Time for Filings in Bail Bond Forfeiture Proceedings Again Extended

On Friday, Chief Justice Paul Newby entered an order extending the time for filing motions to set aside and objections to motions to set aside in bail bond forfeiture proceedings. Any such motion or objection due on or after April 14, 2020 and before or on February 27, 2021 will be timely filed if filed before the close of business on March 1, 2021.

Justice Newby’s January 29 order operates to further extend deadlines that were first extended by Chief Justice Beasley last April and that were re-extended by orders issued in September, November, and December. I thought I’d take a minute this morning to review the statutory procedures affected by these extensions.

The statutory scheme. When a defendant released pursuant to a bond fails to appear in court, the court must enter a forfeiture in the amount of the bond in favor of the State. G.S. 15A-544.3. The forfeiture order, which must be mailed to the defendant and to each surety, includes the date on which the forfeiture becomes a final judgment if not set aside before that date. G.S. 15A-544.3, -544.4. The order may be set aside for any of several statutorily enumerated reasons, including that that the failure to appear has been stricken by the court (and any associated order for arrest recalled), that the charges have been disposed of, that the defendant has been surrendered by a surety or bail agent to a sheriff, and that the defendant was incarcerated and serving a sentence in a unit of the Division of Adult Correction and Juvenile Justice at the time of the failure to appear. G.S. 15A-544.5(b). To set aside a forfeiture, the defendant, surety, bondsman or bail agent must file a written motion within 150 days of the notice of forfeiture, which must be served on the district attorney and the attorney for the county board of education. G.S. 15A-544.5(d)(1), (3). The district attorney or county board of education may object to the motion by filing a written objection within 20 days of being served with the motion. G.S. 15A-544.5(d)(3), (4). If neither such party files a timely written objection, the clerk must enter an order setting aside the order of forfeiture. G.S. 15A-544.5(d)(4). If either party does file a timely written objection, the court must hold a hearing on the motion to set aside the forfeiture. G.S. 15A-544.5(d)(5).

In addition, a forfeiture entered by the court becomes a final judgment without further action by the court 150 days after notice of forfeiture is given if (1) no order setting aside the forfeiture is entered on or before that date and (2) no motion to set aside the forfeiture is pending on that date. G.S. 15A-544.6.

The January 29, 2021 order. Chief Justice Newby’s order (like those previously entered by Chief Justice Beasley) relies on the authority in G.S. 7A-39(b)(1) to extend the time for filings during the existence of catastrophic conditions. In this case, the catastrophic conditions are, of course, those that have resulted from the outbreak of COVID-19.

The order grants an extension and a stay. The extension applies to circumstances in which one of the following was to happen between April 14, 2020 and February 27, 2021:

(1) Final judgment of forfeiture was to occur under G.S. 15A-544.6 (forfeiture becomes final 150 days after notice if no set-aside order is entered and no set-aside motion is pending); or

(2) The clerk was to set aside the forfeiture under G.S. 15A-544.5(d)(4) (requiring clerk to enter order setting aside forfeiture when no timely objection is made to set-aside motion).

The order permits any motion to set aside or any objection to a motion to set aside that is due to be filed during that period to be deemed to be timely filed if filed before the close of business on February 28, 2021.

The stay provides that any entry of final judgment under G.S. 15A-544.6 or any grant of a motion to set aside under G.S. 15A-544.5(d)(4) due to occur between April 14, 2020 and February 27, 2021 is stayed until after the close of business on February 28, 2021.

Is the deadline February 28 or March 1? Because February 28, 2021 is a Sunday, motions to set aside or objections to motions to set aside will be deemed timely filed if filed before the close of business on Monday, March 1, 2021. See G.S. 1A-1, Rule 6(a) (providing that in computing a time-period prescribed by statute or court order that when the last day of the period is a Saturday, Sunday or a legal holiday when the courthouse is closed for transactions, the period runs until the end of the next day that is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions); State v. Pelletier, 168 N.C. App. 218, 222 (2005) (“a bond forfeiture proceeding, while ancillary to the underlying criminal proceeding, is a civil matter”); see also State v. Williams, 218 N.C. App. 450 (2012) (applying Rule 6(a) of the Rules of Civil Procedure to determine deadlines for filing under G.S. § 15A–544.5(d)).

The stay for entry of final judgment and granting of motions to set aside will likewise conclude at the close of business on March 1, 2021.

The March 1 deadline could again be extended should the catastrophic conditions caused by COVID-19 continue.

I’ll conclude with a shout-out to the Office of General Counsel at the Administrative Office of the Courts, whose staff helped me sort through these deadlines in the same insightful manner with which they regularly assist in analyzing legal issues of importance to court officials.

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