WisBar Court Review: Appeals Court Clarifies Limits on Using Bail Money to Pay Restitution:

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  • WisBar Court Review
    February
    19
    2021

    Appeals Court Clarifies Limits on Using Bail Money to Pay Restitution

    Joe Forward

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    Bail

    Feb. 19, 2021 – A state appeals court has clarified a circuit court’s authority to order the use of bail money to pay restitution if the bail-related charges are later dismissed but a defendant enters a global plea deal to resolve other outstanding criminal charges.

    In 2016, James Jones faced criminal charges in four cases, all in Outagamie County. The cases involved possession of burglary tools, burglary, misdemeanor retail theft, and felony retail theft. Prosecutors alleged the crimes took place on different dates.

    In June 2016, Jones’s mother posted a $2,500 bail bond for one case, possession of burglary tools. In September, Jones’s friend posted bond on the other three charges: $200 for misdemeanor retail theft; $500 for felony retail theft; and $500 for burglary.

    The bail/bond forms contained language, warning that the bail/bond money could be used to pay restitution or costs imposed against the defendant without notice.

    Jones later pled no contest to the felony retail theft charge. He pled no contest to three reduced charges in the burglary case involving a laundromat’s gaming machines.

    As part of the plea deal, the misdemeanor retail theft and burglary tools charges were dismissed, but read-in at sentencing, meaning the judge could consider those dismissed charges in rendering a sentence on the other charges, including restitution.

    Jones also agreed to plead no contest to a charge of operating a motor vehicle without the owner’s consent (OMVOC), which had not been filed yet. Jones agreed to pay restitution on two charges to which he pled no contest: felony retail theft and OMVOC.

    Restitution

    The judge ordered Jones to pay $2,000 restitution for the felony retail theft case and $1,200 in the OMVOC case. The judge did not order restitution in the burglary case, and the misdemeanor retail theft and burglary tools cases were dismissed.

    The plea questionnaire/waiver of rights form that Jones signed noted that he “may be required to pay restitution on any read-in charges.”

    The court ordered Jones to pay court costs, supervision fees, and restitution but did not specify that bond money would be used towards payment of restitution.

    In a postconviction motion, Jones alleged that the circuit court clerk improperly “applied bond monies posted on dismissed and read-in cases to amounts owed for restitution and costs on the cases Jones was convicted of.”

    Jones based his argument on Wis. Stat. section 969.03(5), which says “[i]f the complaint against the defendant has been dismissed or if the defendant has been acquitted, the entire sum deposited shall be returned,” referring to bail monies.

    The circuit court rejected this argument, concluding the statute only mentions dismissed cases and does not mention dismissed cases that are read-in with other counts.

    The circuit court also rejected Jones’s argument under 969.03(4), which allows bond monies to be applied to judgments entered in a prosecution, concluding the judgment related to the entire prosecution of five cases and not five separate prosecutions.

    The state’s restitution statute (Wis. Stat. § 973.20), the court noted, specifically defines “a crime considered at sentencing” to include “any crime for which the defendant was convicted and any read-in crime.” Jones appealed the circuit court’s decision.

    Bond Money Must Be Returned

    In State v. Jones, 2019AP 224-CR (Feb. 17, 2021), a three-judge panel for the District III Court of Appeals reversed the circuit court’s decision, concluding bail bonds posted for specific criminal cases must be returned if the case is dismissed and “no restitution is ordered on any of those counts at the sentencing” for the crimes of conviction.

    “As Jones notes, each criminal case has its own complaint, preliminary hearing, conditions of release (including possibly a bond), and, perhaps most relevant here, judgment of conviction,” wrote Judge Thomas Hruz.

    “Even the State appears to accept the notion that each criminal case against Jones was a separate prosecution, at least initially, because it posits that they only became one prosecution at the time the global plea agreement was formed.”

    The appeals court acknowledged the restitution statute “permits a circuit court to order restitution on a dismissed but read-in count as part of the judgment for the crime of conviction.” But it does not dictate how bond money should be applied, the panel noted.

    “[T]he State does not explain how individuals who posted bond for Jones in the burglary tools and Radio Shack cases – perhaps under the belief that he was not guilty of those offenses – could reasonably expect that those funds would be applied to the restitution Jones owed for entirely different crimes for which he was convicted,” Hruz wrote.

    The three-judge appeals court panel held that “[w]hen all of the counts in a criminal complaint are dismissed and read in, and no restitution is ordered on any of those counts at the sentencing for the crime or crimes of conviction in separately charged cases, that complaint has been ‘dismissed’ for purposes of § 969.03(5).”

    Thus, the court ruled that the $2,500 that Jones’s mother posted in his burglary tools case and the $200 his friend posted in the misdemeanor retail theft case, both dismissed but read-in at sentencing, must be returned.





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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact org jforward wisbar Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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