Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CLERK OF THE CIRCUIT COURT AND COMPTROLLER OF COLLIER COUNTY, Appellant, v. YOELVIS DENIS HERNANDEZ and LIBERTY BAIL BONDS, INC., Appellees. No. 2D21-3886 August 19, 2022 Appeal from the Circuit Court for Collier County; Joseph G. Foster, Judge. Thomas W. Franchino of Thomas W. Franchino, P.A., Naples, for Appellant. Philip L. Reizenstein and Bhakti Kadiwar of Reizenstein & Associates, P.A., Miami, for Appellee Liberty Bail Bonds, Inc. No appearance for Appellee Yoelvis Denis Hernandez. SILBERMAN, Judge. The Clerk of the Circuit Court and Comptroller of Collier County (the Clerk) appeals the circuit court's order granting remission of 95% of a $30,000 bail bond posted by Liberty Bail Bonds, Inc. (the Surety). Because the condition of the bond was not met, the Surety was not entitled to remission. Therefore, we reverse the circuit court's order. Yoelvis Denis Hernandez was arrested by the Collier County Sheriff's Office and was charged in that county with a first-degree felony. The Surety posted a $30,000 appearance bond on Hernandez's behalf. When Hernandez failed to appear for a hearing in December 2020, the judge entered a bench warrant for his arrest. The Clerk filed a notice of bond forfeiture that same day. About ten months later, the Surety filed a motion for remission of the bond and submitted an affidavit in support. The motion and affidavit reflect that on May 28, 2021, Hernandez was arrested on federal charges by United States Marshals in Del Rio, Texas, pursuant to an arrest warrant entered by the United States District Court for the Southern District of Florida. The Surety stated that it had contacted the Collier County Sheriff's Office regarding Hernandez's arrest and was told that Hernandez would not be 2 extradited from Texas as the Collier County bench warrant provided only for extradition within Florida. Federal authorities later transported Hernandez to the Miami-Dade County Federal Department of Corrections to await trial for his federal offenses. In the affidavit, the Surety asserted that the proper prosecution of Hernandez had not been thwarted as Hernandez remained in federal custody. At the hearing on the Surety's motion for bond remission, the Clerk objected to the request for remission because Hernandez had never been returned to the jurisdiction of Collier County pursuant to section 903.28, Florida Statutes (2021), but rather remained in federal custody. Focusing on the fact that Hernandez had been arrested on the federal warrant within 180 days of his failure to appear in Collier County, the trial court granted the Surety's motion for remission in the amount of 95% of the bond amount. In this appeal, the Clerk argues that granting remission was improper because Hernandez's return to Collier County was a precondition to remission. Further, Hernandez's return to Collier County was thwarted by his committing new crimes, which led to 3 his arrest and prosecution by federal authorities while out on bail posted by the Surety. "Remission of forfeiture is a wholly statutory remedy that 'may not be ordered for any reason other than as specified' in the statute." Hillsborough County v. Roche Sur. & Cas., Co., 805 So. 2d 937, 938-39 (Fla. 2d DCA 2001) (quoting § 903.28(7), Fla. Stat. (1999)). We conduct a de novo review of statutory interpretation. GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007). "Chapter 903, Florida Statutes, is a compilation of enactments governing bail, criminal surety bail bonds, and the procedures bail bond agents should follow in order to obtain relief from the commitments and obligations imposed on them by the surety bonds they issue once the bonds are forfeited." Polakoff & Aabbott Bail Bonds v. State, 111 So. 3d 253, 254 (Fla. 5th DCA 2013). "Parties' rights and remedies regarding discharge of forfeited bonds and remission of part or all of the funds forfeited are currently governed by statutes and the courts are limited by their provisions." Bd. of Comm'rs of Brevard v. Barber Bonding Agency, 860 So. 2d 10, 11-12 (Fla. 5th DCA 2003) (citing cases). 4 At issue here is section 903.28(3), Florida Statutes (2021). It states: If the defendant surrenders or is apprehended within 180 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, 95 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or 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. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant. § 903.28(3). This court has addressed the doctrine of impossibility of performance as it relates to section 903.28. In State v. Sunshine State Bail Bonds, Inc., 967 So. 2d 1084, 1084 (Fla. 2d DCA 2007), a defendant who was out on bond failed to appear in court in Collier County, an arrest warrant was issued, and a notice of forfeiture was filed. Id. The defendant remained at large until he was shot and killed by law enforcement in Georgia. Id. The surety that posted 5 the bond moved for remission, and the trial court granted remission of 80% of the bond. Id. On appeal, this court reversed the order granting remission because it was not authorized by section 903.28. Id. at 1085-86. We concluded that the doctrine of impossibility of performance did not excuse the surety from "its obligation to take precautionary action to prevent [the defendant] from leaving the jurisdiction, even though the actions of a third party prevented it from bringing [the defendant] back to the jurisdiction." Id. at 1085 (citing Allegheny Cas. Co. v. State, 850 So. 2d 669, 672 (Fla. 4th DCA 2003) ("The risk of a defendant not appearing is borne by the surety and the surety, in order to protect its interest, must take precautionary actions to prevent this type of situation. . . . [The] [s]urety's inability to perform its obligation is due to its own fault in permitting the defendant to leave the State of Florida.")). The Third District, also addressing impossibility of performance, upheld the denial of a motion for remission when a surety was unable to produce the defendant for prosecution. See Curlycan Bail Bonds, Inc. v. State, 933 So. 2d 122, 123 (Fla. 3d DCA 2006). There, a defendant who failed to appear in court absconded 6 to Venezuela after his bond was estreated. Id. Venezuela refused to extradite the defendant to the United States, and the surety was unable to present him for prosecution. Id. The trial court refused to grant remission, and the Third District affirmed, noting that "a combination of [the defendant's] voluntary action in fleeing to Venezuela and [the surety's] failure to take precautionary action to prevent his leaving the jurisdiction . . . led to the surety's inability to perform its obligation under the bond." Id. As a result, the court concluded that the surety was "not entitled to be relieved of the monetary obligation it contractually assumed." Id. The Surety asks this court to follow the reasoning set forth in Surety Continental Heritage Insurance v. Orange County, 798 So. 2d 837 (Fla. 5th DCA 2001); however, that case is distinguishable from the facts of this case. There, defendants who were out on bail failed to appear at trial and absconded to Jamaica. Id. at 838. The surety filed for remission of the bond after locating the defendants in Jamaica. Id. The surety submitted that the Jamaican authorities were willing to extradite the defendants if an arrest warrant was issued by the United States and the county would pay the extradition expenses. Id. However, the State Attorney's Office 7 refused to initiate extradition proceedings. Id. Although the trial court refused to grant remission, the Fifth District reversed. Id. The Fifth District noted that the surety "was willing to travel to Jamaica, apprehend [the defendants], and pay the entire expense of their extradition." Id. at 839. The court concluded that remission was warranted because the failure in apprehending the defendants was "due in large part to the State's unwillingness to extradite them." Id. Here, unlike the circumstances in Orange County, Hernandez is alleged to have committed new crimes while out on bond and he was arrested because a federal warrant was issued against him, not because of any effort by the Surety. And unlike the surety in Orange County, the Surety here has not established that it was ready, willing, and able to present Hernandez to be prosecuted in Collier County but for the State's refusal to extradite. The record reflects that the Surety contacted law enforcement while Hernandez was in federal custody in Texas and was told that the State would not extradite Hernandez as his warrant was only for extradition within Florida. However, the record also reflects that Hernandez was subsequently transferred from Texas to a federal facility in 8 Miami. Nothing in the record indicates that the Surety sought to procure Hernandez's return to Collier County from federal custody in Miami or that the State refused to seek his return to Collier County from Miami. Further, the Surety failed to establish whether the federal authorities would have allowed Hernandez to be returned to Collier County for prosecution had extradition been pursued. Based on these circumstances, Hernandez's prosecution in Collier County has been thwarted and the granting of remission was error under section 903.28(3). Accordingly, we reverse the trial court's order granting remission. Reversed. CASANUEVA and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 9