Forfeiture of Bail Bond, In re, Docket No. 162278

• Decision Date: 03 April 1995
• Docket Number: Docket No. 162278
• Citation: 209 Mich.App. 540,531 N.W.2d 806
• Parties: In re FORFEITURE OF BAIL BOND. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myung Won KANG, Defendant, and Min Nam Lee, Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 806

531 N.W.2d 806

209 Mich.App. 540

In re FORFEITURE OF BAIL BOND PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myung Won KANG, Defendant and Min Nam Lee, Appellant.

Docket No. 162278.

Court of Appeals of Michigan.

Submitted Feb. 8, 1995, at Grand Rapids.

Decided April 3, 1995, at 9:25 a.m.

Released for Publication May 24, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Donald E. Martin, Pros. Atty., Samuel R. Smith, Chief Appellate Atty., and Susan L. LeDuc, Deputy Chief Asst. Prosecutor, for people.

Patrick L. Chatterton, Flint, for Min Nam Lee.

Before MURPHY, P.J., and MacKENZIE and HOEKSTRA, JJ.

HOEKSTRA, Judge.

Appellant Min Nam Lee appeals as of right from an order denying his motion to set aside a bond forfeiture order pursuant to M.C.L. § 765.15; M.S.A. § 28.902. We reverse.

Defendant Myung Won Kang was charged in Bay County with armed robbery and released on November 21, 1990, after cashier's checks in the amount of $50,000 were deposited to satisfy the cash or surety bond that had been set by the district court. Subsequently, pursuant to a plea agreement, defendant pleaded no contest to a charge of unarmed robbery and, on May 21, 1991, was to appear for a hearing regarding his motion to set aside the no-contest plea and for sentencing. Defendant failed to appear and the court ordered the bond forfeited and authorized the issuance of a bench warrant. ¹

Defendant was arrested on unrelated charges on December 22, 1991, in the State of New Jersey. Thereafter, a hold was placed on defendant by the Bay County Prosecutor's office for his return to Michigan. He remained in custody in New Jersey until his return to Michigan on July 19, 1994. On August 29, 1994, defendant was sentenced to a term of nine to fifteen years' imprisonment for the unarmed robbery conviction.

Meanwhile, on December 28, 1992, appellant, who was claiming to be the depositor of the forfeited bond, moved under MCL 765.15; MSA 28.902 to set aside the forfeiture of the $50,000 cash bond. At a hearing on February 22, 1993, appellant's motion was denied.

The trial court denied appellant's motion to set aside the forfeiture order for three reasons. First, the provisions for setting aside a forfeited bond in M.C.L. § 765.15(a); M.S.A. § 28.902(a) had not been met because defendant, who was still in the State of New Jersey, had not been returned to the county where the bond was posted. Secondly, defendant was the only person authorized to post the bond pursuant to the language of MCR 6.106 before its amendment in 1992, and, therefore, was the only one authorized to petition for its return. And finally, the record indicated that defendant, not appellant, was in fact the one who posted the bond because his was the only name on the bail bond form.

I

One of the reasons appellant's motion was denied by the trial court was because defendant was not "in the custody of the authorities of Michigan." Impliedly, the trial court interpreted the requirement of M.C.L. § 765.15(a); M.S.A. § 28.902(a) that a defendant be "apprehended" to exclude a person held in custody in another state.

We have not been cited to, nor have we found, any authority that addresses this precise issue. We believe that the trial court's decision is not consistent with a common sense reading of the statute. We hold that a person is "apprehended" within the meaning of M.C.L. § 765.15(a); M.S.A. § 28.902(a) when that person is held in custody in another state.

A

Before its amendment in 1993 by 1993 P.A. 343, M.C.L. § 765.15(a); M.S.A. § 28.902(a) read as follows: ²

If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof. The court shall set aside the forfeiture and discharge the bail or bond, within 1 year from the time of the forfeiture judgment, in accordance with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person.

We believe the legislative purpose of § 15(a) is to provide a statutory provision to effect the recognized purpose of a bond. It is well settled that the purpose of a bond is to assure the appearance of a defendant and not to collect revenue. People v. Benmore, 298 Mich. 701, 707, 299 N.W. 773 (1941); People v. Harbin, 88 Mich.App. 341, 343, 276 N.W.2d 607 (1979). In light of this recognized purpose, we see no reason to read § 15(a) as narrowly as the trial court did.

Unless defined in the statute, every word in a statute should be given its plain and ordinary meaning. People v. Gregg, 206 Mich.App. 208, 211, 520 N.W.2d 690 (1994). When terms are not expressly defined by a statute, a court may consult dictionary definitions. Id. at 212, 520 N.W.2d 690. The Random House Webster's College Dictionary (1992) defines "apprehend" to mean "to take into custody." The word "apprehend" appears to have no legal connotation beyond its common meaning; Black's Law Dictionary (6th ed.) defines "apprehend" as "to take hold of...." To suggest, as the trial court did, a requirement that a person had to be delivered to a particular location simply infers something more than ordinary usage requires.

Had the Legislature intended to require more than the holding or taking into custody of a person, they could have included language requiring delivery of the person to a particular location, as they did elsewhere in the Code of Criminal Procedure.

M.C.L. § 765.26; M.S.A. § 28.913, which also applies to situations involving bail, provides in relevant part:

In all criminal cases where any person or persons have entered into any recognizance for the personal appearance of another and such bail and surety shall afterwards desire to be relieved from his responsibility, he may with or without assistance, arrest the accused and deliver him at the jail or to the sheriff of said county.

The Legislature, not having qualified the apprehension in § 15(a) to require delivery of the person to a particular location as they did in § 26, we likewise decline to do so.

Furthermore, § 15(a) contains other qualifying provisions in addition to apprehension. To obtain relief, the ends of justice must not have been thwarted and the depositor must pay the costs of the apprehension. Utilizing the concept of expressio unius est exclusio alterius, we conclude that because certain other requirements in addition to apprehension are contained in § 15(a), an intention to exclude additional requirements can be inferred. See Michigan Ass'n of Intermediate Special Ed. Administrators v. Dep't of Social Services, 207 Mich.App. 491, 497, 526 N.W.2d 36 (1994).

By interpreting the apprehension requirement to include arrests in other states, we are mindful of the fact that the production of persons from one state to another is now routinely accomplished pursuant to either the Uniform Criminal Extradition Act, M.C.L. § 780.1 et seq.; M.S.A. § 28.1285(1) et seq., or, the Interstate Agreement on Detainers Act, M.C.L. § 780.601 et seq.; M.S.A. § 4.147(1) et seq. These statutes provide reliable means through which law enforcement officials in the various states can place effective holds on prisoners in other states and make arrangements to secure their return. In this case, the record indicates that the prosecutor placed such a hold. ³

B

We recognize our decision could be construed as contrary to the holding in People v. McCracken, 11 Mich.App. 553, 161 N.W.2d 758 (1968). In McCracken, a panel of this Court held that a surety could not have an order of forfeiture set aside when the defendant failed to appear because he was incarcerated by federal authorities in another state. McCracken relied on what is referred to as the majority rule in these types of cases. The majority rule holds generally that incarceration in another state does not relieve a surety of the obligation to produce the principal.

We choose not to follow McCracken for two reasons. First, support for the majority rule has eroded in most of the recent opinions in other jurisdictions. See anno: Bail: Effect on surety's liability under bail bond of principal's incarceration in other jurisdiction, 33 ALR4th 663, 667. Secondly, there is no indication that the McCracken Court was interpreting the statutory language of § 15(a). In fact, the opinion, which discussed the forfeiture of a surety bond, did not state on what basis, statutory or otherwise, the motion to set aside was decided. We believe that application of § 15(a) in the present situation requires a different result than that reached by this Court in McCracken, supra.

II

The trial court also denied appellant's motion on the basis of its belief that only a defendant could post a cash bond. Before its amendment in 1992, MCR 6.106(D) read as follows:

(1) If the court decides that the defendant cannot be released on his or her own recognizance or conditionally, then money bail with or without conditions may be required to assure his or her appearance.

(2) If the court finds that the defendant's appearance cannot otherwise be assured, it may require the defendant to post a surety bond or cash in the full amount of the bail, at the defendant's option. In making this finding, the court shall consider the factors listed in subrule (E) and state the reasons why a surety bond, or cash in the full amount of the bail, is necessary.

(3) Unless the court requires bail as provided in subrule (D)(2), the court shall advise the defendant of the option to satisfy the monetary requirement of bail under subrule (D)(3)(a) or (b).

(a) The defendant may post cash in the full amount of the bail set by the court or a surety bond written by a person or company licensed to write surety bonds.

(b) The...