Melone v. State

2001 WI App 13, 623 N.W.2d 179, 240 Wis. 2d 451, 2000 Wisc. App. LEXIS 1168
CourtCourt of Appeals of Wisconsin
DecidedDecember 6, 2000
DocketNo. 00-0969
StatusPublished
Cited by2 cases

This text of 2001 WI App 13 (Melone v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melone v. State, 2001 WI App 13, 623 N.W.2d 179, 240 Wis. 2d 451, 2000 Wisc. App. LEXIS 1168 (Wis. Ct. App. 2000).

Opinion

BROWN, P.J.

¶ 1. The trial court declined a request to set aside an order that a mother's bail money be forfeited to the State on the ground that it always refuses to return bail money no matter what the circumstance. But the statute on bail forfeitures, WlS. [454]*454STAT. § 969.13(2) (1997-98),1 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.

¶ 2. Christopher J. Melone, Jr., was charged with second-degree recklessly endangering safety and endangering safety by use of a dangerous weapon. Bail was set at $5000. Barbara Melone, Christopher's mother, posted the bail, but it was forfeited when Christopher missed a court date. Bail was set again, this time for $20,000, which Melone also posted. Bail was conditioned upon Christopher not consuming alcohol or drugs without a prescription. According to Melone, she posted the $20,000 bail to help Christo.pher and his attorney prepare a defense and to enroll him in a drug and alcohol rehabilitation program, at her expense. She initially enrolled Christopher in an outpatient treatment program; when that failed, she enrolled him in an inpatient program. Sometime after the $20,000 was posted, Christopher failed a urinalysis test.

¶ 3. At a hearing on the bond forfeiture, Melone asked the court to exercise its discretion under WlS. STAT. §969.13(2) and return the $20,000 to her. The court, after expressing that it felt badly about doing this, refused. At a motion to reconsider hearing, the trial court reached the same result for the same reason. According to the court, it always refuses to return bail, [455]*455no matter what the circumstances are, because giving the money back provides a disincentive to those on bail to follow their bail conditions.

¶ 4. The bail forfeiture statute allows the court to set aside an order forfeiting bail "if it appears that justice does not require the enforcement of the forfeiture." WISCONSIN Stat. §969.13(2). The trial court's decision under § 969.13(2) is one of discretion; we review the trial court's ruling to determine whether it properly exercised its discretion. See State v. Achterberg, 201 Wis. 2d 291, 300-01, 548 N.W.2d 515 (1996). As our supreme court has stated numerous times, the trial court has properly exercised its discretion if it examined relevant facts, applied proper legal standards and engaged in a rational decision-making process. See State v. Bentley, 201 Wis. 2d 303, 318, 548 N.W.2d 50 (1996). More specifically to this case, this court in State v. Ascencio, 92 Wis. 2d 822, 830, 285 N.W.2d 910 (Ct. App. 1979), indicated that exercising discretion to determine what "justice requires" pursuant to §969.13(2) involves looking at a number of factors, some of which were enumerated in that case.

¶ 5. Melone draws our attention to the fact that in Ascencio, 92 Wis. 2d at 830, this court criticized the trial court for giving no reasons for refusing to set aside a bail forfeiture order. Melone argues that this case mandates the same result for virtually the same reason. Melone claims that refusing to remit bail in all cases instead of weighing the relevant factors on a case-by-case basis is an erroneous exercise of discretion because it amounts to consideration of only one factor — the same factor in all cases — without any individualized assessment. We agree.

[456]*456¶ 6. The term "discretion" contemplates a reasoning process that depends on the facts in the record and yields a conclusion based on logic and founded on a proper legal standard. See State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 624, 511 N.W.2d 868 (1994). Coming to the same conclusion for the same blanket reason in every case despite the facts of each case does not satisfy this definition. Case law supports our determination. See State v. Smith, 203 Wis. 2d 288, 299, 553 N.W.2d 824 (Ct. App. 1996) (stating that a blanket rule to exclude prior conviction evidence "while expedient and consistent, fails to show a consideration of the proper factors"); McCleary v. State, 49 Wis. 2d 263, 277-78, 182 N.W.2d 512 (1971) (concluding that the failure to consider, proper factors is an erroneous exercise of discretion). As stated above, Ascencio, 92 Wis. 2d at 830, has indicated that determining what justice requires under WlS. Stat. §969.13(2) involves weighing a number of relevant factors. Consequently, the trial court erroneously exercised its discretion by relying on one factor rather than weighing all relevant factors.

¶ 7. We disagree with the trial court that giving money back to the person who posted bail provides a disincentive, in every instance, to those on bail to follow their bail conditions. Sometimes a defendant's drug or alcohol addiction may be so strong that it overrides the defendant's intent not to bring financial harm to the person who posted the bond. See, e.g., State v. Ginter, 585 P.2d 1111, 1112-1113 (Okla. 1978). It is proper to ask: how much control over the situation does the defendant have? And how much control does the person who posted the bond have over the defendant?

[457]*457¶ 8. As for guidance about what other factors may be relevant, we addressed some of these factors in Ascencio. There, we observed that our bail forfeiture statute is patterned after Rule 46 of the Federal Rules of Criminal Procedure. See Ascencio, 92 Wis. 2d at 830. We described numerous factors that the court could consider when deciding whether to remit forfeited bail. See id. at 831-32. We see no benefit in repeating those factors here. However, we observe that while most of the factors discussed in Ascencio concerned the return of bail money after the defendant failed to appear in court on a scheduled date, some of those factors can be tailored to the situation here where the son failed to abstain from consuming drugs or alcohol.

¶ 9. The factors listed in Ascencio should not be considered as the all-inclusive list of every factor that the trial court should take into account when deciding a case under WlS. Stat. § 969.13(2). A standard, such as "that justice.. . . requires," cannot be neatly parlayed into an all-inclusive, exhaustive list. As stated by the Colorado Supreme Court:

This standard is essentially an appeal to the conscience of the court.

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Bluebook (online)
2001 WI App 13, 623 N.W.2d 179, 240 Wis. 2d 451, 2000 Wisc. App. LEXIS 1168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melone-v-state-wisctapp-2000.