People v. Allied Fidelity Insurance

Allied Fidelity Insurance Company (Fidelity) appeals from an order denying its motion to vacate the forfeiture of an appeal bond and to exonerate the bond. 1 The undertaking of the bond was that Geraldine Elizabeth Carmichael (Carmichael) would “surrender himself [sic] in execution of the judgment, upon its being affirmed or modified. ...”

We determine that the phrase surrender “in execution of the judgment” contemplates a defendant actually being committed to the custody of the proper officer before liability on an appeal bond ceases and affirm the trial court.

Factual and Procedural Background

Carmichael was convicted in April 1977 of several felonies and sentenced to state prison for the terms prescribed by law. Carmichael appealed and requested bail on appeal, which the trial court granted.

In May 1980 the appellate court issued an opinion in which it modified the judgment and affirmed. The remittitur reflecting this judgment was filed on September 22, 1980, and on October 7, 1980, Carmichael appeared for the return on the remittitur.

On October 7, 1980, when the case was called for return on the remittitur, the trial court ordered a supplemental probation report…