One act supports multiple bail jumping charges

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A single failure to appear in court can support two bail jumping charges, if the defendant faces charges in two separate cases.

The Dec. 11 opinion by the Wisconsin Court of Appeals held it irrelevant that the defendant only signed one bond for both of the two underlying cases.

In doing so, the court significantly extended the reasoning of a prior opinion, State v. Richter, 189 Wis.2d 105, 525 N.W.2d 168 (Ct.App.1994), which affirmed multiple convictions for bail jumping based on a single act, but where multiple bonds were signed.

In the new case, Dana Eaglefeathers was charged in two separate cases in Jefferson County: case 2003CF80 charged aggravated battery and intimidation of a victim; case 2003CF81 charged second-degree reckless endangerment.

He was released from custody on a single $2,000 bond that covered both cases.

When Eaglefeathers failed to appear for his preliminary hearing covering both cases, he was charged with two counts of bail jumping.

After pleading guilty, he moved to withdraw the plea on double jeopardy grounds, but Judge Randy R. Koschnick denied the motion. Eaglefeathers appealed, but the Court of Appeals affirmed, in an opinion by Judge Paul B. Higginbotham.

The court held that, although the two bail jumping offenses are identical in law, they are not identical in fact.

The test for whether offenses are different in fact, is “whether each count requires proof of an additional fact that the other count does not.” State v. Anderson, 219 Wis.2d 739, 580 N.W.2d 329 (1998).

Reviewing two Wisconsin cases addressing double jeopardy in the bail jumping context, the court held that the counts here were not identical in fact.

In Anderson, the court held that violation of a single bond supported two separate charges, where the defendant violated two separate provisions of the bond: a no-contact provision; and a no-alcohol provision.

In Richter, the court held that violation of three separate bonds, based on a single illegal phone call, supported three separate charges of bail jumping.

Extending the reasoning in Richter to the case at bar, the court explained, “the existence of one bond here rather than multiple bonds is a red herring that does not compel a different result in this case. Like Richter, Eaglefeathers’ case turns on the fact that ‘[e]ach count would require proof of facts for conviction which the other two counts would not require’ giving rise ‘to an individual factual inquiry’ for each count of bail jumping.”

Finding no clear legislative intent to preclude multiple punishments in this circumstance, the court affirmed Eaglefeathers’ convictions.

Analysis

The case should be considered a good candidate for review, and reversal, in the Wisconsin Supreme Court.

Wholly lacking in the opinion is any attempt to explain what “additional fact” would have to be presented to the jury in the two cases. The explanation for this omission is relatively simple -– no such fact can exist.

In Richter, the Court of Appeals wrote as follows: “In each of the three cases there were separate bonds issued by the court. We agree with the trial court that ‘if the State were put to their proof, they would be required to prove up the condition in each bond.’ Each count would require proof of facts for conviction which the other two counts would not require because EACH BOND WOULD GIVE RISE TO AN INDIVIDUAL FACTUAL INQUIRY. …

We conclude that the three separate bonds issued in this case created three significantly different chargeable offenses (emphasis added).” Richter, 525 N.W.2d at 170.

In short, where there are different bonds, there are different facts. In one case, the state must present to the jury one bond containing the defendant’s signature; in the second case, it must introduce a wholly different bond.

The elements of bail jumping are: first, that the defendant was either arrested for, or charged with, a felony or misdemeanor; second, that the defendant was released from custody on a bond, under conditions established by the trial court; and third, that the defendant intentionally failed to comply with the terms of his or her bond, that is, that the defendant knew of the terms of the bond and knew that his or her actions did not comply with those terms. State v. Dawson, 195 Wis.2d 161, 536 N.W.2d 119, 120 (Ct.App.1995).

To prove these elements, when only one bond is signed by the defendant, the State necessarily presents the exact same facts to the jury for each charge.

Furthermore, the court in Richter expressly distinguished the facts from those in a Florida case with identical facts to Eaglefeathers’, McGee v. State, 438 So.2d 127 (Fla.Dist.Ct.App.1983).

The Court of Appeals distinguishing McGee in Richter as follows: “In McGee, the court stated that the defendant was charged with ‘willfully fail[ing] to appear before the Court as required. … Counts Two through Seven were identical BUT FOR THE SINGLE EXCEPTION THAT THE CASE NUMER IN EACH COUNT WAS DIFFERENT.’ In contrast, the counts charged in the present case are each distinguished by a separate bond (emphasis added).’”

Richter, 525 N.W.2d at 170.

In the case at bar, in contrast, the facts are identical to those in McGee, something unacknowledged in the court’s opinion.

The result may be arbitrary, random, and capricious -– the defendant’s bail jumping exposure depends wholly on whether the court happened to draft one or more bonds for him to sign when he was released.

But, given the double jeopardy analysis employed under Wisconsin law, that result is the legally correct one.

Accordingly, courts and prosecutors should not rely on this opinion as authority for using only one bond for multiple cases. Should the issue ever receive closer scrutiny in the Supreme Court, it will have to be overturned.