APPEAL from the Circuit Court of Wayne County; the Hon. ALBERT
W. McCALLISTER, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
This case is before us on the State's appeal from an order of the Circuit Court of Wayne County denying forfeiture of defendant's bail bond. Defendant was charged with aggravated battery and intimidation. Bail was set at $25,000 on each charge and defendant was released after posting 10 percent of the total amount. As conditions of his release, defendant was ordered, inter alia, to refrain from contacting or harassing his estranged wife and children, alleged conduct out of which the charges arose, to observe the law, and to reside in Ohio for employment purposes. On March 21, 1978, while the battery and intimidation charges were pending, the state's attorney applied for a warrant against defendant for breach of bond conditions, alleging that defendant had violated the conditions of his bond by attempting to break into his wife's home in Wayne County.
A bond revocation hearing was held on April 13, 1978. The court heard testimony from defendant's wife and two neighbors who were in the house at the time defendant attempted to enter. The court determined that there was clear and convincing evidence of defendant's commission of a forcible felony while on bail and accordingly ordered the revocation of defendant's bond as authorized by section 110-6(e)(3) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 110-6(e)(3)).
Subsequently, defendant pleaded guilty to the initial charge of aggravated battery and the charge of intimidation was dismissed. During the sentencing hearing on June 8, the assistant state's attorney addressed the subject of defendant's bail deposit:
"Mr. Robison [Assistant State's Attorney]: * * * The State would further ask that some type of order, which may be somewhat out of order, but an order be entered in connection with the bail deposit. In light of the fact that bond was violated, the State would ask that an order be entered for the $5,000 that was posted in, I think, 77-CF-35 and 36 and that if any court costs are assessed that these be taken out of the additional two thousand dollar bail money that was posted for the bail bond violation. * * *
Mr. Van Winkle [defense counsel]: * * * Now, on the order, we don't feel I suppose what he's asking here, he's asking that the bail of five thousand dollars be forfeited, so forth, so on. What we would like to do on that is do a little research and submit a written brief on that particular portion. We aren't really prepared to argue that."
The court reserved its ruling on the forfeiture.
The court informed both parties by letter on July 13, 1978, that the State's forfeiture motion would be denied because "there was not a forfeiture declared nor was there any notice given as required by law to effectuate the taking of the bail on the forfeiture, as required by section 110-7(g)." (Ill. Rev. Stat. 1977, ch. 38, par. 110-7(g), renumbered 110-7(h) by Pub. Act. 80-1149, eff. July 1, 1978).) An order denying forfeiture was entered on July 19, 1978.
The State's motion to vacate the July 19 order was denied on September 14, 1978 on grounds that:
"1. The by the filing of an Application For Warrant For Breach of Conditions of Bail Bond on March 21, 1978, the State elected to seek remedies provided by Ill. Rev. Stat. ch. 38, § 110-6(e).
2. That by an Order entered in the above-entitled cause on April 13, 1978, the Court revoked the Defendant's bond and ordered him to be held without bond pursuant to the provisions of Ill. Rev. Stat. ch. 38, § 110-6(e).
3. That no request was made by the State for forfeiture or for a judgment pursuant to the provisions of Ill. Rev. Stat. ch. 110, § 7(g), prior to the conclusion of the sentencing hearing held on June 8, 1978."
On appeal, the State contends that the circuit court erred in denying the motion for forfeiture and further contends that forfeiture may be accomplished without the 30-days' notice required by section 110-7(h) when the defendant has been present at the hearing which established the violation of a condition of the bond.
Defendant would have us affirm the trial court's order on grounds that the State's appeal is not timely and that forfeiture is contemplated by statute only when a defendant violates the bond condition that requires his presence in court by failing to appear. We find the appeal timely taken ...