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State v. Mottolese

Supreme Court of Vermont

June 12, 2015

State of Vermont
v.
Joseph Mottolese (Allstate Bail Bonds, Appellant)

On Appeal from Superior Court, Bennington Unit, Criminal Division. Nancy Corsones, J.

Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

James A. Valente of Costello, Valente & Gentry, P.C., Brattleboro, for Appellant Allstate Bail Bonds.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

OPINION

Page 810

Skoglund, J.

Appellant Allstate Bail Bonds (" Allstate" ) challenges the trial court's decision granting the State's motion for forfeiture

Page 811

of bond. On appeal, Allstate argues that the trial court abused its discretion in declining to reduce the amount of bail forfeiture when Allstate could not produce defendant due to his out-of-state incarceration. We agree that Allstate is entitled to a reduction in bail forfeiture, and therefore reverse.

On June 17, 2013, defendant was arraigned for grand larceny and possession of stolen property. Two days later, the court set bail at $35,000. Defendant posted bail on July 2, 2013 through a bond procured from Allstate. Allstate delivered a surety bond for defendant and signed a " Surety Bond" contract with the State, which provides in relevant part:

In order to secure the defendant's release I/we, the undersigned, do voluntarily agree to act as surety for the defendant and to become firmly bound to the Court to guarantee the appearance of the defendant at all required court proceedings, including execution of sentence. I/We, the undersigned, understand that as surety it is my/our responsibility to know when and where the defendant is to appear.

As a condition of his release, defendant could reside in his home state of New York.

On January 10, 2014, defendant was incarcerated in New York on separate charges. As a result of his incarceration, defendant failed to appear at Bennington Superior Court for final calendar call on February 4, 2014, a required appearance. The next day, the court issued a warrant for defendant's arrest. On March 11, 2014, the State of Vermont filed a motion to forfeit bail due to defendant's failure to appear. See 13 V.S.A. § 7560a(a)(2)(A). A hearing on the motion was held March 25, 2014, but after Allstate suggested it would seek a surety warrant, the court continued the hearing to May. Soon after, Allstate requested a surety warrant, seeking to collect defendant upon release in New York and return him to Vermont. See 13 V.S.A. § 7562. On May 2, 2014, the court denied the request, stating that under State v. Marsh, 173 Vt. 531, 789 A.2d 939 (2001) (mem.), the court had no authority to issue a surety warrant when defendant was incarcerated at the time Allstate made its request.

On May 29, 2014, the court held the second hearing on the State's motion to forfeit bail. Again, defendant did not appear due to being incarcerated. Allstate moved for a reduction in forfeiture to an amount consistent with the cost of extradition. See 13 V.S.A. § § 7560a(d), 7570.[1] The State contested that a ...


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