State v. Melodie Cheree Taylor, 2018AP1953-CR, 2/14/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
In a misdemeanor prosecution under §946.49(1)(a) is the State required to prove that, before jumping bail, the defendant had been charged with a misdemeanor? Or may the State simply prove that the defendant had been released from custody under 969 after an arrest for a misdemeanor?
Taylor conceded that she had been arrested for misdemeanor disorderly conduct and released on a Chapter 969 bond with a no-drinking condition. The State conceded that while Taylor had been arrested for a misdemeanor, she was not charged with a misdemeanor. The arrest was good enough, says the court of appeals.
¶8 Although neither side refers to the case law, I resolve this appeal based on the following definition established in Wisconsin case law: There are three elements that must be met for a conviction of bail jumping: (1) the individual must have been arrested for, or charged with, a felony or misdemeanor; (2) the individual must be released from custody on bond; and (3) the individual must have intentionally failed to comply with the terms of his or her bond. See State v. Dawson, 195 Wis. 2d 161, 170-71, 536 N.W.2d 119 (Ct. App. 1995); see also Wis JI—Criminal 1795 (Rel. No. 34—12/95). State v. Hansford, 219 Wis. 2d 226, 244, 580 N.W.2d 171 (1998) (emphasis added); see also State v. Schaab, 2000 WI App 204, ¶9, 238 Wis. 2d 598, 617 N.W.2d 872 (explaining that “[t]he three elements of bail jumping were set forth in” Dawson). For the arrested-or-charged formulation, Dawson relies in part on State v. Harris, 190 Wis. 2d 718, 723, 528 N.W.2d 7 (Ct. App. 1994) (stating as first element “that the defendant has been arrested for or charged with a misdemeanor”) (emphasis added). See Dawson, at 170-71 & n.7.
¶9 As Dawson makes clear, Chapter 969 contemplates the circumstance in which (1) police place a person in custody based on alleged misdemeanor conduct; (2) the person is released upon executing an unsecured appearance bond; and (3) the person violates a condition of the bond and thereby becomes subject to a misdemeanor bail jumping charge—regardless of whether a district attorney has issued a criminal complaint on the underlying misdemeanor. See id., 169-71; see also WIS. STAT. § (“Whoever, having been released from custody under ch. 969, intentionally fails to comply with the terms of his or her bond ….”) (emphasis added). Explaining further, a bond is “an undertaking either secured or unsecured entered into by a person in custody by which the person binds himself or herself to comply with such conditions as are set forth therein.” WIS. STAT. § 967.02(1h). Here, it is undisputed that the State presented evidence that Taylor “made bond” on the underlying misdemeanor by signing it. This committed her to follow its conditions, regardless of whether she had been named in a criminal complaint. See State v. Dewitt, 2008 WI App 134, ¶17, 313 Wis. 2d 794, 758 N.W.2d 201 (Defendant “was able to make bond on the misdemeanor simply by signing it, and he therefore committed himself to its conditions”).
The major problem I have with this (full disclosure, this was my trial case), is that the Dawson court simply parroted the pattern jury instruction as the source of its authority for the proposition that no charge is required, which flies in the face of the plain language of the statute. I very much hope a PFR is forthcoming.
Correction, Dawson relied upon earlier cases which merely parroted the pattern JI, which itself added “arrested for” to “charged with” as an alternative means of satisfying the penalty fixing element, unsupported by anything other than the committee’s ipse dixit. Either way, no appellate court has ever provided a reasoned explanation as to how “charged with” also includes “arrested for.”