Vacendak v. State, 973S180
| Decision Date | 02 November 1973 |
| Docket Number | No. 973S180,973S180 |
| Citation | 302 N.E.2d 779,261 Ind. 317 |
| Parties | Michael VACENDAK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
R. Cordell Funk, Sachs & Hess, Hammond, for appellant.
Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a denial of a petition for writ of habeas corpus in a criminal case. The appellant had been charged in the Lake Superior Court with the crime of Kidnaping. At the time of his arrest bail was set at $50,000 in accordance with the bond schedule then existing in the Lake County courts. Appellant then petitioned the court for a reduction of bond. After a hearing, the court reduced the bond to $5,000. The bond was immediately posted, and the appellant released.
Some eight days later, the State filed a motion with the court to increase the bond to the original amount of $50,000. Attached to the State's petition were various exhibits indicating that the appellant had been harassing the alleged kidnap victim, and since his release on bond the appellant had been arrested for disorderly conduct. The facts of that arrest were alleged to be that police had answered a call that a person in a described automobile with no license plates was acting suspiciously. When the police arrived at the scene, they found the automobile in question, but the appellant was not present. Police called a tow truck in an effort to tow the automobile away, at which time the appellant appeared, and became very irrational and abusive to the tow truck driver. When the police officers attempted to intervene, the appellant refused to get out of his car which he had entered in the meantime. When the officers attempted to forcibly remove him, he kicked one of them in the chest. During this time he continued to scream and shout irrationally. There was also a report attached to the State's petition showing that some three days after the incident above referred to, the appellant was stopped by police for driving a car with no plates and having no driver's license. At the time he was stopped, he was wearing a bayonet on his hip.
It is stipulated between the parties that upon the filing of the petition of the State for the increase in bond, the trial court summarily increased the bond without any notice to the appellant or his attorney or any hearing thereon.
It is appellant's position that due process requires that a hearing be had upon an application of the State to increase the amount of bond. With this we agree. In Drew v. United States (1967), 127 U.S.App.D.C. 362, 384 F.2d 314, the United States Court of Appeals for the District of Columbia held that it was within the judge's prerogative to increase the amount of bond in a particular case, but that he must do so only after a proper showing of a reason for revocation or modification.
In the Drew case the Court of Appeals reversed the trial court's order and remanded the cause with directions that the appellant be released prior to trial upon his original bond previously executed. However, the case at bar differs from the Drew case in that in Drew the government had not filed a petition for revocation or modification, but the court had summarily revoked appellant's pre-trial bond without a petition from the government or a hearing upon the facts. In the case at bar the State did file a petition asking for the increase in bond and did present allegations of fact for the court's consideration.
We, therefore, hold that the trial court erred in failing to give notice to the appellant or his attorney and to set a hearing to afford the appellant an opportunity to hear the State's evidence and rebut the same. In so holding we do not mean to imply that the trial judge cannot in the exercise of his sound discretion order the immediate arrest of a defendant upon information that would indicate he should not be permitted to remain at large on a posted bond. For instance, a court should never be in the position of being unable to prevent a defendant from leaving the jurisdiction while he was on bond awaiting trial. Our holding today is that a defendant is entitled to a hearing on the increase of his bond. Due process has been served if this hearing occurs within a reasonable time after his arrest on order of the trial court.
We do not agree with the appellant's position that this Court should order appellant released on bond. As above pointed out, the factual allegations made by the State in its petition to increase the bond are matters which must be decided by a fact finding tribunal, in this case the trial court. This Court is not equipped nor is it our function to attempt to determine these factual allegations in arriving at a conclusion as to whether or not appellant should be released on $5,000 bond now posted or whether he should be re-arrested and placed under a higher bond.
It is our decision, therefore, that this matter should be remanded to the trial court with instructions for the trial court to...
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