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People v. Turner

OPINION FILED FEBRUARY 2, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JACKIE TURNER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. RYAN, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant, Jackie Turner, was charged by indictment with violation of bail bond. (Ill. Rev. Stat. 1971, ch. 38, par. 32-10.) Following a bench trial, defendant was found guilty and sentenced to the penitentiary for a term of one to three years. On appeal, defendant contends that: (1) the State failed to prove that a notice of bond forfeiture was mailed to defendant as required by statute; (2) the violation of bail bond statute is unconstitutional; (3) the indictment is defective since it fails to state an offense; (4) the right to a speedy trial was abridged; and (5) the sentence was excessive.

We affirm the judgment of the trial court.

On April 12, 1972, defendant was arrested for the offense of armed robbery. Bond was set at $10,000 and defendant was released the following day. Defendant appeared in court on that charge on July 27, 1972. The case was continued to August 30, 1972. Defendant failed to appear on this date and the court ordered a bond forfeiture and issued a warrant for defendant's arrest. On November 25, 1972, defendant was arrested, pursuant to warrants, for armed robbery, bond forfeiture and aggravated kidnapping. *fn1

Defendant testified that he failed to appear for the August 30 court date, as well as an August 9 court date relating to a second robbery charge, due to the outstanding warrant for aggravated kidnapping. In early August, defendant telephoned assistant state's attorney Beranek, Beranek was the prosecutor in a case involving several leaders of the Black P Stone Nation street gang who had shot defendant. Beranek told defendant that no arrangements for bail bond in connection with the aggravated kidnapping charge had been made, and that defendant should call again the next day. The second time defendant called, Beranek told him that there was nothing that could be done regarding bail. Beranek further stated that police officers were in his office and that defendant should come in and surrender on the charge. Defendant replied that the gang leaders were presently in Chicago testifying before a Federal grand jury and were being housed in Cook County Jail. Defendant feared that he would be killed if he were jailed instead of being released on bond. Beranek stated that no bond had been set for the case and he did not know what kind of protection would be provided, but that he would see what could be done.

Shortly before the August 9 court date, defendant again called Beranek and told him that the robbery cases were soon due to be heard. Beranek replied that he would try to do something about them.

Defendant also spoke with Joseph Branch, a police officer, and with Don Ross, campaign manager for State's Attorney Carey. Neither could give defendant any assurances that he would be safe if incarcerated.

After the state rested its case, defense counsel introduced an order, dated February 2, 1973, and signed by Judge Cerda, vacating the bond forfeiture which was entered after defendant had failed to appear on August 9, in connection with the second robbery charge.

• 1 Initially, defendant contends that it was necessary to prove that a notice of forfeiture in connection with the first armed robbery bond was mailed to defendant in order to sustain a conviction for violation of bail bond. Section 110-7(g) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 110-7(g)) provides that the accused be mailed a notice that his bond has been ordered forfeited. However, there is no requirement that this statute be read and construed with reference to section 32-10.

In People v. Ratliff (1976), 65 Ill.2d 314, 318, 357 N.E.2d 1172, 1175, the supreme court reviewed the identical contention:

"These statutory provisions are distinct and independent of each other. Section 32-10 defines the criminal offense of violation of bail bond and provides that violators are guilty of either a Class 4 felony or a Class A misdemeanor. To sustain a conviction under this statute, the State must establish that the defendant incurred a forfeiture of his bail and that the defendant willfully failed to surrender himself to the court within 30 days following the date of the forfeiture. There is no necessity for the State to prove that notice of the bail forfeiture was mailed to the defendant. Section 110-7(g) provides the means by which the State can acquire a money judgment against a defendant who violates the provisions of his bail bond by failing to appear in court. To acquire such a judgment, the State must establish that, after an order was entered declaring the defendant's bail to be forfeited, notice of the order was mailed to the defendant at his last known address. We see no reason to hold that the two statutory provisions are in pari materia."

We see no reason to depart from this holding and accordingly reject defendant's contention.

Defendant also contends that the violation of bail bond statute is unconstitutional since it requires no criminal intent at the time of the bond forfeiture.

Initially, we note that defendant did not raise this issue in the trial court. It is well settled that non-jurisdictional questions relating to the constitutionality of a statute must be asserted in the trial court, or the matter is deemed ...


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