Allegheny Mutual Insurance v. State

¹⁷⁰ Gilbert, C. J., delivered the opinion of the Court. The appellant, Allegheny Mutual Insurance Company, posted a bail bond in the amount of five thousand dollars ($5,000) on behalf of Robert Alan Garris. The bond was to be forfeited if Garris, who was charged with forgery and uttering (Md. Ann. Code art. 27, § 44), failed to appear for trial in the Circuit Court for Wicomico County when the case was called. On May 2,1978, the date scheduled for the trial of Garris on the alleged offenses, he did not appear in court because he had removed himself to San Diego, California.

The trial court forfeited the bail on August 2, 1978, 1 and it was paid in full to the clerk of the court the next day. According to the record in this case, Garris, during his California sojourn, was "shot in the face and suffered serious injury and the loss of an eye. That on his hospital admission form ... [he] stated his name and as a result of police investigation, it was determined that ... [he] was wanted in Maryland for failing to appear for trial [in Wicomico County].” Garris waived extradition and voluntarily returned to Maryland. Neither California nor this State incurred any transportation costs as a result of Garris’s return to Maryland.

When the forgery and uttering cases were called to trial on October 6, 1980, the prosecution entered a nolle prosequi, with the result that Garris has never had to stand trial on the merits of the charges. 2 ¹⁷¹ The record further discloses that Garris’s parents agreed to indemnify Allegheny Mutual to the full extent of the bail bond. Thus, it is Garris’s parents that have sustained or are suffering the loss occasioned by his wilful failure to appear for trial in May 1978. In February 1981, Allegheny petitioned the circuit court to strike the bail forfeiture and order a remission of the $5,000 to Allegheny. The trial court, relying upon Md. Rule 722 i 2, apparently found no "reasonable grounds for the defendant’s [Garris’s] failure to appear” at trial.

The court denied Allegheny’s petition. The State concedes that Md. Rule 722 i 2, which provides: "2. Striking Out Forfeiture. The court shall strike out a forfeiture in whole or in part where the defendant or surety can show reasonable grounds for the defendant’s failure to appear; and notwithstanding Rule 625 a (Revisory Power of Court Over Judgment-Generally), it also shall set aside any judgment entered thereon pursuant to subsection 4 (b) of this section; if the penalty sum has been paid pursuant to subsection 3 of this section, the court shall order the remission of the penalty sum, in whole, or in part.” and Md. Ann. Code art. 27, § 616 V2 (d) (1), which reads: "(d) Striking out forfeiture of bail; refund of collateral and discharge of security when case stetted. — (1) Any court exercising criminal jurisdiction shall strike out a forfeiture of bail or collateral where the defendant can show reasonable grounds for his nonappearance.

However the court shall allow a surety 90 days, or for good cause shown, 180 days from the date of failure to appear to produce the defendant in court before requiring the payment of any forfeiture of bail or collateral. The court shall strike out a forfeiture of bail or collateral deducting only the actual expense incurred for the defendant’s arrest, apprehension, or surrender ¹⁷² if the defendant is produced in court and if the arrest, apprehension, or surrender occurs more than 90 days after the defendant’s failure to appear, or at the termination of the period allowed by the court to produce the defendant.” (Emphasis supplied.), must be read together. Indeed, in light of Allegheny Mutual Casualty Co. v. State, 234 Md. 278 , 199 A.2d 201 (1964) and Irwin v. State, 17 Md. App. 518 , 302 A.2d 688 (1973), the State is hard put not to make that concession. We held, in Irwin , that former Md. Ann. Code art. 26, §§ 5A, 33 (b), and Allegheny complement one another.

Of course,