Surety’s Application for Remission
The attorneys at Sammis Law Firm represent a bail bond company or surety when filing an application for remission of a bond forfeiture or on appeal if the motion is denied. The courts have no discretion to deny a properly filed “application for remission” if the surety meets the statutory requirements for 100% remission of the bond posted on behalf of a defendant.
Bail bond companies post appearance surety bonds. If the defendant fails to appear in court, then the defendant breaches a condition of his bond. The bail bond company is then sent a notice of forfeiture by the clerk’s office. Thereafter, the court will issue a capias for the defendant’s arrest.
Depending on the circumstances, the bail bond company or surety must then pay the forfeiture in a timely manner before seeking remission of the bond. The remission is based on a showing that it substantially attempted to procure or cause the apprehension or surrender of the defendant by staying in contact with law enforcement, providing information regarding the defendant’s whereabouts, and inspecting his known addresses.
Along with the application for remission, the attorney for the bail bond company can request a hearing and file an affidavit in support of remission. If the defendant is being held on criminal charges in another county, the bail bond company can file a motion to transfer the defendant back to court.
Florida’s Remission Statute – Section 903.28
The applicable remission statute is section 903.28(2), Florida Statutes, provides, in part:
(2) If the defendant surrenders or is apprehended within 90 days after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 100 percent of a forfeiture if . . . the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant.
An application for remission should be accompanied by an affidavit setting forth the facts on which it is founded as required by Section 903.28(8). The statute requires that the surety “establish by further documentation or other evidence any claimed attempt at procuring or causing the apprehension or surrender of the defendant.” § 903.28(8), Fla. Stat. (2018).
The surety has the burden to show “a substantial attempt to procure the return of the defendant and that any delay has not thwarted proper prosecution.” Accredited Sur. & Cas. Co. v. Putnam Cty., 528 So. 2d 430, 431 (Fla. 5th DCA 1988).
In most cases, the surety will meet this burden by listing the specific efforts it made in its attempt to procure the defendant’s return. For example, in Palmetto Sur. Corp. v. State, 148 So. 3d 517 (Fla. 2d DCA 2014) the court held that when the surety provided only counsel’s argument at a hearing and a general affidavit “woefully deficient in relevant facts showing entitlement to remission,” the trial court did not abuse its discretion in denying the surety’s application for remission based on its attempt to procure defendant.
That result can be avoided by petitioning the court for a transfer of an inmate being held in another jurisdiction. If the surety makes the effort and provides the proper documentation, then the State is often unable to allege that any delay thwarted the proper prosecution of the case.
Policy Considerations Favoring Sureties
The courts have found that statutes governing bail bonds “should be construed liberally to favor sureties, since justice does not favor forfeiture.” Bd. of Comm’rs of Brevard v. Barber Bonding Agency, 860 So. 2d 10, 12 (Fla. 5th DCA 2003) (citations omitted), since a liberal interpretation in favor of sureties:
- saves the state the expense and burden of keeping an accused in jail pending trial;
- promotes an accused’s liberty interest consistent with the presumption of innocence; and
- provides incentives to sureties to offer bails bonds and to pursue those who flee the jurisdiction.
The attorneys at Sammis Law Firm can represent a surety for any application for remission. Call 813-250-0500.