GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

H	1 

HOUSE BILL 1219

Short Title:  Pretrial Release & Bond.	(Public)

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Sponsors: Representatives Baddour, Culpepper, and Gray (Primary Sponsors).

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Referred to:  Judiciary IV.

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April 15, 1999

A BILL TO BE ENTITLED
AN ACT TO MODERNIZE THE PRETRIAL RELEASE AND BOND FORFEITURE PROCEDURE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1-52 reads as rewritten:
"§ 1-52. Three years.
Within three years an action –
(1)	Upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections or in G.S. 1-53(1).
(1a)	Upon the official bond of a public officer.
(2)	Upon a liability created by statute, either state or federal, unless some other time is mentioned in the statute creating it.
(3)	For trespass upon real property. When the trespass is a continuing one, the action shall be commenced within three years from the original trespass, and not thereafter.
(4)	For taking, detaining, converting or injuring any goods or chattels, including action for their specific recovery.
(5)	For criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated.
(6)	Against the sureties of any executor, administrator, collector or guardian on the official bond of their principal; within three years after the breach thereof complained of.
(7)	Against bail or judgment of forfeiture; within three years after judgment of forfeiture under the provisions of G.S. 15A-544 against the principal or surety.
(8)	For fees due to a clerk, sheriff or other officer, by the judgment of a court; within three years from the rendition of the judgment, or the issuing of the last execution thereon.
(9)	For relief on the ground of fraud or mistake; the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.
(10)	Repealed by Session Laws 1977, c. 886, s. 1.
(11)	For the recovery of any amount under and by virtue of the provisions of the Fair Labor Standards Act of 1938 and amendments thereto, said act being an act of Congress.
(12)	Upon a claim for loss covered by an insurance policy which is subject to the three-year limitation contained in lines 158 through 161 of the Standard Fire Insurance Policy for North Carolina, G.S. 58-44-15(c).
(13)	Against a public officer, for a trespass, under color of his office.
(14)	An action under Chapter 75B of the General Statutes, the action in regard to a continuing violation accrues at the time of the latest violation.
(15)	For the recovery of taxes paid as provided in G.S. 105-267 and G.S. 105-381.
(16)	Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of actions referred to in G.S. 1-15(c), shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.
(17)	Against a public utility, electric or telephone membership corporation, or a municipality for damages or for compensation for right-of-way or use of any lands for a utility service line or lines to serve one or more customers or members unless an inverse condemnation action or proceeding is commenced within three years after the utility service line has been constructed or by October 1, 1984, whichever is later.
(18)	Against any registered land surveyor as defined in G.S. 89C-3(9) or any person acting under his supervision and control for physical damage or economic or monetary loss due to negligence or a deficiency in the performance of surveying or platting as defined in G.S. 1-47(6)."
Section 2.  G.S. 15A-531 reads as rewritten:
"§ 15A-531.  Definitions.
As used in this Article the following definitions apply unless the context clearly requires otherwise:
(1)	Bail Bond. – An undertaking by the principal to appear in court as required upon penalty of forfeiting bail to the State of North Carolina in a stated amount. Bail bonds include an unsecured appearance bond, an appearance bond secured by a cash deposit of the full amount of the bond, an appearance bond secured by a mortgage pursuant to G.S. 58-74-5, and an appearance bond secured by at least one solvent surety. A bail bond for which the surety is a surety bondsman, as defined in G.S. 58-71-1, acting on behalf of an insurer shall be considered the same as a cash deposit for all purposes in this Article. Cash bonds set in child support contempt proceedings shall not be satisfied in any manner other than the deposit of cash.
(2)	Obligor. – A principal or a surety on a bail bond.
(3)	Principal. – A defendant or material witness obligated to appear in court as required upon penalty of forfeiting bail under a bail bond.
(4)	Surety. – One who, with the principal, is liable for the amount of the bail bond upon forfeiture of bail."
Section 3.  G.S. 15A-534 is amended by adding the following subsections:
"( i)	In accordance with G.S. 15A-543, if the principal fails to appear in court as required, the court shall issue an order for arrest for the failure to appear and shall set a secured bond at an amount of not less than twice the amount of the previous bond.  Failure of the court to comply with this provision shall not affect the validity of any order of forfeiture.
(j)	If the principal fails to appear in court on more than two occasions for the same offense, a judge shall determine in open court whether or not to release the principal and, if so, the conditions of release."
Section 4.  G.S. 15A-544 reads as rewritten:
"§ 15A-544.  Forfeiture.
(a)	By executing a bail bond the principal and each surety submits to the jurisdiction of the court and irrevocably consents to be bound by any notice given in compliance with this section. The liability of the principal and each surety may be enforced as provided in this section without the necessity of an independent action. The following information shall be entered on the bond:
(1)	The principal and each accommodation bondsman shall enter that person's mailing address, street address, and telephone number for the service of any process required by this section or other provision of law. If the address or telephone number of the principal or an accommodation bondsman changes during the pendency of any proceeding with reference to the bond, it shall be the duty of that person to notify the clerk in writing within three business days of that person's new address and telephone number.
(2)	Each professional bondsman, each runner acting on behalf of a professional bondsman, and each surety bondsman acting on behalf of an insurer shall enter on the bond a reference to the license or power of attorney under which the professional bondsman or insurer is authorized to execute bonds in the county, as that license or power is registered in the office of the clerk of superior court pursuant to G.S. 58-711-140.
(a1)	Each of the following terms shall have in this Article the same meaning that those terms have in Article 71 of Chapter 58 of the General Statutes, under the definitions in G.S. 58-71-1:  accommodation bondsman, bail bond, insurer, professional bondsman, runner, surety bondsman.
(b)	If the principal does not comply with the conditions of the bail bond, the court having jurisdiction must enter an order declaring the bail to be forfeited.  When forfeiture is ordered by the court, a copy of the order of forfeiture and notice that judgment will be entered upon the order after 90 days from the date upon which the principal failed to appear must be served by the clerk on the principal and surety.  Service is to be made by mailing by first-class mail a copy of the order of forfeiture and notice as follows:
(1)	To the principal and each accommodation bondsman at the address as last noted on the bond; and
(2)	To each professional bondsman and insurer at the address shown on the license or power of attorney most recently registered with the clerk of superior court pursuant to G.S. 58-71-140.
The clerk shall note on the original notice the date of mailing.  Service is complete three days after the mailing.  The clerk may also provide a copy of the notice to any runner or surety bondsman who executed the bond on behalf of a professional bondsman or insurer, but the clerk's failure or refusal to do so shall not affect the liability of the professional bondsman or insurer.
(c)	At any time prior to the entry of a judgment as provided in subsection (d) of this section, the principal or surety may move the court having jurisdiction of the matter, orally in open court or in writing, to strike the order of forfeiture and recall the notice of forfeiture.  Notice or a copy of the motion filed shall be served upon the attorney for the county school board and the district attorney at least three working days prior to the next regularly scheduled bond hearing date as provided in subsection (d) of this section.  The petitioner, the district attorney, and the county school board attorney shall be given an opportunity to appear and be heard.
If the principal or surety appears and moves within 90 days following the date of service of the order of forfeiture and satisfies the court that the principal's failure to appear on the date set was impossible because the principal was either incarcerated in North Carolina, or was unable to appear because of physical or mental illness, the order of forfeiture shall be set aside.
If, at the hearing, the principal or surety satisfies the court that the principal's failure to appear was without the principal's fault, or if the principal is surrendered by the surety on the order for arrest and incarcerated in the State within 90 days of the entry of the order of forfeiture the order of forfeiture may be stricken in whole or in part at the discretion of the court upon the payment of costs.
If the principal or surety does not satisfy the court, then the court shall enter judgment for the State against the principal and surety for the amount of the bail and the cost of the proceeding as provided in subsection (d)	of this section.
	(d)	The clerk in each county shall prepare for both the district and superior court a bond calendar at least once each month when court is in session.  The respective calendars shall be heard by the senior resident superior court judge and chief district judge or their designees at least once each month when court is in session.  The bond calendar shall list the names of all principals and sureties to whom forfeiture has been ordered more than 90 days previously in the county and as to which judgments of forfeiture against the principal and surety have not been entered or stricken.  The forfeiture calendar shall show the amount of the bond ordered forfeited in each case. In addition, the clerk shall place on the forfeiture calendar for hearing all written motions to strike an order of forfeiture filed since the previous forfeiture calendar. It shall be the duty of the district attorney to present the forfeiture calendar to the court, but the attorney for the county school board shall have the right to appear and be heard when the forfeiture calendar is presented. At the district attorney's discretion, the district attorney may appoint the county school board attorney as the district attorney's designee for the presentation of the forfeiture calendar.
(e)	At any time within three years after entry of the judgment of forfeiture against a principal or surety, the principal or surety, by verified written petition setting forth the specific grounds upon which remission is being requested, may request that the judgment be remitted in whole or in part, for extraordinary cause shown.  A copy of the petition shall be served upon the attorney for the county school board and the district attorney at least three working days prior to the hearing. The clerk shall place on the forfeiture calendar for hearing all petitions that have been filed during the previous month or since the last bond calendar. The petitioner, the district attorney, and the school board attorney shall be notified of the date, time, and place of the hearing as provided in subsection (d) of this section. The petitioner, the district attorney, and the county school board attorney shall be given an opportunity to appear and be heard. If money has been paid to the county school fund pursuant to execution on a judgment of forfeiture, the school board shall refund to the principal or surety entitled the amount of any remission less costs granted under the terms of this subsection upon receipt of a certified copy of the judgment of remission from the clerk.
(f)	The clerk shall issue execution on the judgment not less than 30 days nor more than 45 days after the entry of the judgment, and remit the clear proceeds to the county school fund  for use in maintaining free public schools. Any clerk who fails to perform his duty as required in this subsection is subject to a penalty of five hundred dollars ($500.00).  The judgment shall bear interest from the date of breach at the ‘legal rate'. The filing of a petition for remission does not stay the execution of the judgment of forfeiture.  Any stay of execution shall be obtained in accordance with Rules 62, 6, and 7 of the North Carolina Rules of Civil Procedure.
(g)	If execution upon a judgment remains unsatisfied for 10 days, the clerk shall notify magistrates in the county and the North Carolina Department of Insurance, and the surety shall not become surety on any bail bond in the county so long as the judgment remains unsatisfied. If the execution is not satisfied by a bail bondsman licensed under the provisions of Article 71 of Chapter 58 of the General Statutes within 10 days of the issuance of execution, the Commissioner of Insurance, upon notice from the clerk, shall suspend the surety's license as provided by G.S. 58-71-80(a)(7) and shall satisfy the execution from the bail bondsman's deposit required by G.S. 58-71-145.  Nothing in this subsection makes lawful any act made unlawful by Article 71 of Chapter 58 of the General Statutes.
	(i)	A principal, a surety, the State, or a local board of education may appeal from:  (i) an order striking the order of forfeiture, (ii) the entry of a judgment of forfeiture or order of remission, in whole or in part, or (iii) denial of a petition to remit a judgment of forfeiture, in whole or in part.  The Rules of Appellate Procedure applicable to a civil action shall apply to the appeal.”
Section 5.  G.S. 15A-547.1 reads as rewritten:
"§ 15A-547.1.  Remit bail bond if defendant sentenced to community or intermediate punishment.
If bail has not been forfeited for the defendant's failure to appear and  a defendant is convicted and sentenced to community punishment or intermediate punishment and no appeal is pending, then the court shall release the surety of his obligation on the bail bond in accordance with the provisions of this Article.  However, the court in its discretion may require the defendant to post a new bond as a condition for compliance with any condition of a suspended sentence, probation, or deferred prosecution."
Section 6.  G.S. 24-5(a) reads as rewritten:
"(a)	Contracts. – In an action for breach of contract, the amount awarded on the contract bears interest from the date of breach. The fact finder in an action for breach of contract shall distinguish the principal from the interest in the award, and the judgment shall provide that the principal amount bears interest until the judgment is satisfied. If the parties have agreed in the contract that the contract rate shall apply after judgment then interest on an award in a contract action shall be at the contract rate after judgment, otherwise it shall be at the legal rate; provided, however, that on awards in actions on contracts pursuant to which credit was extended for personal, family, household, or agricultural purposes, interest shall be at the legal rate, provided however, such rate shall not exceed the contract rate."
Section 7.  G.S. 58-71-35(b) is repealed.
Section 8.  This act is effective when it becomes law.