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Bail-Jumping, § 946.49(1)(a) – “Release from Custody” – Cash and Recognizance Bonds Support Bail Jumping

State v. Travis S. Dewitt, 2008 WI App 134, PFR filed 8/19/08
For Dewitt: William E. Schmaal, SPD, Madison Appellate

Issue: Whether someone simultaneously held under personal recognizance and cash bonds can be guilty of bail jumping for acts committed in the jail.

Holding:

 ¶12      … Wis. Stat. § 946.49 provides that someone who “having been released from custody under [Wis. Stat.] ch. 969, intentionally fails to comply with the terms of his or her bond is” guilty of a crime. Dewitt asserts that “release” must mean physical release from custodial confinement, specifically, “the act of liberating or freeing: discharge from restraint.”

¶14      It is true that Wis. Stat. §§ 946.49 and 969.02 do not explicitly define “release,” and perhaps it is fair to say that the common meaning of the word contemplates physical release from custody. However, we interpret statutory language in context, “not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; and reasonably, to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶46. There is one important clue that physical release is not the sole meaning of release in the bond context. The court is permitted to impose “a condition that the defendant return to custody after specified hours.” Wis. Stat. § 969.02(3)(d). Because it would be absurd to conclude that conditions of release would then apply when the defendant was outside the jail, but be “turned off” upon return to custody, it is evident that “release” refers to the defendant posting the bond, be it signature or cash, and need not be accompanied by the defendant’s physical departure from the jailhouse.

¶17      … Here, Dewitt had three bonds. He was able to make bond on the misdemeanor simply by signing it, and he therefore committed himself to its conditions.[4] Dewitt was not obligated to sign the bond, especially if he knew he would not be posting cash bond. Thus, while not physically released, Dewitt was released as contemplated by Wis. Stat. § 969.02 when he fulfilled the signature bond. [5]

Release “need not be accompanied by the defendant’s physical departure from the jailhouse.” As opposed to what other form of “departure”? The court doesn’t quite get around to saying, which is just as well. What the court does do is hypothecate a non-existent absurd result, ¶14. Why, in the first place, would it be absurd to say that in a very narrow category of cases, a defendant while on release from custody can bail jump but not when he’s back in the pokey? The court doesn’t say. Note, though, that this “absurd result” is literally the only support for the result mustered by the court. Besides, the defendant is returning – from release, back to custody; from exposure to bail-jumping liability, to non-exposure. Or, as the court apparently wants to say, returning from a release accompanied by physical departure from jail back to custody in the jail.The court implicitly recognizes that the defendant has not been “released” if he fails to sign the recognizance bond (¶17). What this means, then, is that “release” is determined solely by whether you’ve signed the bond agreement and not by whether you’ve been, well, released. Why isn’t distinguishing statutory liability on just that basis an absurdity? The court doesn’t say.

Consider, too, the pretrial detention statute, § 969.035(2), which authorizes a court to “deny release from custody” in certain types of cases. Compare that to the language used in the bail jumping statute, § 946.49(1): “having been released from custody …” The court, however, has just said that “released from custody” does not necessarily mean, released from “physical” custody – which makes the pretrial detention language at best superfluous and at worst comically awkward. The pretrial detention statute clearly means that a defendant may be denied “physical” release, whether or not accompanied by corporeal departure from the jailhouse; use of the essentially identical phraseology in the bail jumping statute strongly suggests the same legislative intent. One statute is aimed at preventing release from physical custody, the other penalizes certain acts committed while on physical release from custody.

In the meantime, while the court sorts out the metaphysics of “physical departure,” the diligent practitioner should be alert to the potential disutility of recognizance bonds. This case offers one example (though fault may hardly be assigned counsel for failing to anticipate a client’s disinclination to follow simple rules). More problematically, no sentence credit is awarded custody served under recognizance alongside cash bond, State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997). That court suggested the following solution: n. 2:

We note that defense attorneys, in countless cases, do ask trial courts to convert personal recognizance bonds to cash bail when their clients have been arrested and do remain in custody on cash bail on subsequent charges. They do so precisely because they want to assure sentence credit on both offenses. That, however, did not occur in this case. …

Same: State v. Elandis D. Johnson, 2008 WI App 34, ¶32.

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