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What Are The Penalties For Absconding Or Forfeiting Bond During Criminal Proceedings In Michigan?

by | Dec 9, 2021 | Criminal Law |

 

In the State of Michigan, “posting a bond” is a money guarantee that the defendant will appear in court as directed by the judge (as opposed to sitting in jail waiting for your court date).  The court may require a cash bond (full bail amount must be posted before release from jail), a 10% bond (ten percent of bail amount must be posted before release from jail), or a surety bond (bail bondsman posts security that defendant will appear).  In many cases when the defendant is facing a minor charge or has a minimal prior record, the judge will release the defendant on a “personal recognizance” bond, meaning that no money has to be posted to go home but the defendant promises to return to court as required.

If the defendant fails to return to court on his or her scheduled court dates, then severe consequences will ensue.  The judge will revoke the bond and issue a bench warrant for his or her arrest.  The money already posted may be forfeited to the government.  If a 10% bond was posted, the defendant will be liable for the balance of the remaining 90% to the court.  If a surety bond was posted, the bail bondsman will make efforts to locate the defendant and bring him to court, and an additional fee will be contractually due to the bondsman for the missed hearing.  The defendant may be remanded to jail awaiting his next court date, or he or she must post an even higher bond and comply with additional bond conditions to get out again.

What many people may not know is that absconding from or forfeiting bond in a felony case is also a criminal offense in Michigan that can lead to a new felony charge.  “Any person who shall abscond on or forfeit a bond given in any criminal proceedings wherein a felony is charged shall be deemed guilty of a felony.”  MCL 750.199a.  The penalty can include a fine up to $2,000.00 or up to 4 years in state prison, or both.

To prove the charge of forfeiting a bond, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 13.16):

  • First, that the defendant gave a bond in a criminal proceeding in which a felony was charged.
  • Second, that the defendant forfeited that bond by intentionally or recklessly violating a condition of the bond.
  • Third, that the defendant had notice of the condition of the bond that the prosecution claims was violated.

To prove the charge of absconding on a bond, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 13.17):

  • First, that the defendant gave a bond in a criminal proceeding in which a felony was charged.
  • Second, that the defendant absconded on the bond. Absconding means to leave the jurisdiction of the court or to hide or conceal oneself in order to avoid legal process. This also includes any time periods after which the defendant was convicted of a felony and was released on bond pending delayed sentencing.  People v Perryman, 432 Mich 235; 439 NW2d 243 (1989).

If the defendant is charged with a misdemeanor and absconds from or forfeits bond, then he can be liable for a new misdemeanor charge.  “A person who breaks or escapes from lawful custody under any criminal process, including periods while at large on bail, is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00.”  MCL 750.197a.

In People v Rorke, 80 Mich App 476; 264 NW2d 30 (1978), the defendant was charged with absconding from bond when he failed to appear in circuit court in 1975 on a charge of breaking and entering.  However, at the preliminary exam, there was no proof that the defendant was given notice of the trial date that he failed to attend.  The Michigan Court of Appeals found “that it requires minimal proof of reckless neglect or disregard of a known obligation to appear and defend.”  Id at 478.  If there is no proof that he was given notice of the court date, then he cannot be convicted of a crime.  “Absent proof of notice to a defendant of his court date, he cannot incur criminal liability under [MCL 750.199a].”  Id at 479.  “Staying away from a courthouse is wholly passive activity.”  Id.  “Absent proof of notice of a court date, there is nothing to alert a defendant that he has a duty to appear.”  Id.  “Since there was no proof at the preliminary examination that defendant was apprised of his court date, the magistrate erred in binding defendant over for trial.”  Id.  “The motion to quash the order binding defendant over should have been granted and we reverse the denial of that motion.”  Id.

In People v Litteral, 75 Mich App 38; 254 NW2d 643 (1977), the defendant was convicted for absconding from bond when he failed to appear in circuit court on an uttering and publishing charge.  While he does not deny missing court, he argues that he did not flee the state to avoid prosecution but rather he was on vacation and his attorney never gave him notice.  He argues that absconding from bond is a “specific intent” crime and, since he did not have the intent to evade justice, he should not be found guilty.  The Michigan Court of Appeals disagreed and found it is a “general intent” crime where the very act of missing court after notice of proceedings is enough for criminal liability.  “Whether a defendant is a totally irresponsible person, who recklessly and foolishly fails to make himself available while felony charges are pending against him, or actively and intentionally flees the pursuit of the law should make little difference under this statute.”  Id at 43-44.  Although the defendant claimed he had no notice of the trial date, his behavior amounted to a course of conduct designed to prevent receipt of notice by leaving the state, not corresponding with his retained attorney and no contact with the court for a lengthy period of time.  “Defendant, in effect as found by the trial court, had become a fugitive and he cannot now complain of lack of notice.”  Id at 45.  “Had defendant not purposefully absented himself from the court’s jurisdiction, he would have received actual notice of the trial date.”  Id.

If the defendant is on bond for multiple cases and fails to appear, he or she can be liable for multiple counts of absconding from bond.  In People v McClain, 218 Mich App 613; 554 NW2d 608 (1996), the defendant was on bond for two separate cases of drug trafficking and due to appear in court for sentencing regarding both on the same day.  As a result, he was charged and convicted of two counts of absconding from bond.  The Michigan Court of Appeals found that these counts were not a violation of the prohibition against double jeopardy because he absconded on two separate and distinct bonds.

Absconding from or forfeiting bond is a serious felony offense and requires the best legal representation in your corner.  If you missed a court date, you need to be prepared with a valid excuse to answer for the nonappearance (e.g. hospitalized, detained in a different jail, etc.).  Continuing to remain on the run will only make matters worse because the bench warrant will follow you wherever you go.  A skilled criminal defense lawyer at your side can help you gain the best outcome in your case.  The stakes are too high to settle for anything less.

If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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