The Forfeiture Clock: 150 Days and a Defendant Sitting in a Georgia Jail
A licensed surety bondsman writes a $75,000 bond for a defendant charged with felony possession with intent to sell. The defendant signs the bond and an indemnity agreement; his sister pays the $11,250 premium. His first appearance is set for Monday, March 2. He does not appear. The clerk mails a notice of forfeiture dated March 3 to the address on the bondsman's license record. On April 20 the bondsman learns the defendant has actually been in a Georgia county jail since February 27 on a probation violation there. He does nothing further until September, when the clerk's office calls him about collecting on the forfeiture. He tells the clerk, "It's not my fault, he was locked up the whole time."
1. What is the operative deadline for challenging this forfeiture, and what must the bondsman file to meet it?
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Rule. Under G.S. 15A-544.5 a motion to set aside a forfeiture must be filed within 150 days of the date of the notice of forfeiture. The trigger is the notice date, not the failure-to-appear date and not the date the bondsman learns the facts.
Application. The notice is dated March 3, so the window runs out in late July (roughly July 31). By September the forfeiture has ripened into a final judgment against the bondsman and the surety. The clerk is no longer asking a question; the clerk is collecting a debt.
Filing mechanics. The motion goes in the criminal file in the county where the bond was executed, must be verified, and must be supported by evidence - certified jail records from Georgia showing custody on the appearance date - not a bare assertion. Certain grounds also require the bondsman to pay the clerk's costs as a condition of relief.
Takeaway. The 150-day window runs whether or not the bondsman knows where his principal is. Merit does not reopen a closed window.
2. Does the defendant's incarceration in Georgia, standing alone, relieve the bondsman of liability?
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No. A surety bond is a guarantee of appearance. Custody elsewhere does not automatically exonerate the bond, and the defendant's absence from court is still a failure to appear until a court says otherwise.
What it is worth. Incarceration in another jurisdiction is one of the enumerated grounds for setting aside a forfeiture under G.S. 15A-544.5(b), and here it is unusually strong: the defendant was in custody five days before the appearance date, so the failure to appear was plainly not a willful flight. But a ground is only a ground if it is raised - by a timely motion with documentation that the court can verify.
Practical corollary. Even while the motion pends, the bondsman's obligation continues. He should have been documenting custody, notifying the surety under his appointment agreement, and considering whether to produce the defendant (surrender) as an alternative route to relief. Waiting converts a winning motion into a $75,000 judgment.
3. What should the bondsman have done in the two weeks after the missed court date, and what should he say to the surety now?
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First two weeks - a defensible file looks like this:
- Confirm the nonappearance from the docket or clerk rather than from hearsay, and calendar every date: FTA, forfeiture entry, notice mailing, and the 150th day.
- Run a custody check immediately (county jail, state DOC, surrounding jurisdictions). The April 20 discovery was findable in early March.
- Contact the indemnitor in writing, document the contact, and press for information on the defendant's whereabouts.
- Notify the surety under the terms of the appointment and power of attorney; do not let the insurer learn from the clerk.
- If the defendant can be located, move to surrender/produce him rather than gamble on a later motion.
Now. He should tell the surety the truth and in writing: notice received, custody facts known and when, no motion filed, forfeiture final. Concealing the lapse to protect his file is a separate and worse problem than the lapse itself. The insurer, not the bondsman alone, is exposed on the paper, and it has its own indemnity and reporting rights against him.