actions. When notice of appeal is properly filed, the court may stay theeffectiveness of the order on any conditions the court considers appropriate.  (2000‑133, s. 6; 2007‑105,s. 1; 2009‑437, ss. 1, 1.1, 2.)