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11/10/94 BAILEY v. STATE ALABAMA

November 10, 1994

BAILEY, BANKS & BIRCHFIELD, INC.
v.
STATE OF ALABAMA



Appeals from Tuscaloosa Circuit Court. (FCC 91-2009 and FCC 92-133). Robert Harwood, Jr., TRIAL JUDGE.

Released for Publication March 4, 1995.

Thigpen, Judge. Robertson, P.j., and Yates, J., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

These appeals involve final forfeiture of bonds signed by the appellant, O.K. Bonding, a division of Bailey, Banks & Birchfield, Inc. (O.K. Bonding), as surety.

In December 1991 and February 1992, the grand jury of Tuscaloosa County returned two indictments against Coretta McMiller, alias Coretta McMillian, charging her with theft of property in the second degree. O.K. Bonding issued the bonds required on each case. In July 1992, McMiller was sentenced to incarceration. She applied for probation and was apparently allowed to remain at large, pending a probation hearing. Upon her failure to appear at her probation hearing, forfeitures were entered against McMiller and O.K. Bonding; those forfeitures were made final in November 1993. It does not appear of record that the bonds were continued from sentencing until the time of the probation hearing. Hence, these appeals. The appeals were consolidated by this court, ex mero motu.

The parties agree that the trial court erred in entering the forfeitures and that these cases are controlled by our Supreme Court's ruling in Rice v. State, 488 So. 2d 1351 (Ala. 1986), which reiterated the general rule that "the surety of a bond is 'discharged by law' when the defendant is sentenced." See also Reed v. State, 245 Ala. 173, 16 So. 2d 310 (1944); Miller v. State, 158 Ala. 73, 48 So. 360 (1909); and Livingston Bail Bonds, Inc. v. State, 450 So. 2d 129 (Ala. Civ. App. 1984).

Accordingly, the forfeiture judgments of the trial court are reversed and the causes are remanded for entry of an order or orders consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Robertson, P.J., and Yates, J., concur.

19941110

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