People v. Evans
| Decision Date | 03 April 1990 |
| Docket Number | Docket No. 83297 |
| Citation | 434 Mich. 314,454 N.W.2d 105 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Pearl EVANS, Defendant, v. Edward KOSCIUSZKO and Katherine Kosciuszko, d/b/a Kozy Bail Bond, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., Bay City, for the People.
Vincent A. Scorsone and Joseph Samuel Scorsone, Saginaw, for defendant-appellee.
The question before the Court is whether the forfeiture set-aside provision of M.C.L. Sec. 765.15(a); M.S.A. Sec. 28.902(a) applies in cases where a criminal defendant's release was secured by the posting of a surety bond with the trial court. We hold that the set-aside provision applies only where the defendant's release was obtained by the placement of cash, a check, or certain securities on deposit with the trial court, pursuant to M.C.L. Sec. 765.12; M.S.A. Sec. 28.899, in lieu of the more typical surety bond.
On September 9, 1985, defendant Pearl Evans failed to appear for habitual offender proceedings. At the time, she was free on a $15,000 surety bond posted by defendants Edward and Katherine Kosciuszko, doing business as Kozy Bail Bond. The judge issued an order forfeiting the bond on September 18, 1985.
Plaintiff filed a motion for entry of judgment against the surety. A hearing on the motion was held on February 10, 1986, after two postponements. At the hearing, Kozy's counsel stated that his client was confident he could locate Evans, and requested a sixty-day extension of the hearing. The trial judge instead agreed to stay execution of the judgment of forfeiture for sixty days. It appears from the record that the judge believed he could amend the judgment of forfeiture under M.C.L. Sec. 765.28; M.S.A. Sec. 28.915, if Kozy eventually produced Evans. The judgment of forfeiture with a sixty-day stay was signed on March 12, 1986. 1 Evans was apprehended through the efforts of Kozy and returned to custody on May 7, 1986. Kozy spent $6,500 to locate and apprehend Evans.
Kozy made no effort to secure remission of the forfeited bond until February 17, 1987, when it filed a motion to set aside the forfeiture and judgment. Kozy argued that it was entitled to remission of the forfeited bond because it had produced Evans within sixty days of the March 12, 1986, judgment, and, in the alternative, because it had satisfied the requirements for remission of forfeited bonds under M.C.L. Sec. 765.15; M.S.A. Sec. 18.902. This statute provides:
"(c) In case such cash, check or security shall be in the hands of the sheriff or any officer, other than such treasurer or clerk, at the time it is declared discharged or forfeited, the officer holding the same shall make such disposition thereof as the court shall order, upon presentation of a certified copy of the order of the court." M.C.L. Sec. 765.15; M.S.A. Sec. 28.902. (Emphasis added.)
In arguing that Sec. 15 applied, Kozy relied on People v. Pavlak, 99 Mich.App. 190, 297 N.W.2d 878 (1980). The Court in Pavlak disagreed with a decision of another panel of the Court of Appeals which held that Sec. 15 did not apply to commercial surety bonds. People v. Johnson, 72 Mich.App. 702, 250 N.W.2d 508 (1976). After considering arguments from counsel on Kozy's motion of February 23, 1987, the trial court entered an "amended judgment" on March 11, 1987, that stated, in part:
"IT IS HEREBY ORDERED pursuant to M.C.L. 756.28 [M.S.A. 28.915] that the Judgment previously entered on March 12, 1986 against Surety is hereby modified such that the surety shall pay to the County of Bay $15,000.00 plus 12% interest from October 8, 1985 but the Surety is hereby entitled to a setoff of $6,500.00 against that sum for its expenses in locating and returning Pearl Lee Evans to custody."
Kozy appealed this amended judgment in the Court of Appeals. The Court of Appeals agreed with the panel in Pavlak and decided that the trial judge should have remitted Kozy's bond under Sec. 15. People v. Evans, 168 Mich.App. 654, 425 N.W.2d 209 (1988). The Court of Appeals certified that its decision conflicted with that of the panel in Johnson, and we granted plaintiff's application for leave to appeal. 2
The statutory provision which we construe today, Sec. 15 of Chapter V of the Code of Criminal Procedure, M.C.L. Sec. 765.1 et seq.; M.S.A. Sec. 28.888 et seq., is one of a number of sections within that chapter which concern the right of a party to deposit cash, a check, or certain negotiable securities with a trial court in order to secure a defendant's release when bail is either required or permitted. 3 Sections 12 through 18 of Chapter V were originally enacted together in 1919, in substantially the same form in which they exist today, as a single, comprehensive act entitled:
"AN ACT to provide for the furnishing and acceptance of cash, certified checks or certain obligations of the United States government or of municipal corporations in lieu of bonds or bail of other character required or permitted by law." 1919 P.A. 332. 4
They are thus considered "in pari materia," and as such must be read and construed together. Wayne Co. v. Dep't of Social Welfare, 343 Mich. 475, 480, 72 N.W.2d 200 (1955); Van Antwerp v. State, 334 Mich. 593, 605, 55 N.W.2d 108 (1952).
The first of these sections, Sec. 12, establishes the right of a party to deposit cash, a check, or certain [negotiable] securities with the court, "in lieu" of other forms of bond or bail:
"In any criminal cause or proceeding where bond or bail of any character is required or permitted for any purpose, the party or parties required or permitted to furnish such bail or bond may deposit, in lieu thereof, in the manner herein provided, cash, certified check on any state or national bank in this state, obligations of the United States government negotiable by delivery or bonds of any municipality of this state negotiable by delivery, equal in amount to the amount of the bond or bail so required or permitted."
Section 13 describes the procedure to be followed in depositing "[s]uch cash, check or security" with the court, which must then, under Sec. 14, treat the deposit as the equivalent of the bond or bail "in lieu" of which it has been deposited.
Section 15, the provision at issue in this case, addresses what happens to the "cash, check or security" in the event of either a forfeiture or a discharge of the "bond or bail." Section 16 provides that the "[c]ash check[ ] or securit[y]" deposited with the court shall not be subject to garnishment or attachment, although it may be assignable under certain circumstances. Section 17 provides that the deposit is to be placed in a special fund, the interest on which is to be received by the state or local government "according to the nature of the case," except that interest coupons attached to the government bonds or securities may not be detached. Lastly, Sec. 18 allows any depositor to redeem the cash, check, or securities deposited with the court by "substituting the bond originally required or permitted."
The question in this case concerns the applicability of the second sentence in Sec. 15(a), which states that the court "shall set aside the forfeiture and discharge the bail or bond, within 1 year from the time of the forfeiture judgment" if certain conditions are met. This sentence was not a part of the original 1919 legislation; it was added to Sec. 15(a) by 1970 P.A. 226.
The defendant-surety contends, and the Court of Appeals has agreed, that this later-enacted set-aside provision is not limited in application to situations in which cash, checks, or certain securities have been deposited with the court on a defendant's behalf, but applies even where the defendant's release was obtained by the execution of a surety bond with the court. In our opinion, to conclude that Sec. 15(a), or any part of it, was ever intended to apply in cases where cash, checks, or certain securities were not actually placed on deposit with the court greatly exalts form over substance and completely fails to recognize the limited application of, and the relationship among, Secs. 12 through 18.
A
Prior to the addition in 1970 of the set-aside provision, Sec. 15 plainly was intended to apply only where cash, checks, or securities had been deposited with the court. Nothing makes this conclusion more clear than the fact that all of the other sections with which it was originally enacted were, and still are, exclusively concerned with deposits with the court.
As explained above, Sec. 12 creates the right to deposit such instruments; Sec. 13 describes the procedures for doing so; Sec. 14 makes the deposit the equivalent of bond or bail; Sec. 16 prohibits garnishment or attachment of the deposits, but allows assignment in certain circumstances; Sec. 17 explains who collects...
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