People v. Munley , 175 Mich. App. 399 ( 1989 )

175 Mich. App. 399 (1989) 438 N.W.2d 292

PEOPLE
v.
MUNLEY

Docket No. 106022.

Michigan Court of Appeals.

Decided February 23, 1989.

Miner, Spuhler & Miner, P.C. (by Earl R. Spuhler), for Donovan Neville.

Richard M. Barron, for Genesee County.

Before: MICHAEL J. KELLY, P.J., and MacKENZIE and S.B. MILLER,^[*] JJ.

MacKENZIE, J.

In 1984, Donovan Neville, Surety-appellee, posted a $50,000 recognizance bond for the release of Norman William Munley, against whom criminal charges had been brought in Genesee County. Munley failed to appear for a 1985 sentencing proceeding and forfeited bond. On July 3, 1985, a judgment was entered for appellant Genesee County against Munley and the surety for the amount of the bond. See MCR 6.110(F)(2).

In May, 1987, Munley was stopped for a traffic violation in Georgia. He was subsequently extradited to Genesee County and sentenced to a prison term. On July 6, 1987, two years after the judgment of forfeiture was entered and when $12,032.95 had been paid to the county toward satisfaction of the judgment, the surety filed a motion to set aside the July 3, 1985, judgment of bond forfeiture. See MCR 3.605(D). The trial court granted the motion, setting aside the judgment and ordering appellant Genesee County to repay the sum collected from the surety-appellee less the cost of returning Munley to the county. The county appeals as of right. We affirm.

MCL 765.15; MSA 28.902, governing the remission of bond forfeitures, provides as follows:

(a) If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof. The court shall set aside the forfeiture and discharge the bail or bond, within 1 year from the time of the forfeiture judgment, in accordance with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person.

(b) If such bond or bail be discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the depositor. Upon presentation of a certified copy of such order, the treasurer or clerk having such cash, check or security shall pay or deliver the same to the person named therein or to his order.

(c) In case such cash, check or security shall be in the hands of the sheriff or any officer, other than such treasurer or clerk, at the time it is declared discharged or forfeited, the officer holding the same shall make such disposition thereof as the court shall order, upon presentation of a certified copy of the order of the court. [Emphasis added.]

There is a split of authority as to whether MCL 765.15; MSA 28.902 applies to surety bonds, such as the bond in this case. In People v Tom Johnson, 72 Mich. 702; 250 NW2d 508 (1976), a panel of this Court concluded that the statute only authorizes remission of forfeited deposit bonds, not surety bonds. According to the Tom Johnson panel, the surety's remedy lies in the procedural provisions of the court rules and Revised Judicature Act:

After a judgment has been entered against a surety it stands as any judgment rendered in a personal action. It is enforceable, reviewable and appealable by way of the same provisions and by other statutes and court rules which may apply to the specific situation, e.g. GCR 1963, 528 [now MCR 2.612], MCLA 600.4835; MSA 27A.4835. Appellant has not been left without a remedy. [72 Mich. App. 709.]

In People v Pavlak, 99 Mich. App. 190; 297 NW2d 878 (1980), however, the panel disagreed with the Tom Johnson holding and concluded that the Legislature intended similar treatment of deposit bonds and bonds posted by a security. The Pavlak Court held that "[c]ommon sense, and fidelity to the Legislature's apparent intent, would dictate that bonds which are treated alike should be treated alike for all purposes, including remission of forfeitures." 99 Mich. App. 194. Recently, in People v Evans, 168 Mich. App. 654; 425 NW2d 209 (1988), lv gtd 431 Mich. 870 (1988), another panel agreed with the Pavlak decision and concluded that MCL 765.15; MSA 28.902 authorizes remission of a forfeited surety bond.

We are of the opinion that Tom Johnson represents the sounder view. The plain language of MCL 765.15; MSA 28.902 clearly contemplates a situation in which cash, checks, or securities are deposited as bond. No such deposit exists when a surety recognizance bond is posted; a surety bond is a contractual promise made by the surety that if the principal/criminal defendant defaults, the surety will pay the bond when a judgment of forfeiture is entered. Like the Tom Johnson panel, we therefore conclude that MCL 765.15; MSA 28.902 does not authorize remissions of forfeited surety bonds. Authorization for remission of a forfeited security bond must be found elsewhere.

Chapter 48 of the Revised Judicature Act governs the collection of penalties, fines, and forfeited recognizances. MCL 600.4835; MSA 27A.4835 provides in pertinent part:

The circuit court for the county in which such court was held, or in which such recognizance was taken, may, upon good cause shown, remit any penalty, or any part thereof, upon such terms as appear just and equitable to the court.

For purposes of the statute, the term "penalty" includes forfeited recognizances. MCL 600.4801; MSA 27A.4801. In light of this definition, we are satisfied that MCL 600.4835; MSA 27A.4835 governs the remission of a forfeited surety bond. Under the statute, a forfeited recognizance bond may be remitted as it appears just and equitable.

Remission of a forfeited bond, in whole or in part, is a matter of sound judicial discretion. People v Benmore, 298 Mich. 701; 299 N.W. 773 (1941). See also People v Judge of Recorder's Court, 23 Mich. App. 126; 178 NW2d 146 (1970), lv den 384 Mich. 781 (1970). In the instant case, the trial court recognized the holding of Tom Johnson and, although not specifically citing MCL 600.4835; MSA 27A.4835, set aside the judgment of forfeiture on equitable grounds. We find no abuse of discretion in this decision.

Finally, even if MCL 765.15; MSA 28.902 were to apply to this case, Pavlak and Evans, supra, we would still find no abuse of discretion warranting reversal. The one-year limitation of that statute is not jurisdictional and does not preclude discretionary release. Compare Judge of Recorder's Court, supra. Again, we find no abuse of discretion.

Affirmed.

S.B. MILLER, J., concurred.

MICHAEL J. KELLY, P.J. (concurring).

I concur in the result because no abuse of discretion is alleged. The Supreme Court has granted leave in People v Evans, 168 Mich. App. 654; 425 NW2d 209 (1988), lv gtd 431 Mich. 870 (1988), and presumably will give guidance on which statute applies. Since this case involves a judgment entered more than two years previously, I would think the application for relief in the trial court should have been addressed through MCR 2.612(C)(1)(f). Since the Supreme Court will resolve the split on our Court, my view as to whether MCL 765.15; MSA 28.902 applies is superfluous. Defendant-appellant county is encouraged to seek review in the Supreme Court if it wishes to amplify on the issues to be treated in People v Evans, supra.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.