State v. Ascencio

• Decision Date: 19 October 1979
• Docket Number: No. 79-010,79-010
• Citation: 92 Wis.2d 822,285 N.W.2d 910
• Parties: STATE of Wisconsin, Plaintiff, v. Joseph ASCENCIO, Defendant. Gerald KAHN, of Meiroff and Kahn Bonding and Insurance Company, and Allegheny Mutual Casualty Company, by its duly authorized agent, Gerald Kahn, Appellant, v. John M. ULLSVIK, District Attorney, Jefferson County, Respondent.
• Court: Wisconsin Court of Appeals

Page 910

285 N.W.2d 910

92 Wis.2d 822

STATE of Wisconsin, Plaintiff, v. Joseph ASCENCIO, Defendant.

Gerald KAHN, of Meiroff and Kahn Bonding and Insurance

Company, and Allegheny Mutual Casualty Company, by

its duly authorized agent, Gerald Kahn, Appellant, v. John M. ULLSVIK, District Attorney, Jefferson County, Respondent.

No. 79-010.

Court of Appeals of Wisconsin.

Submitted on Briefs July 23, 1979.

Opinion Released Oct. 19, 1979.

Opinion Filed Oct. 19, 1979.

Paul E. Sicula and Atinsky, Kahn, Sicula & Teper, Milwaukee, on brief, for appellant.

Richard A. Perkins, Dist. Atty., Jefferson County, on brief, for respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

This is an appeal by a bail bond surety from judgment entered by the circuit court against the surety for the full amount of the bond with no remission. We reverse.

Although not raised by the parties, we must determine whether we have jurisdiction of the appeal. The notice of appeal was filed in the trial court January 3, 1979, and appeals from "the whole order of December 8, 1978 rendered by the Hon. John B. Danforth, Circuit Court Judge, Jefferson County, wherein it was ordered that the State be granted a judgment against the undersigned sureties for the amount of Twenty-five Thousand Dollars ($25,000.00) as a bail forfeiture judgment . . . ."

The order signed on December 8, 1978, provides:

Upon all of the records, files and proceedings herein had and taken, and on December 8, 1978, the Court having held a hearing concerning the State's motion for judgment upon the court's order of bail forfeiture,

IT IS HEREBY ORDERED that the State's motion for judgment of forfeiture of bail, is granted.

A final judgment against defendant for $25,000 was signed and entered December 29, 1978. The December 8 order was not a final order appealable as of right under sec. 808.03(1), Stats., because it contemplated the entry of a judgment. Barneveld State Bank v. Petersen, 68 Wis.2d 26, 29-30, 227 N.W.2d 690 (1975). The question is whether this court has jurisdiction of the appeal in light of the fact that the appellant appealed from the nonfinal December 8 order rather than the December 29 judgment which is appealable as of right under sec. 808.03(1).

Rule 809.10(1)(a), Stats., provides that an appeal is initiated by filing a notice of appeal which "shall specify in the notice of appeal the judgment or order appealed from." The intent of the notice of appeal, which was filed after entry of the judgment, is to obtain relief from the judgment. There is no requirement that the notice set forth the date of the order or judgment appealed from. "All that is necessary is that the judgment or order be sufficiently identified that there can be no doubt (as to) what is appealed from." State v. Avery, 80 Wis.2d 305, 309, 259 N.W.2d 63, 64 (1977). Treating reference to the December 8 date as surplusage, there is no possibility of confusion as to what is appealed from in the instant case. We therefore conclude that this court has jurisdiction of the appeal.

The issue on the merits is whether the court abused its discretion in refusing to remit all or part of the amount of the bond in excess of the expenses of the state resulting from the principal's failure to appear for trial.

April 17, 1977, Joseph Ascencio of Riverdale, Illinois was charged in the circuit court for Jefferson County with criminal trespass, battery, second degree sexual assault and false imprisonment, in violation of secs. 940.19, 940.225(2) and 940.30, 943.14, Stats. Bail of $25,000 was set. Ascencio pleaded not guilty. A $25,000 bail bond was executed by Ascencio as principal and Allegheny Mutual Insurance Company as surety, Gerald Kahn of Meiroff and Kahn Bonding and Insurance Company, as its agent.

The state asserts, and the surety does not contend otherwise, that Ascencio and the surety received notice of the trial date, June 27, 1978 at 9:00 a. m. The jury, counsel and subpoenaed witnesses were present at the appointed hour but not Ascencio. The court ordered the bond forfeited ¹ and issued a bench warrant for Ascencio's arrest.

Ascencio was arrested by Illinois authorities June 30, 1978 in Sauk Village, Illinois. He was taken to the Cook County, Illinois jail where he refused to waive extradition. Formal extradition proceedings were initiated, as a result of which Ascencio waived extradition September 19, 1978 and was immediately returned to Wisconsin. He pleaded guilty October 5, 1978, to a reduced charge on one count of third degree sexual assault, sec. 940.225(3), Stats., and guilty to the other original charges plus a misdemeanor charge of jumping bail, sec. 946.49(1), Stats.

Ascencio was sentenced December 8, 1978, following which the court heard the state's motion for judgment on the bail forfeiture order. Mr. Kahn appeared at the hearing.

Ascencio testified that he knew the trial was set for the morning of June 27, 1978, but that he was helping a pregnant friend in Sauk Village who had been experiencing labor pains for about a week and expected her child July 2, 1978. Fatigued by his ministrations until the early morning of the trial, he thought it unwise to drive to Wisconsin and napped until noon. He then called his attorney who advised him immediately to return to Wisconsin. An Illinois public defender advised him not to waive extradition on the theory that Wisconsin might fail to seek extradition or botch the process. He waived extradition when told the papers were in order.

Mr. Kahn did not receive notice of the order of forfeiture until July 5, 1978. The surety was unable to return Ascencio to Wisconsin within the thirty days provided by sec. 969.13(4), Stats. because he was in the Cook County jail and would not waive extradition.

Mr. Kahn produced evidence that the total cost of the jury and witness fees for the scheduled trial was $846.15. The sheriff's expenses in returning Ascencio from the Cook County jail were $131.20. Mr. Kahn offered on behalf of the surety to reimburse the state for those costs as well as $500 for preparing the extradition, if the bond was reinstated. He indicated that the surety would be willing to pay the costs of the Sauk Village police, the public defenders and the jail time of Ascencio in Illinois from July until the date of his return, although it might be difficult to compute those items.

The court stated that it saw no reason why the forfeiture order should be modified and granted judgment against the surety for the full amount of the bond.

It is undisputed that the conditions of the bond were not complied with when defendant defaulted by not appearing at the scheduled trial. The trial court properly entered an order declaring the bail forfeited. Sec. 969.13(1), Stats.

The defendant did not appear and surrender to the court within thirty days from the date of the forfeiture and there was no showing that his failure to appear and surrender at the time scheduled for his appearance was impossible and without his fault. Read literally, sec. 969.13(4), Stats., requires the court upon motion of the district attorney to enter judgment for the state against the defendant and his sureties for the amount of bail and costs of the court proceeding.

The judgment, however, is based upon the forfeiture order. Section 969.13(2), Stats., permits the court to set aside the forfeiture order upon such conditions as the court imposes "if it appears that justice does not require the enforcement of the forfeiture." No part of sec. 969.13 prohibits the court from setting aside an order of forfeiture after the thirty day period in sub. (4) has elapsed.

It is reasonable to permit remission at any time prior to judgment. The state desires that the surety seek out, apprehend and surrender the defaulting principal to bring the principal to justice and to save the state costs and delay. We must preserve an incentive for the surety to return the defaulting principal. That incentive must be a possible reduction in the amount of forfeiture, for if the surety can salvage nothing after a principal has defaulted, the surety will not throw good money after bad.

We conclude that prior to entry of judgment of forfeiture, the trial court may set aside or modify the order for forfeiture on such conditions as the court deems justice requires.

The decision whether to set aside or modify the order is highly discretionary and is reviewable in the same manner that all discretionary acts are to be reviewed.

We look first for evidence that the trial court exercised its discretion when making its decision and next for a statement by the trial court as to the basis for that exercise. McCleary v. State, 49 Wis.2d 263, 277, 281-82, 182 N.W.2d 512 (1971). If we conclude that the trial court has not considered the factors on which exercise of its discretion should have been based, the decision will be upheld if we find facts which would support the decision had discretion been exercised on the basis of those facts; and we must reverse if the facts show that the decision is insupportable. Maier Const., Inc. v. Ryan, 81 Wis.2d 463, 473, 260 N.W.2d 700 (1978), citing Klimas v. State, 75 Wis.2d 244, 247, 249 N.W.2d 285 (1977), and Hyslop v. Maxwell, 65 Wis.2d 658, 664, 223 N.W.2d 516 (1974).

The trial court exercised its discretion in refusing to modify the order but failed to state the basis for its action, perhaps because of the dearth of precedent in this state as to what factors should be taken into account.

Our bail forfeiture statute is patterned in part upon Rule 46 of the Federal Rules of Criminal Procedure. ² Although sec. 969.13 does not contain a specific provision on remission, as does the federal rule, and contains a thirty day provision which the federal rule does not, federal precedents are of some assistance.

United States v. Davis, 202 F.2d 621 (7th Cir. 1953), Cert. den. sub nom. Ferguson v. United States, 345 U.S. 998,...