State v. Boles

Decision Date29 June 2004
Docket NumberNo. 21S04-0312-CR-604.,21S04-0312-CR-604.
Citation810 N.E.2d 1016
PartiesSTATE of Indiana, Appellant (Plaintiff below), v. Steve BOLES, Brian J. Beahn, Christopher D. Burton, Steven L. Hardin, Charles R., Hoover, Jody L. Johnson, Thomas McKinney, John H. Stephenson, Tony A. Thomas, Defendants below, v. Frontier Insurance Company, and Accredited Surety & Casualty Company, Inc., Appellees (Sureties below).
CourtIndiana Supreme Court

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General of Indiana, Indianapolis, IN, Attorneys for Appellant.

Dane L. Tubergen, Fort Wayne, IN, Attorney for Appellees.

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 21A04-0302-CR-94.

SULLIVAN, Justice.

Nine defendants failed to appear in court and, pursuant to statute, the clerk of the court imposed late surrender fees on the sureties representing the defendants. The trial court vacated the fees because notice of the appearance date was not provided to the sureties and because the fees were not imposed by court order. We reverse, finding that notice of the appearance date was not required, and that the clerk has the requisite authority, to impose late surrender fees.

Background

These nine criminal cases have been consolidated for purposes of this appeal. In seven of these nine cases, the defendants were charged with misdemeanors; one was charged with an infraction, a misdemeanor, and a Class D felony; and one was charged with a misdemeanor and two Class D felonies. In each of the nine, the defendants were granted bail after executing bail bonds pursuant to Indiana Code § 35-33-8-3.2(a)(1)(A) (1998). This statute permits defendants to use a bail agent approved by the Commissioner of the Department of Insurance and given the power of attorney by an insurer (surety) to post bail for the defendant in return for a premium. Ind.Code § 27-10-1-4 (1998). The premium is the amount the defendant pays the bail agent to post the bail. See Ind.Code § 27-10-1-8 (1998); Lake County Clerk's Office v. Smith, 766 N.E.2d 707, 709-10 (Ind.2002). If the defendant appears when required, the bond money posted by the surety is returned to it. Ind.Code § 27-10-2-5(a) (1998); Ind.Code § 27-10-2-6 (1998).

However, the defendants in each of these nine cases failed to appear in the Fayette Superior Court at some point in their respective proceedings when required. Their failure to appear implicates the two statutes that are at the heart of this dispute. The first, Indiana Code § 27-10-2-8 (1998) ("Section 8"), provides:

(a) The court shall give the bail agent or insurer legal notice of the defendant's trial or hearing at least seventy-two (72) hours before the defendant's appearance is required unless the appearance is scheduled within seventy-two (72) hours from the execution of the bond.
(b) The defendant's failure to appear constitutes a breach of the undertaking. The court before which the cause is pending shall make a record of the breach at which time section 12 of this chapter then applies.

The second, Indiana Code § 27-10-2-12 (1998) ("Section 12"), provides:

(a) If a defendant does not appear as provided in the bond:
(1) the court shall:
(A) issue a warrant for the defendant's arrest; and
(B) order the bail agent and the surety to surrender the defendant to the court immediately;
(2) the clerk shall mail notice of the order to both:
(A) the bail agent; and
(B) the surety;
* * *
(b) The bail agent or surety must:
(1) produce the defendant; or
(2) prove within three hundred sixty-five (365) days:
(A) that the appearance of the defendant was prevented:
(i) by the defendant's illness or death;
(ii) because the defendant was at the scheduled time of appearance or currently is in the custody of the United States, a state, or a political subdivision of the United States or a state; or
(iii) because the notice required was not given; and
(B) the defendant's absence was not with the consent or connivance of the sureties.
(c) If the bail agent or surety does not comply with the terms of subsection (b) within one hundred twenty (120) days after the mailing of the notice required under subsection (a)(2), a late surrender fee shall be assessed against the bail agent or surety [pursuant to the provisions of the statute].

Section 8(b) defines a breach of a bail agent or surety's undertaking. If there is a breach, that sets in motion the process under Section 12, whereby a bail agent or surety can be assessed late surrender fees and can be required to forfeit the bond. See Lake County, 766 N.E.2d at 710; Accredited Sur. & Cas. Co. v. State, 565 N.E.2d 1131, 1132 (Ind.Ct.App.1991). Once the clerk mails notice to the bail agent and surety that a defendant has failed to appear, the bail agent or surety has 365 days to produce the defendant or show good cause why either has not, as set out in Section 12(b)(2). One hundred twenty days after notice, however, late surrender fees begin to be assessed against the bail agent or surety. I.C. § 27-10-2-12(c). The late fees must be paid when the bail agent or surety produces the defendant or after the expiration of 365 days, whichever happens first. Id.

The amount of late surrender fees assessed depends on when the bail agent or surety produces the defendant, and the amount ranges from 20% of the face value of the bond after 120 days to 80% of the face value of the bond after 240 days. Id. Although the surety can be released from the bond if the defendant is produced within 365 days, the practical effect of assessing late surrender fees seems to be to reduce the amount of money the surety is entitled to have returned to it. If the defendant is not produced within 365 days, then the court will order forfeited an amount equal to 20% of the face value of the bond. This amount will not be returned to the surety.

As noted, each of these nine defendants were granted bail but failed to appear when required. The record does not reflect whether the bail agents or sureties were notified of the date and time for which the defendants were scheduled to appear. In each such instance, the court issued a warrant for the re-arrest of the defendant and notified the bail agent and surety1 of the defendant's failure to appear and order for re-arrest.

In each case, after a defendant finally appeared or 365 days had expired, the clerk of the court assessed late fees against the sureties pursuant to the statute. The sureties made motions to vacate the imposition of late surrender fees and to be released from any obligation on the bonds, claiming the fees were imposed without court order, the late fees were not incurred or due, and the bail bonds had expired. The court held a hearing and later granted the sureties' motions. The trial court cited the three reasons given by the sureties as its rationale for vacating the late surrender fees and releasing the sureties. The State appealed the court's order.

The Court of Appeals ruled against the State and affirmed the trial court. State v. Boles, 792 N.E.2d 553, 554 (Ind.Ct.App.2003). The court held that notice under Section 8(a), which the sureties did not receive, was required before late surrender fees could be imposed. Id. at 558-59. The court also held that the clerk of the court lacks authority to impose late surrender fees under both the bail statute and the Indiana Constitution. Id. at 559-60. We granted transfer, 804 N.E.2d 760 (Ind.2003) (table), and we now reverse the trial court.

Discussion
I

The first question raised on appeal is whether the notice provision in Section 8 is a condition precedent to imposing late surrender fees on a bail agent or surety. Phrased differently, the issue is the effect of failure to provide notice under Section 8. The State argues that notice under Section 8 is not a condition precedent to imposing late fees. The sureties respond that Section 8 notice is a condition precedent to a breach, and only after there is a breach does Section 12 apply and late fees can be assessed. Section 8(a) does state that the bail agent or surety "shall" be given this notice and so it appears mandatory. United Rural Elec. Membership Corp. v. Ind. & Mich. Elec. Co., 549 N.E.2d 1019, 1022 (Ind.1990) ("When the word `shall' appears in a statute, it is construed as mandatory rather than directory unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning."); accord State v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 947 (Ind.1999). But on further inspection, we conclude that a surety does not enjoy any recourse for failure to receive that notice.

Before 1985, Indiana bail law explicitly conditioned a breach of a bail agent or surety's undertaking on notice having been given to the bail agent or surety. The Bail Act of 1961 read:

If there is a breach of the undertaking, the court before which the cause is pending shall make a record thereof and shall declare the undertaking, and any money or bonds that have been deposited as bail, forfeited: Provided, however, the bail bondsman or the insurer shall have had legal notice of the trial or hearing of defendant at least seventy-two [72] hours before required appearance of defendant, unless the appearance is scheduled within that time from the execution of bond.

Ind.Code § 35-4-5-8 (1975) (emphasis added).

When this statute was in place, forfeiture was automatic. Id.; Ind.Code § 35-4-5-10 (1975); Ind.Code § 35-4-5-12 (1975). The law provided that "[i]n case the defendant shall not appear as provided in the bond, the court shall thereupon declare the bond forfeited...." I.C. § 35-4-5-12. Because such a drastic measure was taken against the bail agent or surety when a defendant did not appear, it was important that the bail agent or surety have notice of a defendant's appearance date before either could be held to have breached its undertaking.

In 1985, this structure was changed with a new bail statute. See P.L. 261-1985, § 1....

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7 cases
  • Leatherman v. State
    • United States
    • Indiana Appellate Court
    • May 9, 2018
    ...from an earlier version of a statute is deleted, the Legislature intended to change the law by removing that language. State v. Boles , 810 N.E.2d 1016, 1019 (Ind. 2004) (quotations and citations omitted). Moreover, when construing a statute, we presume that the legislature had "in mind the......
  • State v. Azania
    • United States
    • Indiana Supreme Court
    • November 7, 2007
    ...an earlier statute is deleted by amendment, it is presumed that the Legislature intended to change the law. See, e.g., State v. Boles, 810 N.E.2d 1016, 1019 (Ind.2004); United Nat'l Ins. Co. v. DePrizio, 705 N.E.2d 455, 460 (Ind.1999). Because Azania is to be sentenced according to the 2002......
  • Gaeta v. State
    • United States
    • Indiana Appellate Court
    • December 1, 2011
    ...27–10–2–12, whereby a bail agent or surety can be assessed late surrender fees and can be required to forfeit the bond. State v. Boles, 810 N.E.2d 1016, 1018 (Ind.2004). Under the statute, the trial court is required to issue a warrant and order the surety to surrender the defendant immedia......
  • Gaeta v. State
    • United States
    • Indiana Appellate Court
    • September 13, 2011
    ...27-10-2-12, whereby a bail agent or surety can be assessed late surrender fees and can be required to forfeit the bond. State v. Boles, 810 N.E.2d 1016, 1018 (Ind. 2004). Under the statute, the trial court is required to issue a warrant and order the surety to surrender the defendant immedi......
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