State v. Blake

• Decision Date: 24 June 1994
• Citation: 642 So.2d 959
• Court: Alabama Supreme Court
• Parties: STATE of Alabama v. Robert BLAKE. 1921645.

Page 959

642 So.2d 959

STATE of Alabama v. Robert BLAKE.

1921645.

Supreme Court of Alabama.

June 24, 1994.

James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellant.

C. Tommy Nail and Becky A. Blake of McAbee, Nail & Ragsdale and William N. Clark and Gerald L. Miller, Birmingham, for appellee.

Barry E. Teague, Montgomery, for amicus curiae Alabama Bail Bonding Ass'n.

PER CURIAM.

This case involves a question of the constitutionality of four articles of Act 93-677, ¹ Ala.Acts 1993, the Bail Bond Reform Act of 1993 (hereinafter "the Act" or "the Alabama Act"), which first became effective on July 1, 1993. On July 8, 1993, the Jefferson Circuit Court declared that articles V, VI, VII, and VIII of the Act were "unconstitutional, null and void." On July 16, the State appealed, asking this Court to determine the constitutionality of articles V, VI, VII, and VIII. Subsequently, the Act was amended effective August 31, 1993, by Act 93-901, Ala.Acts 1993, to delay its effective date to July 1, 1994.

I. Facts

On July 5, 1993, Robert Blake was arrested and charged with the offense of theft by fraudulent leasing. Ala.Code 1975, § 13A-8-140. Blake had rented, but failed to return, a videotape of the movie "Born on the Fourth of July." Blake's bail was set at $300, as provided by the Act. Blake was employed at the time of his arrest, but had only $24 in savings and owned no real estate. He stated that he telephoned a bonding company and was informed that he would need to have someone with a job sign for him even if he could raise the $50 required to get the company to issue a bond. According to Blake, his mother had the $50, but she was retired and could not sign for him.

On July 6, 1993, Blake filed an affidavit of indigency and was given appointed counsel. Blake's counsel immediately filed in the Jefferson Circuit Court a "Petition for a Writ of Habeas Corpus and a Motion to Declare Act No. 93-677 Unconstitutional." The court held a hearing on the petition the same day, and on July 8, it entered a written order declaring articles V, VI, VII, and VIII of the Act unconstitutional. It should be noted that section 66 of article XI is a severability clause.

The circuit court's order held that article V ("Arrest by Principal's Sureties, Procedure of Arrest, Bondsman's Process"), article VI ("Forfeiture--Proceedings Thereon"), and article VIII ("Qualification for Property Bail") were unconstitutional because they were "too vague, unreasonable and overbroad." It found article VII ("Qualification of Bail--Judicial Public Bail") unconstitutional "because the indigent defendant in the case at bar was denied equal protection and due process under federal and state constitutional provisions, and [because] article VII is overbroad and vague." The circuit court further ordered that the procedures in existence before the implementation of the Act be put back into effect.

II. Article V ²

As noted above, article V of the Act is entitled "Arrest by Principal's Sureties, Procedure of Arrest, Bondsman's Process." It sets forth the procedures by which the surety on a defendant's bail bond can obtain from the clerk of the court with jurisdiction over the defendant a document that will allow the surety to arrest the defendant in order to guaranty the defendant's appearance in court. This new document is termed a "bondsman's process." Ruling that this article was unconstitutional, the circuit court concluded: "Article V attempts to provide for an arrest warrant to be issued to [someone not a] police officer who does not have even minimum standards of law enforcement [training]. The procedures attempted to be established for this bondsman's process [are] too vague to meet constitutional requirements."

A statute that does not concern First Amendment freedoms or the definition of criminal conduct may be declared unconstitutionally vague "only if a person of ordinary intelligence, exercising common sense, can derive no rule or standard at all from the statute's language." Friday v. Ethanol Corp., 539 So.2d 208, 213 (Ala.1988). Having reviewed the text of article V of the Act, this Court finds it clear that a person of average intelligence, exercising common sense, can derive a rule or standard for the procedures to be followed for a surety on a defendant's bail bond to obtain the bondsman's process needed to arrest the defendant. Accordingly, the article is not unconstitutionally vague.

The circuit court also ruled that article V is unconstitutionally "unreasonable and overbroad." This Court has previously stated that "[s]tatutes and regulations are void for overbreadth if their object is achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Friday, 539 So.2d at 215 (quoting Ross Neely Express, Inc. v. Alabama Dep't of Environmental Management, 437 So.2d 82, 85 (Ala.1983)). Apparently, the circuit court ruled that article V was unconstitutional because it provides the equivalent of an arrest warrant to bail bond sureties without requiring that the person who is to arrest the defendant have minimum training equivalent to that required for law enforcement officers, creating a possibility that the safety of Alabama citizens, in addition to the safety of the defendant, could be endangered by the attempted arrest.

Before the Act became effective, Ala.Code 1975, §§ 15-13-62 and -63 authorized a surety to arrest a defendant "on a certified copy of the undertaking" of bond. Section 15-13-62. Such authorization for a defendant's arrest by his bail bond surety continues in the Act, but in sections 18 and 19, in article IV, not in article V, as the circuit court's order implies. Article V of the Act only replaces the requirement that a surety have a certified copy of the undertaking of the bond in his possession in order to arrest the defendant, with the requirement that the surety possess a new document called a "bondsman's process," which clearly sets forth the surety's right to arrest the defendant. That right of arrest, which is a contractual right under the bond, see Livingston v. Browder, 51 Ala.App. 366, 285 So.2d 923 (Ala.Civ.App.1973), was not clearly expressed on the face of the copy of the undertaking of bond previously used. Thus, the basis on which the circuit court declared Article V unconstitutional, that it provides for the arrest of a defendant by a surety without law enforcement training, is not applicable to article V.

Further, it has been well established under both Alabama's statutory law and its case law for more than 100 years that a surety has the power to arrest a defendant to ensure the defendant's appearance at trial. See Bearden v. State, 89 Ala. 21, 7 So. 755 (1890) (tracing the statutory history of the right of a surety to arrest and surrender the defendant, back to at least the Code of 1852). The Court of Civil Appeals has previously explained:

"Wide latitude has historically been given bail bondsmen to arrest their principal. This concept is bottomed on the premise that an original right arises from the relationship between a principal and his bail.... There is a strong public policy in preventing the principal from 'jumping bond' and because of this, the surety is permitted a large discretion as to the steps necessary to effect the apprehension of the principal. Clearly, this large amount of authority allowed the surety is justified by the responsibility imposed upon him."

Livingston, 51 Ala.App. at 368, 285 So.2d at 925. However, the discretion provided to the bail bondsman in performing the arrest has its limits, which are described in our case law. See O.K. Bonding Co. v. Milton, 579 So.2d 602 (Ala.1991); Watkins v. City of Mobile, 549 So.2d 575 (Ala.Crim.App.1989); Livingston, supra; and Shine v. State, 44 Ala.App. 171, 204 So.2d 817 (1967). Accordingly, we conclude that neither the provisions setting out the procedure for obtaining a bondsman's process found in article V, nor the provisions allowing for the surety's right to arrest the defendant found in article IV are unconstitutionally vague nor overbroad.

III. Article VI ³

The circuit court ruled that article VI of the Act, entitled "Forfeiture--Proceedings Thereon," was unconstitutional because "[t]he provisions of this Article attempt to provide a mechanism for bond forfeiture, but the procedures are too vague and overbroad to meet constitutional requirements." This article sets forth the procedures by which either cash bail or a surety's bond shall be forfeited if the defendant fails to appear in court. Under article VI, if a cash bail is forfeited and that forfeiture is not discharged, the court is authorized to summarily render a final judgment in the bond amount and the amount forfeited becomes money of the state or municipality.

However, if a defendant released on a surety's bond fails to appear as directed, the forfeiture procedure is more involved. First, the court must order a conditional forfeiture and a show cause order against the defendant and the surety or sureties. The defendant and the surety or sureties must receive notice of the conditional forfeiture order within 90 days or else the surety's liability is discharged. If such notice is timely received by the surety and the surety files an adequate and timely written response explaining why the bond should not be forfeited, the court is to set aside the conditional forfeiture. Otherwise, a hearing is set to determine if the bond should be forfeited, and if no response is filed the court is to enter a final forfeiture order. Finally, if because of a final forfeiture the surety has paid a sum into the court, but then the surety locates the defendant, within six months of the final forfeiture order, if the "administration of justice has not been thwarted" the judge may remit the sum forfeited and order the comptroller to issue a refund to the surety.

Although there was testimony presented at the hearing...