State v. Hicks2/7/2002
defendant failed to appear at scheduled status hearing, stating that one of the elements of the crime was that the defendant had been required to appear at the time in question, and holding that it was proper to infer the defendant's willfulness from the fact that he had notice of the hearing date); Abdul-Musawwir v. State, 483 N.E.2d 464, 466 (Ind. Ct. App. 1985) (affirming conviction where the defendant failed to appear for trial date and stating that an element of the crime is that the defendant be required to appear at a specific time and place)).
One court held that, although it might seem appropriate to utilize a bail jumping statute for failure to pay fines, a defendant is not generally required to appear to pay a fine or penalty. See Ellmore, supra, § 25 , at 1132 (citing People v. Sanchez, 464 N.Y.S.2d 674, 676 (N.Y. Crim. Ct. 1983) (holding that the defendant could not be charged with bail jumping for failing to pay a fine, and emphasizing that an essential element of the crime of failure to appear was that the defendant's personal appearance was actually required in a criminal proceeding)). Another court reversed a bail jumping conviction when the trial court's order specifying the required appearance date was too vague. See Ellmore, supra, § 25 , at 1137 (citing State v. Mouttet, 372 N.W.2d 121, 123 (S.D. 1985) (holding that the trial court's order violated due process because it was unclear whether or not the defendant was required to appear on the date in question)).
Referring specifically to the failure to appear statute, this Court has previously admonished, as we do again today, that "`courts will not extend punishment to cases not plainly within the [statutory] language used.'" Foster, 1998-NMCA-147, 10 (quoting State v. Thompson, 57 N.M. 459, 464, 260 P.2d 370, 373 (1953)). In interpreting this statute, we need not decide today whether the words "to appear" are limited to appearances at formal hearings or trials, as opposed to "appearing" with money to post bond, when so ordered, although the former is the context in which prosecutions largely have arisen under this statute. See, e.g., Peppers, 110 N.M. at 394, 796 P.2d at 615; Aranda, 94 N.M. at 785, 617 P.2d at 174. We do, however, interpret the statute as requiring, at a minimum, some time, date, and place certain at which the defendant must "appear" in person, whatever the purpose of that appearance may be. Here, that essential element of a required personal appearance is missing.
We agree with Defendant that the executed Release Order and Bond form did not require his appearance in person, as much as it required the "appearance" of his money. Had Defendant timely appeared before the magistrate court without the $100, his appearance would not have satisfied the court order; he would have continued to be in violation of his conditions of release and subject to arrest. See § 31-3-2. However, had the required money been posted with the court by someone else, even without Defendant's personal appearance, the magistrate court's conditions of release would have been satisfied. See Rule 9-303(A) (Use Note) (advising that " paid surety may post cash with the court"). Our conclusion is corroborated by the blanks left by the magistrate judge in the spaces which would have directed Defendant to appear at a given time, place and date, if his personal appearance had been required. Thus, the facts as charged and as elicited at trial simply do not constitute a violation of this penal statute when "strictly construed" against the State, and in recognition of the principle of lenity. See Sung, 2000-NMCA-031, 15.
Our decision leaves the State with sufficient options to compel compliance with conditions o
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