People v. Munley

• Court: Court of Appeal of Michigan
• Writing for the Court: MacKENZIE; MILLER; MICHAEL J. KELLY
• Citation: People v. Munley, 438 N.W.2d 292, 175 Mich.App. 399 (Mich. App. 1989)
• Decision Date: 28 April 1989
• Docket Number: Docket No. 106022
• Parties: PEOPLE of the State of Michigan, Plaintiff, v. Norman William MUNLEY, Defendant. Donovan NEVILLE, Appellee, v. GENESEE COUNTY, Appellant. 175 Mich.App. 399, 438 N.W.2d 292

Page 292

438 N.W.2d 292

PEOPLE of the State of Michigan, Plaintiff, v. Norman William MUNLEY, Defendant.

Donovan NEVILLE, Appellee, v. GENESEE COUNTY, Appellant.

Docket No. 106022.

175 Mich.App. 399, 438 N.W.2d 292

Court of Appeals of Michigan.

Submitted Oct. 20, 1988.

Decided Feb. 23, 1989.

Released for Publication April 28, 1989.

[175 MICHAPP 400] Miner, Spuhler & Miner, P.C. by Earl R. Spuhler, Fenton, for Donovan Neville.

Richard M. Barron, Flint, for Genesee County.

Before MICHAEL J. KELLY, P.J., and MacKENZIE and MILLER, ^* JJ.

MacKENZIE, Judge.

In 1984, Donovan Neville, surety-appellee, posted a $50,000 recognizance bond for the release of Norman William Munley, against whom criminal charges had been brought in Genesee County. Munley failed to appear for a 1985 sentencing proceeding and forfeited bond. On July 3, 1985, a judgment was entered for appellant Genesee County against Munley and the surety for the amount of the bond. See MCR 6.110(F)(2).

In May, 1987, Munley was stopped for a traffic violation in Georgia. He was subsequently extradited to Genesee County and sentenced to a prison term. On July 6, 1987, two years after the judgment of forfeiture was entered and when $12,032.95 had been paid to the county toward [175 MICHAPP 401] satisfaction of the judgment, the surety filed a motion to set aside the July 3, 1985, judgment of bond forfeiture. See MCR 3.605(D). The trial court granted the motion, setting aside the judgment and ordering appellant Genesee County to repay the sum collected from the surety-appellee less the cost of returning Munley to the county. The county appeals as of right. We affirm.

M.C.L. Sec. 765.15; M.S.A. Sec. 28.902, governing the remission of bond forfeitures, provides as follows:

"(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.]

There is a split of authority as to whether M.C.L. Sec. [175 MICHAPP 402] 765.15; M.S.A. Sec. 28.902 applies to surety bonds, such as the bond in this case. In People v. Tom Johnson, 72 Mich.App. 702, 250 N.W.2d 508 (1976), a panel of this Court concluded that the statute only authorizes remission of forfeited deposit bonds, not surety bonds. According to the Tom Johnson panel, the surety's remedy lies in the procedural provisions of the court rules and Revised Judicature Act:

"After a judgment has been entered against a surety it stands as any judgment rendered in a personal action. It is enforceable, reviewable and appealable by way of the same provisions and by other statutes and court rules which may apply to the specific situation, e.g. GCR 1963, 528 [now MCR 2.612], MCLA 600.4835; MSA 27A.4835. Appellant has not been left without a remedy." [72 Mich.App. 709, 250 N.W.2d 508.]

In People v. Pavlak, 99 Mich.App. 190, 297 N.W.2d 878 (1980), however, the panel disagreed with the Tom Johnson holding and concluded that the Legislature intended similar treatment of deposit bonds and bonds posted by a security. The Pavlak Court held that "[c]ommon sense, and fidelity to the Legislature's apparent intent, would dictate that bonds which are treated alike should be treated alike for all purposes, including remission of forfeitures." 99 Mich.App. 194. Recently, in People v. Evans, 168 Mich.App. 654, 425 N.W.2d 209 (1988), lv. gtd. 431 Mich. 870 (1988), another panel agreed with the Pavlak decision and concluded that M.C.L. Sec. 765.15; M.S.A. Sec. 28.902 authorizes remission of a forfeited surety bond.

We are of the opinion that Tom Johnson represents the sounder view. The plain language of M.C.L. Sec. 765.15; M.S.A. Sec. 28.902 clearly contemplates a situation in which cash, checks, or securities are deposited as bond. No such deposit exists when a [175 MICHAPP 403] surety recognizance bond is posted; a surety bond is a contractual promise made by the surety that if the principal/criminal defendant defaults, the surety will pay the bond when a judgment of forfeiture is entered. Like the Tom Johnson panel, we therefore conclude that M.C.L. Sec. 765.15; M.S.A. Sec. 28.902 does not authorize remissions of forfeited surety bonds. Authorization for remission of a forfeited security bond must be found elsewhere.

Chapter 48 of the Revised Judicature Act governs the collection of penalties, fines, and forfeited recognizances. M.C.L. Sec. 600.4835; M.S.A. Sec. 27A.4835 provides in pertinent part:

"The circuit court for the county in which such court was held, or in which such recognizance was taken, may, upon good cause shown, remit any penalty, or any part thereof, upon such terms as appear just and equitable to the court."

For purposes of the statute, the term "penalty" includes forfeited recognizances. M.C.L. Sec. 600.4801; M.S.A. Sec. 27A.4801. In light of this definition, we are satisfied that M.C.L. Sec. 600.4835; M.S.A. Sec. 27A.4835 governs the remission of a forfeited surety bond. Under the statute, a forfeited recognizance bond may be remitted as it appears just and equitable.

Remission of a forfeited bond, in whole or in part, is a matter of sound judicial discretion. People v. Benmore, 298 Mich. 701, 299 N.W. 773 (1941). See also People v. Judge of Recorder's Court, 23 Mich.App. 126, 178 N.W.2d 146 (1970), lv. den. 384 Mich. 781 (1970). In the instant case, the trial court recognized the holding of Tom Johnson and, although not specifically citing M.C.L. Sec. 600.4835; M.S.A. Sec. 27A.4835, set aside the judgment of forfeiture on equitable grounds. We find no...