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AGO 1978 No. 11 - April 19, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

CRIMES ‑- PENALTIES ‑- COURTS ‑- PENALTY FOR FAILURE TO APPEAR FOLLOWING RELEASE ON PERSONAL RECOGNIZANCE

Except in the case of violations occurring between September 8, 1975 and July 1, 1976, to which RCW 10.19.130 applies, a person who fails to appear before a court after release on personal recognizance may not be charged with a crime under that statute; instead, the proper statute to be invoked in such cases is RCW 9A.76.170.

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                                                                   April 19, 1978

Honorable Ronald R. Carpenter
Prosecuting Attorney
Whitman County
County Courthouse
P.O. Box 30
Colfax, Washington 99111

                                                                                                                 Cite as:  AGO 1978 No. 11

Dear Sir:

            This is written in response to your recent request for our opinion on a question which we paraphrase as follows:

            In view of the enactment of RCW 9A.76.170, relating to the crime of bail jumping, may a person who fails to appear before a court after release on personal recognizance nevertheless still be charged with a crime under RCW 10.19.130?

            We answer your question in the qualified negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Both of the statutes referred to in your question were enacted by the 1975 legislature.  First, by § 1, chapter  [[Orig. Op. Page 2]] 2, Laws of 1975, 1st Ex. Sess., the legislature passed the following law, since codified as RCW 10.19.130:

            "Any person, having been released on personal recognizance with the requirement of a subsequent personal appearance before any court of this state, who wilfully fails to appear when so required by the court shall be guilty of a crime.  Unless otherwise shown, failure to appear when required shall be presumed to be wilful.  The penalty for wilful failure to appear shall be a fine of not more than ten thousand dollars or imprisonment for not more than five years, or both.  The penalty imposed under this section shall not exceed the maximum penalty for the original crime charged or, if there has been no charge, the offense for which the person was arrested."

            And then, as a part of the comprehensive new state criminal code contained in chapter 260, Laws of 1975, 1st Ex. Sess., the legislature, by § 9A.76.170 (now RCW 9A.76.170), provided as follows:

            "(1) Any person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails without lawful excuse to appear as required is guilty of bail jumping.  Unless otherwise established, the failure to appear when required shall be inferred to have been without lawful excuse.

            "(2) Bail jumping is:

            "(a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree;

            "(b) A class B felony if the person was held for, charged with, or convicted of a class A felony;

             [[Orig. Op. Page 3]]

            "(c) A class C felony if the person was held for, charged with, or convicted of a class B felony;

            "(d) A gross misdemeanor if the person was held for, charged with, or convicted of a class C felony;

            "(e) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor."

            The first of these two enactments took effect on September 8, 1975, or 90 days after adjournment of the session during which it was passed.  Accord, Washington Constitution, Article II, § 41 (Amendment 26).  The second statute, on the other hand, became operative only with respect to offenses committed on or after July 1, 1976 ‑ as provided for by RCW 9A.04.010(2).

            The critical issue here posed, as we view it, is whether RCW 9A.76.170 is applicable to accused or convicted persons who have been released on their personal recognizance as well as those admitted to bail.  If it is, then the two statutes obviously overlap and resort must then be made to certain legal principles involving amendments or repeals by implication in order to resolve your question.1/   But conversely, if RCW 9A.76.170 does not apply in the personal recognizance situation to which RCW 10.19.130, by its express terms, solely pertains then the two statutes may be readily reconciled on that basis and your question, as above paraphrased, answered accordingly.2/

             After due consideration we have come to the conclusion that this last posited reconciliation of the two statutes is not possible.  Instead, we are of the opinion that RCW 9A.76.170 is applicable to accused or convicted persons released on their personal recognizance, as well as to those admitted to bail, and for that reason, RCW 10.19.130 must be deemed to have been repealed by implication.  In that regard, the fact that it was not expressly repealed by the new criminal code  [[Orig. Op. Page 4]] is readily explainable since chapter 260, Laws of 1975, 1st Ex. Sess., was largely drafted prior to the commencement of that session.  Therefore, the only conflicting criminal statutes which were repealed by the new code were those which were already in existence prior to 1975.

            Our reasoning in support of the foregoing conclusion stems largely from the scope of CrR 3.2 as first promulgated by the state supreme court in 1973.  The pertinent language of this 1973 rule, which was unchanged by a subsequent 1976 amendment to the rule, reads as follows:

            "(a) Any defendant charged with an offense shall at his first court appearance be ordered released on his personal recognizance pending trial unless the court determines that such recognizance will not reasonably assure his appearance, when required.  When such a determination is made, the court shall impose the least restrictive of the following conditions that will reasonably assure his appearance or if no single condition gives that assurance, any combination of the following conditions:

            "(1) place the defendant in the custody of a designated person or organization agreeing to supervise him;

            "(2) place restrictions on the travel, association, or place of abode of the defendant during the period of release;

            "(3) require the execution of an unsecured appearance bond in a specified amount;

            "(4) require the execution of an appearance bond in a specified amount and the deposit in the registry of the court in cash or other security as directed, of a sum not to exceed 10 per centum of the amount of the bond, such deposit to be returned upon the performance of the conditions of release;

            "(5) require the execution of an appearance bond with sufficient solvent sureties, or the deposit of cash in lieu thereof;

             [[Orig. Op. Page 5]]

            "(6) require the defendant return to custody during specified hours; or

            "(7) impose any condition other than detention deemed reasonably necessary to assure appearance as required.

            ". . .

            "(d) A court authorizing the release of the defendant under this Rule shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform him of the penalties applicable to violations of the conditions imposed, if any, shall inform him of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest may be issued immediately upon any such violation.

            ". . ."

            At the time this rule was first adopted, however, there was no penal statute in effect which prescribed what may be described generally as "bail jumping."  Essentially, the only remedy which existed for a person's failure to appear was the issuance of a bench warrant followed by arrest and trial on the principal offense.  CrR 3.4(c).  Thus, both § 1, chapter 2, Laws of 1975, 1st Ex. Sess. (RCW 10.19.130), and RCW 9A.76.170 (as part of the new criminal code) appear to have been aimed at this problem.  The basic difference between the two was simply that the first (RCW 10.19.130) was aimed at only one aspect of the problem; namely, the failure of an individual to appear following release on his personal recognizance.  RCW 9A.76.170, on the other hand, was directed both to that situation and to bail jumping, per se.

           The critical point to be noted, however, is that under CrR 3.2,supra, there could be no release, even on personal recognizance, except by order of the court having jurisdiction.  In fact, the rule is written in terms of requiring the court to order the release of the defendant on his personal recognizance unless the court determines that such will not reasonably assure his appearance when due.  Therefore, since this rule was in existence at the time both the statutes were being considered by the 1975 legislature, and since there was then no  [[Orig. Op. Page 6]] other statute or rule providing for release on personal recognizance, bail or otherwise, we must conclude that the language of RCW 9A.76.170, "release by court order or admitted to bail," was intended to include release on personal recognizance ‑ notwithstanding the legislature's earlier enactment of RCW 10.19.130 covering the same subject.

            It is true, of course, that the repeal of a statute by implication is not favored in the law.  A later act will not repeal an earlier enactment except in instances where (a) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject or where (b) the two acts are so clearly inconsistent with and repugnant to each other that they cannot be reconciled and both given effect with reasonable construction.  Liquor Control Bd. v. Personnel Bd., 88 Wn.2d 368,  P.2d   (1977).  Nevertheless, in this case, we believe that both exceptions to the general rule are here applicable.  Clearly, chapter 260,supra, the new criminal code, covers the entire subject matter of the earlier legislation, is complete in itself and was intended to supersede all prior legislation on the same subject.  In addition, given the same premise that both statutes cover, inter alia, persons released by court order on their personal recognizance, it further follows that both acts are so clearly inconsistent with and repugnant to each other that they cannot be reconciled and given effect with reasonable construction.  For example, a defendant on personal recognizance following a class A felony charge who wilfully fails to appear subjects himself to an additional class B felony charge pursuant to RCW 9A.76.170.  This could result in imprisonment for a period of 10 years and a $10,000 fine.  However, if he were to be charged, instead, pursuant to RCW 10.19.130, the maximum punishment would be imprisonment for five years with a $5,000 fine.  Such a statutory dichotomy could, in fact, well be held to be unconstitutional under such cases asState v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970).

            For the foregoing reasons, then, we answer your question (as paraphrased) in the qualified negative.  Except in the case of violations occurring between September 8, 1975, and July 1, 1976, to which RCW 10.19.130 applies, a person who fails to appear before a court after release on personal recognizance may not be charged with a crime under that statute. Instead, the proper statute to be invoked in such cases is RCW 9A.76.170.

             [[Orig. Op. Page 7]]

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


KEVIN M. RYAN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Clearly, RCW 10.19.130, supra, was notexpressly repealed by anything in the new criminal code, chapter 260,supra, for, although an extensive list of some 234 prior criminal statutes were so repealed by the new code, § 1, chapter 2, Laws of 1975, 1st Ex. Sess. (RCW 10.19.130) was not one of them.

2/Cf., AGO 1969 No. 22 [[to R. Ted Bottiger, State Representative, on November 25, 1969]], copy enclosed, at p. 5.

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