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Bail: Forfeiture – Discretion

Barbara Melone v. State, 2001 WI App 13, 240 Wis. 2d 451, 623 N.W.2d 179For Melone: Theodore B. Kmiec III

Issue: Whether the trial court properly exercised discretion in declining to set aside an order forfeiting bail, where the court indicated that it “always refuses to return [forfeited] bail money no matter what the circumstance,” ¶1.

Holding: “[T]he statute on bail forfeitures, WIS. STAT. § 969.13(2) (1997-98), requires the court to exercise discretion and consider factors for and against enforcing the forfeiture on a case-by-case basis. Applying a blanket policy to all cases is an erroneous exercise of discretion because it is tantamount to a refusal to exercise discretion. We remand this case to the trial court to weigh the factors for and against returning some or all of the $20,000 to Barbara Melone, which she posted for bail on her son’s behalf,” ¶1. (See also ¶¶8-12 for general discussion of relevant factors, which court cautions “cannot be neatly parlayed into an all-inclusive, exhaustive list.”)

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