DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CA02-1239

JUNE 18, 2003

HOLT BONDING CO., INC. AN APPEAL FROM THE SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

v. [CR-01-590 B]

STATE OF ARKANSAS HONORABLE NORMAN WILKERSON,

APPELLEE JUDGE

REVERSED

Appellant Holt Bonding Company, Inc. (Holt Bonding) appeals from a bond forfeiture judgment that ordered it to remit $4,500 to the State. On appeal, Holt Bonding alleges that the judgment entered against it is void because (1) there is no proof that the defendant, Anthony Rando-Grando received written notice to appear, and (2) the trial court did not strictly comply with Ark. Code Ann. § 16-84-201(a)(1)(A) (Supp. 2001). We hold that there was not strict compliance with section 16-84-201 and reverse.

The facts of this case are as follows. Anthony Rando-Grando was charged with rape and released on a $5,000 bail bond issued by Holt Bonding through their agent John Van Curen. The trial court scheduled a mandatory appearance for January 30, 2002. Notice of the appearance was sent to Holt Bonding. Rando-Grando failed to appear at the mandatoryappearance, and an order informing Holt Bonding of his failure to appear was issued that same day. On June 10, 2002, the trial court issued a bond forfeiture summons that ordered Holt Bonding to appear on July 24, 2002, to show cause as to why the bail bond should not be forfeited. At the July 24, 2002 hearing, Holt Bonding argued that Rando-Grando did not receive notice of the mandatory appearance and that it did not receive notice of Rando-Grando's forfeiture. The State argued that notice of the forfeiture was sent to Holt Bonding. Following the hearing, the court issued a bond forfeiture judgment ordering Holt Bonding to remit $4,500 to the State. From that judgment comes this appeal.

Holt Bonding first asserts that the judgment against it is void because the defendant Rando-Grando did not receive notice of the mandatory appearance. Arkansas law imposes a significant responsibility on an appearance bond surety. Bob Cole Bail Bonds, Inc. v. State, 65 Ark. App. 1, 984 S.W.2d 78 (1999). It should be noted that the defendant, rather than being held in custody by the State, is released to the surety who assumes custody of him and is responsible to the court for his appearance at any time. AAA Bail Bond Co. v. State, 55 Ark. App. 35, 929 S.W.2d 723 (1996). Although the surety is not expected to keep the principal in physical restraint, he is expected to keep close track of his whereabouts and keep him within this State, subject to the jurisdiction of the court. Id. Accordingly, it was proper for the court, in lieu of giving Rando-Grando notice of the appearance, to give Holt Bonding notice of the mandatory appearance.

Holt Bonding also alleges that the judgment against it is void because the trial court failed to comply with Ark. Code Ann. § 16-84-201(a) (Supp. 2001). Section 16-84-201(a)provides:

(B) The one hundred twenty-day period in which the defendant must be surrendered or apprehended pursuant to subdivision (c)(2) of this section begins to run from the date notice is sent by certified mail to the surety company at the address shown on the bond, whether or not it is received by the surety.

(2) The order shall also require the officer who was responsible for taking of bail to appear, unless:

(A) The surety is a bail bondsman; or

(B) The officer accepted cash in the amount of bail.

(Emphasis added.) Statutory service requirements, being in derogation of common-law rights, must be strictly construed, and compliance with them must be exact. Holt Bonding Co. v. State, 77 Ark. App. 198, 72 S.W.3d 537 (2002). Substantial compliance will not suffice. Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147 (2000).

In Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147 (2000), the appellant argued that service was defective because there was no evidence that notice was sent to the address on the bail bond. Neither party introduced the bail bond into evidence. Our supreme court focused its inquiry on the question of which party had the burden of introducing the bail bond into evidence. The court held that since the appellant asserted the defense of defective service, it had the burden of showing that notice was sent to the wrong address. The court also held that appellant failed to present the lower court with evidence of the bail bond itself and that the failure to introduce the bail bond was fatal to appellant's defense of defective service.

In the case at bar, the lower court had before it the file that included the bail bond, the January 30, 2002 order, informing Holt Bonding of Rando-Grando's failure to appear, the bond forfeiture summons, an affidavit of service and the certified mail receipts that purported to accompany the January 30, 2002 order, and the bond forfeiture summons. Accordingly, the bail bond was properly before the lower court, and we can address the issue of whether Holt Bonding was afforded proper service.

Holt Bonding argues that service was defective because there was no evidence that the January 30, 2002 order, was sent. Accordingly, Holt Bonding bore the burden of proving that the order was not sent. In support of its argument Holt Bonding raises the following subpoints (1) there was no affidavit of service of process attached to the January 30, 2002 order, and (2) there is no post mark on the certified mail certificate. In its other correspondences with Holt Bonding, the lower court attached an affidavit of service of process with the documents. Section 16-84-201 does not require such an affidavit, nor does it require that the lower court ensure receipt of the notice. Section 16-84-201 merely requires that the notice of forfeiture be sent by certified mail; therefore, the absence of the affidavit of service of process did not render service defective.

However, section 16-84-201 does require that the notice be sent by certified mail. Here, the certified mail certificate that was attached to the January 30, 2002 order, lacked apost mark. We hold that the failure to ensure a proper post mark constitutes a failure to strictly comply with the requirements of section 16-84-201 and that Holt Bonding was not afforded proper service. Therefore, we reverse the lower court's forfeiture of the bail bond.

Holt Bonding also asserts that, because it is not a bail bondsman and the summons was not issued promptly, the lower court further failed to strictly comply with the requirements of section 16-84-201. The aforementioned arguments were not raised below and accordingly they are not preserved for our review. Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147 (2000).

Reversed.

Gladwin and Robbins, JJ., agree.