A BILL TO BE ENTITLED
AN ACT to provide that forfeiture of a bail bond shall be set aside if the defendant for whom the bond was posted was incarcerated anywhere at the time of the failure to appear, to provide that bond shall not be forfeited unless the surety or bail agent had notice or actual knowledge that the defendant had failed to appear on two or more occasions on the same charge, and to provide that bond shall be remitted if the defendant receives a prayer for judgment continued or deferred prosecution unless the district attorney objects.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 15A‑544.5 reads as rewritten:
"§ 15A‑544.5.  Setting aside 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), (h), and (i) of this section apply regardless of the reason for relief given or the procedure followed.
(b)	Reasons for Set Aside. – A forfeiture shall be set aside for any one of the following reasons, and none other:
(1)	The defendant's failure to appear has been set aside by the court and any order for arrest issued for that failure to appear has been recalled, as evidenced by a copy of an official court record, including an electronic record.
(2)	All charges for which the defendant was bonded to appear have been finally disposed by the court other than by the State's taking dismissal with leave, as evidenced by a copy of an official court record, including an electronic record.
(3)	The defendant has been 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 has been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question.
(5)	The defendant died before or within the period between the forfeiture and the final judgment as demonstrated by the presentation of a death certificate.
(6)	The defendant at the time of the failure to appear was:
a.	Incarcerated, sentenced, or confined in a unit of the Department of Correction or a detention facility and is serving a sentence or confinement;
b.	Incarcerated, sentenced, or confined in a unit of the Federal Bureau of Prisons located within the borders of the State; or
c.	Incarcerated, sentenced, or confined in any state, federal, or local penal institution or state, federal, or local detention facility located anywhere in the United States.
(7)	No final judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the court that the principal on the bond was prevented from attending because the principal was detained by reason of arrest, sentence, or confinement in a penal institution or jail in this State, or in another jurisdiction, or because the principal was confined or detained under a court order in a medical or mental institution in this State or in another jurisdiction. An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement and the notice may be sent from the holding institution by mail, delivered by hand, or sent by facsimile machine. The surety shall present the written notice and a letter of intent to transport the defendant to the clerk of the proper court, the district attorney having jurisdiction over the case, and the county board of education, and the notice and letter of intent shall serve as the surety's request for a detainer or hold to be placed on the principal. In no event shall the letter of intent to transport the defendant be construed to require the surety to pay transportation costs that exceed the face amount of the bond.
(8)	No final judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the court that prior to the entry of final judgment on the forfeiture the principal on the bond is in the custody of any law enforcement agency. An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement and the notice may be sent from the holding institution by mail, delivered by hand, or sent by facsimile machine. The surety shall present the written notice and a letter of intent to transport the defendant to the clerk of the proper court, the district attorney having jurisdiction over the case and the county board of education and the notice and letter of intent shall serve as the surety's request for a detainer or hold to be placed on the principal. In no event shall the letter of intent to transport the defendant be construed to require the surety to pay transportation costs that exceed the face amount of the bond.
(c)	Procedure When Failure to Appear Is Stricken. – If the court before which a defendant's appearance was secured by a bail bond enters an order striking the defendant's failure to appear and recalling any order for arrest issued for that failure to appear, that court may simultaneously enter an order setting aside any forfeiture of that bail bond. When an order setting aside a forfeiture is entered, the defendant's further appearances shall continue to be secured by that bail bond unless the court orders otherwise.
(d)	Motion Procedure. – If a forfeiture is not set aside under subsection (c) of this section, the only procedure for setting it aside is as follows:
(1)	At any time before the 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 written motion that the forfeiture be set aside, stating the reason and attaching the evidence specified in subsection (a) of this section.
(2)	The motion is filed in the office of the clerk of superior court of the county in which the forfeiture was entered, and a copy is served, under G.S. 1A‑1, Rule 5, on the district attorney for that county and the county board of education.
(3)	Either the district attorney or the county board of education may object to the motion by filing a written objection in the office of the clerk and serving a copy on the moving party.
(4)	If neither the district attorney nor the board of education has filed a written objection to the motion by the tenth day after the motion is served, the clerk shall enter an order setting aside the forfeiture.
(5)	If either the district attorney or the county board of education files a written objection to the motion, then not more than 30 days after the objection is filed a hearing on the motion and objection shall be held in the county, in the trial division in which the defendant was bonded to appear.
(6)	If at the hearing the court allows the motion, the court shall enter an order setting aside the forfeiture.
(7)	If at the hearing the court does not enter an order setting aside the forfeiture, the forfeiture shall become a final judgment of forfeiture on the later of:
a.	The date of the hearing.
b.	The date of final judgment specified in G.S. 15A‑544.6.
(e)	Only One Motion Per Forfeiture. – No more than one motion to set aside a specific forfeiture may be considered by the court.
(f)	No More Than Two Forfeitures May Be Set Aside Per Case. – In any case in which the State proves that the surety or the bail agent had notice or actual knowledge, before executing a bail bond, that the defendant had already failed to appear on two or more prior occasions on the same charge, no forfeiture of that bond may be set aside for any reason. Notice or actual knowledge exists when a reasonable surety exercising due diligence would have been able to obtain the information before executing the bail bond.
(g)	No Final Judgment After Forfeiture Is Set Aside. – If a forfeiture is set aside under this section, the forfeiture shall not thereafter ever become a final judgment of forfeiture or be enforced or reported to the Department of Insurance.
(h)	Appeal. – An order on a motion to set aside a forfeiture is a final order or judgment of the trial court for purposes of appeal. Appeal is the same as provided for appeals in civil actions. When notice of appeal is properly filed, the court may stay the effectiveness of the order on any conditions the court considers appropriate."
SECTION 2.  G.S. 15A‑547.1 reads as rewritten:
"§ 15A‑547.1.  Remit bail bond in certain circumstances.
(a)	If a defendant is convicted and sentenced to community punishment or intermediate punishment and no appeal is pending, then the court shall remit the bail bond to the obligor in accordance with the provisions of this Article and shall not require that the bail bond continue to be posted while the defendant serves his or her sentence.
(b)	Unless the district attorney objects, the court shall remit the bail bond to the obligor as provided under this Article and shall not require that the bail bond continue to be posted if the defendant receives a prayer for judgment continued or a deferred prosecution."
SECTION 3.  This act becomes effective December 1, 2005, and applies to bail bonds posted for offenses committed on or after that date.