Order Michigan Supreme Court
Lansing, Michigan
November 10, 2005 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
127699-702 Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
IN RE FORFEITURE OF BAIL BONDS. Justices
_________________________________________/
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v SC: 127699-702
COA: 257871, 259048, 259049,
and 259050
GREGORY LYNN MOORE, WILLIAM Kent CC: 00-011694-FH,
FRANCIS LINEMAN, EDUARDO VELEZ, 01-004866-FH, 02-006586-FH,
JR., and RONALD ALLAN SHEPARD, and 02-012595-FC
Defendants,
and
BOND BONDING AGENCY,
Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the November 30, 2004
orders of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we REMAND this case to the Court of Appeals for
consideration as on leave granted.
MARKMAN, J., concurs and states as follows:
I concur in the decision to remand this case to the Court of Appeals for
consideration as on leave granted. I write separately only to offer additional guidance to
that court.
MCL 765.28(1) was amended on April 1, 2003, and provides, in pertinent part:
After the default is entered, the court . . . shall give each surety
immediate notice not to exceed 7 days after the date of the failure to appear.
The notice shall be served upon each surety in person or left at the surety’s
last known business address. [Emphasis added.]
2
The Legislature’s use of the word “shall” in a statute “indicates a mandatory and
imperative directive.” Burton v Reed City Hosp Corp, 471 Mich 745, 752 (2005). Here,
defendant Shepard failed to appear for sentencing on September 9, 2003. Thus, the
mandatory language of the amended statute applied to his case. Yet the trial court did not
provide notice to the surety until March 16, 2004—well after the required seven-day
notice period had elapsed. The trial court reduced the amount to be forfeited from
$20,000 (the original amount of the bond) to $18,400 as a proportional reduction in
response to its delay.
On remand, the Court of Appeals should consider the statute, and whether the trial
court’s decision to simply reduce the amount forfeited under the bond fully comports
with the requirements of the statute.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 10, 2005 _________________________________________
d1107 Clerk