State v. Hicks2/7/2002
eased Defendant on his own "recognizance," and required him to appear at an appropriate time, "by 4-1-98," to post the $100 bond or subject himself to criminal penalty for failure to appear.
We need not decide today whether Section 31-3-9 might be stretched so far. Our job in construing a penal statute is not to conjecture as to what the magistrate judge might have had in mind. As we have said repeatedly, in construing a penal statute we require the legislature to define with clarity the contours of proscribed conduct. See Sung, 2000-NMCA-031, 15. In order to invoke penal sanctions under Section 31-3-9, the State and the court must also act with precision. If the magistrate judge wanted to regard this situation as a limited release of Defendant on his own recognizance, it was incumbent on the judge to say so in clear, cogent language. We will not allow the State to put the burden on Defendant to guess at the meaning of its order.
The requirement that a criminal defendant "appear" has usually been set forth by court process, such as notice, summons, or subpoena. See State v. Easterling, 89 N.M. 486, 488, 553 P.2d 1293, 1295 (Ct. App. 1976) (holding that the defendant's oral promise to appear was insufficient to amount to a "required" appearance within the meaning of the failure to appear statute). The term "to appear" has been consistently understood as coming before the court for a set criminal proceeding, such as a hearing or trial to be held at a specific place and time. See State v. Solano, 1999-NMCA-019, 2, 126 N.M. 662, 974 P.2d 156 (indicating defendant charged with failure to appear at trial); State v. Peppers, 110 N.M. 393, 394, 796 P.2d 614, 615 (Ct. App. 1990) (affirming conviction where the defendant failed to appear at sentencing hearing); State v. Aranda, 94 N.M. 784, 785, 617 P.2d 173, 174 (Ct. App. 1980) (affirming conviction where the defendant failed to appear for trial); see also State v. Foster, 1998-NMCA-147, 1, 125 N.M. 830, 965 P.2d 949 (reversing conviction for failure to appear at probation revocation hearing, under former Section 31-3-9). But see § 31-3-9 (1999) (as amended to include probation revocation hearings).
Defendant, by contrast, was not given a specific time, date, and location at which he had to "appear," if he was actually ordered to appear at all. The requirement of posting $100 "by 4-1-98" is not conduct that may reasonably be construed as being embraced by the phrase "to appear before court." Section 31-3-9 (1973). This case simply does not fit within the usual parameters that we have established for the violation of this particular statute.
Although the relevant statutory language varies somewhat from state to state, a number of courts have taken the position that an essential element of the crime of failure to appear is that the defendant be legally required to appear at the time at issue. Karen L. Ellmore, Annotation, State Statutes Making Default on Bail a Separate Criminal Offense, 63 A.L.R.4th 1064, § 25 , at 1131 (1988) (citing State v. Hoskins, 401 A.2d 619, 624 (Conn. Super. Ct. 1978) (affirming conviction where the defendant failed to appear for trial and stating that an essential part of the crime is that the defendant was legally called under the terms of his bail bond or promise to appear); Trice v. United States, 525 A.2d 176, 178-80 (D.C. 1987) (affirming conviction where the defendant failed to appear for a court date, holding that willfullness was properly inferred from the defendant having received written notice, and stating that the defendant must have been required to appear in court on a specified date); Raymond v. United States, 396 A.2d 975, 976-77 (D.C. 1979) (affirming conviction where the
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