8.7Bond Forfeiture

See SCAO’s table detailing disbursement procedures under different circumstances. See also SCAO Administrative Memorandum 2017-01, Surety Bond Process, for additional discussion. Note that a district court magistrate does not have the authority to sign an order revoking release and forfeiting bond. See MCL 600.8511 (detailing a district court magistrate’s authority without granting authority to revoke release or forfeit bond).

A.Default, Arrest of Accused, and Release of Surety

Upon a finding that a defendant has failed to comply with conditions of release, the court may issue a warrant.¹ MCR 6.106(I)(2). See SCAO Form MC 229, Motion, Affidavit, and Bench Warrant. See also SCAO Administrative Memorandum 2017-01, Surety Bond Process. Upon issuing the bench warrant, the court should set a show cause date, prepare SCAO Form MC 218, Order Revoking Release and Forfeiting Bond, Notice of Intent to Enter Judgment, and sign and mail the form to the defendant, the surety agent, anyone who posted bond, and the prosecutor. SCAO Administrative Memorandum 2017-01, Surety Bond Process. However, MCL 600.8511 does not confer to a district court magistrate the authority to sign SCAO Form MC 218, Order Revoking Release and Forfeiting Bond, Notice of Intent to Enter Judgment. See SCAO Administrative Memorandum 2017-01, Surety Bond Process. If the defendant has failed to appear, the court must notify the surety “within 7 days after the date of the [defendant’s] failure to appear[.]” MCL 765.28(1). The court should complete SCAO Form MC 218a. If judgment is entered, the court should prepare, sign, and mail SCAO Form MC 238, Judgment After Bond Forfeiture.

“If the defendant has failed to comply with the conditions of release, the court may, pursuant to MCR 6.103, issue a warrant for the arrest of the defendant and enter an order revoking the release order and declaring the bail money deposited or the surety bond, if any, forfeited.

(a) The court must mail notice of any revocation order immediately to the defendant at the defendant’s last known address and, if forfeiture of bail or bond has been ordered, to anyone who posted bail or bond.

(b) If the defendant does not appear and surrender to the court within 28 days after the revocation date, the court may continue the revocation order and enter judgment for the state or local unit of government against the defendant and anyone who posted bail or bond for an amount not to exceed the full amount of the bail, and costs of the court proceedings, or if a surety bond was posted, an amount not to exceed the full amount of the surety bond. If the amount of a forfeited surety bond is less than the full amount of the bail, the defendant shall continue to be liable to the court for the difference, unless otherwise ordered by the court. If the defendant does not within that period satisfy the court that there was compliance with the conditions of release other than appearance or that compliance was impossible through no fault of the defendant, the court may continue the revocation order and enter judgment for the state or local unit of government against the defendant alone for an amount not to exceed the full amount of the bond, and costs of the court proceedings.

(c) The 10 percent bail deposit made under [MCR 6.106(E)(1)(a)(ii)(B)] must be applied to the costs and, if any remains, to the balance of the judgment. The amount applied to the judgment must be transferred to the county treasury for a circuit court case, to the treasuries of the governments contributing to the district control unit for a district court case, or to the treasury of the appropriate municipal government for a municipal court case. The balance of the judgment may be enforced and collected as a judgment entered in a civil case.” MCR 6.106(I)(2).

“Notwithstanding any provision of law to the contrary and except in cases where the complaint is for an assaultive crime or an offense involving domestic violence, in the event that a defendant fails to appear for a court hearing and it is the defendant’s first failure to appear in the case, there is a rebuttable presumption that the court must wait 48 hours before issuing a bench warrant to allow the defendant to voluntarily appear. If the defendant does not appear within 48 hours, the court shall issue a bench warrant unless the court believes there is good reason to instead schedule the case for further hearing.” MCL 764.3(1). “The court may overcome the presumption under [MCL 764.3(1)] and issue an immediate bench warrant for the defendant’s failure to appear if the court has a specific articulable reason to suspect that any of the following apply:

(a) The defendant has committed a new crime.

(b) A person or property will be endangered if a bench warrant is not issued.

(c) Prosecution witnesses have been summoned and are present for the proceeding.

(d) The proceeding is to impose a sentence for the crime.

(e) There are other compelling circumstances that require the immediate issuance of a bench warrant.” MCL 764.3(3).

The court must state its reasons for departing from the presumption under MCL 764.3(1) if it issues an immediate bench warrant. MCL 764.3(4). “When a court delays the issuance of a warrant, the court shall not revoke the release order or declare bail money deposited or the surety bond, if any, forfeited. Upon the issuance of the arrest warrant, the court may then enter an order revoking the release order and declaring the bail money deposited, personal recognizance bond, surety bond, or 10% bond, if any, forfeited.” MCL 764.3(2).

1.No Constitutional Right to Counsel at Bond Revocation Hearing

“[A] bond revocation hearing [is] not a ‘critical stage’ in [a criminal] proceeding because it [does] not have any effect on the determination of [the] defendant’s guilt or innocence[;]” accordingly, where the hearing is “completely independent from [the] defendant’s jury trial, the presence of counsel [is] not constitutionally required.” People v Collins, 298 Mich App 458, 470 (2012).

2.Release of Surety After Accused is Detained

“In all criminal cases where a person has entered into any recognizance for the personal appearance of another and such bail and surety afterwards desires to be relieved from responsibility, he or she may, with or without assistance, arrest or detain the accused and deliver him or her to any jail or to the sheriff of any county.” MCL 765.26(1). “In making the arrest or detainment, he or she is entitled to the assistance of any peace officer.” Id.

“The sheriff or keeper of any jail is authorized to receive the principal and detain him or her in jail until he or she is discharged.” MCL 765.26(2). “Upon delivery of his or her principal at the jail by the surety or his or her agent or any officer, the surety shall be released from the conditions of his or her recognizance.” Id.

3.Mittimus

“Whenever the prosecuting attorney of a county is satisfied that a person who has been recognized to appear for trial has absconded, or is about to abscond, and that his or her sureties or either of them have become worthless, or are about to dispose or have disposed of their property for the purpose of evading the payment or the obligation of such bond or recognizance or with intent to defraud their creditors, and that prosecuting attorney makes a satisfactory showing to this effect to the court having jurisdiction of that person, the court or judge shall promptly grant a mittimus to the sheriff or any peace officer of that county, commanding him or her forthwith to arrest the person so recognized and bring him or her before the officer issuing the mittimus and on the return of that mittimus may, after a hearing on the merits, order him or her to be recommitted to the county jail until such time as he or she gives additional and satisfactory sureties, or is otherwise discharged.” MCL 765.26(3).

“MCL 765.26 . . . intend[s] to reward a surety who, through its own diligence, apprehends and surrenders the principal to the appropriate authorities.” In re Forfeiture of Surety Bond, 208 Mich App 369, 372-373 (1995) (surety “was not released from liability inasmuch as it failed to pursue its statutory remedies despite the fact that it was plainly aware of [the] defendant’s whereabouts during the period between his default and subsequent arrest”).

4.Providing Surety Notice of Defendant’s Failure to Appear

“If a defendant fails to appear, within 7 days after the date of the failure to appear the court shall serve each surety notice of the failure to appear.” MCL 765.28(1). “The notice must be served upon each surety in person, left at the surety’s last known business address, electronically mailed to an electronic mail address provided to the court by the surety, or mailed by first-class mail to the surety’s last known business address. However, if the notice is served by first-class mail, it must be mailed separately from the notice of intent to enter judgment.” Id. “Each surety must be given an opportunity to appear before the court on a day certain and show cause why judgment should not be entered against the surety for the full amount of the bail or surety bond.” Id. “If good cause is not shown for the defendant’s failure to appear, the court shall enter judgment against the surety on the recognizance for an amount determined appropriate by the court but not more than the full amount of the bail, or if a surety bond has been posted the full amount of the surety bond.” Id. “If the amount of a forfeited surety bond is less than the full amount of the bail, the defendant shall continue to be liable to the court for the difference, unless otherwise ordered by the court.” Id. “Execution must be awarded and executed upon the judgment in the manner provided for in personal actions.” Id. See also SCAO Form MC 218a (notice to surety of defendant’s failure to appear).

Where “the trial court did not even mail the notice [of the defendant’s default] until the eighth day” following the defendant’s failure to appear, “the notice was not timely” under MCL 765.28(1). In re Forfeiture of Bail Bond (People v Stanford), 318 Mich App 330, 335-336 (2016), additionally citing MCR 6.106(I)(2).² Furthermore, although “notice of the hearing on the motion to enter judgment against the surety was timely pursuant to MCR 3.604(I)(2)” where it was mailed by the court 29 days before the scheduled hearing, “that [did] not obviate the fact [that] the surety did not receive proper notice of the default itself”; rather, because “the court failed to give the surety immediate notice within seven days” of the default, “the court [could not] require the surety to pay the surety bond.” Stanford, 318 Mich App at 335-337 (noting that “MCL 765.28(1) and MCR 3.604(I)(2) do not conflict” because they govern “two separate and distinct events”; MCL 765.28(1) governs “the procedure for providing a surety notice of a default,” while MCR 3.604(I)(2) governs “the procedure to provide notice of a hearing on a motion for judgment”).

Under MCL 765.28(1), “[o]nce a default occurs, the surety must be given an opportunity to appear before the court and show cause why the judgment should not be entered against it for the full amount of the bond. If good cause is not shown, the court must enter a judgment against the surety on the bond for any amount it deems appropriate up to the full amount of the bond.” In re Forfeiture of Surety Bond, 208 Mich App at 374.³ “The judgment is as ‘enforceable, reviewable and appealable’ as any other judgment rendered in a personal action.” Id., quoting People v Evans, 434 Mich 314, 331 (1990) (additional citations omitted). See also SCAO Administrative Memorandum 2017-01, Surety Bond Process.

However, “a court’s failure to comply with the seven-day notice provision of MCL 765.28(1) bars forfeiture of a bail bond posted by a surety.” In re Bail Bond Forfeiture (People v Gaston), 496 Mich 320, 339 (2014), overruling In re Forfeiture of Bail Bond (On Remand), 276 Mich App 482 (2007).⁴ “When a statute provides that a public officer ‘shall’ do something within a specified period of time and that time period is provided to safeguard someone’s rights or the public interest, as does the statute here, it is mandatory, and the public officer who fails to act timely is prohibited from proceeding as if he or she had acted within the statutory notice period.” Gaston, 496 Mich at 339-340 (“vacat[ing] the trial court’s orders to the extent that the orders forfeited the bail bond posted by the surety and ordered the surety to pay [the full amount of the bond]”). Similarly, where the surety receives timely notice of the motion to enter judgment under MCR 3.604(I)(2),⁵ but the notice itself is not timely under MCL 765.28(1), “the court cannot require the surety to pay the surety bond.” In re Bail Bond Forfeiture, 318 Mich App 330, 337 (2016) (the notice sent to the surety was postmarked eight days after the defendant failed to appear in violation of MCL 765.28(1)).⁶

B.Setting Aside Bond Forfeiture

The trial court must consider a motion to set aside a bond forfeiture judgment under the standards set out in MCL 765.28(2) and MCL 600.4835. People v Bray, 481 Mich 888, 889 (2008).

“[T]he court shall set aside the forfeiture and discharge the bail or surety bond within [1⁷] year from the date of forfeiture judgment if the defendant has been apprehended, the ends of justice have not been thwarted, and the county has been repaid its costs for apprehending the person.” MCL 765.28(2).⁸ “If the bond or bail is discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the surety.” Id. See also SCAO Administrative Memorandum 2017-01, Surety Bond Process.

“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.” MCL 600.4835. “But [MCL 600.4835] does not authorize such court to remit any fine imposed by any court upon a conviction for any criminal offense, nor any fine imposed by any court for an actual contempt of such court, or for disobedience of its orders or process.” Id.

“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 [MCL 765.15(2)] if the person who forfeited bond or bail is apprehended, the ends of justice have not been thwarted, and the county has been repaid its costs for apprehending the person.” MCL 765.15(1).

MCL 765.28, as amended in 2002 “to allow for a [bond] forfeiture judgment to be set aside,” is not “the sole and exclusive remedy” for commercial sureties; rather, “the remedy under MCL 600.4835 [(generally permitting the court to remit any penalty)] remains viable[.]” Calvert Bail Bond Agency, LLC v St Clair Co, 314 Mich App 548, 552, 554, 556 (2016) (holding that the trial court erred in dismissing the plaintiff bail bond agency’s claim for remittance under MCL 600.4835 on the ground that MCL 765.28 was the exclusive remedy for the return of sums paid to the defendant county on bond forfeiture judgments). “MCL 765.28(2) [and MCL 765.28(3)] provide a ‘safe harbor,’ in which, if certain conditions are satisfied, a surety is entitled to a remittance of the forfeiture it paid[, and the] court lacks any discretion[;] . . . MCL 600.4835, on the other hand, gives the court discretion to remit forfeited recognizances” as it deems just and equitable. Calvert Bail Bond Agency, 314 Mich App 555. Therefore, the two statutes “do not conflict because each statute can be given its full effect without affecting the other.” Id. at 555. See also SCAO Administrative Memorandum 2017-01, Surety Bond Process.

“[A] person is ‘apprehended’ within the meaning of [MCL 765.15(1)]^[9] when that person is held in custody in another state.” In re Forfeiture of Bail Bond, 209 Mich App 540, 543 (1995) (trial court erred in denying a bond depositor’s motion to set aside a forfeiture on the ground that the defendant, who had been taken into custody in New Jersey on unrelated charges seven months after the forfeiture was entered and remained in custody there at the time of the depositor’s motion, “had not been returned to the county where the bond was posted[]” and had therefore not been “apprehended” within the meaning of former MCL 765.15(a)); see also In re Forfeiture of Bail Bond, 229 Mich App 724, 728 (1998) (“the first criterion [of former MCL 765.15(a) (that the defendant be ‘apprehended’)] was met by [the] defendant’s apprehension in New Jersey within one year of the forfeiture judgment”).

“[T]he following considerations are among those relevant to determining whether ‘the ends of justice have not been thwarted’: (1) the depositor’s role, if any, in hiding the defendant, failing to assist in the apprehension of the defendant, or affirmatively assisting in the apprehension of the defendant; (2) the length of time elapsing between the defendant’s failure to appear and his [or her] ultimate apprehension; (3) the extent to which evidence has been lost (e.g., death or unavailability of witnesses, fading of witnesses’ memories) or whether the prosecution’s case has otherwise been affected by the delay; (4) the extent to which the defendant has committed additional crimes before apprehension, and the seriousness of such crimes; (5) the extent to which there has been a psychological or emotional effect upon the initial victim as a result of the defendant being at large; (6) the extent to which the defendant’s apprehension was involuntary; and (7) the extent to which extradition or other legal procedures have been required, thereby causing additional delays in carrying out justice.” In re Forfeiture of Bail Bond, 229 Mich App at 729-731 (noting that “[w]hile a depositor obviously risks losing the funds deposited if the defendant fails to appear, a depositor does not, by virtue alone of providing funds for a bond, undertake an affirmative duty to produce the defendant[; r]ather, . . . the depositor’s involvement, if any, in either hiding or apprehending the defendant is simply a relevant consideration in determining whether ‘the ends of justice have not been thwarted’”).

“[T]he costs of ‘apprehending the person’ under [MCL 765.15(1)] include a jurisdiction’s costs in locating the defendant, as well as any extradition costs..” In re Forfeiture of Bail Bond, 229 Mich App at 731-732 (noting that “[t]he county’s costs to locate the defendant (e.g., man-hours of investigative time, professional and support personnel costs, telephone calls) are all part of the costs of apprehension”).

For additional discussion on this topic, see SCAO Administrative Memorandum 2017-01, Surety Bond Process.