In re: Speedy Release Bail Bonds - Concurring and Dissenting

I concur in the majority’s conclusion that Tenn. Code Ann. § 40-11-204(a) (1997) must govern any reimbursement of the conditionally forfeited bail bond in this case. As noted by the majority, Tenn. Code Ann. § 40-11-201(b) (1997) does prohibit the rendering of a conditional or final judgment of forfeiture, and therefore the entry of and execution on a final judgment of forfeiture, when a surety is unable to surrender a defendant due to the defendant’s incarceration in a jail, workhouse, or penitentiary and the surety furnishes the trial court with an affidavit of the jailer, warden, or other responsible officer. As also noted by the majority, the appellant did not provide the requisite affidavit to the trial court. Of course, the Madison County Sheriff’s Department has since obtained custody of the defendant, and a final judgment of forfeiture has yet to be entered in this case. Still, Tenn. Code Ann. § 40-11-201 places no affirmative obligation on the trial court to order reimbursement of money paid pursuant to a bail bond agreement following a defendant’s failure to appear. Cf. Blankenship v. State, 443 S.W.2d 442, 445-446 (Tenn. 1969)(interpreting the different language of Tenn. Code Ann. § 40-11-201’s predecessor statute).