Bail/Bond
Updated: 3/24/05


Bail as Satisfaction for Court-Ordered Costs
State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05
For Baker: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: The plain text of 969.02(6) mandates that bail money be used to satisfy court costs, with no room for discretionary return to the depositor rather than payment of costs. 7-9.
This is a misdemeanor, but the relevant felony statute, 969.03(4), is indistinguishable and the holding would undoubtedly apply.  Note, too, that the latter statute has been upheld against due process / notice attack, State v. Iglesia, 185 Wis. 2d 117, 517 N.W.2d 175 (1994). It may be worth recalling that restitution is treated distinctly and is not subject to these bail-satisfaction provisions, State v. Cetnarowski, 166 Wis. 2d 700, 713, 480 N.W.2d 790 (Ct. App. 1992). Baker, it should be mentioned, also argued that the trial court may – and in this instance at least implicitly did – waive court costs, thus freeing the way for return of all the cash bail. The court of appeals, however, declines to reach the issue, leaving it open for further litigation, 10: “In general,  814.29(1) protects the constitutional right of access to the courts for all. Whether  814.29(1) provides a basis to waive court costs ordered at judgment in a criminal proceeding is not an issue that is properly before us today. The circuit court did not waive Baker's costs-it ordered them satisfied through credit for jail incarceration time.” In other words, because the issue of waiver of costs is explicitly left open, this holding does not inhibit you from asking the court to waive costs, thus freeing up posted bail for return to the depositor.
Forfeiture -- Discretion
Barbara Melone v. State, 2001 WI App 13, 240 Wis. 2d 451, 623 N.W.2d 179
For Melone: Theodore B. Kmiec III
Issue: Whether the trial court properly exercised discretion in declining to set aside an order forfeiting bail, where the court indicated that it "always refuses to return [forfeited] bail money no matter what the circumstance." ¶1.
Holding: "[T]he statute on bail forfeitures, WIS. STAT. § 969.13(2) (1997-98), 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." ¶1. (See also ¶¶8-12 for general discussion of relevant factors, which court cautions "cannot be neatly parlayed into an all-inclusive, exhaustive list.")
No-contact provision - enforceability during incarceration.
State v. Oto Orlik, 226 Wis.2d 527, 595 N.W.2d 468 (Ct. App. 1999).
For Orlik: Steven P. Weiss, SPD, Madison Appellate.
Holding: Trial court lacks authority, under §§ 969.01 & 969.03, to impose no-contact order as condition of bail for someone who remains incarcerated. However, the separate procedure authorized in § 940.47 may be utilized in such a situation.