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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
June 15, 2004 Session STATE OF TENNESSEE v. MICHAEL N. ALLEN, a.k.a. MICHAEL B. CARTA IN RE: SANFORD AND SONS BAIL BONDS, INC.
Direct Appeal from the Criminal Court for Washington County No. 28,174 Lynn W. Brown, Judge

No. E2004-00292-CCA-R3-CD- Filed September 22, 2004

Sanford and Sons Bail Bonds, Inc., the appellant, appeals from the trial court's denial of relief from final forfeiture of its bond. At the hearing set to determine whether final forfeiture of the bond should occur, the appellant did not appear and the trial court entered a judgment against the appellant declaring final forfeiture. The appellant then sought relief from the final forfeiture judgment, pursuant to Rule 60.02 of the Rules of Civil Procedure, Tennessee Code Annotated section 40-11201(b), and sought a stay of execution of the judgment. Because the notice of appeal was not timely filed in this matter, we are without jurisdiction to determine whether the trial court erred in entering a final forfeiture against the appellant based upon its claim under Tennessee Code Annotated section 40-11-201(b). We further conclude that the trial court did not abuse its discretion in refusing to grant a stay of execution or relief under Rule 60.02 of the Tennessee Rules of Civil Procedure. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS T. WOODALL, JJ., joined. Charles G. Currier, Knoxville, Tennessee, for the appellant, Michael N. Allen, a.k.a. Michael B. Carta, In re: Sanford and Sons Bail Bonds, Inc. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee.

OPINION The issue is whether the bonding company, who failed to appear at the scheduled hearing for determination of final forfeiture, is entitled to relief upon this record. We conclude it is not. Facts On August 9, 2002, the appellant entered a $12,000 appearance bond on behalf of a defendant. On November 19, 2002, the defendant failed to appear, and a capias for his arrest was issued. That same day, a scire facias for the conditional forfeiture of the defendant's bond was issued. The scire facias was served on the appellant on December 6, 2002. On May 16, 2003, the appellant filed a motion for extension of time to produce the defendant. The appellant failed to appear and be heard on the motion and same was denied on June 3, 2003. A final forfeiture hearing was set for July 8, 2003. On July 7, 2003, the appellant filed a motion to reconsider the June denial of an extension of time to produce the defendant. At the July 8, 2003 hearing, the trial court, with the acquiescence of the State, granted appellant an extension of ninety days to produce the defendant and prepare for a final forfeiture hearing. At the conclusion of the July 8th hearing, the trial court specifically set the final forfeiture hearing for October 10, 2003. On July 15, 2003, the appellant filed a "motion for relief" and an affidavit from the St. Louis County Justice Center proporting to show that the defendant was incarcerated in St. Louis, Missouri. The appellant argues that the filing of this affidavit prevents the trial court from entering a forfeiture or conditional forfeiture because the language contained in Tennessee Code Annotated section 4011-201(b) provides that "[n]o forfeiture or conditional forfeiture . . . shall be rendered" when it is shown by affidavit that the defendant is prevented from being in court due to mental or physical disability or is incarcerated elsewhere. On October 10, 2003, the time set for the final forfeiture hearing, the appellant did not appear and a final forfeiture was entered. On October 17, 2003, an execution was issued against the appellant and served on November 6, 2003. On November 12, 2003, the appellant filed a petition to stay execution of the final forfeiture judgment. On January 7, 2004, a hearing was held on the petition for stay of execution and the appellant orally moved that the trial court's judgment entered October 10, 2003, be set aside because of a mistake or neglect under Rule 60.02 of the Tennessee Rules of Civil Procedure.

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The trial court concluded that there was no excusable neglect or mistake for the appellant's failing to appear for the October 10, 2003 hearing and that the petition for stay of execution was untimely filed. The appellant filed a notice of appeal on February 4, 2004. The State contends that the notice of appeal was filed untimely, therefore barring us from hearing the defendant's issues on the merits. Analysis We will first determine whether this Court has jurisdiction to hear this appeal or whether the appellant's notice of appeal was untimely filed, thereby barring our jurisdiction. Rule 4(a) of the Tennessee Rules of Appellate Procedure requires that the notice of appeal document must be filed within thirty days of the entry of the judgment appealed from. Rule 4(a), T.R.A.P., provides that a "notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from; however, in all criminal cases the `notice of appeal' document is not jurisdictional and the filing of such document may be waived in the interest of justice." (Emphasis added). Our supreme court has not limited waiver strictly to cases involving criminal prosecutions. In State v. Scales, 767 S. W. 2d 157 (Tenn. 1989), the supreme court held that the notice of appeal in post-conviction cases may be waived because such "proceedings are criminal in nature." Id. The court also quoted from this Court's opinion in which now Presiding Judge Gary R. Wade wrote, "Labels of civil and criminal have little application when constitutional rights hang in the balance." Id. (quoting State v. Wendell Scales, No. C.C.A. 88-26-111, Davidson County, slip op. at 7 (Tenn. Crim. App. Sept. 28, 1988)). We believe, however, that the nature of a bond forfeiture proceeding by which judgment is entered against a surety does not relate to the criminal proceeding as contemplated in Scales. The life or liberty of a citizen is not at stake in such a proceeding, and the issue of a constitutionally inform conviction does not arise. Any interest in making all appeals to the court of criminal appeals subject to the same procedural requirements is best left addressed to the supreme court's rule making authority. The appellant's initial claim is that the trial court erred in ordering a final forfeiture because of Tennessee Code Annotated section 40-11-201(b). The forfeiture of bail bonds is governed by Tennessee Code Annotated sections 40-11-201 through 40-11-215. Tennessee Code Annotated section 40-11-201(a) authorizes a trial court to enter a conditional judgment of forfeiture against a defendant and his sureties when a defendant fails to appear in court in accordance with a bail bond agreement. See also Tenn. Code Ann.

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