People v. Evans

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: People v. Evans, 425 N.W.2d 209, 168 Mich.App. 654 (Mich. App. 1988)
• Decision Date: 07 July 1988
• Docket Number: Docket No. 99545
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pearl Lee EVANS, Defendant, and Edward Kosciuszko and Katherine Kosciuszko, d/b/a Kozy Bail Bond, Defendants-Appellants.

Page 209

425 N.W.2d 209

168 Mich.App. 654

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pearl Lee EVANS, Defendant and Edward Kosciuszko and Katherine Kosciuszko, d/b/a Kozy Bail Bond, Defendants-Appellants.

Docket No. 99545.

Court of Appeals of Michigan.

Submitted April 14, 1988.

Decided May 17, 1988.

Released for Publication July 7, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

Doozan & Scorsone, P.C. by Vincent A. Scorsone, Saginaw, for Kozy Bail Bond.

Before BEASLEY, P.J., and HOOD and TAHVONEN, ^* JJ.

PER CURIAM.

Defendants, Edward and Katherine Kosciuszko, doing business as Kozy Bail Bond, appeal as of right from a March 11, 1987, amended judgment ordering them to pay the County of Bay $15,000, plus twelve percent interest. Defendants had been the surety of a criminal defendant, Pearl Lee Evans, who absconded on bond.

On September 6, 1985, Pearl Lee Evans was convicted of two counts of uttering and publishing a false or altered check with intent to defraud, in violation of M.C.L. Sec. 750.249; M.S.A. Sec. 28.446, one count of conspiracy to commit the offense of uttering and publishing a false or altered check, in violation of M.C.L. Sec. 750.157a(a); M.S.A. Sec. 28.354(1)(a), and one count of larceny in a store, in violation of M.C.L. Sec. 750.360; M.S.A. Sec. 28.592.

Evans also was charged with being an habitual offender, in violation of M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. Following Evans' convictions on the underlying offenses, the court adjourned the habitual offender proceeding until September 9, 1985. Despite the convictions, the court continued Evans' $15,000 surety bond. Evans did not appear before the court on September 9, 1985, and the trial judge forfeited her $15,000 surety bond and issued a bench warrant for her arrest. On September 16, 1985, the court entered an order forfeiting Evans' bond.

On October 8, 1985, the prosecution filed a motion for entry of judgment against Evans' surety, defendants Edward and Katherine Kosciuszko, doing business as Kozy Bail Bond, in the amount of $15,000. At a February 10, 1986, motion hearing, counsel for defendants argued that Mr. Kosciuszko believed that he was very close to locating Evans and asked the court to give defendants a sixty-day extension, during which they would continue their efforts to locate Evans. On March 12, 1986, the court entered a judgment against the surety and in favor of the county for $15,000 plus interest, but further ordered that execution of the judgment be stayed for sixty days.

According to an affidavit filed by an employee of Kozy Bail Bond, on May 7, 1986, through the efforts of Kozy Bail Bond, Evans was arrested and jailed in the Saginaw County Jail. Kozy Bail Bond expended $6,500 in locating and detaining Evans. ¹ On February 12, 1987, Kozy Bail Bond filed a motion to set aside the bond forfeiture and the judgment against the surety. During a February 23, 1987, motion hearing, the court indicated that defendants should be allowed a $6,500 setoff against the earlier judgment for the amount of money expended in locating and apprehending Evans. On March 11, 1987, the court amended the judgment from which defendants now appeal.

On appeal, defendants argue that, according to MCL 765.15; MSA 28.902, the trial court erred in failing to set aside the entire forfeiture judgment because Evans, the absconding principal defendant, was apprehended within one year from the date of the forfeiture judgment, because the ends of justice have not been thwarted, and because the county did not expend any costs in apprehending her.

M.C.L. Sec. 765.15; M.S.A. Sec. 28.902 provides:

"(a) 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.

"(b) If such bond or bail be discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the depositor. Upon presentation of a certified copy of such order, the treasurer or clerk having such cash, check or security shall pay or deliver the same to the person named therein or to his order.

"(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." (Emphasis added.)

In People v. Johnson, ² the defendant was charged with the sale of heroin and was released on bond furnished by a surety. The defendant failed to appear for trial and forfeited the $5,000 bond. A judgment for the full amount of the bond was entered against the surety. After the surety paid the full amount of the judgment, the defendant was found to be incarcerated within the state. The surety then brought a motion for remission, which the trial court denied. The surety appealed to this Court, arguing that the word "security" in M.C.L. Sec. 765.15; M.S.A. Sec. 28.902 encompasses surety bonds and, therefore, the $5,000 it paid should be remitted. This Court affirmed the trial court's refusal to remit to the surety the $5,000 paid in satisfaction of the judgment entered against it, holding that the term "security" in the statute applies only to such negotiable securities as are permitted to be filed in lieu of bond or bail under M.C.L. Sec. 765.12; M.S.A. Sec. 28.899.

In People v. Pavlak, ³ another panel of this Court disagreed with the Johnson holding, stating:

"We find the reasoning of People v Tom Johnson unpersuasive and do not see any basis for the distinction in treatment between deposit bail and a bond posted by a corporate surety. MCL 765.6; MSA 28.893 expressly provides that the amount of bail shall be uniform whether the bond is executed by the accused or by a surety. MCL 765.12; MSA 28.899 allows the deposit of cash, certified checks, etc., in an amount equal to the bond or bail which is required, and 'in lieu thereof'. The obvious legislative intent behind these provisions is that both sorts of bail should be treated similarly. Common sense, and fidelity to the Legislature's apparent intent, would dictate that bonds which are to be treated alike...