DON JOHNSON BONDIG CO. INC.
STATE OF GEORGIA.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
Johnson Bonding Co. Inc. appeals from final judgments on two
criminal appearance bond forfeitures. In both cases, Don
Johnson Bonding, the surety on the bonds, relies on language
in OCGA § 17-6-71 (a) that directs trial courts to sign
orders forfeiting bonds on the same day that the defendant
fails to appear in court. We disagree. Because that language
is directory, we affirm.
January 2015 Anthony Gil Gonzalez was arrested for disorderly
conduct and simple battery. Don Johnson Bonding posted a bond
to secure his appearance. On January 21, 2016, the trial
court entered an order directing the sheriff to arrest
Gonzalez as he had failed to appear in court on January 11,
2016. It also entered an order forfeiting the bond and
notifying Gonzalez and Don Johnson Bonding that it would
conduct a hearing on June 27, 2016, on the issue of execution
and final judgment on the forfeited bond. On July 7, 2016,
the trial court entered final judgment forfeiting the bond.
October 2015 Gonzalez was arrested for misdemeanor
obstruction of an officer and disorderly conduct. Don Johnson
Bonding again posted a bond to secure his appearance. On
April 12, 2016, the trial court entered an order directing
the sheriff to arrest Gonzalez as he had failed to appear in
court on April 11, 2016. It also entered an order forfeiting
the bond and notifying Gonzalez and Don Johnson Bonding that
it would conduct a hearing on August 23, 2016, on the issue
of execution and final judgment on the forfeited bond. On
September 20, 2016, the trial court entered final judgment
forfeiting the bond. Don Johnson Bonding appeals both orders
issue is OCGA § 17-6-71 (a), which provides:
The judge shall, at the end of the court day, upon the
failure of the principal to appear, forfeit the bond, issue a
bench warrant for the principal's arrest, and order an
execution hearing not sooner than 120 days but not later than
150 days after such failure to appear. Notice of the
execution hearing shall be served by the clerk of the court
in which the bond forfeiture occurred within ten days of such
failure to appear by certified mail or by electronic means as
provided in Code Section 17-6-50 to the surety at the address
listed on the bond or by personal service to the surety
within ten days of such failure to appear at its home office
or to its designated registered agent. Service shall be
considered complete upon the mailing of such certified
notice. Such ten-day notice shall be adhered to strictly. If
notice of the execution hearing is not served as specified in
this subsection, the surety shall be relieved of liability on
the appearance bond.
Johnson Bonding argues that the plain language of the first
sentence of the statute required the trial court to enter the
order of forfeiture on the same day that the defendant failed
to appear. Thus, it argues, the January 21, 2016 order was 10
days too late and the April 12, 2016 order was one day too
Johnson Bonding concedes that in Easy Out Bonding v.
State, 224 Ga.App. 706, 706-707 (1) (481 S.E.2d 834)
(1997), we held that the "end of the court day"
language is directory. But, it argues, since that case was
decided, we have held that a 2009 amendment to the statute
mandates strict compliance with the statute's time
requirements. See Northeast Atlanta Bonding Co. v.
State, 308 Ga.App. 573 (707 S.E.2d 921) (2011).
2009 amendment added the last two sentences to the statute,
mandating strict compliance with the time requirements for
giving notice to the surety of the execution hearing on the
forfeiture for the failure to appear. 2009 Ga. Laws 137
§ 2 ("Such ten-day notice shall be adhered to
strictly. If notice of the execution hearing is not served as
specified in this subsection, the surety shall be relieved of
liability on the appearance bond."). The amendment did
not alter the first sentence of OCGA § 17-6-71 (a), in
which the "end of the court day" language appears.
See 2009 Ga. Laws 137 § 2. "The clear meaning of
the statute as amended effective May 5, 2009, is that upon a
failure to send notice of the execution hearing within ten
days of the failure of the principal to appear, the surety is
released and discharged of any further obligation to ensure
the appearance of the principal and of any further liability
on the bond." Don Johnson Bonding Co. v. State,
309 Ga.App. 6, 8 (709 S.E.2d 50) (2011) (citation omitted).
See also A.A. Professional Bail v. Perdue, 306
Ga.App. 72 (701 S.E.2d 542) (2010).
Division 1 of Easy Out Bonding, 224 Ga.App. at
706-707, in which we held that the "end of the court
day" language is directory, was not superseded by the
2009 amendment to the statute. And the rationale of that
division still holds true: "[l]ittle would be gained by
requiring the court to quickly issue an order [of
forfeiture], which may then be ignored until service to the
parties ten days later [of notice of the execution hearing on
the forfeiture]." Id. at 706 (1).
Johnson Bonding does not dispute that it was given timely
notice of the execution hearings. Consequently, the trial
court did not err by entering final judgment on the
forfeiture of the bonds.