February 6, 2014
THOMAS D. DILLMAN, Appellant-Petitioner,
STATE OF INDIANA, Appellee-Respondent
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE MONROE CIRCUIT COURT. The Honorable Marc R. Kellams, Judge. Cause No. 53C02-0301-FD-27.
THOMAS D. DILLMAN, Appellant, Pro se, Branchville, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, JUSTIN F. ROEBEL, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Thomas D. Dillman, pro se, appeals the trial court's
denial of his motion for release of bond. Because the charges against Dillman
were dismissed in this case and there was no agreement for the trial court to
apply the $500 cash bond in this case to the costs in another cause number, the
trial court erred in denying Dillman's motion for release of bond. Dillman is
entitled to his $500 cash bond. We therefore reverse and remand.
Facts and Procedural History
On January 8, 2003, the State charged Dillman with
Class D felony assisting a criminal and Class B misdemeanor visiting a common
nuisance in this case, Cause No. 53C02-0301-FD-27 (Cause No. 27). Bond was set
at $2000 surety and $500 cash. On November 17, 2003, these charges were
dismissed in exchange for Dillman pleading guilty to Class C misdemeanor
illegal transportation of alcohol by a minor in Cause No. 53C02-0303-CM-756
(Cause No. 756). Appellant's App. p. 3; Tr. p. 4, 10. When these charges were
dismissed, Dillman's attorney asked that the cash bond in this case be used to
pay the costs and fees in Cause No. 756. Tr. p. 10-12. Dillman gave the trial
court his current address in case there was any remaining bond to be returned to
him. Id. at 13 (Dillman giving his address as Duncan Road in Bloomington). Based
on this arrangement between the parties, the trial court's CCS entry in this
case provides, "Clerk is directed to release any cash bond and apply same to
costs under [Cause No. 756] with remainder to defendant." Appellant's App. p. 3
(November 17, 2003 CCS entry).
But because the costs in Cause No. 756 had already
been paid, on December 2, 2003, the Monroe County Clerk sent the $500 cash bond
to Dillman on Duncan Road in Bloomington by certified mail. See id. ("Clerk
notes that costs in [Cause No. 756] have been paid and therefore refunds bond
under this cause to the defendant by certified mail.") (December 2, 2003 CCS
entry); Appellant's "Reply" App. p. 6-7 (certified mail containing bond
check returned to clerk after only one attempt to Duncan Road). The Monroe
County Clerk then placed the money in trust.
Almost seven years later, on October 21, 2010, the
Monroe County Clerk filed a motion in this case entitled "Clerk Requests Court's
Direction," which provides:
1.) An Outstanding Bond of $500.00 existed on this
2.) The bond was ordered to be applied towards [Cause
No. 756] on 11/17/2003[.]
3.) The court costs under [Cause No. 756] were
already paid therefore the Clerk attempted to return the $500.00 to the
4.) The Defendant could not be found therefore the
Clerk placed the $500.00 in to Trust.
5.) The Defendant has since acquired outstanding
court costs under 53C05-0609-FD-00470 [(Cause No. 470)].
Appellant's Supp. App. p. 1. There is no indication in the record that the clerk
tried to serve this motion on Dillman. One week later, the trial court made an
administrative entry in the CCS directing the clerk "to apply any remaining cash
bond in trust to costs and fees assessed in [Cause No. 470]." Appellant's App.
p. 4 (October 28, 2010 CCS entry). There is no indication in the record that the
trial court tried to serve notice of this order on Dillman.
It appears from the record that the entire $500 cash bond in this case has been
applied to Cause No. 470. See Appellant's Supp. App. p. 3-4.
On May 29, 2013, which was more than two-and-a-half years after the trial court
directed the Monroe County Clerk to apply the $500 cash bond in this case to
costs and fees in Cause No. 470, Dillman filed a pro se motion for release of
bond. The trial court denied Dillman's motion.
Dillman, pro se, now appeals.
Discussion and Decision
Dillman contends that the trial court erred in denying his motion for release of
bond. Dillman essentially argues that because there was no agreement to apply
his $500 cash bond in this case to Cause No. 470, he is entitled to a return of
his $500. The State cites Indiana Code section 35-33-8-3.2, which provides that
a trial court may require a defendant who deposits cash as bail to execute an
agreement that authorizes the court to retain all or part of the cash to pay
costs and fees:
If the court requires the defendant to deposit cash or cash and another form of
security as bail, the court may require the defendant and each person who makes
the deposit on behalf of the defendant to execute an agreement that allows the
court to retain all or a part of the cash to pay publicly paid costs of
representation and fines, costs, fees, and restitution that the court may order
the defendant to pay if the defendant is convicted. The defendant must also pay
the fee required by subsection (d).
Ind. Code § 35-33-8-3.2(a)(1) (emphasis added). Dillman, however, was not
convicted in this case--the charges were dismissed. Moreover, the part of the
statute that provides that the trial court may require an agreement in cash-bail
cases was not added until 2006, three years after the charges against Dillman
were dismissed in this case. See P.L. 97-2006, Sec. 1. And to the extent that
the parties entered into an informal agreement in 2003 to apply the $500 cash
bond in this case to another cause number, that agreement was for Cause No. 756,
not Cause No. 470 (which, notably, did not even exist in 2003). The trial court
did not have the authority to apply the cash bond in this case to Cause No. 470.
Nevertheless, the State argues that Dillman should have appealed earlier--in 2010 when the trial court directed the clerk to apply Dillman's $500 cash bond in this case to Cause No. 470--and therefore he forfeited his appeal. However, there is simply no evidence in the record that Dillman received notice of the action taken in 2010. See Ind. Trial Rule 72(E) (" When service of a copy of the entry by the Clerk is not evidenced by a note made by the Clerk upon the Chronological Case Summary, the Clerk, upon application for good cause shown, may grant an extension of any time limitation within which to contest such ruling, order or judgment to any party who was without actual knowledge, or who relied upon incorrect representations by Court personnel." (emphasis added)). Because Dillman did not receive service of either the clerk's motion or the trial court's order in 2010, he filed the motion to release bond when he finally learned about it in 2013. Appellant's Reply Br. p. 12. Dillman proceeded in a timely manner given the circumstances.
Finally, the State argues that Dillman invited any error because he gave the trial court his wrong address in 2003. Dillman, however, maintains that the address he gave the court in November 2003--Duncan Road in Bloomington, see Tr. p. 12--was his permanent, lifelong address when service was attempted by certified mail two weeks later. As the record shows, only one attempt was made to return the $500 cash bond to Dillman on Duncan Road in Bloomington by certified mail in December 2003. See Appellant's " Reply" App. p. 6-7 (certified mail containing bond check returned to clerk after only one attempt to Duncan Road). This is not invited error.
Because the charges against Dillman were dismissed in this case and there was no agreement for the trial court to apply the $500 cash bond in this case to the costs in Cause No. 470, the trial court erred in denying Dillman's motion for release of bond. Dillman is therefore entitled to his $500 cash bond.
Reversed and remanded.
RILEY, J., and MAY, J., concur.