### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE October 28, 2003 Se ssion

STATE OF TENNESSEE v. STANLEY RAY DAVIS I N RE: RAY D.

DRIVER, d/b/a DRIVER BAIL B ONDS
Appeal from the Criminal Court for Campbell County No. 11461 E. Shayne Sexton, Judge

No. E2003-00765-CCA-R3-CD May 11, 2004

G ARY R. W ADE , P.J ., di ssent ing.

Iagreethat Tennessee Code Annotated section 40-11-130 gove rns the issue of

the duration of Driver Bail Bonds' obliga tion. The cur

ren t statute, passed in

1996, per

mits the tri al court

to extendthe liabil ity o f the sur ety on a bail b ond for the lengt h of a sentence of probation by providing ina written order that

the current bond is sufficient. In this ca se, the General Sessions Court noted on the judgment form that the defendant and surety we

re to remain liable under the original bond. Thus , Driver

remai ned ob ligat ed und er the t erms o f the o rigina l bon d to s ecure t he defe ndant 's appear ance at the Ma rch 11 , 2002 , heari ng.

I nmy o pinion, the

record demonstr

ates tha t the inten

t of the tr ial cour t was that Driver b e held responsible for the fines and costs associated with the de fendant's conv iction. As

the major ity points out, both th

e state a nd Drive r appea led the f orfeitur e judgme nt to the Cr

iminal Cour

t, the stat e assertingthat the General Sessions Court erred by ordering less than complete forfeiture of the appearancebond and

Driver contending that it was relieved of its obliga tion on the bond a

t the time the defendant was sentenced. The Criminal Court ag reed that Driver remained liable on thebond and ordered forfeiture

in the amount of $570.00, the amount it believed the defendant owed in fines and court co sts. Thus, i

t is my interpre tation of t

he record that the

tr ial co urt intended for the defenda nt's fines and co sts to be pa id by Driver a nd order ed a par tial forf eiture on that bas is. During the forfeiture hearing, the Criminal Court rema rked that the GeneralSessions Court order ed forfeiture in an amount equal to the fines and costs beca use it was "concerned with th e defendant making pay

ment of what was owed. . . . From a legal standpoint it is a separate question. You've got bail and then y ou've got what is owed. But the neteffect of this is exactly wha t [the General Sessions Court] took care o f." When the state asked if the court intended to "put down a judgment for what the defendant owed," the c ourt responded in the affirmative. The trialcourt al so made the following

observa tions:-2-

We're talking about him satisfying his monetary

obligat ions and that is the judgment that I'm putting

do wn ag ai ns t t he bo nd in g c om pa ny. And I 'm not sa yin g that th is is ent ir el y, . . . s trict construction of the statute. I think this is the best practical approach I can take. I think from a lega l standpoint. . . the bonding c ompany could be held to the

entire a mount. Bu

t in carr yin g out wha t I thi nk is the right thing to do inthis case I'm putting dow n a judgment against the bonding company in the amount that's show n he owes on th is case. And when I say "he," I' m talking

about this defenda nt. Finally, the trial cour

t noted that "we all, I think, know that we' re securing the fines and costs."

From these comments, it is my view that the trial court intende d the forfeited money to be used to pay the defe ndant' s fines a

nd costs. The record establishes that the defendant had se rved the 48 hours of

incarceration required by the plea agreement but had failed to pay his fines by

or appear at the March

status hearing. Although the trial court observe d that the

defenda nt was not c ompletely relieved of his obligations and a capias had been issued to secure his appe arance, the real intent of the or der app ears t o have been t o secu re the f ines a nd cos ts by ente ring a judgment in that amount agains tDriver. "To paraphrase a n anonymous visionary

, 'If it waddles like a

duck, looks like a duck and quacks lik e a duck, it i s a duck.'" State v. Wendell Scales , No. 88-2 6-II I, sli p op . at 7 (Tenn. Crim. App., at Nashville, Sept. 28, 1988).

Theseci rc um st an ce s a re co nt ro ll ed by State v. Clements , 925 S. W. 2d 2 24 ( Ten n. 1 996 ). In that case, our supreme court considered whe ther an appearance bond o f $40, 000 posted by the defend ant's father as surety co uld be attac hed fo r the p ayment of the de fendan t's fi ne. Ou r high court, applying the

principles of contract

law to the secured bond, held that "the fundsdeposited by the fa th er ca n b e a tt ac he d t o c ov er fi ne s a nd co st s i nc ur re d b y the defendant only if it can be determined, from an objective standpoint, that the father as sented to this possibility, either by signing the document

or by some subsequen t act." Id. at 227. Our supreme court ruled that the appearance bond signed by the

defendant's father did not provide that he wo

uld be liable for the f ines and c osts incurred by the defe ndant and th at the defend ant's father had not otherwise agreed to be liable for the fines and costs. Id. Similarly, the appeara nce bond executed by

Driver does not include a n y agreement

by Driver to sec ure paymen t of th e defen dant's fines and costs. Moreover, the record does notindica te that Dr

iv er asse nted to the

pay ment of the

defenda nt's fines and co sts "by

some subsequent

act." T hus, it is my view that although Dr iver remained obligated

under the original bond to secure the defendant's a ppearance at the March status hea ring and was thus liable for forfeiture of the full amount

of the bond

when the defendant failed to appear, the trial court erred by

ordering Driver to "sec ur[e] the fi nes an d cost s." Th e payment of the fines and co sts ar e the d efenda nt's
res po ns ib il it y. The tria

l court a ccomplished indire ctly

a result t

hat could not be ac compli she d1 If the GeneralSessi ons Court ha d concerns about the def endan t's abilit

y or will ingness to pay t he fines and costs, it could have or dered him t o execute a separate bond to secure the payment of the fines and c osts. See Tenn. Code Ann. § 40-11-118 (c)(1).
-3- directly under the applicable law

. 1 Accordingly , I would reverse the judgment of the trial court ordering forfeiture to secur e the payme

nt of the defendant's fines and costs and re mand.

___________________________________ GARY R. WADE, PRESIDING JUDGE